MOSSMAN PROPERTY Table of Contents TABLE OF CONTENTS INTRODUCTION .............................................................................................................. 10 What is a dominant issue in making property law decisions? ........................................ 10 CHAPTER 1: PROPERTY LAW CONCEPTS ......................................................................... 11 SCIENTIFIC INNOVATION .............................................................................................. 11 Is sperm property? .................................................................................................................................... 11 JCM v ANA ............................................................................................................................... 11 Policy Issues: Technological Advancement ................................................................... 12 Assisted Human Reproductive Act / Royal Commission 1993 .......................................... 12 Sperm destroyed at sperm bank and people get $ damages.................................................................... 12 Lam v University of British Columbia ........................................................................................ 12 Hospital owns tissue excised from patient................................................................................................ 12 Piljak Estate v Abraham ............................................................................................................ 12 PROPERTY & “RIGHT TO EXCLUDE” .............................................................................. 12 Picketer charged with trespassing at mall (quasi-public area).................................................................. 12 Harrison v Carswell 1976 .......................................................................................................... 12 PROPERTY RIGHTS & CHARTER ................................................................................... 14 Why the Charter was significant for property law:.......................................................... 14 Why there are no “property rights” in the Charter (Donna Christie) ............................... 14 Montreal airport ........................................................................................................................................ 14 Committee for the Commonwealth v Canada 1991 .................................................................. 14 Occupy Toronto protestors ....................................................................................................................... 15 Batty v Toronto 2011................................................................................................................. 15 Tent city for homeless OK.......................................................................................................................... 16 Victoria City v Adams 2009 ....................................................................................................... 16 Middle men lose fish business and seek compensation ........................................................................... 16 Manitoba Fisheries 1979........................................................................................................... 16 Does man get $ because he’s not allowed to build on land he owns? ..................................................... 17 Mariner Real Estate 1999 ......................................................................................................... 17 Governmental “confiscation” of property ........................................................................ 17 ABORIGINAL CONCEPTS OF PROPERTY ......................................................................... 17 Property and Inequality .................................................................................................. 17 Is there a right to housing? No .................................................................................................................. 18 Tanajudge v Canada................................................................................................................. 18 Fiduciary relationship with AB ................................................................................................................... 18 Geurin ....................................................................................................................................... 18 CHAPTER 2: POSSESSION .............................................................................................. 18 FIRST POSSESSION..................................................................................................... 18 Relativity of Title ........................................................................................................................... 18 Possession as a Root of Title ....................................................................................................... 18 Possessory Title ........................................................................................................................... 19 Hunting fox but another guy kills it ........................................................................................................... 19 Pierson v Post ........................................................................................................................... 19 Johnson v MacIntosh ................................................................................................................ 19 Metal detector ........................................................................................................................................... 20 Page 1 of 114 MOSSMAN PROPERTY Table of Contents Perry v Gregory ........................................................................................................................ 20 FINDERS AND FIRST POSSESSION ................................................................................ 20 Boy finds jewel in chimney ........................................................................................................................ 20 Armory v Delamirie ................................................................................................................... 20 Gold bracelet on airport floor ................................................................................................................... 20 Parker v British Airway Boards ................................................................................................. 20 Ring in mud in man’s land ......................................................................................................................... 21 South Staffordshire Water Co. v. Sharman ............................................................................... 21 Employers find box of money .................................................................................................................... 22 Grafstene v Holme and Freeman .............................................................................................. 22 Person finds money on floor of store ........................................................................................................ 22 Bridges v. Hawkesworth ........................................................................................................... 22 JOINT FINDERS ........................................................................................................... 22 Boys find money in stocking ...................................................................................................................... 22 Keron v Cashman ..................................................................................................................... 22 Boys find money in trash and girl helps .................................................................................................... 23 Edmonds v Ronella ................................................................................................................... 23 Labour theory & first possession ................................................................................... 23 Impact of defining possession ....................................................................................... 23 POSSESSORY TITLE & EXTINGUISHING RIGHTS OF TRUE OWNER .................................... 24 Limitations Act 1990 .......................................................................................................... 24 Real Property Limitation Act 1990 ..................................................................................... 24 Person assumed possession, didn’t have title........................................................................................... 24 Perry v Clissold ......................................................................................................................... 24 Mans will to wife, wife remarries, dies, daughter dies ............................................................................. 25 Asher v Whitlock ....................................................................................................................... 25 Trespasser – using land you don’t have title to......................................................................................... 26 Re St Clair Beach Estates Ltd v MacDonald............................................................................. 26 Plfug.......................................................................................................................................... 26 Unilateral mistake – buys 6 lots, but uses 8 .............................................................................................. 26 Piper v Stevenson 1913 ............................................................................................................ 26 Trespasser - pedal possession ................................................................................................................... 27 SBC v MacDonald..................................................................................................................... 27 Trespasser – shared driveway; inconsistent use test established ............................................................ 27 Keefer v Arillotta ....................................................................................................................... 27 Trespass – builds airport 50 acres; inconsistent use test .......................................................................... 28 Masidon Investments Ltd v Ham ............................................................................................... 28 Mutual mistake – didn’t know of the true state of title to the property; NO inconsistent use test ........ 28 Beaudoin v Aubin ...................................................................................................................... 28 Mutual mistake – thought there were boundaries when there weren’t; NO inconsistent use test ........ 29 Wood v Gateway of Uxbridge Properties Inc ............................................................................ 29 Mutual mistake – land off public park....................................................................................................... 29 Teis v Ancaster OCA ................................................................................................................ 29 Unilateral mistake – dispute over 30 feet ................................................................................................. 30 Bradford Investments Ltd v Fama ............................................................................................. 30 Unilateral mistake – no inconsistent user test .......................................................................................... 31 Page 2 of 114 MOSSMAN PROPERTY Table of Contents Raso v Lonergan 1996.............................................................................................................. 31 SUMMARY OF CASES .................................................................................................. 31 JA Pye v Graham (2002) ............................................................................................... 34 RPLA Reform? .............................................................................................................. 35 Why Allowing Adverse Possession (possessory title > paper title) (Professor Callahan) ...................................................................................................................................... 35 Issues with title versus possession, and limitation clauses ............................................ 35 Why is intention (of titleholder) relevant to a claim to possession or to the application of limitation statutes? ......................................................................................................... 35 Is the inconsistent use test subjective or objective? ...................................................... 35 Sharing .......................................................................................................................... 35 CHAPTER 3: FUNDAMENTAL DOCTRINES ......................................................................... 36 DOCTRINE OF TENURE ................................................................................................ 36 Mariner Real Estate Ltd v Nova Scotia (Attorney General) (1999) ........................................... 37 Property Law in Ontario................................................................................................................ 37 Escheats Act / Succession Law Reform Act ..................................................................... 37 Statute of Quia em Torres, 1290 ....................................................................................... 37 Tenures Abolition Act, 1660 .............................................................................................. 37 Seisen ............................................................................................................................... 37 DOCTRINE OF ESTATE ................................................................................................. 37 Advantages of the “Estate” Concept .............................................................................. 37 FREEHOLD ESTATES.................................................................................................... 38 Life estate: will last as long as holder of estate is alive because date of death is uncertain ......... 38 Fee Simple Estate: lasts so long as there are heirs to the estate (can encompass brothers, sisters, aunts, cousins, etc.) ......................................................................................................... 38 GRANTS INTER VIVOS VERSUS DEVISES (WILL) ............................................................. 39 Inter Vivos .................................................................................................................................... 39 Inter vivos = live persons/corporations ..................................................................................................... 39 Conveyancing and Law of Property Act, RSO 1990 [CLPA] ............................................. 39 Devices ........................................................................................................................................ 39 Wills/estates = transfers that take effect on death (can be changed any time prior to death) ............... 40 Succession Law Reform Act, RSO 1990 [SLRA] .............................................................. 40 LIFE ESTATE VS. LICENSE ............................................................................................ 40 Settled Estates Act ............................................................................................................ 40 Re Waters ................................................................................................................................. 40 Re Powell.................................................................................................................................. 40 FREEHOLD ESTATES: ABSOLUTE (UNQUALIFIED) VERSUS QUALIFIED ESTATES ................. 40 Absolute Estate ............................................................................................................................ 41 Qualified Estate: ........................................................................................................................... 41 LIMITS ON CONDITIONS OF RETENTION (D/CS) .............................................................. 42 Restraint on Certainty................................................................................................................... 42 Test for certainty ....................................................................................................................................... 42 Clavering and Ellison (1859) ..................................................................................................... 42 Will created life estate, condition voided due to of uncertainty .............................................................. 42 Re McCoglan ............................................................................................................................ 42 Dad: don’t drink, gamble, be nice to mother, and be known as industrious - OKAY................................ 43 Page 3 of 114 MOSSMAN PROPERTY Table of Contents Jordan and Dunn ...................................................................................................................... 43 Restraint on Alienation ................................................................................................................. 43 Land left to communists ............................................................................................................................ 43 Lepage vs. Communist party of Canada. .................................................................................. 43 Restraint on Public Policy............................................................................................................. 44 If woman remarries give to son – intention was that woman will be taken care of by new husband – marriage restraint ...................................................................................................................................... 44 Re Goodwin (1969) ................................................................................................................... 44 “The Stork Derby” – Who would have the most babies? .......................................................................... 44 Re Miller Estate ........................................................................................................................ 44 Discrimination restraint – scholarships ..................................................................................................... 44 Re Canada Trust Co. and OHRC ............................................................................................. 44 Discrimination ............................................................................................................................................ 45 Christie v York .......................................................................................................................... 45 Discrimination – scholarships – in the school’s own charter .................................................................... 45 Ramsden Estate 1996 .............................................................................................................. 45 Scholarship held as private arrangement .................................................................................................. 46 UVic Case ................................................................................................................................. 46 Mother tried to disinherit son when he married non-Jew, court didn’t allow that ................................. 46 Fox Estate 1996 ........................................................................................................................ 46 PRESENT (VESTED) VERSUS FUTURE (CONTINGENT) INTERESTS ..................................... 47 COMMON LAW LEGAL REMAINDER RULES ....................................................................... 48 Why did the courts impose the common law remainder rules?...................................... 50 EQUITY INTERESTS ..................................................................................................... 50 Conveyance to Uses .................................................................................................................... 50 Modern Protection for Holders of Equitable Interests (BFPFVWON) ........................................... 50 THE STATUTE OF USES, 1535 ..................................................................................... 51 Statutes of Uses (1535) .................................................................................................... 51 TRUSTS IN GRANTS & DEVISES — MODERN LANGUAGE CREATING A TRUST ...................... 51 Estates Administration Act s2(1) ....................................................................................... 51 Different Kinds of Trusts ............................................................................................................... 52 Guerin v The Queen SCC 1984 ................................................................................................ 53 Issue of flexibility and different interests ........................................................................ 53 SUMMARY OF INTERESTS............................................................................................. 53 Successive Interests .................................................................................................................. 53 Vested or Contingent Interests ................................................................................................. 53 Conveyance to Uses Before and After Statute of Uses, 1535 ................................................ 54 The Modern Trust ....................................................................................................................... 54 CHAPTER 4: BAILMENT & LEASEHOLDS .......................................................................... 55 BAILOR VERSUS BAILEE ............................................................................................... 55 The finder was the bailee .......................................................................................................................... 56 LEASEHOLD ESTATE (VERSUS FREEHOLD ESTATE) ......................................................... 56 History of the Leasehold Estate ................................................................................................... 56 Duties and Relationship of Lessor and Leasee ............................................................................ 56 Residential Tenancies Act ................................................................................................. 56 Page 4 of 114 MOSSMAN PROPERTY Table of Contents Commercial Tenancies Act ............................................................................................... 57 ASSIGNMENT VERSUS SUBLEASE.................................................................................. 57 Privity of Contract versus Privity of Estate.................................................................................... 57 Street v Mountford .................................................................................................................... 58 Right to housing ......................................................................................................................................... 58 Tanudjaja v Canada .................................................................................................................. 58 No social assistance for people <30yo ...................................................................................................... 59 Gosselin .................................................................................................................................... 59 CHAPTER 5: GIFTS & SALE OF LAND .............................................................................. 60 TRANSFERS BY GIFT ................................................................................................... 60 Gave $$ painting to son then had to “re-give” painting; lawyer is essential ............................................ 60 Michael Gruen v Kemija Gruen ................................................................................................. 60 AB Gifts: Potlach Ceremony .......................................................................................... 60 Uncertainty about “Deed of Gift” ................................................................................................... 61 Is second deed of gift only valid if she stays married? Yes ....................................................................... 61 Schilthuis v Arnold, [1991] OJ no 2212 (Gen Div) ..................................................................... 61 Requirement 1: Delivery ............................................................................................................... 61 No delivery – man did not walk away – bankruptcy so there is third party (creditors) ........................... 61 Re Cole ..................................................................................................................................... 61 Interest in ¼ of horse – no delivery ........................................................................................................... 62 Cochrane v. Moore ................................................................................................................... 62 Father daughter “all yours” – man walks out after giving gift .................................................................. 62 Kilpin v. Ratley .......................................................................................................................... 62 Man to fiancée “this is all yours” – delivery exists – no bankruptcy......................................................... 63 Langer v McTavish Brothers Ltd ............................................................................................... 63 Paintings on b-day but then hung up on the wall again after opening ..................................................... 63 Mackedie Estate v Mackedie .................................................................................................... 63 Constructive (and Symbolic) Delivery .......................................................................................... 64 Requirement 2: Intention .............................................................................................................. 64 “if you can find it you can have it” – was there intention? ....................................................................... 64 Thomas v Times Book .............................................................................................................. 64 Requirement 3: Acceptance ......................................................................................................... 64 Uncertainty about whether paintings were gift or loan ........................................................................... 64 Beaverbrook Art Gallery ............................................................................................................ 64 DECLARATIONS OF TRUST ........................................................................................... 65 Trustee Act ........................................................................................................................ 65 The writing constitutes a declaration of trust – constructive trust .......................................................... 65 Watt v Watt Estate .................................................................................................................... 65 Constructive trusts – looks like labour theory of possession? ....................................... 66 The oral words constitute a declaration of trust – constructive trust ...................................................... 66 Cochrane v Moore (1890) ......................................................................................................... 66 Express Trust ............................................................................................................................... 66 Resulting Trust ............................................................................................................................. 67 Constructive Trust ........................................................................................................................ 67 Donation mortis causa gift ........................................................................................................................ 67 Costinuik v British Columbia ..................................................................................................... 67 Page 5 of 114 MOSSMAN PROPERTY Table of Contents CONTRACT FOR SALE OF LAND CONVEYANCES .............................................................. 67 Equity when there is declaration of trust .................................................................................................. 68 Watt v Watt ............................................................................................................................... 68 Two-Step Process to Sale of Land ............................................................................................... 68 Transforming Agreement of Purchase/Sale to Equitable Interest ................................................. 69 English laws brought to Canada ................................................................................................................ 69 Property and Civil Rights Act, 1792................................................................................... 69 Requirement 1: Specific Performance .......................................................................................... 69 Uniqueness ................................................................................................................................................ 69 Chaulk v Fairview Construction ................................................................................................ 69 Land isn’t immediately considered unique – need unique for specific performance .............................. 70 Semelhago................................................................................................................................ 70 Canada’s wonderland ................................................................................................................................ 70 John E Dodge Holding .............................................................................................................. 70 Requirement 2: Valid Contract ..................................................................................................... 71 Lysaght v Edwards.................................................................................................................... 71 Requirement 3: Statute of Frauds ................................................................................................ 71 State of Frauds s.2 ............................................................................................................ 71 Statute of Frauds s.4 ......................................................................................................... 71 Oral contract can invoke equitable remedies if detrimental reliance ...................................................... 71 Maddison v Alderson ................................................................................................................ 71 The leading decision on the doctrine of part performance ...................................................................... 72 Dagelman v Guarantee Trust 1954 SCC .................................................................................. 72 Contrast to Dagelman ................................................................................................................................ 72 Steadman 1974 UK................................................................................................................... 72 Use Degalman ............................................................................................................................................ 72 Alvi v Lal ................................................................................................................................... 72 Actions that constitute part performance ................................................................................................ 72 Taylor ........................................................................................................................................ 72 Mall – reliance so equitable interest – but no possession because 3P was BFPFVWN ............................ 73 Starlite Variety Stores Ltd v Cloverlawn Investments Ltd .......................................................... 73 Gave full payment – specific performance ................................................................................................ 74 Erie Sand and Gravel Limited v Tri-B Acres Inc ........................................................................ 74 CHAPTER 6: CONCURRENT INTERESTS ............................................................................ 75 Joint Tenancy ............................................................................................................................... 75 If both people in joint tenancy die ............................................................................................................ 76 S.55(2) of the Succession Law Reform Act ....................................................................... 76 Corporations as party in joint tenancy ...................................................................................................... 76 S.43 of the Conveyancing and Law of Property Act .......................................................... 76 Tenancy in Common .................................................................................................................... 76 Joint vs. Common ........................................................................................................................ 76 Reason to prefer joint tenancies .................................................................................... 76 Reason to prefer tenancies in common ......................................................................... 77 STATUTORY PRESUMPTION IN FAVOUR OF TENANCIES IN COMMON.................................. 77 The Conveyancing and Law of Property Act, RSO 1990 .................................................. 77 Two sisters, one wanted to will away part of joint ................................................................................... 77 Page 6 of 114 MOSSMAN PROPERTY Table of Contents McEwen .................................................................................................................................... 77 S.13 CLPA doesn’t apply to agreements .................................................................................................... 77 Campbell v Sovereign Securities and Holdings Co Ltd ............................................................. 77 Mitchell v Arblaster.................................................................................................................... 78 Need for Reforms ......................................................................................................................... 78 CONVERTING TENANCY ............................................................................................... 78 RIGHTS AND OBLIGATIONS OF CO-OWNERS .................................................................. 79 s.122(2) Courts of Justice Act ........................................................................................... 79 Henderson v Eason .................................................................................................................. 79 TERMINATION OF CONCURRENT INTERESTS BY PARTITION AND SALE ............................... 79 S.3(1) Partition Act ............................................................................................................ 79 Successful application for partition ........................................................................................................... 80 Cook v Johnston ....................................................................................................................... 80 EX. 1 CONCURRENT INTEREST: CONDOMINIUMS ............................................................ 80 Condominium Act .............................................................................................................. 80 Benefits of the Condominium Act ................................................................................................. 80 Issues with Condo Act .................................................................................................................. 80 Restrictions on what constitute family can’t get in the way of medical care ........................................... 81 Alberta case .............................................................................................................................. 81 Community Living & Tenancy in Common in Condos: ................................................... 81 EX. 2 CONCURRENT INTEREST: FAMILY PROPERTY ........................................................ 82 Old idea that wife not entitled to anything ............................................................................................... 82 Thompson v Thompson ............................................................................................................ 82 Bora rocks – feminism dissent ................................................................................................................... 82 Murdoch .................................................................................................................................... 82 Law Reform post-Murdoch ........................................................................................................... 83 Family Law Act .................................................................................................................. 83 JCM .......................................................................................................................................... 83 Became a dentist then left the marriage................................................................................................... 83 Caratun ..................................................................................................................................... 83 Are Degrees Property? .............................................................................................................................. 84 Corless...................................................................................................................................... 84 Are Degrees Property? .............................................................................................................................. 84 Keast; Linton ............................................................................................................................. 84 Critiques of not letting degrees be considered property ................................................ 84 Nova Scotia; Quebec v A .......................................................................................................... 84 COHABITEES AND CONSTRUCTIVE TRUSTS .................................................................... 85 Remedies for Cohabiting Couples on ON .................................................................................... 85 Beekeeping – cohabitees ........................................................................................................................... 85 Pettkus v Becker ....................................................................................................................... 85 No need to contribute to land ................................................................................................................... 86 Peter v Beblow (1993) .............................................................................................................. 86 Remedies ..................................................................................................................................... 86 Constructive Trusts and Same Sex Couples ................................................................. 87 Informal Property Arrangements .................................................................................................. 87 Equity Interest: “You Can Build on My Land” ............................................................................... 87 Page 7 of 114 MOSSMAN PROPERTY Table of Contents Dad tells son he can build .......................................................................................................................... 87 Dillwyn v Llewelyn ..................................................................................................................... 87 Dad tell son he can built, dad dies and common law spouse takes up action .......................................... 88 Inwards v Baker ........................................................................................................................ 88 Expectation to live there – no equity – just a license................................................................................ 88 Dodsworth v Dodsworth ............................................................................................................ 88 Gives house – she puts in $$ - court gives fee simple ............................................................................... 89 Pascoe v turner ......................................................................................................................... 89 LIMITS OF FAMILY PROPERTY REFORM: FIRST NATIONS ................................................. 90 Issue: women did not hold certificate of possession ...................................................... 90 Derickson v Paul ....................................................................................................................... 90 CHAPTER 7: NONPOSSESSORY INTERESTS ...................................................................... 90 Easements & covenants = mechanisms of private planning .......................................... 91 I. PROFIT A PRENDRE .................................................................................................. 91 Profit à prendre illustrated in a well-known decision about the doctrine of part performance .............. 91 Mason v Clarke ......................................................................................................................... 91 SCC considers nature of the profit à prendre ............................................................................................ 92 R v Tenner 1985 ....................................................................................................................... 92 Aboriginal Claims ......................................................................................................................... 92 II. EASEMENT ............................................................................................................. 92 Right of way ............................................................................................................................................... 93 Keefer v Arilotta ........................................................................................................................ 93 Ship damages bridge ................................................................................................................................. 93 Gypsum Carrier Inc v The Queen (1977) Fed Ct ...................................................................... 93 People have easement to park .................................................................................................................. 94 Re Ellenborough Park ............................................................................................................... 94 Cottage owners with easement to road, parking ...................................................................................... 95 Depew v Wilks .......................................................................................................................... 95 More recent case on the test of reasonable necessity ............................................................................. 95 Toronto Dominium Bank 2016 OCA.......................................................................................... 95 Negative Easements .................................................................................................................... 96 Wall exposed to weather........................................................................................................................... 96 Phipps v Pears .......................................................................................................................... 96 III. COVENANTS .......................................................................................................... 97 Terminology of covenants ............................................................................................................ 98 Legal Rules about Benefits and Burdens Passing ....................................................................... 99 Burden of the covenant doesn’t pass at common law.............................................................................. 99 Keppell v Bailey (1834) ............................................................................................................. 99 Stairway - Positive covenant doesn’t pass at common law (or equity) .................................................. 100 Parkinson et al v Reid (1966) SCC ......................................................................................... 100 Avoiding the Legal Principle of Burden Never Passing .............................................................. 100 Equitable Rules on about Burdens and Benefits Passing .......................................................... 101 Don’t build on garden – statute and maintain it not covered ................................................................ 101 Tulk v Moxhay (1838) ............................................................................................................. 101 The Duke of Bedford v The Trustees of the British Museum (1822) ....................................... 102 Requirements for Running of Burden in Equity .......................................................................... 102 Page 8 of 114 MOSSMAN PROPERTY Table of Contents Only have golf course .............................................................................................................................. 102 Aquadel Golf Course Ltd v Lindell Beach Holiday Resort Ltd ................................................. 102 Not too far ............................................................................................................................................... 103 880682 Alberta Ltd v Molson Breweries Properties Ltd .......................................................... 103 Tension ........................................................................................................................ 103 Discriminatory Covenants .......................................................................................................... 103 Can’t sell to Jews void for uncertainty, not discrimination ..................................................................... 104 Drummond Wren..................................................................................................................... 104 Cottage can’t sell to Jews – okay ............................................................................................................. 104 Noble and Wolf v Alley (1951) ................................................................................................ 104 Drummond Wren versus Re Noble and Wolf ............................................................................. 105 CLPA Response to Noble v Alley after OCA ................................................................... 105 CHAPTER 8: ABORIGINAL TITLE TO LAND ...................................................................... 105 HISTORICAL CONTEXT ............................................................................................... 106 1760 Treaty of Paris ........................................................................................................ 106 1763 Royal Proclamation ................................................................................................ 106 1876 Indian Act ............................................................................................................... 106 AB interest is simply personal and usufructuary (right to enjoy use short of destruction) .................... 106 1888 St. Catherine’s Milling (Privy Council) ............................................................................ 106 Turning point case because it recognized existence of AB title .............................................................. 107 1973 Calder et al v BC (AG) ................................................................................................... 107 1982 Charter of Rights and Freedoms ............................................................................ 107 PRINCIPLES OF AB TITLE........................................................................................... 107 Sui generis................................................................................................................................................ 107 1985 Guerin v The Queen ...................................................................................................... 107 The content of sui generis ....................................................................................................................... 107 1997 Delgamuukw v BC ......................................................................................................... 107 Kent McNeil – Defining AB Title and Impact of Delgamuukw ...................................... 109 The Limits of AB Title to Land .................................................................................................... 110 Sawridge Band v Canada ....................................................................................................... 110 Chippewas of Sarnia ............................................................................................................... 110 Post-Delgamuukw Developments .............................................................................................. 110 R v Marshall; R v Bernard (2005) SCC ................................................................................... 111 R v Sapper; R v Gray .............................................................................................................. 111 First time the SCC has confirmed the existence of Aboriginal title to land ............................................ 112 2014 Tsilhqot’in Nation v BC ................................................................................................... 112 METIS PEOPLE ......................................................................................................... 114 Daniels .................................................................................................................................... 114 Page 9 of 114 MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. INTRODUCTION Property law: we talk about property in law as being a relationship among subjects with respect to objects Network of legal relationships prevailing between individuals in respect of things. Property comprises of bundles of mutual rights and obligations between subjects in respect to certain objects. i.e. If you “own” a car that really just means you own a bundle of rights with respect to the car; no one can use it without your permission, but the bank can take it if you don’t pay your bills, you can’t drive it into a crowd of people, etc. i.e. if we talk about a book we are talking about personal property, but if we’re talking about land we’re talking about a different type of property. However, we are still fundamentally talking about relationships among subjects with respect to objects. “Interest” When we’re talking about property, we’re not talking about absolute concepts, we’re talking about changing relationships. Therefore, we tend to ask whether person A has an interest in X What is a dominant issue in making property law decisions? When we talk about these relationships among subject with respect to objects, we’re not talking about unchanging relationships. Relationships change. In the context of law, we have a constraint; if we say the relationships are changing, there are certain legal process issue might constrain the relationship – the doctrine of precedent complicates this when there is a new social development which contradicts a previous property law judgement. Context Some things we look at are new societal development which means we have to change or shift how we view property law. The concept of stare decisis is complex in property law, wherein we wrestle with having to follow past decisions with new and changing environments Precedent When courts are trying to decide when there’s a precedent, you might find a rule of law that clearly defines the party’s rights. You might find a gap in the law though, and the court has to make the law. But a rule of law that doesn’t clearly answer the question creates an ambiguity. When there are two or more rules of law, there might be a conflict in precedent and the court has to find some reasonable way to do something in that context. Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 10 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. CHAPTER 1: PROPERTY LAW CONCEPTS SCIENTIFIC INNOVATION Is sperm property? JCM v ANA Context: Today, more and more people are using methods of assisted reproduction in order to have children. While some groups (in particular, within the LGBTQ community) are using this because they are unable to have children naturally, other groups are able to have children but are using assisted reproduction for other reasons; for example, women who want to wait to have children. The groups that are using assisted reproduction, arguably, more marginalized People purchase gametes (single sex cells) in order to help form an embryo. Facts: Couple broke up but didn’t address the fact that there were left over sperm straws that they hadn’t used. Issue: Is sperm property? So each spouse is entitled to an equal share of the property that might be available? Holding: Yes This is a claim for negligence and there ought to be damages Typically, the human body and substances created from it are incapable of being owed. But, in Yearworth the court held that it was necessary for the common law to keep up with scientific advancements and sperm was property because: o It was being stored for the benefit and future use of the plaintiffs o It was generated by their bodies o No one else had the rights to the sperm In Yearworth the court found that the plaintiffs were entitled to damages for negligence o Yearworth isn’t a binding precedent though because it’s in the UK In the case C(C) which is an Alberta case about frozen embryos and whether they were property; the plaintiffs bought the sperm in that case which is the same as this, the plaintiffs bought sperm straws In this case, the sperm has been treated as property by everyone in the transaction, it was intended to be used by the plaintiffs The distinguishing factor in this case is the fact that the sperm didn’t come from either of their bodies Analyzing the best interests of any future child that would come from the use of the sperm was “not appropriate to the circumstances of the case” o The reasons the court reaches their conclusion is that there aren’t going to be any parental responsibilities being on ANA, and saying that even if the straws get used, there won’t be any connection to ANA (biological or otherwise) Analysis: The case is interesting in the way you see this new context which is struggling with old precedent, and two precedents that aren’t exactly the same. Paragraph 67 (page 16) – 68 “I have to reject the respondent’s argument… the court is ill-equipped to handle moral and philosophical arguments” Ratio: Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 11 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. Courts should take into account scientific advancements when determining what constitutes property Sperm has value and thus should be regarded as an object of proprietary interest Policy Issues: Technological Advancement 1. We need to address certain things and determine whether they can be regarded as property because of: a. the pace of technological advances, b. the potential for economic gain, c. the international nature of biotechnology enterprises a. The Royal Commission on Reproductive Technologies wrote that “commodifying human beings and their bodies for commercial gain is unacceptable because this instrumentalization is injurious to human dignity and ultimately dehumanizing…. commercialization for reproductive materials and reproductive services is inappropriate” (page 18) 2. Human beings are typically conceptualized as objects rather than subjects with respect to property law; obviously this wasn’t always the case, when people used to buy and sell slaves Assisted Human Reproductive Act / Royal Commission 1993 7(1) No person shall purchase, offer to purchase or advertise for the purchase of sperm… human reproductive material should not be treated as property and should not be the “object” of commercial (for value) transactions Sperm destroyed at sperm bank and people get $ damages Lam v University of British Columbia Facts: Sperm accidently destroyed at sperm bank and the people to whom it came from sued for damages Issue: You can only collect damages in a case like this if what was damaged is considered property, so is sperm considered property? Ratio: Sperm is considered property so if it is destroyed by another, the owners are entitled to compensation Hospital owns tissue excised from patient Piljak Estate v Abraham Ratio: Excised material from a patient is “tissue” owned by the hospital PROPERTY & “RIGHT TO EXCLUDE” Picketer charged with trespassing at mall (quasi-public area) Harrison v Carswell 1976 in Harrison v Carswell, a majority of the Supreme Court of Canad a held that employees on strike did not have a right to picket in a privately owned shopping mall. Although that ca se was decided before the Charter came into force, it continues to be followed by lower courts. Issue: Right to exclude? Is the shopping mall private or public property? Facts: Woman was charged with trespassing after she was picketing in front of a shopping center Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 12 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. Labour laws dictate that people can’t picket on private property The picketers are picketing directly in front of the store, in the mall, and thus is on private property Sophie Carswell is fined, multiple times Shopping mall takes Carswell to court From the union’s perspective, they are very interested in this o Shopping malls are a new kind of private property, that ends up insulating union employees from being able to picket effectively against employers who are a member of shopper malls o Wanted a new rule about the exclusivity of private property with regards to shopping malls o The union did not get what they want Majority (Dickson): She shouldn’t be allowed to picket “The duty of the court, as I envisage it, is to proceed in the discharge of its adjudicative function in a reasoned way from the principled decision and established concepts” … “what are the limits of the judicial function?” Peters is a precedent Page 33 bottom – the SCC has already decided this issue and it’s the precedent we’re going to apply, and there is no way we can distinguish this precedent It doesn’t matter that the person was an employee striking whereas the other person was a member of the public He has the notion of the shopping mall as a thing – it is property – and therefore it has an owner, and there’s no room for relational Dickson begun from the position that the mall was private property Minority (Laskin): Should the court pay mechanical deference to stare decisis? o Justice Laskin emphasized that the court should not “pay mechanical deference to stare decisis” but rather, be free to depart from previous decisions in order to support the pressing need to examine the present case on its merits (page 37) Does the court have a balancing role to play without yielding place to the Legislature where an ancient doctrine is invoked in a new setting to support lawful activity supported by both legislation and by a well-understood legislative policy? o Trespass denote unjustified invasion of another’s possession; and the characteristics of private entities are different than a shopping mall which is more public in nature o Members of the public are privileged visitors whose privilege is revocable only on misbehaviour Privilege: term applied to those considerations which avoid liability where it might otherwise follow. It applied to any immunity which prevents the existence of a tort but signifies where the defendant has acted to further an interest of social importance that it entitled to protection He says the Peters case was not a labour dispute His judgement is more ambiguous; he is either “there is no rule of law”, or a little different than that He talks about the notion of the relationship among subjects – the owner of the mall, the tenants, the picketer – with respect to the object He talked about the person with a house and a front door, and he says this person is the owner of a home and this home is private, so anyone who is on the land of the home without permission is a trespasser Ratio: A mall is private property with some type of public aspect, it is a quasi-public area. As such, unauthorized persons can be charged for trespassing. No discernible difference between privacy rights of a homeowner and the rights of a mall owner Analysis: Ms. C charged with trespassing when she was picketing her place of work Laskin dissent Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 13 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. Dickson used to be corporate lawyer PROPERTY RIGHTS & CHARTER Why the Charter was significant for property law: 1. Issues about public access to shopping centres and similar places where the public is routinely invited required new analytical approaches because of the entrenched guarantees in s 2, including freedom of speech and freedom of assembly. Although the Supreme Court of Canada has never overruled Harrison v Carswell, the rights of owners of “public” property (including government-owned property) may now need to be balanced with the Charter’s guarantees pursuant to a s 1 analysis. 2. “Property” is not itself a protected interest in the Charter. a. Compensation is provided under the Expropriation Act for government “takings”, where the government has acquired a property interest Why there are no “property rights” in the Charter (Donna Christie) The absence of constitutional protection for property in the Canadian Constitution evidences a choice to make legislative bodies, rather than the courts, “the primary arbiters of the private property/public interest conflict” The non-constitutional nature of property rights in Canada has situated the balancing of public regulation and private property in legislatures and the democratic process, and not in the courts. Montreal airport Committee for the Commonwealth v Canada 1991 Facts: Group of individuals at the Montreal airport handing out leaflets. Federal government owns airports and regulates this, states that no one is allowed to hand out leaflets o An actual regulation that prohibits handing out leaflets. Commonwealth cites section 2b freedom of expression, government had no right to pass such regulations and infringe the right of free expression. Issues: 1. Can the public be excluded from publicly owned property? 2. What are the exclusionary rights on publicly owned property? Holding: Commonwealth allowed to leaflet in those more public areas of the airport. It is public – state owned – property. L’Heureux-Dube distinguished this case from Harrison. Analysis: Court is again looking at the specific context, like in Harrison Government responds with argument that (similar to Harrison shopping owner argument) the government owns private property and they are no different and in the same position as any other private property owner Court makes distinction that this is a different form of ownership, as it is state owned L’Heureux-Dubé rejects analogy to Harrison, suggests that it is necessary to balance the interests of government and the public Airports are functionally similar to other public areas like streets and parks o If such spaces were not open to the public for freedom of expression, it would subvert s. 2 as only private property owners and mass media owners would be able to express themselves in public Court concludes that the airport is a public arena and therefore there is no right to exclusion and no right to restrict expression (except in private security zones). Ratio: Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 14 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. We need to find balance. State owned property is not necessarily public or necessarily private. Look to the use of the space and analogous spaces to determine whether it is public or private because policy analysis of a democratic society, in which people should be allowed to protest. Criteria for determining what places are to be deemed public 1. Traditional openness of such property for expressive activity; 2. Whether public is ordinarily admitted to the property as of right; 3. The compatibility of the property’s purpose with such expressive activities – if activity interfered with property’s purpose it would be less likely to be justified; 4. Impact of the availability of such property for expressive activity on achievement of s.2(b)’s purposes; 5. The symbolic significance of the property for the message being communicated; 6. Availability of other public arenas in vicinity for expressive activities. Policy consideration: Montreal Airport case can be distinguished from Harrison because it seems to be concerned about the policy implications of understanding state owned property as contrast with Laskin’s dissent in Harrison to understand Property more broadly. Current status/significance (what implications for law today): Historically, there used to be “common property”: this was property that people had either small holdings, or none, but ultimately that people had a place to be. Now, the rules have become more nuanced and guided by statute and the Charter. Leafletting on streets cannot be excluded unless they are not peaceful (Layton) Occupy Toronto protestors Batty v Toronto 2011 Issue: Have private property places infringed on Charter rights? Facts: Members of the Occupy Movement occupied St. James park in Toronto for a month and were served an eviction notice under the Trespass to Property Act. The protesters claim that eviction would violate their s.2 rights The occupy movement argues the encampment itself constitutes an expression that should be protected by the Charter, asserts that they are not excluding anyone, and is inviting everyone to join Toronto argues that they are abusing their right to the land to the detriment of others who also have property interest in the land, “tragedy of the commons” People of the local community are saying that the encampment has intruded on their right to having a park that they can use and enjoy One group of people is essential asserting their right to exclude other people Holding: Yes, this is considered to be an infringement on their rights to demonstrate. The court then does an Oakes analysis - s.1 analysis – and determines that the infringement is saved. It is proportional infringement, prescribed by law. Analysis: Distinction from the Montreal airport case Handing out pamphlets doesn’t deprive others the use and enjoyment of the space One can exercise freedom of expression, but one can’t exercise this freedom if it effectively excludes others from using the park as a public pace Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 15 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. Continues to see property as relationship, and the need for balancing of participating and rights, and the ways in which a public park is used Other ways to find a balance Possibility of allowing them to occupy the space during limited time periods Protestors saw their encampment as their message, needed to occupy the space 100% of the time City says there is a city by-law saying that people can’t occupy the park at night Infringement of Charter rights is justified under s. 1 of the Charter Ratio: Take account of the other people who want to use the public space; one can’t exercise s.2 freedom if it effectively excludes others from using the park as a public place. this is public space to which everyone is invited, but no one can exclude others Analysis: How could it have been possible for people to have managed to create a successful outcome for the Occupy Movement, in this case? Frame it as the Occupy Movement isn’t taking up the entire park and other people can still use the park Perhaps talk more generally about what parks – and thus, public spaces – can and can’t be used for, who gets to decide what they’re used for, whether everyone can use them and to what extent they can use them, and if the court is simply saying you can “do what you want unless it infringes on someone else doing what they want”. What if instead of the occupy movement it was a breast cancer awareness group? There is an idea that everyone should have some access to public areas? Tent city for homeless OK Victoria City v Adams 2009 Facts: BC Court of Appeal considered the constitutionality of a bylaw in Victoria, British Columbia, prohibiting homeless persons from setting up a “tent city” in a public park in a situation in which the number of homeless persons exceeded the shelter beds available in the city Holding: Court ruled that if there aren’t any where for homeless people to sleep, they can use the park to sleep at night, as long as their shelters are temporary Analysis: There is no Constitutional protection for property, and no Charter right to housing in Canada. There isn’t even a right to warmth, which arguably, is a necessity in Canada just like healthcare This decision comes a little closer to recognizing the disparity in our Constitution to provide the basic necessities for people to life. It is a more humane response to a legal problem of occupancy and possession. Middle men lose fish business and seek compensation Manitoba Fisheries 1979 Context: Lots of Aboriginals were fishers, but after they had their catch they sold the fish. There were middle men who actually sold the fish. The government decided the middle men weren’t being fair to the Aboriginals, so they created a fish marketing agency, which would pay the Aboriginals more money. In this context, it meant the fish exporters lost their commercial business; they tried to seek compensation, but the government said they had the right to enact legislation and they had no obligation to compensate. Issue: Should the government compensate the men even though they didn’t acquire property? Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 16 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. Is the taking of “good will” (or business) property? Ratio: When the government took private property of a fish exporter, they were required to compensate the man. To receive protection for property the plaintiff must show: o That the taking involved an identifiable interest in property (i.e. goodwill) o The state acquires the property subject to the taking Does man get $ because he’s not allowed to build on land he owns? Mariner Real Estate 1999 Facts: A developer owns property that’s a beach and wants to build homes onto the beach but as a result of the Beach Act, the developer is precluded from building. Government prevented this because building of houses might destroy the fragile ecological system of the beach Unless government actually acquitting a property interest, there is no compensation under the Expropriation Act Issue: Is there an entitlement to compensation for not allowing the man to build on his property? Analysis: Finding a balance o On one side, there are the interests of respondents in the enjoyment of their privately owned land o On the other is the public interest in the protection and preservation of environmentally fragile and ecologically significant beach, dune and beach ridge resources. Policy issue: how minutely government may control land without buying it. Court ruled that limiting the way you can use your property isn’t the same as the acquisition of a property interest, because there are other things that you can do with the property Loss of economic value of the land doesn’t constitute loss of land under the Expropriation Act= Ratio: Narrower definition that Mariner. Loss of $ value of land doesn’t = loss land under the Expropriation Act. Test for applying the Expropriation Act (per Mariner Real Estate): Plaintiffs have burden of proving that the government action went beyond drastically limiting use of reducing the value of the owner’s property To constitute a de facto expropriation, there must be a confiscation of “all reasonable private uses of the lands in question.”; Governmental “confiscation” of property Some people argue that protection of property should be a fundamental right. E.g. Canadian government seized the property of Japanese people during WWII. Canadian Japanese people suffered a huge loss. ABORIGINAL CONCEPTS OF PROPERTY Property and Inequality Traditional property theory grants the private landowner a pretty unqualified right to decide who may or may not have access to his or her land and upon what terms A lack of property creates vulnerability; for example, homelessness is the problem of “propertylessness” One compelling reason for including property rights within the constitution is that property rights promote personal independence and the absence of property often leads to dependency Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 17 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. At common law, we say that the task for defining property is relational – we have a relationship among subjects with respect to objects – how would this change the aboriginal conception of property? Property is a relationship among subjects. There is no such thing as objects. In Aboriginal culture, human subjects, ancestors, descendants and all of nature (including inanimate things) are included in the term “subjects” These are relationships among people There is a sense that the Creator has given all of this, and it’s not “owned” by anyone; this is important because if in fact, by the time of European arrival, there wasn’t possibility that native people didn’t have a sense of ownership, then they couldn’t transfer the land either Some Aboriginal communities maintain that they never transferred their land, because it is impossible to do so Further the Aboriginal notion of property includes a sense of responsibility Is there a right to housing? No Tanajudge v Canada There is no right to housing in Canada The main reasons why classifications of property exist is because the remedies are different; damages for personal, and recovery of land Personal property: in personam remedies Real property: land; remedies regarded in rem remedies, which means you can get back recovery of land Fiduciary relationship with AB Geurin Crown has suis generis – fiduciary – interest with AB and their entitlement to land CHAPTER 2: POSSESSION FIRST POSSESSION Relativity of Title The concept of possession demonstrates the basic common law principle that property interests are always relative We’re not looking at anyone have undefined issues; we have to look at all of the subjects to determine who has the better right to possession because it’s possible several people will have entitlements at the same time. Even though someone might have a title to chattel or land, a person who holds property interest may nonetheless have a superior claim over someone who subsequently interferes with that possession Relativity of title: the plaintiff who can establish a right based on possession that is prior in time to the defendant’s claim can succeed in an action against the defendant, even if there is a “true owner” True owner: someone with a better title than the plaintiff Possession as a Root of Title Basic principle is the first possession First possession is established by something that constitutes a clear act Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 18 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. o A lends B book and C steals book. C is in actual possession, B had right to possession, and A is in actual title. If B sues C for possession, the court will say, in the context of relativity that B has a better right to possession than C because B had first possession (he was first entitled). Common law doesn’t care about A even though they’re the true owner. Possession constitutes a property interest; just having possession SOMETIMES gives you a property right o A person’s possession of a chattel or land may, by itself, create a proprietary interest Not concerned with the Jus Terti: this person is irrelevant with respect to most property claims o The fact that one person has title might not be around will change who gets to sue; the person with title might just be the jus terti Possessory Title Possessory title = title based on possession You can acquire possessory title if you have had possession for a period of time Statutes of limitation: if someone is in possession for some period of time, after that has expired, even if there is a true owner the true owner might not be able to claim property or land, etc. To establish possessory title, you have to signal your claim to the rest of the world knows you claimed possession Hunting fox but another guy kills it Pierson v Post Facts: Guy is hunting fox when he gets ready to shoot another guy kills it and take the carcass. The first guy sued saying his pursuit and hunt of the fox made it his Issue: Was there an action that showed P had established possession? Holding: the fox is owned by the one who kills it The fact that there was a hunt on doesn’t established possession on the part of P; there wasn’t a clear act that he’d done to establish that he was in possession Ratio: Whoever kills the animal gets ownership; this follows the first possession rule. Possession is a clear act which brings property into certain control whereby all the world understands that the pursuer has unequivocal intention of appropriating the animal to his individual use. Analysis: Dissent in this case was that we should be rewarding labour, which would favour the labour theory of possession Instead, the court rewards the clear claim as long as it was made in a language that's understood by your audience. The issue with this is that what is clear may depend on the norms of certain groups (i.e. in this case, people who hunt for sport). This ruling also suggests that there is such a thing as a clear act that everyone will understand universally. We know this is not true in the case of AB people who have no claim to land because they don’t think it can be claimed, and purposely don’t leave a mark on it. The who approaches to possession, however, might be married in an understanding of a capitalist society where the useful labour IS the sending a clear message to your community, amalgamating the two traditional philosophical approaches to property. Traditional law places strong emphasis on physical possession. Because Courts gravitate to what is workable/easy to apply given their machinery Johnson v MacIntosh Not possible for AB to establish 1st possession. AB people move through territory without disturbing it. Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 19 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. Metal detector Perry v Gregory Facts: Treasure hunting with metal detector, agree beforehand that they don’t share findings. Valuable treasure, different accounts of who found it first; one asked the other to verify with the metal detector, the other guy said he’d already started digging, other guy walked away Issue: How do you determine who has ownership? (work versus getting there first) Analysis: 1st could have said clear act was signal, 2nd could have said digging and holding was clear act Person who took the home and then gave it back is a clear act of acknowledging the first person has possession The third party, the jus terti is the owner of the potato field and is irrelevant to this dispute Ratio: A clear act takes into account context and subsequent actions to determine who has first possession. o Expert testimony based on a custom in a given area can help determine first possession. FINDERS AND FIRST POSSESSION Possession is a property interest. First possession means the person who first seized it. You have to manifest your intention to exercise control over something when you seize it, to claim possession. Boy finds jewel in chimney Armory v Delamirie Facts: Boy finds jewel and brings it to goldsmith to find out what it is. The goldsmith’s apprentice offered money for the jewel but the boy wanted the jewel back. Holding: The boy is entitled to the jewel Ratio: The finder of a lost item does not have absolute property right in it but he does have title superior to everyone except the rightful owner. Gold bracelet on airport floor Parker v British Airway Boards Facts: P is first person to take possession of gold bracelet on the floor of airport lounge Airport argued that they should have possession because it was on their property and by default they own everything on their property even if they don’t know about it If you are the owner or occupier of a space, you have possession of everything in that space so your possession is prior to anyone who comes along and takes something from within your space If the ownership is unknown, the common law has been obliged to give rights to someone else and the obvious candidate is the occupier or the property upon which the finder was trespassing Issue: Possession rights of occupier versus finder Finder says he found it and has first physical possession Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 20 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. Airport says it’s on their property and therefore they have possession Policy Considerations: In favour of the airport: it is appropriate for occupier or owners of the property to have possession of the object because it’s likely that the original owner of the object will return to the place they lost the object to find it In favour of Parker: need to create incentives for finders of lost property to behave in a way that is appropriate, why would the finder tell someone if they have no interest in the object? Ratio: In order to establish right to prior possession (whether or not you knew of items) you need manifest intention to control, i.e. intention must be communicated to people who may be using/occupying space o To establish prior right to possession based on occupancy, communicate (e.g. a sign, telling employees) what the policy is with respect to lost property Rights and Obligations of the Finder (Parker v British Airways) 1. The finder acquires no rights over it unless (a) it has been abandoned or lost and (b) he takes it into his care and control. 2. The finder does acquire some limited rights over it if he takes it into his care and control with dishonest intent or in the course of trespassing (Bird) 3. Subject to the foregoing and to point 4 below, a finder, whilst not acquiring any absolute property or ownership in the chattel, acquires a right to keep it against all but the true owner or those in a position to claim through the true owner or one who can assert a prior right to keep the chattel which was subsisting at the time when the finder took the chattel into his care and control. 4. Unless otherwise agreed, an employer who finds a chattel in the course of his employment or agency and not wholly incidentally or collaterally thereto and who takes it into his care and control does so on behalf of his employer or principal who acquires a finder’s rights to the exclusion of those of the actual finder. 5. DUTY: A person having a finder’s rights has an obligation to take such measures as in all the circumstances are reasonable to acquaint the true owner and to care for the object found meanwhile. Rights and Liabilities of an Occupier (Parker v British Airways) 1. An occupier of land has rights superior to those of a finder when they are in in or attached to that land and an occupier of a building has similar rights in respect of chattels attached to that building, whether in either case the occupier is aware of the presence (in under or attached to) 2. An occupier of a building has rights superior to those of a finder over chattels upon or in, but not attached to, that building if, but only if, before the chattel is found, he has manifested an intention to exercise control over the building and the things which may be upon it or in it. 3. An occupier who manifests an intention to exercise control over a building and the things which may be upon or in it so as to acquire rights superior to those of a finder is under an obligation to take such measures as in all the circumstances are reasonable to ensure that lost chattels are found and, upon their being found, whether by him or by a third party, to acquaint the true owner of the finding and to care for the chattels meanwhile. The manifestation of intention may be express or implied from the circumstances including, in particular, the circumstance that the occupier manifestly accepts or is obliged by law to accept liability for chattels lost upon his “premises,” e.g. an innkeeper or carrier’s liability. 4. An “occupier” of a chattel, e.g. a ship, motor car, caravan or aircraft, is to be treated as if he were the occupier of a building for the purposes of the foregoing rules. Ring in mud in man’s land South Staffordshire Water Co. v. Sharman Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 21 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. Facts: In order to get access to the rings in the mud, they had to dig into the land (land owner had possession) Ratio: If the thing that’s been found is in, under, or is attached in any way to the land then the owner of the land owns the thing. Analysis: This is a protection for people who own land, they don’t want people digging in their land This ratio was applied somewhat in Parker where the chain was found on the land, but because it wasn’t in or under, or something the man had to “dig” for, it was his. Employers find box of money Grafstene v Holme and Freeman Facts: H and F find locked box in employer’s basement. They take it to the employer and he tells them to put it back. The men go back and crack open the box, and find tons of money. Issue: Who has possession of the money? Holding: G exercised his control over the box by telling them to put it back Ratio: If employee finds something in course of employment, it is the employer who is entitled to the item. The employer is assumed to be exercising control over the actions of the employees Person finds money on floor of store Bridges v. Hawkesworth Facts: a travelling salesman is in a shop that belongs to H. he discovers packet of money on the floor. He takes it to H and asks man to find owner. H doesn’t locate the person who lost the money but refuses to give it to man. Analysis: Court distinguishes between finding something on private property versus finding something on private property where the public is invited Ratio: When the private property is a place to which the public is invited, the property owner is not exercising complete control A shop is not the same as a home. A person finding something is finding something over which the owner of the shop doesn’t exercise control. JOINT FINDERS Boys find money in stocking Keron v Cashman Facts: Boys found money and argued about who got to keep it Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 22 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. They didn’t know what was in it and were playing around with it when it broke open Issue: Who gets to keep the money? Holding: Money is to be divided equally Reasons: The moment of finding is the moment where there is knowledge of the object’s existence A thing is in common possession when it is in actual use by all parties and no one individual is asserting ownership or possession for the purpose of examining or appropriating its contents. When that’s the case, it should be shared. Boys find money in trash and girl helps Edmonds v Ronella Facts: Boys found money in trash while playing, and an adult came by to help them and said she was the one who found the money Issue: Who gets the money? Holding: Share money between all parties Analysis: The clear act (the moment of possession) is where the parties take the money Ratio: A finder is a person who first takes possession of the lost property AND has intention in their state of mind with reference to that property. Different Theories on Possession Carol Rose writes that the common law possession or occupancy is the origin of property; we focus on trying to be pragmatic so we try and see if there’s been a clear act that communicates possession The common law gives preference to those who convince the world that they have caught the fish and hold it fast. A shared set of symbols that gives significance and form to what might seem an individualistic act: the claim that one has possession separated for oneself property from the great commons of unowned things. Labour theory & first possession 1. 1st Possession: ownership is justified simply by someone seizing it before someone else does. a. Prior possession establishes first possession b. A clear act establishes prior possession 2. Labour Theory: something may become property only by applying productive labor to it, i.e. by making something out of the materials of nature. Impact of defining possession Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 23 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. The courts define possession in relation to the two litigants in the front of the court – not in accordance with the rights of everyone who may be affected by the decision, like the government Follow says “A far more preferable rule, in the writer’s view, would be one of equal division of the proceeds of sale of the lost chattel between occupier and finder, the sale being ordered by the court. The primary merit of such a rule would be its clarity. “ In Kernon, the court seemed to move the finding moment so as to encourage sharing between the parties, which is akin to the decision in Edmonds where the court also held that the parties should share the money. POSSESSORY TITLE & EXTINGUISHING RIGHTS OF TRUE OWNER An owner’s rights can be extinguished if they abandon the thing. When it happens, the finder’s possessory interest (which is good against everyone except the true owner, per Armory) is more significant. Limitations Act 1990 S.15 says after date of limitation period, the paper title holder cannot bring a claim against a possessor, who will become a paper title holder. Real Property Limitation Act 1990 Purpose: Balances rights of someone who has paper title with someone who has possession The true owner can bring a claim against a possessor only within a ten-year period (s.4 RPLA) LP starts from: time of dispossession (clear act of the trespasser to use the land exclusively) OR, discontinuance of possession (owner’s lack of use of the land) (s.5(1) RPLA) The right of the paper title holder to the property (the true owner) is extinguished if they fail to make a claim to recover possession after 10 years (s.15 RPLA) Person assumed possession, didn’t have title Perry v Clissold Facts: C had possession of some land and put a fence around it. He never bought it, it was never given to him, he just occupied vacant land. Land was later expropriated. C’s estate brings claim for compensation for the expropriation of the land. Jus tertii issue: the issue of whether the existence of a better claim by someone other than the plaintiff would defeat the plaintiff’s claim against the defendant Issue: Who is entitled to pay compensation? Since the government is in control of the land Holding: Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 24 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. C is entitled to compensation because he has possessory property interest Ratio: A person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has perfectly good title against all the world but the rightful owner (Armory) The relationship between title holder and possessory holder might affect value of land in question, but it doesn’t affect the common law principle (which is that whoever assumes control and possession has more rights over it than everyone else, minus the real title holder) Clear act establishing interest in the land based on possessory title can be: o Fencing the property o Leasing the land to a tenant o Regularly paying municipal taxes Paying taxes may establish claim because: Payment of taxes is in public record and the owner whose taxes are being paid by someone else might (or should) be aware something is happening The public is likely to view the tax payer as the owner A third party who wants to buy the house would likely think the taxpayer is the true owner because people don’t ordinarily pay taxes on land they don’t own Self-help remedy is an ill-advised remedy Analysis: K was there before X, so is better entitled. But what if X is the son of A and A was there before K? If A was first in possession and then K had possession, but A transferred possession to X, then X can prevent K from establishing possession. X would have right that’s based on prior possession. Mans will to wife, wife remarries, dies, daughter dies Asher v Whitlock Facts: A man had a will which allowed the wife to take ownership of the property as long as she lived, or until she got remarried. If she got remarried, the property would be transferred to the daughter. The woman remarried, but then both women ended up dying. The second husband tried to get the property but the granddaughter said it should be hers. Turns out the man hadn’t really fenced his property at it was at issue whether it was in his possession Issue: Did the original man have an interest in the land – based on his possession – that was capable of being devised? Holding: Granddaughter should get the property Justice Cockburn: Possession is good title against all but the true owner or someone claiming prior possession Justice Mellor: Possession is merely evidence of seisen Seisin: special nature of possessory entitlement of an “owner” to land or real property; not all people in possession of land have seisen Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 25 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. Ratio: A person can transfer possessory title; if that’s the case, this transfer may constitute prior possession against someone else who is trying to establish possession Trespasser – using land you don’t have title to Re St Clair Beach Estates Ltd v MacDonald Facts: M bought section of land next to land owned by G; section of land between them that’s in dispute. G wasn’t using the land in dispute for anything except to pick cherries Issue: Did appellant establish their claim to a possessory title of the land in question? Holding: M didn’t have possessory title Facts are different from Piper v Stevenson: Piper was innocent trespasser, whereas in this case, M knew they were trespassing and at one point offered to buy disputed land from G Ratio: To establish possessory claim, you have to show a clear act o Offering to purchase clear act If you’re doing something with the land discontinuance o E.g. picking cherries Plfug Person claiming possessory title must show actual possession with intention to exclude the owners, dispossession AND discontinuance; this is expansion of s.5 RPLA. M would have to show: 1. Actual possession for the statutory period (indicated by clear act) 2. That such possession was with the intention of excluding owners from possession, AND 3. Discontinuance of possession for the statutory period by the owners Unilateral mistake – buys 6 lots, but uses 8 Piper v Stevenson 1913 Facts: P bought 6 lots of land north or Toronto. Hired someone to enclose the 6 lots; but she enclosed 8 lots. She was only title holder to 6 of the lots. It had been 11 years. In the intervening years she took care of all the lots. She also lived there for a bit. So she fenced it, farmed, erected buildings, lived. Issue: Clear act that would entitle her to possessory claim? Would it entitle her to dispossess her neighbour? Holding: We have to think about P; she is not someone who has malicious intent (COURT CONSIDERS INTENT) Judges are more lenient on people who make innocent mistakes Ratio: If you make an innocent mistake, you might be forgiven Fencing an area is a clear act with respect to possession. Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 26 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. Possession must be continuous and exclusive with respect to s.5 RPLA Trespasser - pedal possession SBC v MacDonald Pedal possession: need to physically be there with your feet walking on the land Intentional trespass does not mean the person has rightful possession, and can’t dispossess the title holder. Trespasser – shared driveway; inconsistent use test established Keefer v Arillotta Facts: Person knows they don’t have right to use land in way they’re using it (trespasser) Right of way means giving another party right to use the object/land If you have a shared right of way – i.e. in shared driveways – you can’t block the area and not let the other party get full use of it Appellant owned some land that they allowed respondent to enter and leave through because The strip contained a driveway, grassy patch and garage The respondent used the land for many years to park, make a skating rink and built a new garage The appellant didn’t use it except for occasional drives to the grocery store The people using the land were using it pursuant to their right granted by the appellant; they now claim possession on the basis that because they exceeded this right Issue: Whether the respondent’s possession challenged the right of the legal owner to make use of the property Holding: Possession wasn’t established Majority: The previous title holders were very generous with the laneway. They only drove into it sometimes to unload things. Garage was the only part of the encroachment that satisfied the inconsistent user test. The courts don’t want to punish people for being neighbourly and letting their neighbours use their land for stuff. And they don’t want to reward “land grabbing”. Use of land wasn’t inconsistent with the use intended by the owner Garage established possessory interest, but the grassy area and stone driveway don’t Dissent: Look objectively at what actions the possessor is engaged in and see if they exceed what you should be entitled to do with respect to right of way Wants to use an objective test, based on findings of fact Going back to the test in Piper v Stevenson, looking at what actually has happened Intention is irrelevant More focused on the actions, less focused on what the people were thinking Ratio: Pflug/Keefer test for when a person is claiming possessory title must establish: 1. Actual possession for the statutory period by themselves and those through whom they claim (S.5 RPLA) Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 27 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. 2. That such possession was with the intention of excluding from possession the owner or persons entitled to possession 3. Discontinuance of possession for the statutory period by the owner and all others, if any, entitled to possession (S.5 RPLA, expanded by judicial interpretation) 4. AND Inconsistent use test: (Keefer; Masidon) Determine what the intention of the true owner (the person who holds paper title) with respect to the use of the land; see if what the possessor is doing is inconsistent with what the paper title holder wanted to use it for Onus of establishing title by possession is on the claimant Analysis: Justice Wilson seems to be telling people how to behave; she is recognizing that the people who had title to the land were being very neighbourly and so it was very unfair the Keefer’s to take advantage of it Trespass – builds airport 50 acres; inconsistent use test Masidon Investments Ltd v Ham Facts: Person knows they don’t have right to use land in way they’re using it (trespasser) Lawyer leases 50 acres, lived there, farmed, built airport on 50 acres next door that wasn’t being used So the paper title holder is the owner of the land the man leased, and the airport land Issue: Did he dispossess? Was there a discontinuance on the part of the person who owned the property? Holding: Inconsistent user test isn’t met The intention of the paper title holder with respect to the airport land was simply to sell it later which meant his intention is simply to hold it for future development. Therefore, there is nothing anyone could do that’s inconsistent with the paper title holder Ratio: Inconsistent user test used in context of intentional trespasser A person trying to establish possessory title will have a hard time satisfying the inconsistent user test against a paper title holder who is simply planning on developing the land later Mutual mistake – didn’t know of the true state of title to the property; NO inconsistent use test Beaudoin v Aubin Facts: Dispute over residential lot. B using land up to where fence is; they were there for a long period of time Holding: Finding for B The test of inconsistent use isn’t relevant to the issue of mistake You have to demonstrate that your use is inconsistent with the intention of the owner; which means you would have to know there is an owner and know their intention. But in the context of mistake, you think it’s your land. So it doesn’t make sense to apply the inconsistent use test. Acts of possession are equivocal; the issue of intention isn’t relevant here unless the facts are equivocal (this would have been situation in St Clair Beach because there wasn’t any fence). Ratio: Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 28 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. The common law doctrine that a person in peaceful possession of land will himself have a species of seised estate from the commencement of such possession is the foundation of possessory title o The peaceful possession is the kind that the true owner would wish to make The inconsistent use test isn’t used in the context of mutual mistake Establishment of possessory title can be demonstrated through a number of things, but none of them on their own is sufficient to establish the title o Enclosure of land o Continuous possession o Formal repudiation of claims by true owner o Demonstrated intention to possess the lands as it claimant were true owner Intention to possess is assumed if the facts are obvious and continuous possession established If the facts are a bit ambiguous (equivocal) and where the land in question isn’t normally used continually, we have to look at the subjective interpretation of the possessor to establish possessory title Mutual mistake – thought there were boundaries when there weren’t; NO inconsistent use test Wood v Gateway of Uxbridge Properties Inc Facts: People assumed the boundaries were where there were natural boundaries and some buildings, but they didn’t get a survey Other party got a survey Found out the people in the north were using land that didn’t belong to them Case of mutual mistake U claimed interest in the land Issue: When mutual mistake exists, if it possible for one party to establish intent to exclude the other owner? How can you formulate the intent to exclude, if you think you’re the true owner? Can you exclude if you are mistaken? Holding: Inconsistent use test used but it can’t work against favour of paper title holder because they weren’t going to develop it for later “the court examined the first issue…” evidence of mutual mistake may justify this is an inference which may be drawn, it’s not a presumption Ratio: If the facts are ambiguous, we can’t presume intention to exclude, but we can make an inference. An inference is trying to draw out conclusion from the evidence. o Trier of facts need to look at whole of evidence to see if there was intention to dispossess. Inconsistent use test doesn’t apply in the context of mutual mistake Mutual mistake – land off public park Teis v Ancaster OCA Facts: T applied for a declaration of possessory title in relation to two strips of land at edge of a public park The town is titleholder of the strips of land, but T had always considered the strip to be part of his field. Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 29 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. Although there was some evidence that the town realized its vulnerability to a claim by T to possessory title, no action was taken within the limitation period. T was successful at trial, and the Court of Appeal confirmed the trial decision. Holding: Finding for T Analysis It makes no sense to apply the test of inconsistent use when both the paper title holder and the claimant are mistaken about their respective rights. The application of the test would defeat adverse possession claims in cases of mutual mistake, yet permit such claims to succeed in cases of knowing trespass. Thus applied, the test would reward the deliberate squatter and punish the innocent trespasser. The law should protect good faith reliance on boundary errors or at least the settled expectations of innocent possessors who have acted on the assumption that their occupation will not be disturbed. Ratio (Laskin): Test of inconsistent use does not apply to cases of mutual mistake of title We should put emphasis on the innocence of the possessor; we should not encourage people to go on people’s land knowingly and take it Unilateral mistake – dispute over 30 feet Bradford Investments Ltd v Fama Facts: o Fama is one of 2 people claiming possessory title o Bradford Investments is a construction company building houses on Granite Street o At the time Fama bought the lot, the title said the lot went back 120’ in length o But when Fama looked at the lot, it looks like the lot goes back 150’ in length, so he acted under the impression that he owns all 150’ of the lot o There was no fence around on the back 30’ feet Actions: o Fama cleaned up the garbage on the land o Fenced the land and planted on the land o When it became evident they didn’t have title to the whole 150’ feet, they made a statutory declaration saying they’d been in possession of the land and putting it on title Analysis: Issue 1: Did the defendants have actual possession of the 30’ strip? – Yes o Their acts of use were made on their own behalf as purported owners of the 30’ strips and were in no way equivocal, sporadic or transitory. Rather they were “open, notorious, constant [and] peaceful” and there is nothing to suggest that they were distinguishable in quality, or degree, from their possession of the lands they had purchased. Issue 2: Did the defendants intend to exclude Bradford from possession? – Yes o Intention to exclude the owner must be inferred, or corroborated, from the acts of use and control performed on the strips. o In the case at bar, the question involves a residential backyard property. It is difficult to imagine a more unequivocal act intended to exclude the true owner than to erect or maintain a chain-link fence along the entire boundary of the property. As has been frequently stated in the case law, “enclosure is the strongest possible evidence of adverse possession” Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 30 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. Issue 3: Was the “true owner” effectively excluded from possession? – Yes o The difficulty is that this case is neither one of mutual mistake, nor of trespass. This is a case of unilateral mistake on the part of the occupant. o Bound by precedent, wants to apply Pye and get rid of Keefer and Masidon (inconsistent use test), but can’t. o Decided to look at what’s actually going on, and ignore the inconsistent use test, which focuses on the issue of future intention. Given that Bradford continued to pay taxes, they had the intention to use the land by holding it as an investment. o However, given the Fama’s actual use of the land, the court can infer that they intended to exclude the whole world including Bradford. o Fama’s actions effective excluded Bradford from possession. Ratio: o A case of unilateral mistake is where the possessors are mistaken about the boundaries but the owners know the boundaries, but fail to take action during the limitation period o Inconsistent use test doesn’t apply in situation of unilateral mistake o If true owners want to preserve property, they should do more than just hold on to paper title. o Just because you’re paying taxes does not mean you’re asserting a paper title o However, MAYBE if the possessor gets title, they should compensate the previous title holder Unilateral mistake – no inconsistent user test Raso v Lonergan 1996 Reason: o In the context of thinking about unilateral mistake, you have to look at what’s actually going on in relation to the property Ratio: o If the land is enclosed that is the strongest possible evidence for possession SUMMARY OF CASES Perry v Clissold Facts: Demonstrated possession by fencing, leasing to a tenant and paying municipal taxes. In 1891 the government expropriated it. His estate was entitled to compensation. Holding: Successful Significance: This case can be distinguished in that a trespasser actually gained possessory interest likely because of the facts and the policy reasons. Unlike cases like Keefer and Masidon, the dispute here was around the government (for expropriating the land) versus an individual. Whereas those cases were between two people (a dispossessor and true owner) Policy for recognizing possessory interest in land. At the time, courts were keen to encourage the use and development of land (might hold less sway now). Therefore, the court based their decision on the rule that a person in possession of land has perfectly good title against all but the rightful owner. If the owner doesn’t come forward in time, his right is forever extinguished and possessor acquires absolute title. Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 31 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. St. Clair Beach v MacDonald Facts: The facts distinguished from Piper, a case of mistake where Piper was an innocent trespasser. MacDonald knew they were trespassing, and at one point actually offered to buy the disputed land. It seems the courts are much less concerned with innocent trespassers than deliberate trespassers. Holding: Unsuccessful Significance: The case is useful for two reasons. First, MacDonalds did not make a “mistake” as in Piper v Stevenson. Second, the court cited the test from Pflug in considering the Limitations Act (now RPLA) as a defense. MacDonalds must show (1) Actual possession for the statutory period (indicated by a clear act); (2) That such possession was with the intention of excluding from possession the owners (i.e dispossession); and (3) Discontinuance of possession for the statutory period by the owners. The court defined the test for s.5 of the RPLA as requiring an act of dispossession with the intent of dispossessing the true owner; and also discontinuance of possession by the true owner. This appears to be an expansion on the language of RPLA s 5. MacDonald failed to establish dispossession. Court found that the clear acts that would establish dispossession were within the limitation period. The Grants were never out of possession of the disputed land. There was no discontinuance because the titleholders continued to use the land by picking cherries. Court also recognizes that the titleholders have constructive possession of the lands described in their deed, and it is not necessary for them (as contrasted with trespassers) to show that they have pedal (physically on the ground) possession. Keefer v Arillota Facts/Significance Keefer was a case of adverse possession wherein the Keefer’s were allowed “right of way” and ended up building a garage and skating rink. The court found that the use that the Keefers put the property to was not inconsistent with the intended use of the title holder, and therefore insufficient for the right of action to begin to accrue. In so doing, the court added the “inconsistent user test” so in addition to the other factors (listed in St Clair Beach), the use that constitutes the possession must be inconsistent with the intended use of the title holder. Holding: unsuccessful, the case established inconsistent use test Masidon v Ham Holding: Unsuccessful Significance: Since Keefer (which added the inconsistent use test to the test for whether someone establishes possessory title) it became clear that developers who have no intended use of the land are effectively immune from adverse possession. In Masidon, for example, the courts used the inconsistent user test to prevent a land grab. While Keefer was the first case that held the inconsistent user test, since then, courts have narrowed the test so that it only applies to situations of trespass, not cases of mutual mistake (Wood v Gateway) or cases of unilateral mistake (Bradford v Fama) Mistakes Piper v Stevenson Facts: Piper put up a fence around two extra lots of property that she (mistakenly) thought were hers, her possession was unchallenged for the limitations period Holding: Successful Significance: Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 32 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. The court held that Piper’s fence constituted a clear act of possession, and therefore dispossession to satisfy the s. 5 of the RPLA, relying on the rule that possession must be continuous and exclusive for the purposes of s. 5 of the RPLA. At the time, courts were keen to encourage the use and development of land Since Piper, the court has refined the test and made a distinction between trespassers (Keefer v Arrilotta), cases of mutual mistake (Wood v Gateway), and cases of unilateral mistake (Bradford v Fama). Beaudoin v Aubin Facts/Significance Mr. Beaudoin is like Ms. Piper in that he was mistaken about where the boundary line was, and so he was an innocent trespasser. This case can be distinguished from Masidon, since Mr. Ham was a trespasser, he knows that he did not own the land. Here, the court rejected the inconsistent use test, finding it incompatible because there could not have been any intention on the part of the possessor to dispossess the true owner since he thought he was the true owner and he obviously could not show that he was acting inconsistently with the intentions of the true owners since for the same reason. Often in cases of mistakes there is a need to focus on the action to see if we can presume the existence of intention. If the actions are unequivocal, then the court will presume the intention to dispossess. If the possessor’s use of the land is clearly showing that they intend to possess the land. If the actions are equivocal, then there must be more. If the clear act doesn’t exist, then you have to show an actual intention to dispossess. In this case, Beaudoin’s act of building a fence and using the land is clear and unequivocal Holding: Successful Wood v Gateway Facts: In this case, for many years, both parties were equally mistaken about the boundary line and believed that Wood owned the disputed land. After a survey, parties realised that the true owner of the disputed land is actually Gateway. Wood then seeks possessory title of the disputed land. Holding: Successful Significance: This case effectively narrowed the inconsistent user test so that it only applies to situations of trespass, not cases of mutual mistake (i.e. innocent trespassers). SCC adopted this reasoning in Teis v Town of Ancaster. This was later expanded to cases of unilateral mistake (Bradford). Teis v Ancaster – successful, mutual mistake Facts: Factual circumstance in this case is not as clear and determinative as in Wood v Gateway. Teis applied for a declaration of possessory title in relation to two strips of land located at the edge of a public park in the town of Ancaster. The town is titleholder of the strips of land, but Teis had always considered the strip to be part of his field. Although there was some evidence that the town realized its vulnerability to a claim by Teis to possessory title, no action was taken within the limitation period. Teis was successful at trial, and the Court of Appeal confirmed the trial decision. Holding: Successful Significance: Mutual mistake Yet the court is still distinguishing this case from the inconsistent use test. Largely, the decision is based on policy considerations. It makes no sense to apply the test of inconsistent use when both the paper title holder and the claimant are mistaken about their respective rights. The application of the test would defeat adverse possession claims in cases of mutual mistake, yet permit such claims to succeed in cases of knowing trespass. Thus applied, the test would reward the deliberate squatter and punish the innocent trespasser. The law should protect good faith reliance on boundary errors or at least the settled expectations of innocent possessors who have acted on the assumption that their occupation will not be disturbed. This case is not immune to criticism. While it’s admirable to have policy considerations, there is nothing in the basic principles that allows for this distinction. The case that will test those issues will obviously be a case of unilateral mistake. What rule will apply when the person claiming a possessory title used property as his or her own on the assumption that he or Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 33 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. she actually held legal title while the owner of paper title knew of, and ignored, the trespass because it had no apparent impact on his or her interests? Should the possessor, who acted in ignorance and is not fixed with moral blame, have the benefit of the running of a limitation period? Conversely, should the landowner, who saw no conflict, be permitted to assert that an adversity test applies and has not been met? Bradford v Fama Facts: Fama claiming possessory title. Bradford Investments was a construction company building houses. At the time Fama bought the lot, the title said the lot went back 120’ in length, but when Fama looked at the lot, it looks like the lot goes back 150’ in length, so he acted under the impression that he owns all 150’ of the lot. He was mistaken in his belief of owning the land, cleaned up the garbage on the land, fenced the land and planted on the land. Bradford kept the 30’ apart from the lot because they thought it might be useful later in another development. Fama found out from his neighbour that he may not own the extra 30’, and he went and sought a statutory declaration of having used the land, which worked in his favour at trial. The reason the facts are so long in this case is because the court is trying to assess the credibility of Bradford Bradford argued that they were paying taxes that whole time, and the judge held that paying taxes is consistent with ownership, not possession. Holding: Successful Significance: The court’s analysis of the facts concluded that the possessors were mistaken about their boundaries, while the owner had failed to take any action during the limitation period. So, this is a case of unilateral mistake. Court refined the test and made a distinction between trespassers (Keefer v Arrilotta) where the inconsistent user test does apply, cases of mutual mistake (Wood v Gateway), and cases of unilateral mistake (Bradford v Fama) where it does not. The court held that the possessors were in actual possession of the disputed land, and that they intended to exclude the true owner (on the basis of an inference from actions). The court then considered whether the true owner had been effectively excluded, and considered at length the relevance of the inconsistency test to the facts. The court noted that the House of Lords had rejected the Leigh v Jack approach in JA Pye v Graham, but concluded that it was not open to a superior court judge to apply a decision of the House of Lords in the context of the current status of Leigh v Jack in the Ontario Court of Appeal. The court noted the decisions in Wood v Gateway and Teis v Ancaster, and considered the underlying principles with respect to intention on the part of the possessor in relation to intention on the part of the true owner. The court then concluded (bottom page 211 etc) that the possessors demonstrated an intention to exclude the world. (See also the conclusion at CB 213, 1st full para.) Payment of taxes (Clissold, Bradford) There is a difference between payment of taxes by Clissold and by Bradford Clissold o Had physical possession and was living on the land o C is a private citizen seeking possessory title Bradford o Did not have physical possession and did not interact with the land o B is a corporation holding the paper title Paying taxes has a lot of significance for someone seeking possessory title and almost no significance for the true owner JA Pye v Graham (2002) Facts that are very similar to Masidon v Ham in Ontario Overturned Leigh v Jack, the basis for Masidon Ruled that the trespasser has possessory titled Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 34 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. The trial court concluded that Graham’s actions constituted possession and that the right to recover possession on the part of the titleholder was precluded by the limitations statute. The Court of Appeal reversed this decision, but the House of Lords restored the trial decision. The squatter knows that he is squatting and that another person has a better right to the land. To insist upon an intention to own the property would preclude squatters from acquiring a possessory title when it is abundantly clear from the facts that the squatters intend to possess the land for as long as they legally can, which is a sufficient intention for the purpose of the Limitation Act. UK and ON courts are on different paths RPLA Reform? There could be a requirement for notice? Person claiming possessory title could compensate paper title holder. Why Allowing Adverse Possession (possessory title > paper title) (Professor Callahan) 1. To punish the owner for neglect in relation to the land; Not very popular justification 2. To encourage the use of land by rewarding the active use of the possessor; Historical emphasis on making good, productive use of land 3. Clearing of title to land, a legal means of “curing” titles; Possession and title should match, and clear titles facilitate trade and minimize resource wasting conflict. We need to have registered parcels of land with what’s congruent with what’s on the land. Issues with title versus possession, and limitation clauses An author, Callahan, says there needs to be correspondence between what people have as their title and what’s going on the ground. He talks about it in the context of a purchaser of land. We want people to actually use their land, that is a policy interest. Why is intention (of titleholder) relevant to a claim to possession or to the application of limitation statutes? Policy o Wants to give some leeway to landowners who wants to allow others to use their land without depriving them of their title to the land What is the intention of the true owner? o Does the true owner have a use for the land? o If the true owner has no intention to use the land … then what? What is the intention of the dispossessor? o Must take possession in a way that contravenes the intention of the true owner Is the inconsistent use test subjective or objective? It is subjective because we’re looking at the intention of the person who holds the paper title Sharing Keefer v Aritolla: Justice Wilson seems to be telling people how to behave; she is recognizing that the people who had title to the land were being very neighborly. They only drove into it sometimes to unload things. The Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 35 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. garage that the people had built was the only part of the encroachment that satisfied the inconsistent user test. It would be very unfair the Keefer’s to take advantage of it. Ultimately, the courts don’t want to punish people for being neighborly and letting their neighbors use their land for stuff. And they don’t want to reward “land grabbing”. Interestingly, there are some obligations on the person who has right of way. If you have a shared right of way – i.e. in shared driveways – you can’t block the area and not let the other party get full use of it Kernon v Cashman – court seems to move the moment of finding so that it forces the boys to share the money. However, this result is inconsistent with the ruling in Edmonds v Ronella, where the court looked at the intention of the finders to take some action with the object (clear act) as a necessary component to establish possession. CHAPTER 3: FUNDAMENTAL DOCTRINES DOCTRINE OF TENURE Tenure: relationship among person with tenure and the Crown o Individuals and corporations only hold an interest in the land of the Crown o There is no outright ownership Allodial: ownership is outright ownership; the person has full rights with respect to the land How does a tenurial concept promote the ideas about social relationship or stewardship of land? Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 36 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. o o Tenure stewardship, which allows sustainability concerns to be more easily legislated and protected Canada, extensive land use regulation is the norm and it should not be assumed that ownership carries any exemption from regulation Mariner Real Estate Ltd v Nova Scotia (Attorney General) (1999) o The court’s understanding of the relationship between people who are holding interest of the crown means that they are subject to the public interest expressed through government regulations Property Law in Ontario Based on doctrine of tenure. Individuals hold an interest in land of the Crown and have no outright ownership Escheats Act / Succession Law Reform Act o Escheat: if holder of interest dies without will (“instate”) or family, the interest escheats to the Crown Statute of Quia em Torres, 1290 o It abolished subinfeudation: the creation of new tenurial relationships o It meant every time land was transferred, it was transferred in accordance with the system o The statute said if you want to transfer land, you can let the purchaser just step in your shoes. Tenures Abolition Act, 1660 o Only free and common socage tenure exists which means no one has feudal obligations to the crown anymore o Abolished all medieval incidents of tenure except escheat Seisen o Seisen = old term for possession; there can be no abeyance (suspension) in seisen DOCTRINE OF ESTATE Doctrine of estate defines the quantity/duration of an interest in land: land owner or tenant (person holding land of Crown) doesn’t own land but owns a slice of time Advantages of the “Estate” Concept 1) The estate theory reflects the functional relationships that defines the scope of a property interest in land 2) The estate theory created flexibility in designing arrangements for property interest to be held by different persons and at different points in time; and 3) The estate theory created the possibility of transfers that were immediate OR took place in the future Reversion: estate reverts back. o Occurs when a life estate ends or there are no more heirs in a fee simple o O grants land to A for life: Language O used means A has freehold life estate. At same time, O has interest that is a reversion which means after A’s death, the estate reverts back to O Remainder: refers to the land interests after a life estate expires o Occurs when it is stipulated in the grant A possibility of Reverter Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 37 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. Occurs when there is a determinable event that has not occurred or is no longer true; if the grantee remains in possession, the limitation period for adverse possession starts to run The grantor has a possibility of reverter in an estate determinable, where an estate will automatically return to the grantor if the determining event is violated. A right of re-entry Occurs when there is unmet condition subsequent, the grantor has a right to resume possession The grantor has a right or re-entry in an estate subject to condition subsequent, where an estate may return to the grantor if a condition is violated and the grantor decides to reclaim the estate. Present interests: A present interest in land can be sold or devised by will. o Present interest: when nothing is preventing someone from purchasing any of the interests. Nemo dat quod non habet: No one can give something that one doesn’t have FREEHOLD ESTATES o No fixed duration (as opposed to a leasehold estate which has a fixed duration. Life estate: will last as long as holder of estate is alive because date of death is uncertain Fee Simple Estate: lasts so long as there are heirs to the estate (can encompass brothers, sisters, aunts, cousins, etc.) o “And his heirs”: CLPA prior requirement that this language must be used to have fee simple Words of Purchase Words of Limitation Define who the recipient of the granted interest is o “To A” o “And his heirs” Words defining the kind of interest received “For life” EXAMPLES: To A If we just have the words “to A” and there aren’t any words of limitation, the conveyance passes everything… What do we need to know in order to know what kind of estate A will get? If grantor has fee simple estate s.5(3) gives A fee simple estate O grants to A for Life o A has a life estate o O has reversion; after A’s death, estate will revert back to O. If O is dead with no heirs, it will escheat o To A = words of purchase, defining the recipient/purchaser o For life = words of limitations, defining the interest as a life estate o A has a life estate which will revert to whoever gave it to A after A dies, unless that person is also dead in which case it’ll escheat to Crown O grants to B and his heirs o B has a fee simple interest o O has reversion but this isn’t likely to be exercised because a fee simple state won’t likely come to an end; but if B dies without heirs, his interest will escheat back to Crown Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 38 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. O grants to A for life, remainder to B and his heirs o A has a life estate o B has remainder in fee simple, so B’s fee simple interest will take effect after A’s death and if B dies without heirs/will his interest with escheat GRANTS INTER VIVOS VERSUS DEVISES (WILL) Inter Vivos Inter vivos = live persons/corporations Conveyancing and Law of Property Act, RSO 1990 [CLPA] s. 5(1) – Before, the language had to say “To A and his heirs” to indicate a fee simple. Now it doesn’t. s. 5(2) –Sufficient in a conveyance to use the words “in fee simple” or any other words sufficiently indicating the limitation intended, e.g. To A forever, indicates a transfer of fee simple s. 5(3) – Where no words of limitation are used, the conveyance passes all the estate, right, title, interest, claim and demand that the conveying parties have in, to or on the property conveyed, or expressed or intended so to be, or that they have power to convey in, to, or on the same. o s. 5(4) – Subsection (3) applies only if and as far as a contrary intention doesn’t appear from the conveyance. Has effect subject to the terms of the conveyance and to the provisions therein contained. E.g. I want to give the land to A, and after A dies, I want the land to go to B s. 5(5) – This section applies only to conveyances made after the 1st day of July 1886. o If you found a deed from before 1 July 1886, and the language said “To A in fee simple”, then only a life estate was transferred o A could have established possessory title, and then register the land title in fee simple Transfer inter vivos X grants to A and his heirs X grants to A in fee simple X grants to A forever X grants to A X grants to A for her natural life X grants to A for her natural life, to B and his heirs Common Law Fee simple Life estate Life estate Life estate Life estate A has life estate, B has remainder fee simple After 1/7/1886 per CLPA s. 5(5) Fee simple Fee simple Fee simple Whatever A has Life estate A has life estate, B has remainder fee simple Devices Devices (testamentary transfers, by will): take effect upon death Beneficiary has no interest until the person dies Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 39 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. Wills/estates = transfers that take effect on death (can be changed any time prior to death) Succession Law Reform Act, RSO 1990 [SLRA] s. 26 – Except where a contrary intention appears by the will, where real property is devised to a person without words of limitation, the devise passes the fee simple or the whole of any other estate or interest that the testator had power to dispose of by will in the real property. If there are no words of limitation (words defining duration), the presumption is that the person making the will is transferring the fee simple estate (no heirs) or whatever estate he had, unless there is a contrary intention Devises (wills) X devises to A X devises to A and her heirs X devises to A for life Common Law Whatever X has Fee simple Life estate SLRA s. 26 Whatever X has Fee simple Life estate LIFE ESTATE VS. LICENSE Life Estate (property) = interest in land Can enforce against the world A life estate can be seen as a revenue stream (used to maintain dependents like widows, kids, etc) The remainder/reversion is capital interest (fee simple) Common Law Doctrine of Waste: someone with life estate can’t do EVERYTHING on property Licence (contract) = contractual arrangement which does not create an interest in land Settled Estates Act Tries to mediate the rights of a person with a life estate and a person with a remainder Re Waters “For as long as she lives” Language indicating the granting of a life estate In construing a will, the judge must place himself in the position of the testator at the time the will was made, and try and ascertain the intention of the testator, having regard to: (1) language used, (2) context in which the language was used, (3) circumstances in which the will was made Re Powell “Right to occupation, possession, and use” = license, NOT life estate o A licence is a contractual agreement, which is not an estate in land o A licence can be enforced in a court of law, but only between the two parties to the contract If there was language about life or death first, followed by language about possession, the will might have been interpreted differently FREEHOLD ESTATES: ABSOLUTE (UNQUALIFIED) VERSUS QUALIFIED ESTATES Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 40 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. Absolute Estate E.g. “To A for life” o No qualifications o Would come to an end naturally, at the end of A’s life A fee simple ends naturally if there are no heirs, in which case it’ll get reverted back to the person or escheated to the Crown Qualified Estate: (1) Conditions of acquisition: Conditions that affect the grantee’s entitlement to acquire the estate Conditions Precedent = condition of acquisition o E.g. G grants to A in fee simple if he is called to the Bar of Ontario (A is 10 at grant date) A’s interest in fee simple cannot occur until he is called to the Bar of Ontario It is a condition of acquisition of his interest in fee simple This creates a problem, because there is a need to ensure “no abeyance of seisin” A void condition precedent defeats the FSSCP completely People really wanted to do this, so creative lawyers found a way around this via wills and equity principles (2) Conditions of retention: Conditions that affect the grantee’s entitlement to retain the estate a) Estates determinable Language indicating time o So long as o During o While A has a “possibility of reverter” (possession reverts back) o E.g. “A grants to B so long as he practices law” If B ceases to practice law, the estate determines automatically and reverts to A If B remains in possession, is a trespasser, they may establish a possessory title b) Estates subject to condition subsequent Language indicating condition o On condition that o Provided that o But if A has a “right of re-entry” (resume possession) o E.g. “A grants to B in fee simple on condition that he continues to practice law” If B ceases to practise, A may re-enter to take possession, subject to limitation period If A doesn’t re-enter, B is still a trespasser, and may establish a possessory title Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 41 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. LIMITS ON CONDITIONS OF RETENTION (D/CS) A void determining event has a different effect on the grant than a void condition FSD = [ fee simple + determining event (void) ] whole estate fails If the determining event is void, the whole grant fails and the fee simple estate is not granted FSSCS = [ fee simple absolute ] + [ condition (void) ] land might be granted in fee simple absolute If the condition is void, the land may be granted in absolute **works the same for life estate subject to determining event, or life estate subject to condition subsequent Restraint on Certainty Test for certainty Clavering and Ellison (1859) Ratio: A condition must be such that the Court can see from the beginning, precisely and distinctly, upon the happening of what event it was that the vest estate was to determine. A condition is voided if it is far too indefinite and uncertain to enable the court to say what it was that the testator meant should be the event on which the estate was to determine. Will created life estate, condition voided due to of uncertainty Re McCoglan Facts: McColgan devised all his property unto his trustee upon the following trusts: o To hold my property as a home for Mary Kovalchick until her death or until she is not residing therein personally, whichever shall first occur and thereafter to hold such property as a home for Carrie Leftdahl until her death or until she is no longer residing therein personally, whichever shall first occur, when the said property shall fall into and form part of the residue of my estate. Issues Does the language of the will create a life estate determinable or a life estate subject to a condition subsequent? Is the condition void for uncertainty? Holding: “Until her death” = language that defines the duration of an estate in the context of the duration of the woman’s life, indicating the intention to grant a life estate. o This is also much more consistent with the provisions for the upkeep fund and the circumstances peculiar to this will and the person involved. Will created a life estate subject to a condition subsequent, and the condition is voided for uncertainty, thus leaving the recipient with a life estate absolute. Analysis: Seems to be using language about time, but the condition is external to the grant language o “Until her death” => life estate Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 42 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. “Or until she’s not residing there personally” => condition, even though it’s about time, it’s added on to the granting of a life estate The phrase “not residing there personally” is not clear, the condition is difficult to determine, thus it is uncertainty, and so the condition is void, and the recipient is left with a life estate absolute Since the condition must be voided for uncertainty, it’s better for Mary if it's a condition subsequent because she still get to keep the life estate. If it was determinable, the whole thing would be void, Mary would be not be entitled to the life estate, and the testator's intention wouldn’t be carried out. Judge works backwards from the testator’s intention and manipulates principles to get to a result that reflects that intention. o Ratio: Test for certainty of condition from Clavering. If condition is voided, it’s better for it to be condition subsequent because the person can keep life estate Fundamental rule is to construe the will so as to arrive at the testator’s real meaning according to its actual language and circumstances (per Re Waters) Dad: don’t drink, gamble, be nice to mother, and be known as industrious - OKAY Jordan and Dunn Facts: Dad leaves land to son on the condition that: o “he was to totally abstain from alcohol and playing cards, and he was to be nice to his mother and be known as an industrious man ten years after his mother’s death” or else he’d forfeit the property Holding: Conditions were found to be certain Restraint on Alienation Alienation: capacity property or a property right to be sold or otherwise transferred from one party to another. “I’m giving you a fee simple estate but you can’t sell it to anyone else” If it completely restrains alienation then it’s void, but a partial alienation is valid It’s more about the public interest: we don’t want people creating limits on the transfer or sell of land. Courts try to facilitate as much free alienability as possible X devises to A in fee simple, but he shall not be permitted to mortgage the land within ten years of my death, otherwise it is to pass to his brother B. Partial restraint, which is valid If it said “can never mortgage the land”, might be considered too much of a partial restraint, and could be declared void. Land left to communists Lepage vs. Communist party of Canada. Facts: T left land to the Communist part of Canada with proviso that it never be sold Ratio: Attempts to restrain alienation to a small circle of potential grantees will be struck down Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 43 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. Restraint on Public Policy Marriage restraints Public policy encourages marriage, so a complete restraint (i.e. remain a bachelor) would be voided If woman remarries give to son – intention was that woman will be taken care of by new husband – marriage restraint Re Goodwin (1969) Facts: Man left property in will to dead son’s widow, provided that she didn’t remarry (fee simple subject to condition subsequent, FSSCS) with a gift to her son (the man’s grandson) if she did remarry She ended up remarrying Issue: Should she get to keep estate? Should the grandson get the gift? Holding: Restraint on remarriage upheld Reasons: The intention of the man was only to provide for his daughter-in-law while she was a widow. Iif she got remarried, his intention to give the estate to his grandson because daughter-in-law would be provided for Ratio: Certain restraints on marriage are contrary to public policy while some are upheld. The court will look at the intention of the person whose will it is “The Stork Derby” – Who would have the most babies? Re Miller Estate Holding: Court determined that this condition did not contravene public policy. Discrimination Discrimination restraint – scholarships Re Canada Trust Co. and OHRC The OCA judgement page 285. Facts: Scholarship set up with the idea that white people, Christians, and people of the British Empire are the best candidate to rule the world Issues: 1. Can the recitals (the purpose statement) be considered in deciding this issue? Or must the court only focus on the words in the body of the document? Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 44 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. a. Yes of course the purpose must be taken into consideration Does the trust violate public policy? a. The settlor’s freedom to dispose of his property through the creation of a charitable trust fashioned along these lines must give way to current principles of public policy under which all races and religions are to be treated on a footing of equality and accorded equal regard and equal respect. Holding: This is void because of its impact The approach to scholarship isn’t consistent with Canadian values PAGE 290: “to perpetuate trust that…” o Social values, the public interest are part of the issue of public policy. PAGE 290: “the settlor’s freedom…” o This is a limitation on the rights of someone who holds the basic property interest Tarnopolsky JA: o drew a bright line between charitable trusts, which he characterized as “public,” on the one hand, and “private, family trusts,” on the other. o If we’re talking about public policy, we have to distinguish between public trusts (e.g. scholarships for universities) with private family trusts. o The latter, he stated, were not affected by the doctrine of public policy Ratio: Only where the trust is a public one devoted to charity will restrictions that are contrary to the public policy of equality render it void. Commentary: Set the bar with issues relating to scholarships. Ontario Human Rights Commission now has a policy on scholarships and awards 2. Discrimination Christie v York Found denial of service on grounds of race and color wasn’t contrary to public good Canada wasn’t protecting these rights Discrimination – scholarships – in the school’s own charter Ramsden Estate 1996 Facts: University of PEI is secular and its founding documents say there won’t be religious stuff recognized R wanted to make gift with restriction they’d only be for protestant students Issue: Is this condition void? Holding: University can’t administer this because of its own charter. Someone else can administer this gift Ratio: Court was possibly saying that Universities are not public trusts Analysis: Though the court couldn’t follow the decision in Re Canada Trust which held that only a public trust could be struck down for being discriminatory, this court has shown an inclination to reject discriminatory practices by reading into the University’s own charter. Arguably, reading into the University’s own charter is quite an invasive thing for the court to do. In a way, the court might really be drawing back to the dissent in Harrison in which Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 45 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. Laskin underscored the need to view private places which have full access to the public as public in nature, and therefore subject to the Charter and subject to judicial intervention. The case below, UVic, might be even more lenient because it’s a Cathlic University which is already less open to the public. Scholarship held as private arrangement UVic Case Holding: Scholarship for Catholic student was held as a private arrangement Analysis: This might not be okay now Mother tried to disinherit son when he married non-Jew, court didn’t allow that Fox Estate 1996 Facts: Testator set up trust and mother of some children was executor in relation to trust, she was given discretion with respect to allocation of trust Son married someone not Jewish She refused to give him trust money Issue: Was she permitted as a trustee with discretion to make discriminatory decisions? Holding: No Reason: The mother’s attempt to disinherit her son for marrying a non-Jew was an inappropriate use of her discretion. The mother’s behaviour as mala fides and contrary to Public Policy. “while there were decisions in the past which have upheld discriminatory conditions in Wills, in response to a query from the bench, counsel in this case were not prepared to argue that any court would today uphold a condition in a Will which provides that a beneficiary is to be disinherited if he or she marries outside of a particular religious’ faith.” Ratio: Public policy can affect the court’s decision regarding private, family trusts. Review of Terms Reversion: occurs when a life estate ends/no more heirs to receive a fee simple estate, land reverts back Remainder: Occurs when it is stipulated in the grant It is the interest in the property that is left over after the original grantee is finished possessing it. A future interest in a third party that vests upon natural conclusion of the grant to the original grantee. A possibility of reverter: occurs when there is a determinable event that has not occurred or is no longer true; if the grantee remains in possession, the limitation period for adverse possession starts to run Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 46 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. The grantor has a possibility of reverter in an estate determinable, where an estate will automatically return to the grantor if the determining event is violated. A right of re-entry: occurs when there is condition subsequent; if condition not met grantor has a right to resume possession The grantor has a right or re-entry in an estate subject to condition subsequent, where an estate may return to the grantor if a condition is violated and the grantor decides to reclaim the estate. PRESENT (VESTED) VERSUS FUTURE (CONTINGENT) INTERESTS Vested interests: present interest (in existence, even though entitlement to possession may be postponed) 1. It is held by an ascertained person or persons 2. It is ready to fall into possession immediately, subject only to ending of prior estates a. Vested interest is vested in possession b. Vested interest is vested in interest: takes place the time the grant takes effect (but may be postponed because there are one or more prior estates that haven’t ended yet) If holder has current title & right to possession estate vested in interest and in possession If holder has current entitlement but no right to current possession estate vested in interest only Particular estate: first estate in a series of interests because it is the particular of a whole, so it is <fee simple People can have present interest in: Reversion Interest and possession Interest but not possession Remainder (so they can will away their remainder to someone else) Contingent (or future) Interests: an interest that is subject to fulfillment of a contingency 1. The potential holder of the interest is not yet in existence E.g. G grants to A for life and then to A’s first child (A is childless) o The remainder interest for A’s first child is a contingent interest because the child is not yet in existence. If someone is not yet in existence, it’s a contingent interest. Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 47 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. 2. The holder’s identity is unknown There are some words, like the word “widow” where you can’t know E.g. G grants to A for life and then to A’s widow (the widow is unknown until the moment of the spouse’s death; if A is alive at the time of the grant, the “widow” is unknown) o The remainder interest for A’s widow is a contingent interest because the identity of A’s widow is not known until A dies. 3. There is a condition precedent to the holder’s entitlement to the interest E.g. G grants to A for life, remainder to B in fee simple if he gains admission to the legal profession in Ontario (B is in law school at the time of the grant) o At the time of the grant, this is a contingent interest. o The condition precedent must be met for B to have the interest o A has an interest vested in interest and possession, until A’s death o When B gains admission, his contingent interest becomes an interest vested in interest, and also vested in possession if A is already dead o If B never gain admission, his interest will fail When the grant language is unclear, the court will prefer a vesting construction; i.e. they will assume that a vested interest was intended, rather than a contingent interest (reason: a way to try and save things before they fall apart. All 3 contingent interests are unknown, so more likely that they’re going to not happen than in the case of a vested interest.) COMMON LAW LEGAL REMAINDER RULES Developed to address two concerns: 1. Setting the time limit within which a contingent remainder must vest in interest (if it is ever to) 2. Prevent gaps in seisen (need to know who has seisen of land and thus, liable for services and incidents) Legal remainder rules only apply to interests created at common law (legal interests, not equitable interests). To be a remainder, the legal interest must be created in the same instrument that creates a prior particular estate Rule 1: a remainder is void unless, when it was created, it was supported by a particular estate of freehold created by the same instrument; i.e. there can be no “springing interests” Valid: To A for life, remainder to B in fee simple o There is a particular estate that is less than a fee simple that supports and is prior to B’s remainder in fee simple Particular estate has to be less than a fee simple because fee simple indicates that it can be passed down to heirs, which would mean that it really would never get to the remainder Not valid: To D and his heirs two years from today Not valid: To E’s first daughter for life (if E has no daughter at time of grant) o In both cases above, D and E’s estates are meant to “spring up” in the future o There is no prior estate, so nothing holding the grant for the time between o At common law, springing interests can’t happen because that would mean there’s a gap in seisen o Therefore, this grant is void in terms of the recipient getting anything and the interest remains with the grantor This rule precluded Grantors and Testators from creating interests that would spring up at a future time [A springing interest can be invoked using equitable principles] Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 48 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. Rule 4: A remainder is void if it did not in fact vest before the previous interest expired Not valid: To A for life, remainder to B and his heirs if he is called to the bar o A has present interests that are vested in interest and possession o B’s interest is contingent fee simple, contingent upon him getting called to the bar o B’s interest will vest in interest if he’s called to the bar at some time before A’s death o If he isn’t called to the bar before A dies, his interest is still contingent and at the time of As death, the grant voids and A’s estate retains interest o B’s interest will vest in possession upon A’s death This is like a delayed springing interest; it’s not immediately void but it could turn out to be void Where we do have an interest that isn’t yet vested, as long as it vests before determination of prior estate, it’s valid. If it’s not vested, it’ll be void because of natural destruction. Requires orderly grant without gap in seisen; a “wait and see” component o The remainder would be valid if there in fact is an orderly succession of interests without a gap in seisin, but invalid if there is a gap in seisin Rule 3: A remainder is void if it was designed to take effect in possession by defeating the particular estate; i.e. no “shifting interests” The interest is being shifted to another recipient if the first recipient meets a condition subsequent Life estate defeasible on condition subsequent is not allowed Not valid: To A for life, but if she leaves Canada, then to B and his heirs o So A has a life estate that is subject to a condition subsequent, and if A meets it, then B’s fee simple estate would start But if = condition subsequent (CS: on condition that, but if, provided that) o This attempt to cut short A’s life estate o The remainder in B allowed him to “cut in” and end A’s life estate should she leave o Court considered this cutting in objectionable Determinable life estate valid Valid: To A for life during widowhood and then to B and his heirs o A has life estate subject to condition determinable During = condition determinable (CD: so long as, during, until, while) o The end of A’s life estate is at her being no longer a widow, which courts deemed okay. So seisin flows smoothly to B in fee simple This rule prohibits “shifting” interests in estates subject to conditions subsequent but not estates determinable If you want to make a life estate subject to condition subsequent, there is the right of the grantor to re-enter. But the grantor is almost signing off their right to re-enter. Common law courts say this can’t happen in the same grant Rule 2: No remainder after a grant of a fee simple Void: To M and his heirs so long as the land is farmed, and afterwards to P and his heirs o There is technically nothing further to grant away o Reentry and reverter can’t be exercised by anyone other than the grantor With regard to defeasible and determinable interests, rule 2, in effect, reiterated the common law prohibition on rights of re-entry and possibilities of reverter being exercised by anyone except the grantor or his heirs. In theory, a grant of a fee simple leaves nothing more to be granted away Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 49 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. o o o This rule applies to any remainder, contingent or vested, that follows a fee simple. In part, this is simply a consequence of the rule nemo dat quod non habet—once the grantor has parted with the fee simple, he or she has nothing further to grant away. Also applies to determinable and defeasible fee simples. Why did the courts impose the common law remainder rules? Courts and judges were worried about landowners having complete freedom. There are situations where landowners try and devise land to people’s children, etc. land owners want land to move to people. However, government wanted land to be freely alienable and if land is constantly being passed from family to family, then no one else has a chance to have it. EQUITY INTERESTS Problem during the 13th and 14th centuries: Feudalism was waning as an economic and political system, and many persons in possession of land no longer wanted to pay feudal dues to the lord of the manor. The tenures abolition act in 1660 abolished all tenures except free and common socage, feudalism was being replaced by capitalism Some people wanted to devise land to their heirs without having to pay the lord of the manor incident of tenure to do so (wills were not permitted until a state was enacted in 1540). Prior to 1540, it was not possible to make a will leaving the land to their heirs. When they died, the land went back to lord of the manor, and then the lord got to choose who the land went to (usually went to someone who was prepared to pay the most). Equity was conceived as a corrective system of justice, designed to supplement the common law by responding more flexibly and sensitively to the need for fair dealing and just outcomes on a case by case basis. Equitable developments in law occur because existing legal principles provide unsatisfactory responses to new social, economic, or political developments. Courts of Equity were established to bind the conscience of the feoffee to uses using principles based on equity and good conscience. Recognition that the feoffee to uses could be compelled to recognize the interest of the cestui que use eventually resulted in a principle that remain significant in conveyancing practices today. However, even with equity, people wanted to be able to create contingent interests that were prohibited by the common law legal remainder rules. The new entity is called a conveyance to uses. Conveyance to Uses Used to get around the common law remainder rules by way of the words “to the use of” Gives the middle person (feoffee) legal interest, so there’s no gap in seisen (common law didn’t allow) Gives the last person the equity interest Common law remainder rules don’t apply to equity interests Modern Protection for Holders of Equitable Interests (BFPFVWON) Equitable interests can be enforced against anyone but a bona fide purchaser for value without notice A holds legal estate, B hold equitable estate, A transfers to C. A and C cannot conspire to eliminate B’s interest. C is not bona fide (the transaction is not in good faith), so B can enforce his equitable interest against the purchaser. Gift is not a purchase for value If person has actual notice of equitable interest they’re not BFPFVWON If buyer fails to check register he has constructive notice of any interests on register. Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 50 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. If buyer fails to check the property, he has constructive notice of B’s interest. THE STATUTE OF USES, 1535 Executed the equitable interest and turned it into a legal one (i.e. no longer recognize “to the use of”) Executing the Use: 1. The raising of a use and splitting of legal and equitable title by the conveyance 2. The re-uniting of legal and equitable title when the Statute executes the use O conveyed to A and heirs for the use of B and heirs A is dropped from the grant, B becomes owner in fee simple of equitable estate and the legal estate Statutes of Uses (1535) Converted all equitable estates to legal estates, so that feudal dues were again payable to the King. The Statutes of Uses “executed the use”. The Statute of uses only applies where a person is seised of property to the use of another; i.e. where the feoffee to uses has been granted a present freehold estate [both of these statutes have been overruled in Manitoba, the UK and Australia as part of property law reforms.] The Statute of Uses does NOT apply: 1. Where the person has a leasehold estate 2. If the feoffee (middle person) was a corporation 3. The feoffee to uses has active duties to perform. o E.g. if feoffee does things like pay rent and manage property Reasoning: if they didn’t have legal title feoffee wouldn’t be able to do those things like pay rest and manage property TRUSTS IN GRANTS & DEVISES — MODERN LANGUAGE CREATING A TRUST You CAN create an equitable interest in ON today, because the Statute of Uses is still good law. G grants to A in FS to the use of B in FS to the use of C in FS Result: B gets a legal interest; C gets a legal interest. Language required to create an express trust in inter vivos grant is: “Unto and to the use of B and his heirs in trust for A and his heirs” OR simply, “To the use of A in trust for B” Why? The statute of uses executes the first use and A becomes a trustee with a legal estate, and B the beneficiary with an equitable estate. Trusts are useful for recognition of contingent interests that would be void at common law. Estates Administration Act s2(1) “All real and personal property that is vested in a person...on the person’s death...devolves to and becomes vested in his or her personal representative from time to time as trustee for the persons by law beneficially entitled” Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 51 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. When testator dies a statutory trust is created wherein executor automatically becomes the trustee and anyone who is a beneficiary in the will has an equitable interest until the executor transfers the legal interest. o Example: “To B” in a devise becomes “to the executor in trust for B”. Certain language will NOT create an equitable interest in Ontario: “To A in trust for B” does not create a trust the Statute of Uses executes the use and transfers to B the legal estate granted to A. Example: T devises to A and her heirs at 21. (At T’s death, A is 10). If in a grant — VOID. This would be a common law (legal) conveyance, subject to the common law rules about contingent interests, and thus void b/c A would not yet be vested in interest at time of T’s death due to the condition precedent. If in a devise — T’s estate (the trustee) holds a legal fee simple estate to which A is the beneficiary until A turns 21. o (Note that if A dies before turning 21 A’s interest will “fall into” the residue of the estate, and the residuary beneficiary will become entitled to it) Rigid language is required to create a trust in the context of a grant, whereas the language is more straightforward in the context of a devise (due to the OEAA, s 2) Why Create a Trust? 1. Make provision for their children/family members or structure wealth in order to avoid taxation 2. Separation of the management of the trust from the beneficiary is very flexible 3. Trustee has a responsibility for the wealth, but may be responsible for paying out to beneficiaries on a regular basis, or when a person turns a certain age Different Kinds of Trusts Express Trust: Expressly stated in a grant – e.g. “To the use of A in trust for B” Resulting Trust: Resulting trust arises whenever the beneficial interest under a trust has not been fully disposed of, in which case there will be a resulting trust in favour of the grantor or, if deceased, the grantor’s estate. May also arise in cases where there has been a gratuitous transfer of property from the transferor to the transferee If there is insufficient evidence that the transferor intended to make a gift of the property, the law will impose a resulting trust wherein B is the trustee holding a legal interest, but the person equitably entitled to the property is the transferor. To challenge a resulting trust, evidence on a balance of probabilities is required to demonstrate that the transferor intended to make a gift to the transferee. Constructive Trust Results from a decision that there was unjust enrichment. Equity may impose a constructive trust where there was: o (a) enrichment of one party; o (b) a corresponding deprivation of the other and o (c) no juristic reason for the enrichment. Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 52 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. The resulting remedy is that the person who holds title to the property becomes a trustee for a portion of the property that is held in trust for the beneficiary (the person deprived). No such thing as an aboriginal trust Guerin v The Queen SCC 1984 Court held that NO trust relationship existed between the Crown and aboriginals, but the government had a fiduciary obligation to act in good faith with respect to their negotiations with aboriginal people. The Crown was under an equitable obligation to deal with the land for the benefit of the aboriginals arising from the Crown’s fiduciary duty. The other features of AB title that we need to say might exist? o In addition to the title being based on prior possession, based on sovereignty. We talk about it as a sui generis right, which is the fiduciary relationship (Guerin) o We say it is inalienable right, except to the Crown so it can’t be transferred the way common law title can be (Guerin; Delgamuukw) o The land must be preserved for future generations, which creates at least some restrictions on the use of both AB people and the people (like the Crown) who it’s sold or given over to (Tsilqot’in) o The land is communal, so it’s a title that’s held by a community o The title is exclusive, which could be recognized as some exercise of control (Tsilqot’in; Delgamuukw) Though McLachlin CJ says the AB could give permission for others to be on land, which is an exercise of control (Tsilqot’in) Issue of flexibility and different interests Land owners wanted to be able to control their land. This is where we get divisions between vested interests, vested in possession, contingent interests, etc. With flexibility comes complexity; these ideas about common law often involve concerns about using precise language in order to achieve them. Interests are created by wills, grants inter vivos, and ultimately, they’re usually created by writing. With these features, we’re thinking about title to land as a commodity – as something that is able to produce wealth and can be traded or transferred. This is also related to the economic relationship of capital. Common land title looks like a parallel system of title that is relatively recognized in Canada. In St Catherine’s Milling, for example the court said AB had only usufactory right. only in Calder did the court say the AB were in possession. In these cases, we were looking at possessory interest; interest based on occupation. SUMMARY OF INTERESTS Successive Interests Grant/Device A grants to A for life, remainder to B for life, and then to C in FS Analysis A has a legal interest in LE, vested in interest and possession B has a legal interest, only vested in interest C has a legal interest in FS vested only in interest (will vest in possession when B dies) Vested or Contingent Interests Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 53 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. Grant/Device X devises to A for life, then to A’s widow in FS X grants to A for life, remainder to B in FS if she survives A X grants to A for life, remainder to B in FS Analysis A has legal interest in LE vested in interest and possession A’s widow has a legal interest in FS estate contingent on a condition precedent (i.e. her being a widow) If A doesn’t have a widow at the end of his life, the estate reverts back to X or escheats A has a legal interest in LE vested in interest and possession B has legal interest in FS contingent on surviving A A has a legal interest in LE, vested in interest and possession B has a legal interest in FS vested in interest but not possession Conveyance to Uses Before and After Statute of Uses, 1535 Common law remainder rules apply before and after the statute Where there is ever an equitable interest created, the common law remainder rules don’t apply Grant/Device X grants to A and his heirs to the use of B and his heirs X grants to A and his heirs to the use of B for life, remainder to the use of C and her heirs X grants to A and his heirs to the use of B for life, but if B marries C, then to the use of D and his heirs X grants to A and his heirs to the use of B and his heirs when B shall marry E (B is not yet married to E) X grants to A and his heirs X grants to C and his heirs when C shall have attained 21 (C is 19 at time of grant) Analysis Before Statute of Uses A has a legal interest in FS B has an equitable interest in FS A has legal interest in FS B has equitable interest life estate C has equitable FS A has a legal FS interest B has an equitable life estate subject to condition subsequent (i.e. if B marries C, loses the interest) D has equitable FS interest that’s contingent on B marrying C This is a shifting interest (D interest is meant to defeat B’s particular estate) but it’s allowed at CL because it’s in equity A has a legal interest in FS B has an equitable interest in FS that’s contingent on him marrying E, if he doesn’t marry E the estate remains with A FS (no conveyance to use) Void FS because it’s a springing interest Analysis After Statute of Uses B has executory legal interest in FS B has legal interest in life estate C has legal interest in FS This is also void because of the shifting interest (rule 3) This interest is void because it would be considered springing (rule 1) since B isn’t married FS (no conveyance to use) Void FS because it’s a springing interest The Modern Trust To create a trust you need the language “unto and to the use of ____ in trust for ____ “ The statute of uses doesn’t apply to trusts, corporations, leaseholds or if person is making use of the land Grant/Devise X grants unto and to the use of A in FS in trust for B in FS X grants to A in FS in trust for B in FS Analysis A has a legal FS B has an equitable FS This doesn’t have correct trust language so the Statute of Uses applies and executes B’s equitable interest, giving them a FS legal interest Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 54 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. X grants to Canada Trust in FS in trust for A in FS X grants to A in FS to collect the rents and profits for the benefit of B in FS A Deed of Trust, dated 15 January 1015: “To the Excelsior Trust Company in fee simple in trust for the Grantor’s only daughter, Rebecca in fee simple but if she dies before age 21, in trust for the Canadian Red Cross Society in fee simple” “To the my wife in fee simple in trust for the Grantor’s only daughter, Rebecca in fee simple but if she dies before age 21, in trust for the Canadian Red Cross Society in fee simple” A grant unto and to the use of my wife in trust for R in fee simple but if she dies before age 21, in trust for the Canadian Red Cross Society in fee simple” Canada Trust is a corporation so the Statute of Uses doesn’t apply, allowing it to have legal interest in FS A has equitable interest in FS Statute of Uses doesn’t apply because A is actually actively using the land, so has legal interest in FS B has equitable interest in FS (they’re the beneficiary) Statute of Uses doesn’t apply because ETC is a corporation, so they have legal interest in FS R has equitable interest in FS, contingent on her living to 21 CRCS has a shifting equitable interest in FS (no void because it’s equitable) Statute of Uses applies executing R’s equitable interest and giving her legal interest in FS. However, the CRCS’s interest is contingent on condition subsequent (but if she dies before 21) making it a shifting interest, and void at common law. Statute of Uses would give G’s wife legal estate and everything thereafter is equitable. Also, if this were in a will, the statutory trust under s.2 of the Estates Administration Act would make it a trust even without the words required for an inter vivos Deed of Trust. Statutory trust automatically sets up the structure above. CHAPTER 4: BAILMENT & LEASEHOLDS Situations where one person is holding title and the other is holding possession (usually via tort or contract law) BAILOR VERSUS BAILEE Bailments can occur in the absence of contracts (but they can also happen in the presence of one) Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 55 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. Bailor: The true owner – i.e. the person with title – is the bailor Bailee: The person with actual possession of the chattel or property (but not ownership) Finder of lost property is bailee who has responsibilities because of the division of title and possession The finder was the bailee Parker v British Airways The fundamental property relationship is that the finder (the bailee) has a responsibility to try and find the true owners The difficulty is that oftentimes when you’re the bailee, you have responsibilities and it’s in a contract. For example, if you take clothes to a dry cleaner, the cleaner is the bailee Contracts of adhesion: person writing the contract decides the contract (not negotiated) LEASEHOLD ESTATE (VERSUS FREEHOLD ESTATE) Freehold Estate: Uncertain duration o Life estate: unsure when someone will die o Fee simple estate: unsure how many heirs it’ll be passed down to Leasehold Estate: Certain duration o By contract, usually o You usually only enter into a lease for a certain number of years, etc. History of the Leasehold Estate Originally, leaseholds weren’t regarded as property. They were regarded as contractual relationships. The creation of leaseholds was about people trying to get around usury laws Usury laws: laws that said you can’t have any interest on a loan. e.g. person A borrowed money from person B, giving B contractual right to land (Reading GUIDE) Duties and Relationship of Lessor and Leasee Lessor has a reversion: agree to create a leasehold estate in lease for X years, and when X years are up, they have reversion. During the period of the lease, the leasee has title to the estate. The statutory legislation says that in circumstances where there’s a problem, each party has a duty to mitigate the issue and this comes from contractual relationship If you have suffered damage, you can’t go on accumulating more damages. You have to actually try and mitigate your situation. Residential Tenancies Act ON has tribunal that deals with these disputes Lessors are permitted to reasonably withhold approval of tenant’s decision to move o A reasonable reason why lessor says no you can’t assign lease to person X is if tenant wants to assign lease to someone who is clearly not going to pay rent o Lessors cannot preclude pets in apartments Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 56 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. Lessor should be notified of tenant Leasee has obligation to pay rent Lessor has obligation to keep the upkeep Determination arrangements (where tenant has failed to do something) the lessor can terminate relationship early: o If they fail to pay rent o If they’re doing something illegal o If tenant commits willful negligence or undue damage to place o Tenant has too many people in the unit o No fault relations: Lessor has to apply to landlord tenant board to evict the tenant. But the board has discretion to determine where they can evict. E.g. if they need the place for family members or to demolish it Commercial Tenancies Act All people who are tenants in shopping mall for example, are subject to this Most of the time litigation about this ends up in courts Example: Lessor – tenant entered into a 2-year lease, and then after 6 months the tenant wants to move somewhere else. The tenant has two options, subject to the lessor agreeing to these options. 1. Tenant sublets to tenant 2 o If we sublet, it’s similar to subinfeudation o In relation to the first lease there is the landlord and tenant, and the tenant has created a relationship where they’re in a relationship with subtenant. o So the tenant is the lessor in relation to the subtenant o The tenant is the leasee in relation to lessor o But there is Privity of contract between both separate contracts which is an issue for the original lessor, who might say then that their tenant can’t sublet o When there is a valid lease between lessor and tenant, there is also something called Privity of estate because one person has reversion and the other person has leasehold estate o So you might be able to use Privity of estate to enforce obligations ASSIGNMENT VERSUS SUBLEASE Assignment In the assignment, we’re saying tenant 1 is saying they don’t have leasehold estate in relation to apartment. Assignment takes remainder of leasehold estate and gives it away Sublease In sublease – the person isn’t assigning obligations Sublease carves out new relationship within the initial leasehold estate Privity of Contract versus Privity of Estate If lessor has reversion and tenant has leasehold estate, there is Privity of contract there and Privity of estate Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 57 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. But some people try and write this so there’s no Privity of estate. This means the lessor had more opportunities to enter the apartment, determine who should be there, when the lights should be turned off, etc. They’d write this by saying you have a license Why might lessors have wanted to create license? (a contract relationship) They would have more control over the place In circumstances where you had a lease, there was rent control. But rent control didn’t apply to license. What is a residential unit? Expansive definition Street v Mountford It was really a leasehold estate and the court wasn’t going to put up with people trying to evade rent control Right to housing Tanudjaja v Canada Facts: People argued that there was right to housing and positive obligation of government to fulfill this These people are vulnerable and there’s an obligation on government to protect them Failure of the government of ON in relation to similar things that have created much greater vulnerability The application had asked the court to decide, in essence, whether adequate housing is a positive right under s. 7 and s. 15 of the Charter. It stated that changes to legislation, policies, programs and services by the Canadian and Ontario governments have led to inadequate housing and increased homelessness, which breach the s. 7 right granting citizens the “right to life, liberty and security of the person” and breach the s. 15 right of protection against discrimination. Arguments: They submit that Canada has eroded access to affordable housing by: a. cancelling funding for the construction of new social housing; b. withdrawing from administration of affordable rental housing; c. phasing out funding for affordable housing projects under cost-sharing agreements with the provinces; and d. failing to institute a rent supplement program comparable to those in other countries. They submit that Ontario has also diminished access to affordable housing by: a. terminating the provincial program for constructing new social housing; b. eliminating protection against converting affordable rental housing to non-rental uses and eliminating rent regulation; c. downloading the cost and administration of existing social housing to municipalities; d. failing to implement a rent supplement program comparable to those in other countries; e. downloading responsibility for funding development of new social housing to municipalities which lack the tax base to support such construction; and f. heightening insecurity of tenancy by creating administrative procedures that facilitate evictions. Majority: Majority agreed with lower court in finding that the challenge brought before the bench could not succeed. Pardu JA noted that Charter challenges under s. 7 and s. 15 typically offered a challenge to a specific law or specific application of a law, instead of pointing to a complex matrix of policies and programs as discriminatory, as Tanudjaja does. Pardu added, though, that “[t]his is not to say that constitutional violations caused by a network of government programs can never be addressed, particularly when the issue may otherwise be evasive of review” (para 29). Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 58 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. In process, Pardu considered Gosselin v Quebec and Chaoulli v Quebec (Attorney General), two important Charter cases. In Chaouilli, the Supreme Court found that a lack of access to health care choices and long wait times combined to breach the Quebec charter right to security of person. In Gosselin, there was an important discussion by McLachlin CJ about the potential conditions under which the court could recognize positive rights under s. 7. Historically, the courts have only recognized negative rights. Majority did not consider whether positive obligations could be placed on governments nor did it look at the possibility of using homelessness as a ground for discrimination: o “Given that this application was properly dismissed on the ground that it did not raise justiciable issues, it is not necessary to explore the limits, in a justiciable context, of the extent to which positive obligations may be imposed on government to remedy violations of the Charter, a door left slightly ajar in Gosselin v. Quebec. Nor is it necessary to determine whether homelessness can be an analogous ground of discrimination under s. 15 of the Charter in some contexts. (para 37)” The majority decision did recognize possibility that, on different case, court could consider these points. Dissent: Same as in Gosland case, saying there might a positive obligation Feldman JA wrote that it was an error of law of the motions judge to strike this claim at the pleadings stage. o She argued that, at that stage, it was too early to decide whether the circumstances of the case would be special enough for the court to be able to grant positive rights because such an assessment requires the court to consider the full record of the case. She stressed that “a claim should not be struck out at the pleadings stage unless it has no reasonable prospect of success, taking the facts pleaded to be true” (para 49). In her dissent, she outlines four problems she finds with the motion judge’s decision o 1) he misunderstood the appellants’ s. 7 claim and stated it in an overly broad manner; o 2) he erred in stating that the s. 7 jurisprudence on whether positive obligations can be imposed on governments to address homelessness is settled; o 3) he erred in purporting to define the law in a critical area of Canadian jurisprudence on a motion to strike; and o 4) most importantly, he erred in concluding that the issue of whether the appellants had a potential claim under s. 7 could be decided without considering the full evidentiary record (para 52). Analysis: Homelessness is an issue that needs to be addressed at some level, and politicians are failing to deal with it. While it is not the role the court to make policy decisions, it is the role of the court both to uphold justice and to help reflect societal thinking about what justice means. Mounting evidence shows how homelessness can help perpetuate the cycle of poverty and mental illness for vulnerable individuals. Both the reasons of the majority and the dissent in Tanudjaja show ways that the courts can continue to have this important discussion. No social assistance for people <30yo Gosselin Facts: Quebec government was trying to limit $ paid to social assistance Said if people were <30 they could find a job more easily Holding: Government not made to pay Reasons: SCC said court said it doesn’t have authority to create positive obligations Dissent: Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 59 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. In a compelling dissent, Justice Arbour said it is possible in some circumstances where there is vulnerability, for there to be positive obligations in the charter. This arguably recognizes the impact of law on SES and poverty, and is an example of where the law should better respond to the lived reality in society. CHAPTER 5: GIFTS & SALE OF LAND Transfer of a property interest by contractual arrangement (sale): o Mutual exchange of obligations that are enforced by way of legal and equitable remedies for breach. o Such a transaction is often called a bargain promise. Transfer by way of gift: o A gratuitous, unilateral transaction o Often referred to as a non-bargain promise. In the law of gifts, we’re talking about the idea of a unilateral promise or mutual promise. But we don’t have consideration, so we need delivery in the absence of consideration for these promises to be enforceable. Common to sales and gifts Necessary to prove a transfer of title Principle of law and equity may intersect to define whether such a transfer for title has occurred Gift may result in obligations which are just as significant as a contract TRANSFERS BY GIFT Gave $$ painting to son then had to “re-give” painting; lawyer is essential Michael Gruen v Kemija Gruen Facts: A successful architect in New York, Victor Gruen, wrote to his son, Michael, to tell him that he was giving him a painting by Gustav Klimt to mark Michael’s 21st birthday. A short time later, Victor Gruen sent a second letter (replacing the first one) to his son to announce the gift, explaining that his lawyer had concluded that the wording of the first letter would have attracted tax liability. Painting purchased in 1959 for $8,000, but was valued at the time of the litigation in 1986 at $2.5 million Ratio: The role of lawyers may be critical to the efficacy of such transactions. AB Gifts: Potlach Ceremony Potlach ceremony: part of a communal and reciprocal sharing relationship. European settlers didn’t think the ceremony was a good idea because the AB were giving things away and “debasing concept of property” (potlach like Christmas; so AB tried to disguise their ceremonies as Christmas) Legal Requirements for Gift Inter Vivos Gift of “chattle”: 1. Delivery: donor actually has to deliver the gift to the donee 2. Intention: donor must have an intention to make the gift 3. Acceptance: donee must accept the gift o Lower standard for what constitutes acceptance, in comparison to the standard for delivery and intention Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 60 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. Gift of land: Deed of gift o Must be in writing o Must be signed o Sometimes it must be under seal o Usually there is a witness Uncertainty about “Deed of Gift” Is second deed of gift only valid if she stays married? Yes Schilthuis v Arnold, [1991] OJ no 2212 (Gen Div) Facts: Deed of gift Man gives first deed of gift which seems legal But then gives second deed of gift upon marriage There is a dispute in the second deed of gift, which the man later argues is only effective if they’re married First trial Judge said marriage was not a condition in relation to the second deed of gift o Said a gift “is not a kiss in the dark. Unlike the memory of a kiss which fades in time, the giving of a gift has lasting consequences.” Issue: Was marriage a condition of the second deed of gift? Holding: Yes, marriage is condition Court of appeal judge says the gift was conditional on marriage and said there can be no gift if the condition is unfulfilled Reason: This is a fee simple subject to condition What people may have intention; both parties might have intended for gift to be effective, but they didn’t clarify their intentions with one another or in the written document Ratio: The context around the giving may help determine what the deed means when there is uncertainty Requirement 1: Delivery No delivery – man did not walk away – bankruptcy so there is third party (creditors) Re Cole Facts: Wealthy man Wife comes to home and man walks her through the house and said it’s all hers Man declares bankruptcy o At the moment of declaration of bankruptcy all the property is held by trustee in bankruptcy who then calls people and asks whether they have any entitlement to any of the stuff Woman said man gifted all the property to her, so trustee didn’t have any entitlement to the home or contents Issue: Was there delivery? Argument: Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 61 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. The lawyer says that it would be impractical for the man to pick up and give wife every object If husband and wife are living in same residence, delivery should look like bringing the wife to the gifts o A person could transfer give to wife by picking up each one o Alternatively, bringing the wife to the objects should be sufficient to constitute delivery Holding: There is no delivery Reasons: Court assumes that man had intention to gift contents of house to wife, and the woman had accepted it Mr. M, on behalf of the wife, boldly put forward an entirely novel proposition to the effect that a perfect gift of chattels is constituted by showing them to the donee and speaking words of gift. It is enough, he says, that the donee should be brought to the chattels rather than the chattels to the donee and that she should be “near” the chattels (though what degree of proximity is needful remained vague) when the words of gift are spoken. It amounts to a change of possession, says Mr. M, particularly if you are dealing with a collection of chattels, a fortiori if the chattels are or come under the physical control of the donee; Case is strengthened if the donee handles some of the chattels in the donor’s presence. However, in absence of consideration there needs to be delivery, except in cases of will or deed, which purports both consideration and delivery Therefore, the contents of the house become some of the assets of trustee in bankruptcy and used to recompense husband’s creditor Pierson J: If the fact prove were equally consistent with idea that he intended to deliver, and intended to keep as own property then the wife failed to make her case Ratio: Delivery means actual change of possession with some kind of physical transfer (i.e. taking a clod of land and giving it to new person) o This is distinct from Kilpin where the man walked out after giving the gift so the court held that there was delivery. Donee has obligation to prove delivery; and evidence can’t be equivocal. o If the act is equivocal – there is evidence consistent with intention of the giver keep the thing, and consistent with giver to give then the act does not constitute delivery (Justice Pierson, in Coleman) Interest in ¼ of horse – no delivery Cochrane v. Moore Facts: A quarter undivided share in a horse Holding: Court of Appeal held that the property did not pass by the gift because there had been no delivery. Reasons: Generally, all gifts or grant of a chattel need to be accompanied by delivery Two exceptions where the intention of the party is that the property shall pass before delivery o Deeds o Contracts of sale Father daughter “all yours” – man walks out after giving gift Kilpin v. Ratley Facts: Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 62 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. Furniture belonging to the husband and in the matrimonial home was purchased by his father-in- law who took an assignment of it by deed. Subsequently the father visited his daughter at the house and standing in one of the rooms orally gave her the furniture He then walked out of the house, leaving it behind him Issue: Was there sufficient delivery? Holding: This amounted to a sufficient delivery to the wife. Reasons: The father by pointing the furniture out to his daughter and then leaving the house put her and not her husband in possession of it and there was, therefore, a sufficient change of possession. Analysis: The different between Ratley and Coleman is the man walking out and leaving So there is an effective gift in absence of consideration “Im giving you all the contents” and then leaves Implications: Obviously it’s way easier for father in law to leave house than for husband to leave home Ratio: Court is more likely to say there is delivery if the person giving the gift shows, e.g. by walking away, that they no longer have any interest in the “chattel” Man to fiancée “this is all yours” – delivery exists – no bankruptcy Langer v McTavish Brothers Ltd Facts: Man brought his fiancée to a new home, showed her an array of furniture, and declared, as the husband did in In re Cole, “It’s all yours.” The court held that there was a valid gift, taking into account the nature of the property and the circumstances of the parties. Distinction; Delivery exists The man was a fiancé, not married There were no creditors waiting; not a situation of bankruptcy Ratio: In the context where there is a third party (e.g. creditors) the court is more concerned with an intra family transfer that doesn’t permit the credits to get what they’re entitled to (Langer) Paintings on b-day but then hung up on the wall again after opening Mackedie Estate v Mackedie Facts: Deceased had owned five paintings worth $35,000 each. Son G claimed that his father gave him the paintings as birthday presents, one painting each year over five years. On each birthday, a painting was taken off the wall, wrapped, and given, written notation “Happy Birthday G” After the painting was un-wrapped, it was agreed that the paintings would be kept in the possession of the deceased. The deceased died and in his will he left the paintings to someone else. Issue: Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 63 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. Did it constitute delivery? Holding: Paintings belonged to G because there was a clear intention by the deceased to make a gift, including the written endorsements that were known to the deceased. More- over, the court found that the presentation of the paintings as wrapped birthday gifts constituted delivery even though they remained in the possession of the deceased. Ratio; The court puts emphasis on what was intended; if it’s clear the person is intending to gift something (i.e. because they wrapped it) than the court is more likely to say there is delivery Constructive (and Symbolic) Delivery Constructive Delivery: act amounting to a transfer of title by operation of law when actual transfer is impossible. Give all the keys; hand over the means of control, no longer holding on to anything that gives control over the car Symbolic Delivery (COMMON LAW TYPICALLY DOESN’T RECOGNIZE): substitute article that indicates the donative's intent of the donor or seller and is accepted as the representative of the original item. E.g. If you’re giving someone a car via symbolic delivery: picture of a car in the birthday card Requirement 2: Intention “if you can find it you can have it” – was there intention? Thomas v Times Book Facts: Thomas was writer He went drinking one night and lost a play he wrote The next morning, he was met with publisher who had duplicate copy T said to publisher “if you can find it you can have it” (regarding the original copy) T died when he was away Issue: Was there intention on part of T to make gift of original copy or should the copy form part of T’s estate? Holding: It was a gift because there was intention on T’s part Reasoning: This case is interesting because the only person who heard T was the publisher Ratio: Delivery doesn’t have to happen at the same time as intention is expressed For there to be valid gift giving, there needs to be intention to give as a gift Requirement 3: Acceptance Uncertainty about whether paintings were gift or loan Beaverbrook Art Gallery Facts: B gave paintings to gallery Eventually there was uncertainty about whether he loaned the paintings or if he gifted them Gallery assumed it was a loan Procedure: Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 64 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. This was mediation! Holding: Although “acceptance” is referred to in some of the authorities, it is now apparent that it is not in fact a prerequisite ... [to the gift vesting in the donee]. Acceptance does not have to be express in order to be valid. o Standing v. Bowring states, “Express acceptance by the donee is not necessary to complete a gift. It has long been settled that the acceptance of a gift by a donee is to be presumed until his dissent is signified even though he is not aware of the gift.” Ratio: Delivery and intention important Acceptance is a lower threshold that we have to meet Acceptance is presumed unless it’s expressly rejected DECLARATIONS OF TRUST Trusts: Trustees hold legal interest and property interest for the benefit of beneficiary Beneficiaries hold equitable interest Property interest transferred to trustee though deed of trust Trustee Act Dishonest trustees (who hold property interest for beneficiary) can be charged with malfeasance What happens when trustee transfers legal interest – fee simple estate – to someone else? Beneficiary has equitable interest, can’t be enforced against bona fide purchaser for value without notice Purchaser for value: property must be purchased for value and not given as gift How can notice be given? 1. Actual notice: trustee informs the person 2. Constructive notice: if the property is registered, the purchaser is deemed to have received notice The writing constitutes a declaration of trust – constructive trust Watt v Watt Estate Facts: Boat built by two men Wife of one of the man helps out with building, without any pay Owner writes out note that says the boat is owned by all three; however, though this is in writing, it’s not a deed of gift Man dies and after, the widow says there wasn’t any gift to the woman who helped build the boat He gave the woman who helped one set of keys, but he still had the other set of keys He clearly didn’t divest himself of the ownership (constructive) Holding: No gift Analysis: Was there delivery? o No delivery; he gave duplicate sets of keys to others too. Was there intention? Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 65 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. o No, he simply gave keys so she could help out. He didn’t intend to hand over control. The note and handing over guys constitutes a declaration of trust o The trustee is RJ which means he holds a legal interest o S has an interest too o The beneficiaries of the trust have equitable interest o Ultimately, a declaration of trust changes the nature of the ownership interest; there is a joint equitable interest in this case Ratio: The court looks at the actual context of the relationship between the parties Typically, a valid gift requires there to be delivery. But where delivery is difficult the court may recognize a constructive trust that’s in line with the donor’s intention. Constructive trusts – looks like labour theory of possession? In Watt Estate, if we ruled that S had no interest, then she worked a lot and got nothing in return. This might constitute some sort of injustice or inequity. Draw this back to different theories of possession where there is the general way of thinking about possession from Armory (?) or there is labour theory, which suggests that people should get possession if they’ve put in work Declaration of trust is used because it seems equitable to compensate her for all the work she did Equity is used by the court to recognize that this letter was a declaration of trust. Helps if something in writing In the case Peirson, there was a guy who had worked to hunt a fox and at the last second, and another man swooped in and killed the fox. The court found that the second man had possession. They reasoned that first possession is established by a clear act that indicates an intention with respect to the land/object. The clear act in this case was the kill, rather than the hunting and trapping. The oral words constitute a declaration of trust – constructive trust Cochrane v Moore (1890) Facts: B owns horses and has jockey named M M rides the horses The horse won and B said he would give M a ¼ interest in the horse However, B gave this as an oral declaration B then, at a later point, loans money from C and doesn’t repay it. And the terms he made said if he didn’t repay, C could be entitled to horses (one of which M has interest in) The court finds itself in litigation where C is denying ¼ interest to M M can succeed even if he didn’t have delivery of the ¼ horse Holding: But there is a trust relationship here which was created orally There is a declaration of trust created orally; this is an example of a constructive trust o C is the trustee who holds legal interest, and holding equitable interest and ¼ interest in 1 horse Analysis There could have been a gift if there had been a deed of gift here Different Kinds of Trusts Express Trust These trusts are where someone deliberately and consciously says they want to set up a trust Usually writes stuff down Usually created by a deed of trust Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 66 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. 3 requirements: there has to be intention to create the trust the subject matter has to be defined the trust has to define the objects of the trust (e.g. exactly who is supposed to benefit from the trust) o Has to define the property held in the trust, has to define the trustee and and beneficiary Resulting Trust Occur in circumstances where there’s an intention to transfer property interests, but no intention to gift it. i.e. the transferor doesn’t want the property in their name, so they transfer it to someone else (e.g. giving it to someone who has a lower tax rate) Constructive Trust Trust obligations can arise even in the absence of a specific intention to create a trust. Recognized “constructive” trusts to ensure a just result in cases where a person without title to property has made a significant contribution to acquiring or maintaining it, thus preventing the “unjust enrichment” of the title holder The remedy for this is the imposition of a constructive trust This is very much the court exercising its equitable jurisdiction Different Kinds of Gifts (1) Testamentary Gifts (2) Inter Vivos Gifts (3) Donation Mortis Causa Donation mortis causa: someone who is giving something on their death bed; in between death and alive Delivery is required, doesn’t take effect until the person dies Donation mortis causa gift Costinuik v British Columbia Facts: Widow is becoming unable to look after herself Neighbours look after her She gives them the duplicate keys to her safety deposit box She gets sick and goes to hospital She calls lawyer who drafts will but dies before she signs it She said both to lawyer and to the people that she wanted to give safety deposit box to people Holding: Court said the people could have what was in the safety deposit box but not the title to land Ratio: Where it was a donation mortis causa gift, the court is looking for more than just conversations between people to indicate an effort to transfer CONTRACT FOR SALE OF LAND CONVEYANCES What needs a deed of gift? Transfer of legal title to land requires a deed of gift Transfer of chattel, where it’s possible to only hand something over via a deed of gift (e.g. piano) Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 67 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. Equity when there is declaration of trust Watt v Watt Facts: Boat gifting case from above Holding: Constructive trust of boat o There would be unjust enrichment The woman had an equitable interest in the boat Ratio: There is no effective delivery when the means of control aren’t passed over However, the entire circumstances can be looked at to determine whether there may be a declaration of trust, which transfers title o In Watt, the court took the transfer of the keys coupled with the note to constitute a declaration of trust. When there is a declaration of trust, equity will come into play to help determine whether the transfer has taken place. Two-Step Process to Sale of Land STEP 1: Contract for the sale of land (agreement) Purchaser and vendor have to make a contract of purchase and sale Purchaser hands over a deposit to the seller, which counts as the consideration The moment you have a valid contract: Vendor becomes in equity a trustee for the purchaser of the estate sold Beneficial ownership (equitable ownership) passes to the purchaser Vendor has right to purchase-money and a right to retain possession of the estate until the purchase money is paid STEP 2: Deed of sale (Closing) The deed of sale transfers the legal interest to the purchaser Closing date: When there is the deed that transfers the fee simple from the seller to the purchaser and the purchaser becomes the holder of a fee simple estate Who holds what interest with respect to land? Prior to the contract o The vendor holds the legal and equitable fee simple estate At the time of the contract o The vendor holds the legal fee simple estate o The purchaser has an equitable fee simple estate that can be enforced against anyone except the bona fide purchaser for value without notice o The vendor is the trustee for the purchaser for the land (Lysaght) o The purchaser is a trustee for the vendor for the remaining purchase price (Lysaght) At the closing date of the transfer of title Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 68 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. o Purchaser holds the legal title and equitable fee simple estate Transforming Agreement of Purchase/Sale to Equitable Interest For a person to gain equitable interest (step 1), there are three requirements: 1) The contract has to be capable of specific performance o Semelhago v Paramadevan 2) There must be a valid contract in relation to land o Vendor and purchase must agree on the purchase price, parties, and property details (property, price, parties), and the vendor must have a transferable title (Lysaght v Edwards) 3) The contract must meet the requirements of the Statute of Frauds o Statute of Frauds, 1677 English laws brought to Canada Property and Civil Rights Act, 1792 All English laws as of 15 Oct 1792 were brought into Canada by the, so the Statute of Frauds is in full effect in Canada today o s. 4 requires that the agreement for purchase and sale must be in writing and must be signed by the party to be charged in order for the agreement to be enforceable against that party o The Statute was designed to prevent fraudulent activity, but it can also be used for fraudulent activity o Equitable doctrine of part performance is used to combat fraudulent use of the Statute of Frauds Law Equity Before Contract Vendor (fee simple) Vendor (fee simple) Contract Vendor (fee simple) Purchaser (fee simple) Conveyance Purchaser (fee simple) Purchaser (fee simple) Requirement 1: Specific Performance Why does equitable conversion happen? The purchaser has an expectation once they pay a deposit; they might order specific performance The remedy of specific performance also enforces the maxim that equity deems as done which ought to be done, so it’s appropriate to award equitable remedies to enforce the agreement for sale If specific performance is available to enforce an agreement of purchase and sale, the creation of an equitable interest in land as a result of the contract for sale means that rights of mere contractual significance are elevated into rights of proprietary consequence Uniqueness Chaulk v Fairview Construction Ratio: Damages will be afforded if it can be found that the property is unique (expanded in Semelhago) Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 69 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. Land isn’t immediately considered unique – need unique for specific performance Semelhago Facts: Vendor and purchaser entered into an agreement for the sale of a house for $205k The vendor then sold the house for $325k to another party The original purchaser sought specific performance, because they wanted the house Issue: Is specific performance an appropriate remedy for this breach of contract? Holding: The purchaser is entitled to specific performance Reasons: The court considered Chaulk and whether there should be automatic entitlement to specific performance, or whether a plaintiff might need to show the property was unique o Courts used to automatically assume that a contract for the sale of land was capable of specific performance because land itself was unique, so money damages were insufficient But in Chaulk, the court found that not all land is unique, so not all is entitled to specific performance In this case, the court found that the land was sufficiently unique and order specific performance Criticisms: o Uncertainty: it’s not clear what characteristics should be looked at to see whether a piece of land is unique? o Further, it’s not clear whether we should look at these characteristics through a subjective lens (of the plaintiff) or an objective one (of a reasonable person) o My idea: Given that property is such a hot commodity now, and so expensive and unaffordable to so many, does it even make sense to look at it through the lens of a reasonable person? Wouldn’t the reasonable person actually be the person who can’t afford property (given that we’re in a huge inflation bubble) thus making all property unique and valuable, capable of specific performance? o Inconsistency: there will likely be inconsistent decisions made on something so intangible as the attraction of particular property o Expense: litigating an issue of uniqueness, to qualify for specific performance, is expensive on top of an already expensive housing market. o If a plaintiff lost their uniqueness claim and wasn’t entitled to specific performance, they would arguably be in double jeopardy (no property + tons of legal fees) Ratio: Consider things like: (1) size, (2) shape, (3) view, (4), proximity to shops, parks, schools, relatives, friends, (5) character Canada’s wonderland John E Dodge Holding Facts: People trying to put up a hotel for tourists, in relation to a block of last right near Canada’s Wonderland Agreement not met Plaintiff is saying this is a unique piece of land because of where it is (say it’s objectively unique) Issue: Is the land sufficiently unique to warrant specific performance? Holding: The purchaser is entitled to specific performance The purchaser has an equitable property Reasons: Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 70 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. The court says this site offers a combination of attractive features, so it is unique and therefore specific performance is available, which means there is this equitable conversion. Ratio: Land is sufficiently unique to warrant specific performance if it has a quality that makes it especially suitable for the proposed purpose and cannot be reasonably duplicated elsewhere. Requirement 2: Valid Contract Not valid contract no availability for specific performance Lysaght v Edwards Ratio: To be valid, a contract for the sale of land: Should specify the basic matters of agreement in regards to the land o Property: description of the property o Parties: who is involved o Purchase price The vendor must have a valid title in order to transfer (needs to have a title that can be conveyed) and purchaser needs to accept the title (once accepted, it’s a valid contract) Requirement 3: Statute of Frauds State of Frauds s.2 Documents transferring an estate or interest in land must either be in writing and signed by the vendor (Statute of Frauds s.2) or in electronic format (Land Registration Reform Act s. 21) Statute of Frauds s.4 Agreement to create or assign an interest in land must be in writing in order for action to be brought to enforce agreement. A contract is only enforceable if it’s in writing and signed by the party to be charged o Party to be charged = person against whom the action is being brought Problem with SoF s.4: oral promise, no signature Gazumping is name given to the problem of vendors negotiating with multiple purchasers at the same time to obtain the highest sale price and using the Statute of Frauds to avoid the consequences of their oral agreements E.g. V can make contracts with multiple parties, A, B, C, and D, where A, B, C, and D has signed each contract, but V has not, and section 4 of the Statute of Frauds prevents B, C, and D from enforcing the contract against V. Solution: Equitable Remedy of Part Performance First, show (using evidence) the reliance of the plaintiff on the oral promise Second, demonstrate the existence of the terms of the promise that resulted in the plaintiff’s actions Oral contract can invoke equitable remedies if detrimental reliance Maddison v Alderson Ratio: Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 71 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. Oral contract may enforceable if purchaser can establish that they did part performance directly related to the contract they relied upon o Things they did speak for themselves and point unmistakably to a contract affecting the ownership or the tenure of the land and to nothing else. The proper course in assessing whether part performance should attract equitable remedies is 1. Establish that the acts of part performance implied by the existence of the contract 2. Ascertain the terms of the contract Analysis: Why that order? “If the terms of the oral bargain are first ascertained and then the alleged acts of part performance are judged of merely by their consistency with and applicability to that bargain, grievous error may result” The leading decision on the doctrine of part performance Dagelman v Guarantee Trust 1954 SCC Test to establish part performance which will exclude the operation of the statute are: (1) The acts of part performance are unequivocally indicative of the alleged contract (so they wouldn’t indicate some other contract) (2) The acts are such that they render it a fraud in the defendant to take advantage of the contract not being in writing; (3) The contract to which the acts refer must be such as in its own nature is enforceable by the court; (4) There is proper parol evidence (writing) of the contract which is let in by the acts of part performance Court also established that the mere payment of money will not qualify as part performance. Test for whether there is part performance: The actions have to be unequivocal; there can’t be any uncertainty about why someone did these actions and mere payment of $ isn’t sufficient for part performance (money could be for a number of different kind of situations) Contrast to Dagelman Steadman 1974 UK Holding: The House of Lords (UK) held that – in contrast to Dagelman – there is a different, less demanding test to demonstrate part performance o However, in the UK, the test for part performance is whether you can establish that the acts done, on a balance of probabilities, are consistent with the alleged contract o And the UK courts found that payment of money that is clearly referable to the specific contract might constitute part performance o There is uncertainty in law, so state this Use Degalman Alvi v Lal Court considered different approaches in Degalman and Steadman and found that until the SCC accepts Steadman, the payment of $ doesn’t constitute part performance involving land Actions that constitute part performance Taylor Facts: The plaintiff applied for a declaration of an interest in land owned by the defendants Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 72 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. Stated that the defendant had agreed to sell the land to the plaintiff for $56K with a down payment of 10 percent payable over two years. Plaintiff moved in and undertook repairs to the building and surrounding land. Although the plaintiff claimed that the defendant had signed an agreement incorporating these terms, he said that the defendant had retained the only copy of the agreement. The defendant stated that the plaintiff was only a tenant and that, while there had been some discussions about a sale, the price was higher and the time frame for submitting the down payment was only six months. Issue: No written agreement Was there sufficient part performance to entitle plaintiff to specific performance? Holding: Court says P was more credible than the D P entitled to specific performance Reasons: Examples of acts of part performance o P saying D agreed to sell land o P made payment o P moved in and undertook repairs to building and land o D retained the only copy of the agreement which was signed o D said the P was only a tenant Ratio: Acts done in preparation aren’t sufficient to establish part performance, you need acts done in reliance of the contract Mall – reliance so equitable interest – but no possession because 3P was BFPFVWN Starlite Variety Stores Ltd v Cloverlawn Investments Ltd Facts: S operates chain of small stores C is company that builds shopping plaza and rents the stores There is agreement between S and C in relation to lease in mall o There was a draft agreement on the standard form which embodied verbal agreements o At a later meet, one guy shook hands and said “you’ve got a deal” o S signed agreement and it was returned to the mall o I.e. the oral agreement was replaced by standard form lease agreement, and a cheque o But the mall owner never signed the document C then found out they could get higher rent from another tenant, M, who they made agreement with S is suing mall in relation to the lease Issue: S wants to enforce oral agreement against C but s.4 prevents S from suing because C didn’t sign the agreement Holding: S’s acts constituted specific performance according to Degalman principles, so they had equitable interest However, M was a bona fide purchaser for value without notice, so M got to keep land o Equitable interest can’t be enforced against BFPFVWN S entitled to equitable remedy of $ damages rather than specific performance Ratio: (Upheld Degalman) A plaintiff must show that he changed his position in reliance on the oral contract in order to be entitled to an equitable remedy on the basis of part performance Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 73 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. In Starlite, the plaintiff o Supervised the construction, pressed it to move forward o Asked for some of the electrical outlets to be moved, and they were moved o Spent money for shelving o Selected paint colours o Spent money on advertising o The defendant never said anything to plaintiff about the fact that they really didn’t have a confirmed leave. o No suggestion that plaintiff shouldn’t be relying on the fact that they signed the lease and given it with a deposit. Gave full payment – specific performance Erie Sand and Gravel Limited v Tri-B Acres Inc Facts: E want to buy part of a firm because there is sand and gravel under it, but they know that the owner of that land, S T paid a bit of money to S which means they have a right of first refusal, which means S has to first see if T wants to buy o Right of first refusal E knows of the existence of T and their right of first refusal; the offer they put out triggers the right of first refusal They really want S’s land, so they says they want to agree that unless T’s offer matches theirs, there is no right of first refusal In written offer from E, there was closing date and E gave a cheque for the entire purchase price S then goes to T and T comes back and makes an offer with a later closing date, and just a deposit on the purchase price From E’s point of view, T hasn’t matched E’s offer. o E thinks that effectively there is no right of first refusal. They think they should be entitled to purchase land But then S transferred land to T Issue: Were their sufficient acts of part performance to take the agreement outside the s.4 statute of frauds? o E gave full payment (usually only part payment doesn’t constitute specific performance) Holding: E is entitled to specific performance Court says there are no damages that can compensate E for the loss of land Reasoning; Equity will intervene because it would be unconscionable for the Statute of Frauds to be used when Erie acted to its detriment by irremediably carrying out its obligations under the otherwise unenforceable contract. Equity devised the doctrine of part performance to remedy precisely this kind of situation—it will not stand by and allow the Statute of Frauds to be used as “an engine of fraud.” From Degalman test: delivery of an offer to purchase land, with a deposit, will not normally amount to part performance. Ratio: Unlike Starlight, Erie takes account of both parties actions when determining what constitutes part performance Full payment and act to one’s own detriment might constitute part performance, allowing equity to step in grant specific performance Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 74 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. CHAPTER 6: CONCURRENT INTERESTS Successive Ownership: where one person is entitled to possession and interest, and then the other person (who has vested in interest right) will also have that interest vested in possession Co-Ownership (Concurrent Interests): joint interest in property, shared possession o G devises to A and B A and B are entitled to possession of the whole land Joint Tenancy All persons with joint tenancy completely entitled to the entire interest (McEwen) Tenancy in Common Undivided share in the whole (e.g. undivided 50% interest in the whole) Possession Each concurrent owner is entitled to possession of the whole estate Each concurrent owner is entitled to possession of the whole estate Right of Survivorship YES – if one person dies their interest NO – so the interest can be devised is extinguished and the other person gets the entirety of the interest (so you can’t will away your interest) Transferability Someone who tries to convey the interest creates a severance of the joint tenancy so it becomes a tenancy in common Can be transferred inter vivos or in a devise Unities Unity of possession Unity of possession Interest Unity of interest Unity of title Unity of time Language of Creation Due to presumption of favoring tenancy in common, s.13 CLPA says you need specific language to create joint tenants: “A grant to X and B in FS as joint tenants and not tenants in common” Words of division or distribution: Equal share / share Divided / to be divided Equally Share (McEwan) Joint Tenancy Each joint tenant has possession of the whole Each tenant has interest in land No one holds any specific share Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 75 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. There is a right of survivorship When one tenant dies, their interest is extinguished and the concurrent interest becomes an exclusive interest which is held in whole by the surviving joint tenant Requires the presence of four unities: 1. Unity of possession o Everyone must be entitled to possession of the whole land 2. Unity of interest o Everyone must have interest that is the same in terms of size and duration o E.g. both must have a life estate, or both must have a fee simple 3. Unity of title o Everyone must derive their title from the same document, i.e. the same will 4. Unity of time o Everyone’s interest must begin at the same time if any one of the unities if missing, the joint tenancy will be severed and a tenancy in common is created If both people in joint tenancy die S.55(2) of the Succession Law Reform Act s.55(2) of the SLRA provides that “unless a contrary intention appears,” where two or more joint tenants die at the same time or in circumstances rendering it uncertain as to the order of death, each person is “deemed to have held as tenant in common.” Corporations as party in joint tenancy S.43 of the Conveyancing and Law of Property Act Revised the common law principle that corporations can’t hold joint tenancy, and found that two or more corporations, or a corporation and an individual, “are and have been” capable of holding property as joint tenants in the same manner as individuals Tenancy in Common Each tenant in common has an undivided share in the whole estate Each tenant in common holds a fractional share, such as one-third, of the whole, but cannot identify any particular part of the land as the one-third share, because it’s an undivided share in the whole No right of survivorship Require the presence of only one unity Unity of possession Joint vs. Common Reason to prefer joint tenancies Situations where there are advantages to (eventually) having only one owner. Easier administratively because title consolidated in the last surviving joint tenant prior to being devised. Rationale for common law’s preference for joint tenancy o Motivated by concerns of efficiency and convenience, especially in the context of title searching Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 76 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. Reason to prefer tenancies in common No right of survivorship, so each tenant in common can freely devise his undivided share of the whole to whoever Rationale for equity’s preference for tenancies in common, or reasons of fairness. Tenancy in common represents certainty and fairness in the property relations of co-owners. Each tenant in common holds a fixed beneficial interest immune from the caprice of survivorship. Each share constitutes a tangible quantum of wealth which can serve as the subject matter of family endowment. STATUTORY PRESUMPTION IN FAVOUR OF TENANCIES IN COMMON The Conveyancing and Law of Property Act, RSO 1990 s. 13(1) – Where by any letters patent, assurance or will, made and executed after the 1st day of July, 1834, land has been or is granted, conveyed or devised to two or more persons, other than executors or trustees, in fee simple or for any less estate, it shall be considered that such persons took or take as tenants in common and not as joint tenants, unless an intention sufficiently appears on the face of the letters patent, assurance or will, that they are to take as joint tenants. S.13 of CLPA says if you want to create a joint tenancy you have to have to clearly specify that; the standard language is, “giving this to A and B to joint tenants and not as tenants in common” Two sisters, one wanted to will away part of joint McEwen Facts: Man said he wanted life estate to go to wife, and after death gave fee simple remainder to lot 1 to son, and lot 2 to daughters (B and J, jointly) o “[T]he said lot 18, that is the property fronting on Beckwith Street is to become the property of my daughters Bertha V. McEwen and Janet I. McEwen jointly and should they decide to sell the said property each of them is to have an equal share of the proceeds of the said sale.” He was trying to give co-ownership One daughter died and she left will that said she wanted half interest to go to brother The other daughter said the will of her said sister is void because the two were joint tenants so upon her sister’s death the other half interest just goes to her. The brother argued that the sisters had tenancy in common, allowing the dead sister to will away her half of the estate Issue: What kind of interest did he give? (Joint tenancy or tenancy in common) Holding: Tenancy in common, so no right of survivorship (so one sister can will away half the interest) Reasoning: The court mainly looks at the language “Should they decide to sell; they should have equal share” = intention to create tenancy in common However, s.13(1) of the CLPA says you need really clear language to make a joint tenancy and if it’s not, the court will lean towards finding tenancy in common: i.e. “to A and B in joint, and not in common” Ratio: There is a statutory presumption in favour of tenancies in common. So if there’s conflicting language (joint and sharing, etc.) the court will make tenancy in common. S.13 CLPA doesn’t apply to agreements Campbell v Sovereign Securities and Holdings Co Ltd Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 77 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. Reasoning: Agreement for purchase and sale is just an agreement, so s.13 doesn’t apply so common law principle that assumes the existence of joint tenancy applies Ratio: S.13 is not applicable where the language creating concurrent interests was just an agreement for purchase and sale, because an agreement is not an “assurance” pursuant to wording of s.13. The old common law presumption of joint tenancy may then apply. Mitchell v Arblaster Facts: A will devised interests to co- owners as executors and trustees of the will, and as residuary beneficiaries The statutory presumption did not apply to the grant to executors and trustees, but was applicable to the grant as beneficiaries. Thus, the same wording resulted in a grant to the executors and trustees as joint tenants (the legal interest as trustees) and to the same recipients as beneficiaries as tenants in common (the equitable or beneficial interest) Need for Reforms BC Law Reform Commission Commission suggested there may be cases where joint tenancies with undivided shares should be recognized o E.g. husband and wife may purchase a matrimonial home & wife putting up 80% of the money. They find the notion of a joint tenancy attractive for its right of survivorship, but fear that if the husband’s business activities should lead to his bankruptcy, the trustee in bankruptcy would be entitled to half the property. A form of joint tenancy which recognized unequal interests would seem to satisfy their needs. ON Law Reform Commission The traditional concept of unity of interest may not make sense anymore o People may want the right of survivorship but want unequal shares in the interest o And there’s no reason to deny this Reviewed the requirements of unity of interest, time, and title in relation to joint tenancies and recommended that all of them be abrogated as requirements. Instead, the fundamental determining factor should (subject to the relevant presumptions) be solely one of intention o Whether the parties intended the right of survivorship. In addition, the Commission recommended changing the terminology for concurrent interests to o “Co-ownership with right of survivorship” (formerly joint tenancy), and o “Co-ownership without right of survivorship” (formerly tenancy in common). CONVERTING TENANCY Agreement A and B can convert joint tenancy to tenancy of common If the parties are in agreement, it’s easy to convert joint tenancy into tenancy of common A deed of severance is the usual arrangement Unilateral Severance Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 78 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. In the absence of agreement, 1 joint tenant can still affect severance of joint tenancy (w/o notice in ON) Usually happens when A either transfers property to third party Or A enters into deed transferring property to himself – which interferes with the unity of title When someone in joint tenancy does something inconsistent with joint tenancy (e.g. mortgages/leases property) RIGHTS AND OBLIGATIONS OF CO-OWNERS Voluntary leaving: What if one person leaves voluntarily and the other then makes a huge profit on the land Co-Owner Excluding: One person says, for example, “This farm isn’t big enough” Common law principles where a co-owner in possession was required to pay “occupation rent” to co-owners out of possession in three situations: 1. Where the co-owner in possession has excluded the other—that is, has effected an “ouster” of other co-owners; this concept was extended to “constructive exclusion” in a case where a wife left home because of her husband’s continued violence: see Dennis v McDonald This doesn’t arise through the agreement. It says if one person excludes the others, they have to pay 2. where the co-owners have made an agreement respecting occupation and occupation rent (co-owners are thus permitted to structure their relationship by contract); and e.g. where A says I love farming and B says they want to go to the city the court make a contract and A gets most profit and B accepts less because they’re not there The common law is happy to enforce that contract 3. where the circumstances require the co-owner in possession be regarded as “agent” for other co-owners. Co-owner A who is in possession says they’re acting as B’s agent, and they’ll share profits s.122(2) Courts of Justice Act An action for an accounting can be brought by a joint tenant or tenant in common against a co-tenant for receiving more than the co-tenants just share Henderson v Eason Former co-owner not required to share farm profits with absent co-owners who had not been excluded. TERMINATION OF CONCURRENT INTERESTS BY PARTITION AND SALE Where A and B decide they have a property and they both have possession of whole, but they don’t want unity of possession, they want their own property. Remedy: partition or sale S.3(1) Partition Act S.3(1) of the Partition Act says you can have partition, but if the court thinks that sale is more advantageous to the property, the court can order the property to be sold and the proceeds divided to the parties Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 79 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. Successful application for partition Cook v Johnston Facts: Two family members have shared an island for many years One person owns a cottage on the tent, occupies in July The other person has a tent, occupies in August They don’t get along and bring application for partition Holding: Partition granted Reasons: The court (a Master) partitioned the island because he thought it was more advantageous to partition than sell The guy who had the cottage got the area near the cottage The swimming bit was divided; court held it wasn’t too costly to be divided EX. 1 CONCURRENT INTEREST: CONDOMINIUMS Unit owners: Holds a fee simple estate in relation to the individual unit Is also a tenant in common with all other unit owners with respect to “common areas” Common areas include the structural elements, areas for common use, amenities, etc. Reception area Meeting/party rooms Elevator shaft Exterior walls Interior structural elements Condominium Act Provides the arrangement for the tenancy in common between unit owners The Act requires that there be a Condo Board to decide on any issues with the tenancy in common o E.g. If the building needs a new roof, everyone must chip in to pay for it Most condos have two fees that are payable: o Regular operation of the condo fee o Reserve funds fee (i.e. if roof breaks) Benefits of the Condominium Act 1. Creative way of thinking about property ownership, allowing fee simple as well as tenancy in common for unit owners, which solves the issue that co-op owners have with obtaining mortgages, since they don’t hold a property interest but a share in a co-operation 2. Found a way to create enforceable positive covenants (i.e. contract) against third parties o Usually, it’s almost impossible at law to do this o But by statute, it has overcome the common law Issues with Condo Act The Condo Act was passed on the basis that it would be affordable housing; less $ to purchase a unit than a home. In that context, condos have now begun to have substantial numbers of units that people simply invest in, and rent out. Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 80 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. However, this really complicates the notion that condos are communities when these people who are renting don’t have a vote at the condo meetings, etc. the issue then becomes “are there enough people coming to meetings that are actually eligible to vote to make changes to the bylaw rules of the condo?” [this is a crossing of chapter 4 with chapter 6] Primary Concerns with Condominiums in ON a. Governance of condo corporation o Most people on boards don’t know anything about property law or the Condo Act o The non-owner occupied units might limit availability to get condo meeting forum o Neither the absent unit holder nor the tenant leasing the unit are interested in participating on the Condo Board, so there were some bad decisions made as a result o There is a necessity in that everyone has to contribute sometimes. b. Methods for other means of resolution c. Financial management operating for reserve and reserve funds d. There needs to be transparency for what you’re building/selling; you’re not simple buying the unit, you have to pay into reverse funds and operations funds Ongoing issue: Lots of condos have bylaws that say they’re restricted to single family living Restrictions on what constitute family can’t get in the way of medical care Alberta case Facts: Old people hire caregiver Board sued the couple because caregiver isn’t obvious member of family Holding: It would be devastating to person in name of case to have such a restriction of what constituted family Community Living & Tenancy in Common in Condos: Douglas Harris wrote an article on the background of condos. In the 1960s condos were going to be solution to all property problems in terms of home ownership. This was optimistic view. Home ownerships fostered responsible citizens, etc. People who are fee simple owners, are also involved in community living. They have to live at peace with the other people in that condominium community. So there usually has to be a declaration that specifies what the common elements are, and what the rules and regulations are with respect to living in the unit. The board of a condo is a representative of the community living in that project. E.g. sometimes you can’t have a BBQ on your balcony However, in the city of Vancouver, there is the condo vacation. There are hardly any single family dwellings left. Most apartment builds are now condos. The absence of low income rental arrangements in the city is difficult for low income people. Clearly, the planners in the 60s wanted to do something about making home ownership available, and making cities more compact, but the real problem is now that the nature of the ownership is now different than what it once was (it’s not as good). Solution? There may be other ways to create for co-op unit ownership, where there is better tax system and protection. Why is an apartment building different than a condo? There is no requirement for the residents to work together The residents simply have a relationship with the lessor, as their tenants Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 81 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. EX. 2 CONCURRENT INTEREST: FAMILY PROPERTY Family property Married spouses Cohabiting spouses Old idea that wife not entitled to anything Thompson v Thompson Ratio: Old idea (should no longer be in use) that, the absence of some financial contribution, the wife is not entitled to a proprietary interest from the mere fact of marriage and cohabitation and the fact the property in question is the matrimonial home. Bora rocks – feminism dissent Murdoch Facts: Mrs. Murdoch separated from her husband in 1968 after a marriage of 25 years. At separation, she filed claims for (among other things) financial support, and a declaration that her husband was trustee for her of an undivided one-half interest in several large tracts of ranch property owned by him and in relation to which she claimed that they were “equal partners.” Large ranch properties acquired by the couple during the marriage. Holding: Mrs. Murdoch is not entitled to any property Majority Reasons (Justice Martland): There was no financial contribution by Mrs. Murdoch that would sustain a declaration of resulting trust Court distinguished the cases in which a non-financial (but nonetheless valuable) contribution was made by spouses to the acquisition of property because the claims of the non-titled spouses in all of those cases related only to property interests in matrimonial homes. The work done by Mrs. Murdoch during the 25 years of her marriage was merely “work done by any ranch wife” Dissent (Laskin) Said we could look at Mrs. Murdoch’s contributions as creating possibility of constructive trusts How would this constructive trust look? o Husband has title and legal estate o The constructive trust would be imposed on top of this title. o He would hold half the interest as a beneficiary for Mrs. M. The rest of the beneficial interest goes to him. o So Mr. M is trustee and beneficiary Analysis/conflict with Laskin’s dissent: constructive trust might not be a good remedy though because the divorcing husband might not want to manage his wife’s half interest Analysis: It was the characterization of Mrs. Murdoch’s contribution by Mr. Justice Martland (that her work could be done by any ranch wife) that provided the catalyst for reassessing the contribution of women at marriage breakdown The majority judgment stood in contrast to the dissenting judgment of Mr. Justice Laskin. The dissenting concluded that the facts justified a declaration of constructive trust, recognizing the significant “contribution of physical labour beyond ordinary housekeeping duties” This seems to have been the spark to create the law reform process after 1975 Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 82 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. Law Reform post-Murdoch Family Law Act “Property” means any interest, present or future, vested or contingent, in real or personal property and includes, (a) property relating to a power of appointment (b) property relating to a power to revoke disposition; and (c) the “imputed value” of a spouse’s pension plan S.4 of the Family Law Act defines property very broadly as, any interest, present or future, vested or contingent, in real or personal property and it is supposed to be divided. S.5(1) equalization of net family properties when a divorce is granted or a marriage is declared a nullity, or when the spouses are separated (being informed by) JCM ON wouldn’t have divided the property (like they did in BC). ON divides the value of the property. BC court does have discretion to reallocate title In ON, the assets have to be valued and then equalized amongst parties (not as much room to reallocate) Became a dentist then left the marriage Caratun Facts: Mr. C emigrated She did some work for a period of time while he improved his English and qualified to be a dentist Unclear whether it was 2 or 3 days after he became a dentist, he decided to leave the marriage Holding: Imposed constructive trust on the dentist with respect to his degree Professional degrees are not property for the purposes of ON Spousal support award because of constructive trust Reasoning: Degree isn’t property because: o It’s not transferrable – while there is some property that is intangible and can be transferred. The degree is distinguished because it’s something that is inherently non transferrable, i.e. you can’t take a degree and go be a dentist (this is an exceptional aspect of a professional degree as opposed to other types of intangible property) Our bodies belong to ourself, and we think they might not be transferrable. But in JCM we saw parts of bodies can be transferred o The degree is personal and dependent completely on personal efforts – he could decide he doesn’t want to be a dentist, and wants to drive a truck. Person who hold degree has choice to pursue or not. o Futuristic – the parties have separated/divorced, but in order to determine what has happened, you have to figure out what might happen in the future (but this is too hard to do) However, in many cases where one of spouses helped other get degree, the court might apply compensatory o Valuation questions are too difficult – the court is saying they don’t want to have to value the assets of people’s working qualifications for divorce. Doing so is unfair speculative. Spousal support is flexible based on needs Significance: Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 83 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. Professional degrees are not considered property under the family law act despite the fact that this 1992 case followed the Family Law Act’s enactment of property in 1986, where it defined property quite broadly as “any interest, present or future, vested or contingent, in real or personal property…” Despite the fact that the court didn’t allow the degree to be considered property for the purposes of dividing property after a breakdown in a relationship, they still did provide some compensation in the form of spousal support. This decision has still been critiques as not sufficiently accounting for the lived reality behind the law; McCallum, for example, has written that the legislation works best for women who least need it. Namely, those who have resisted the idea that marriage is a partnership and have provided for themselves likely don’t need as much financial support after the marriage breaks down. Are Degrees Property? Corless Facts: Marriage ended when guy got his JD. She said she made contribution to the JD, and should get value Holding: The degree was property, but had no value so couldn’t be included in the valuation Are Degrees Property? Keast; Linton Degree isn’t property and spousal support is given instead Critiques of not letting degrees be considered property Spouses are making decisions together to maximize the unit as a whole. When the unit breaks up, we have individuals who may not have been looking at their own self-interest and are thus more disadvantaged. This is an argument against equalization; we should maybe be having unequal share to compensate the family member who wasn’t making decisions for their own self interest The difference between a family and business relationship is that in a business relationship, you’re entitled to some compensation when a business partner gets up and leaves. A marriage is kind of similar, and people don’t do things anticipating things will break down. Case Corless v Corless (1987) Keast v Keast (1986) Linton v Linton Caratun v Caratun (1987) Degree LLB MD PhD DDS Property? Yes No No No Value? No - Nova Scotia; Quebec v A Issue: Cohabites are excluded from property sharing; they don’t have access Holding: If province doesn’t want cohabiting couples to participate, it doesn’t have to force them Analysis: As a result of this, provinces have enacted some legislation that say cohabiting couples (who meet a definition) can access the same benefits of provincial family sharing scheme ON has not enacted this: married couples have Family Law Act while cohabiting couples have equity. Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 84 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. COHABITEES AND CONSTRUCTIVE TRUSTS The current statutory context The statutory regime in Ontario and other provinces concerning property-sharing at separation or divorce initially applied only to married couples o SCC ruled that there was no Charter infringement treating married/cohabiting couples differently Some provinces have enacted legislation to extend the legislation to include cohabiting couples o MN, SK, NT, NU In other provinces, cohabiting spouses can register themselves as “registered partners” and be entitled to the same property-sharing rights are married spouses if their relationship breaks down o NS, QC In Ontario Since 1986, the Family Law Act provides that married spouses share equally in the value of all the “property” at marriage breakdown. Since 2003, this Act applies to spouses in same sex marriages However, this Act doesn’t apply to cohabiting couples o Cohabiting spouses hold title to whatever property they have at the end of their relationship, even when one of the partner has made significant contributions to property owned by the other. o This obviously results in unfairness in some cases. Remedies for Cohabiting Couples on ON In the context of the exclusion of cohabiting couples from the statutory regime in Ontario in 1978, Pettkus v Becker was considered by the SCC in 1980 Beekeeping – cohabitees Pettkus v Becker Context: Quebec has tons of people cohabiting as opposed to marriage In BC, if you cohabited for 3 you’re considered marriage for purpose of Family Law Act BC In ON, it’s possible to make Family Law contract when you’re cohabiting Facts: 2 people emigrated to Canada, got together and said they were going to go into beekeeping together they had lots of property with beehives on it they were living for 19 years he claimed her on tax return as common law spouse (formal evidence) relationship comes to an end he holds title to all land, and all other assents (beehives, cars). In appeal court, the court gave her half. Now he is appealing to the SCC Issue: She isn’t able to access property equalization scheme because they only cohabited, not formal marriage Should they be treated as if they were married and have access to family law act? Holding: They each have ½ beneficial interest, based on a constructive interest Argument: He said leg specifically said not to include cohabiting couples so the remedy is unjust Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 85 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. Justice Dickson said equitable interest is older than legislature and there was always equitable remedy. So it doesn’t matter leg didn’t decide to enact statute. (POLICY) Reasons: Mrs. B argues its either a resulting or constructive trust Shes not successful on resulting trsut argument o This would mean that at time both are contributing income to land, and they put it in name of Mr., they had common intention that it belongs to both of them o The resulting trust seems to rely on arrangements where someone puts property in another’s name, but there’s common intention that it’ll be owned by both parties o Resulting trust has same consequences as constructive trust (but it’s different because of the need for a common intention) Constructive trust is found Ratio: You need a common intention to show there is a resulting trust. Specific evidence showing there’s no intention won’t show resulting trust The principle underlying a constructive trust is unjust enrichment of one party in relation to the other. The test for unjust enrichment is: o Show that there is an enrichment Mr. B got everything o Corresponding deprivation to the other party Mrs. B made a lot of contributions and he has title to everything, that’s unfair. o Absence of a juristic (good) reason for allowing one person to be enriched This is very case specific. Here the court looked at the actual facts and found that the relationship is tantamount to spousal (it was 19 years). This is in the context of the facts of the same, she had reasonable expectation that her contribution would amount to something. And he was accepting her contribution and ought to have known she wasn’t contributing unpaid labor without an expectation Court is exercising its judicial discretion o Plaintiff needs to show there is a relationship between the contribution and the property Equity remedy is older than legislation and always available. In order to get constructive trust, there has to be some sort of connection between the contribution one person is getting and the benefit the other is getting. Constructive trust doesn’t mean it has to be 50 – 50 split in equity. Merely doing household labor can invoke a constructive trust remedy No need to contribute to land Peter v Beblow (1993) Ratio: You don’t have to be contributing to the land or business to pass the unjust enrichment test, household labour is sufficient to invoke a constructive trust remedy. Remedies a. Quantu, meriut – just a monetary remedy instead of land Available in circumstances where the claimant can’t demonstrate a connection between the contribution and the property b. Joint family venture – you can access a proportion of the overall family wealth even if it’s not land Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 86 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. c. Constructive trust Constructive Trusts and Same Sex Couples Constructive trusts used by same sex couples, because all they could do before same sex marriage was allowed, was cohabit. Informal Property Arrangements Based on the need for equitable intervention to achieve fairness, esp. in context of “informal” family arrangements with respect to property (land). Informal arrangements concerning family property often create significant challenges when disputes arise about exactly what interests exist for family members. For example, family members may make informal arrangements o About building a home on land owned by another family member, o About the right to occupy residential premises even though another family member holds title, o In relation to unwritten agreements about “loans” to pay mortgages or down payments o Concerning inter vivos “gifts” of land that aren’t invalid because they weren’t conveyed by deed. Canadian courts have accepted the principle of unjust enrichment. UK courts use the principle of proprietary estoppel. Recognizing “equities” as proprietary interests may be resulting in “a new order of ‘property’ (at least in the residential sphere) in which the distinction between personal rights and proprietary rights eliminated”. Equity Interest: “You Can Build on My Land” Dad tells son he can build Dillwyn v Llewelyn Facts: Dad says you can build a house on my land Reasoning: The basic principle with respect to gifts of land is that you need a deed Here, we’re not getting around the requirement of the deed. We’re looking at things that took place after the father’s invitation to the son. The subsequent actions of the son – spending money to build a house on someone else’s land – is that he’s put himself in a tough position Court is saying we’re not looking at the doctrine of part performance, but it’s an analogous situation in which one person invites another to build someone on their land. And the other spends money This is the relationship between the two parties – one party has provided permission to do something, the other spends money and the land owner knows of the expectation of the person they lent it to. Estoppel applies here: the person is relying on the permission and on the basis that if they do expend the money their expectation will be recognized. Equity is a property interest here; it’s a fragile interest though (because it’s not even an equitable interest) Ratio: Expectation of person doing things on land Person who lent/gave the land knows of this expectation Equity interest is created Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 87 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. Dad tell son he can built, dad dies and common law spouse takes up action Inwards v Baker Facts: B is dad with son J who is trying to build a house but can’t find land, B offers to let him build on his land J builds house on B’s land He lives there for about 30 years, but B died sometime at the beginning of when J lived there B had a will which left his property – including land – to his common law spouse, I I is saying to J that he doesn’t have interest in land, he just has license which doesn’t have interest Holding: J has an interest in the land, this interest is a life estate defeasible on condition subsequent and enforceable against everyone except BFPFVWN Reasoning: court uses the test from Dillwyn either there is an invitation or permission, expectation created of encouraged by owner of land Ratio: Ratio: Test for proprietary estoppel (which creates a property interest): Permission / invitation by the promisor to use the land Reliance – money, etc. – by the promisee Expectation on part of promisee they’d get interest in the land Expectation of the promisee is also known by (or even created by) the promisor If the owner of land requests another, or indeed allows another, to expend money on the land under an expectation created or encouraged by owner of land that he will be able to remain there, that raises an equity in the licensee such as to entitle him to stay. He has a licence coupled with an equity (which is a kind of property interest). It would be inequitable for the expectation not to be realized. It was to be his home for his life, or his home for all the time he wished for it to be his home this is a life estate, but not an absolute life estate because if he doesn’t want to use it as his own, he no longer has the life estate Life estate defeasible on condition subsequent – if he doesn’t use it as his home, the life estate will come to an end I and kids are bound by children Expectation to live there – no equity – just a license Dodsworth v Dodsworth Facts: Invitation to live there Expenditure Expectation that’s created by land owner with being able to use as home 9 months after they moved in and put work in, the owner told them to leave Holding: there is an equity – not just a license the remedy isn’t to grant an interest, its to say you have a right of occupation until you have received back the amount of your expenditure Ratio; You have to look at the facts of each individual situation to determine how to satisfy the equity – either you give interest or right of occupation until amount received is given back (in this case, was until $ was given back) Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 88 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. Gives house – she puts in $$ - court gives fee simple Pascoe v turner Facts: man and woman friends, she helped him with business she moved into his home as house keeper they ended up in quasi spousal relationship she understood that he said she could have house and contents she had a group of other friends who accosted the guy on the street, and he would always say he’s giving her the house (so the friend’s give evidence) nothing in writing man says he wants home back (he does have title, it was never transferred to her) years later, she assumed the house was hers. She didn’t have a lot of money but she put a lot of money and time into fixing the house up. She put gas stove in kitchen Upgraded carpet, etc. Issue: Like Kilpin case where the man walks out saying it’s all yours. So there is a gift of contents The house didn’t have a deed of gift, so there’s no gift Holding: He has to transfer fee simple estate to her Reasoning: Given how little money she had, she didn’t have much left after renovating for the case. However, the court said it was a huge amount of money for her. She obviously believed it was hers because she put so much into it. As a result of their being nothing in writing, and no deed of gift there was no gift of land Historically, there is no equity to perfect an imperfect gift However, she was doing a lot to improve the house Relied on inwards v baker; proprietary estoppel is both sword and shield Remedy analysis: Remedy is either: Should the equity be satisfied by a licence to the defendant to occupy the house for her lifetime? Should there be a transfer to her of the fee simple? The main consideration pointing to a licence for her lifetime is that she did not by her case at the hearing seek to establish that she had spent more money or done more work on the house than she would have done had she believed that she had only a licence to live there for her lifetime. But the court must be cautious about drawing any inference from what she did not give in evidence as the hypothesis put is one that manifestly never occurred to her. When it may reasonably be held that her expenditure and e ort can hardly be regarded as comparable to the change of position of those who have constructed buildings on land over which they had no legal rights. Test Invitation and permission Expenditure of money on part of women Her expectation is never dissuaded by title holder in relation to her likely entitlement He knows of her expectation Remedy Ratio: Differentiated because she spent so much money by her account so obviously thought it was hers Interest is transferred Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 89 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. As a rule of thumb, part performance used in commercial context and proprietary estoppel is typically used in family arranged LIMITS OF FAMILY PROPERTY REFORM: FIRST NATIONS Issue: If the title is in the whole community, how do people get allocated land on which they’re going to live? Certificates of possession: Band counsels are allocating plots to various people, but it’s the federal government who then gives a certificate of possession Title is communal Certificates of possession create an interest Issue: women did not hold certificate of possession In the context of separation, claims were brought on the part of women saying they wanted their share of matrimonial home and wanted to be able to have a right to live there (possessory interest) and both those title and possessory interests were available under BC legislation. Trupel’s argument says this creates significant problems for Indian women leaving relationship because there’s no way they can continue to live on the reserve, particularly when the reason the couple separated is violence Derickson v Paul Reserve lands are part of federal government’s jurisdiction, not provincial Remedy If we’re going to have a kind of statutory regime which applies to reserve lands in Canada, the federal government should legislate. But, in relation to First Nations claims, the First Nations people should deal with disputes. One of the reasons the First Nations objected to feds legislating is because the concept of property is different among different groups; i.e. sometimes it’s actually under a woman’s name, others have family members involved. They didn’t want the same arrangement to apply to all the different groups. Who had different traditions. CHAPTER 7: NONPOSSESSORY INTERESTS Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 90 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. Three forms of non-possessory interests in common law 1. Profit à prendre 2. Easement 3. (Negative) Covenants Non-possessory interest The holder of a non-possessory interest has right to limited use of the land but not possessory interest Merges contract law, legal interest, and equitable interests Canadian/Ontario law in this area is very similar to English law; it’s unreformed law, so still using ancient concepts, unlike the US, where there has been reform Easements & covenants = mechanisms of private planning This private planning was important prior to the adoption of planning and zoning statutes A lot of planning that happens in the 21th century is very much public planning, planning in the public interest But the creation of easements or covenants for individuals to engage in private planning is still useful I. PROFIT A PRENDRE Basically, allows someone to take something that is a profit for a produce of land. The person does not have actual possession Does not permit the holder to remain on the land, nor does it confer any right to possession of the land. Profit à prendre illustrated in a well-known decision about the doctrine of part performance Mason v Clarke Facts: Mr. Mason paid £100 for the right to kill and take rabbits on the Estate for a year from 11 October 1950. When he tried to exercise this right, however, he was prevented from doing so by the respondent. Analysis Profit a prendre = an interest in land that confer a right to take from another’s land some part of that land The House of Lords found for Mr. Mason on the basis that he had an equitable interest arising from the doctrine of part performance. Thus, he had an equitable profit à prendre. Why is it an equitable interest not an legal interest? o There is oral agreement, payment of consideration, and he has pursued the terms of that oral agreement o But it’s not a valid contract because it doesn’t meet s. 4 of the Statute of Frauds o So, it’s not a legal profit a prendre, but an equitable one based on the doctrine of part performance What if this had been a license? o Profit a prendre has some similarities to a license. However, a license is contractual, no property interest o M wouldn’t be able to enforce it against third party; only against person made contract with o So he wouldn’t have been able to enforce it against C Commentary: Profit a prendre still exists today, typically in relation to mining rights (R v Tener) Ratio: Profit a prendre is an interest in land that confers right to take from another’s land some part of that land Profit a prendre can be: o Contractual - created via contract, pursuant to s.4 of the statute of Frauds o Equitable – created via doctrine of part performance Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 91 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. Profit a prendre is different than a license in that a license is contractual, not a property interest and can’t be enforced against a third party (can only be enforced against the other party to the contract) SCC considers nature of the profit à prendre R v Tenner 1985 Facts Corporation entered into agreement to be allowed to go on land and get minerals Plaintiffs sought compensation in respect of mining rights that were adversely affected by the enactment of provincial legislation establishing the subject lands in British Columbia as a provincial park. Decision The claim should be characterized as a profit à prendre: Analysis Wilson J found that the Chambers judge erred in holding that that plaintiffs had two separate and distinct interests in the land: (1) the mineral claims and (2) the right to go on the surface for the purpose of developing them. The plaintiffs have one integral interest in land in the nature of a profit à prendre comprising both the mineral claims and the surface rights necessary for their enjoyment. Ratio: Tenner is an example of a profit a prendre Court looks at the agreement and what was intended by the agreement Commentary This case focused on the basis for compensation to be awarded, and is interesting as an example of the intersection of private property interests and public regulatory issues. Aboriginal rights often look like this (right to hunt and fish) but are different because they are sui generis, and not pursuant to common law (R v Sparrow) Aboriginal Claims Aboriginal rights are sui generis, not a profit a prendre, but it is very similar There are lots of cases where AB claims to hunt or fish might also be categorized as profits à prendre, but jurisprudence tends to recognize these claims on the basis of special principles. The right to go on land and hunt sounds a lot like a profit a prendre, but the courts have resisted calling these rights a profit a prendre and continued to call them sui generis (R v Sparrow) II. EASEMENT Easement: A non-possessory property interest, but it is a property interest nonetheless. It is the right annexed to land to utilise other land of different ownership in a particular manner (not involving the taking of any part of the natural produce of that land or of any part of its soil) or to prevent the owner of the other land from utilising his land in a particular manner. Four Requirements to Establish an Easement: 1. 2. 3. 4. There must be a dominant and a servient tenement; The easement must ‘accommodate’ the dominant tenement; The same person cannot own both the dominant and servient tenements; and The easement must be capable of forming the subject matter of a grant (ie, defined). Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 92 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. Right of way Keefer v Arilotta A gave K a right of way, or easement, to use the land Ship damages bridge Gypsum Carrier Inc v The Queen (1977) Fed Ct Facts Ship run into a bridge that had a railway on it which was owned by the Crown, causing damage to the railway not allowing trains to pass. Carrier company claiming they had an easement over the bridge land, and thus now claim compensation for not being able to run materials across. Crown says their only had contract/license, it wasn’t a property interest/easement Decision The court did not find that there was an easement Analysis Even though all the elements of an easement were there, the court held that they need to look at the easement as a whole, and determined in this case that the parties had no intention to create an easement. The contract between the people didn’t say the right was an easement, so the court found it wasn’t one. Ratio: You need to say that it’s intended to be an easement, even if all the requirements are met. Commentary Claims about easements often raise the “numerus clausus” principle of real property law, which is the general hesitancy to admit new forms of proprietary interests. This reluctance to create new interests has been especially evident in the law of easement This reluctance was part of the underlying policy consideration that led to the particular decision reached in this case. Easement Requirement 1: Dominant & Servient Tenement There must be a dominant and a servient tenement, and the easement must be linked with two parcels of land. Dominant tenement o The land in favour of which the easement is created o The owner of the dominant tenement has the right to use his neighbour’s land Servient tenement o The land on which the easement is exercised o The owner of the servient tenement is allowing his land to be used by his neighbour This requirement does not exist in the US Where it is possible for someone who does not hold an interest in adjoining land to hold an easement over a servient tenement This easement is called “easement in gross” E.g. Trucking companies with interests in the weight stations by highways Easement Requirement 2: Accommodating the Dominant Tenement Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 93 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. An easement has to confer a benefit on the dominant tenement, not just on the owner of the dominant tenement (the latter would be a personal benefit only) As always, the impact of the easement must be real rather than personal. The core idea is that an easement must make the use of the dominant land more beneficial or commodious in a way which applies indifferently to both the current dominant owner and all his successors in title. People have easement to park Re Ellenborough Park Facts There were a number of houses on a square in Weston with a garden in the centre (Ellenborough Park). o This is kind of like Grammercy Park in NYC Title to the garden was vested in trustees and each of the owners of the houses around the garden paid a proportionate cost of maintaining the garden. In 1864, when subdividing the property, the owner had granted to the lot-owners the full enjoyment at all times hereafter in common with the other persons to whom such easements may be granted of the pleasure ground Ellenborough Park. Only those who resided in the houses were entitled to use the garden. A question arose as to whether the owners of the houses surrounding the park had an enforceable right in respect of the use and enjoyment of Ellenborough Park. To validate such an enforceable right, given the absence of privity with the original owner, it was necessary to find that they had an easement. Issue Does the right to wander around a garden confer a benefit on the adjoining lands? Holding: Easement granted Reasons: 4 requirements for easement to be granted: There must be a dominant and servient tenement o The house = the dominant tenement o The park = the servient tenement An easement must "accommodate" the dominant tenant (the use of the land in question must be "connected" to the use of the dominant land - merely adding to the property value is not enough to satisfy this) o The use of the park is necessarily connected to the houses; it was expected to be enjoyed upon purchase and always has been enjoyed. The dominant and servient owners must be different people o Different parties own the houses and the park. The right must be capable of being the subject matter of a grant; easements cannot be passed by possession, because they do not physically exist – they can only pass through grants. The right must be a "right of utility and benefit", and not merely for recreation or amusement. o The right is more than merely recreational or for amusement, as using the park is a benefit. o A "right to stray” or a "privilege of wandering at will over every part of another's field or park" amounts to a right of utility and benefit. Ratio The easement sufficiently accommodates the dominant tenement if the benefit conferred on the dominant tenement makes the use of the dominant land more beneficial in a way that applies equally to the current and subsequent owners Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 94 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. Cottage owners with easement to road, parking Depew v Wilks Facts: A group of cottage owners was entitled, by way of easements granted to each of them, to use a lane called Willow Beach Lane to travel from a public roadway to their cottages on Lake Erie. Willow Beach Lane was part of lot 13, owned by the Depews. For years, the cottage owners had used Willow Beach Lane not only to travel to their cottages but also to park their vehicles in front of their cottages; this use exceeded their rights pursuant to the easements. The cottage owners claimed that they gained an easement through continuous use (i.e. possessory title) The parking issue became a point of dispute. Issue Does the right to park a car accommodate the dominant tenement? Decision Parking does accommodate the dominant tenement. Reasons: The cottage owners must establish that parking “reasonably necessary for the better enjoyment” of the dominant tenement (Ellenborough Park). Analysis: This case was criticized; people were clearly overusing the land. Mossman not sure if case is accurate. Ratio The test for whether the particular use of the easement is allowed is to see whether it’s reasonably necessary for the better enjoyment of the dominant tenement (per Ellenborough Park) More recent case on the test of reasonable necessity Toronto Dominium Bank 2016 OCA Issue: Test of reasonable necessity Holding: The trial judge held that water access to a lakefront property that didn’t have a road was inconvenient and thus recognized an easement of necessity over a neighbor’s road. However, the court of appeal held that the test of necessity is strict necessity and not practical necessity The party’s intentions determine an easement of necessity, not public policy Ratio: The test of necessity is strict necessity, not practical necessity. The plaintiff needs to show that they absolutely needed to use the land for that purpose, not just that using it for that purpose was practical. Easement Requirement 3: Same person can’t own dominant and servient tenements If there is an easement between two adjoining landowners, and then the land subject to the easement is acquired by the person owning the dominant tenement, the easement is extinguished. Some cases suggest that if the ownership is subsequently re-divided, the easement springs up (phoenix-like) again. What would happen where the person moved to the city and sold their land to A, so A is the owner of both parts? The easement disappears, but might reappear if A sells the land to C (Some provinces have legislated about this requirement) Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 95 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. Easement Requirement 4: Easement must be capable of forming the subject matter of a grant (i.e. defined) You need to have words in the document describing what are the boundaries and activities around the easement. Since the easement permits activities by a non-owner on the land subject to the easement, its boundaries and activities must be defined: it is not possible to have an easement that cannot be described in words in a grant. Negative Easements The person who holds the negative easement has the right to prevent the owner from doing something they would otherwise be able to do A negative easement doesn’t give the holder of the easement any right to be on land A negative easement impacts or controls what the owner of the servient tenement, the subject land, is able to do Wall exposed to weather Phipps v Pears Facts: 14 Hospital 16 Plaintiff In 1920s there were two old houses in Warwick, standing side by side, 14 and 16, Market Street. Both owned by Ralph About 1930, he pulled 16 down but left 14 standing, and erected a new 16, with its flank wall flat up against the old wall of 14. He did not bond the two walls together, but the new wall was built up touching the old wall of 14. Two houses—new 16 and old 14, side by side. In 1962, the Warwick Corporation made an order for the demolition of old 14. The demolition of old 14 left exposed the flank wall of new 16. This tiny wall was in a very rough state. It had never been rendered or plastered, so it was not weatherproof. Rain got in and during the winter it froze and caused cracks in the wall. The plaintiff, owner of new 16, sought to recover for the damage done, claiming a negative easement for the right to support, or in the alternative, protection from weather. Decision: No recovery for the plaintiff. Analysis: Lord Denning says there are positive easements, people are allowed to go on others land to do things But he then says in this case, the action being requested is negative He says there are two negative easements: o Easement in relation to support – one building supporting another building E.g. all townhouse buildings have negative easements, so one person can’t tear down their wall if the other person’s wall is going to wall down; this is an easement for support In this case there is no easement for support because the walls weren’t touching o Negative easement that’s protection from weather? Why does Lord Denning not provide a remedy? o Seeing that it’s a negative easement, it must be looked at with caution because the law is wary of creating new negative easements. Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 96 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. He says we shouldn’t create new negative easements because they interfere with what the land owner is able to do. o The solution for number 16 is a covenant – which is a special kind of contract. It often creates not just a contract interest, but also a property interest. It is a quasi-proprietary interest. o 14 and 16 should enter into contract that gives the right of 16 to be protected from the weather by the wall of 14. o The fundamental issue with this contract though, is that there’s a need for consideration. o Negative easement for protection from weather would be a new easement because they interfere with what the land owner is able to do. Covenant: creates a quasi-proprietary interest o The solution is for the two houses to enter into a contract – a covenant – to ensure the house is protected Rationale: We don’t want to create new restrictions on what homeowners can do. Creating new easements would hamper legitimate development; we need people to make their own arrangements in contract, with consideration. Ratio: Negative easements are preventing the owner from something they would otherwise be able to do Negative easement for support: you can’t tear something down if it means the other thing will be destroyed because of that The general principle is that the law is not going to start interfering with what owners can do with their own land by recognizing a whole slew of negative easements, in circumstances where, if people want that protection of new kinds of property interest, they can just create them themselves. Negative easement for protection from weather doesn’t exist Covenants are a property relationship so they’re binding on subsequent purchaser, unless that person is a bona fide purchaser for value without notice Negative easement right to support only applies where one structure provides physical support for another. The law only recognises four negative easements, and protection from weather is not one. Significance: This case is significant because though Lord Denning did not apply a negative easement of support (because the walls weren’t actually touching) the court – and English Law – did reluctantly acknowledge the negative easement. English law recognized only four negative easements: air, light, support and water in an artificial stream. o E.g. if people put up solar panel they should enter into covenant to get the other homeowners to agree to not build in a way that restricts their sunlight However, more negative easement recognition in the US. On a policy level, too many restrictions on the freedom of land owners can also jeopardize the progression of land development o III. COVENANTS Covenants Are non-possessory property interests They begin as contracts and then become non-possessory property interest. They represent private planning initiatives; people enter into them to try and preserve the community they have already established Origins and policy considerations Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 97 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. Started in the 1800s, when there weren’t much in terms of public planning If people wanted to preserve amenities of their neighbourhood, they had to engage in private planning Covenants protect private planning initiatives There is a policy balance between the rights of land-owners to protect the value of their land by entering into contractual arrangements with their neighbours and the need to ensure that the use of land is not tied up indefinitely in problematic ways Most cases involve individual lawsuits between adjoining land-owners Modern application Covenants still have a place despite all the public planning processes we now have in place “It would not be realistic to extend the ambit of planning law to take the place of private restrictions. Planning law paints with an extremely broad brush, and it is therefore unsuited to the task of resolving the finer details. The planning authorities do not have the wherewithal to regulate the interests of adjoining landowners, and it would be unreasonable to expect them to do so.” There should be continued availability of covenants Downside There were often discriminatory covenants which prevented sale of land to minorities, racialized communities, etc. Terminology of covenants Covenantor: person who has the burden The person who promises something Covenantee: person who has the benefit The person who receive the benefit of the promise Assignor: covenantor and the covenantee who are assigning the burden and the benefit to the assignees Assignee: people who comes later and receive the burden and the benefit Mutual covenants: each party has both benefit and burden when the original promise is made, it may also be necessary to determine whether both the benefit and the burden have passed. Example Plot #1 Plot #2 Adam Betty Charlie Donna Adam owns the fee simple of 1; and Betty owns the fee simple of 2. Betty wants to preserve the value of her land for the future. She makes a contract (for consideration) with Adam; according to the contract, Adam agrees that he will not build anything other than a single-family home on 1. Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 98 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. Ten years later, Adam sells his land to Charlie; and Betty sells her land to Donna. Question: Can Charlie build an apartment building on 1? First decide which land has the benefit and which has the burden of the covenant. o Betty is getting the benefit of living next door without huge building. Betty has to pay Adam not to build anything other than single family dwelling o Adam has the burden of the covenant. Second, did the covenants ‘run with the land’? If the benefit passed at the transfer? Did the burden pass at the time of transfer? (Did the covenants run with the covenants?) o And when Adam transferred the fs to Charlie, and Betty transferred the fs to Donna: Did the benefit of the covenant pass from B to D? Did the burden of the covenant pass from A to C? Results: IF the covenants are enforceable against Charlie and in favour of Donna, then the contract made by Adam and Betty is now being enforced by and against parties who were NOT contracting parties. The enforceability of such covenants provides a legal method for ‘private’ planning arrangements with respect to the use of land. Legal Rules about Benefits and Burdens Passing Benefits 1. If the coneventee (person who has the benefit) has a legal estate in the land 2. The assignee has the same legal interest 3. The covenant has to benefit the land; it can’t just be a personal benefit to the covenentee (owner of the land) [this is like the easement which has to benefit the land of the dominant tenement] Burdens: never runs according to legal rules (Parkinson; Durham) Burden of the covenant doesn’t pass at common law Keppell v Bailey (1834) Facts The occupiers of an ironworks covenanted for themselves and their assigns to transport all limestone along a specific railroad, and then the original covenantors assigned their interest to the defendant. The plaintiffs sought to enforce the covenant Decision Court held that the burden of a covenant did not run with the land at law. Analysis Lord Brougham explained that the policy underlying the legal principle of not allow the burden to pass at law is out of the judicial concern to ensure that land remains freely alienable and available to be freely used by all current owners of the land If the burden of the covenant ran at law, any person subject to their caprice could invent any covenant they wished and it would be binding at law forever. Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 99 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. Stairway - Positive covenant doesn’t pass at common law (or equity) Parkinson et al v Reid (1966) SCC Facts Two people who were involved in an early apartment building entered into a covenant It was said that A would construct an keep in repair a stairway The lots were sold to the plaintiff and defendant, and the stairway was subsequently destroyed. The plaintiff who has the benefit of the covenant sought to enforce the burden of the contract against the defendant, said they were trying to enforce the benefit of the covenant The plaintiff and the defendant aren’t contracting parties, there is no Privity of contract. So the only way P is going to be able to enforce Ds obligation is if benefit and burden has passed Issue Does the burden of the covenant run with the land at law? Analysis: A has the obligation to do something, so they have the burden of the covenant B has the benefit of the covenant Holding: SCC ruled in favour of the defendant. The plaintiff was no entitled to an injunction. Burden doesn’t pass Ratio SCC adopted the rule in Keppell v Bailey that the burden of the covenant can never pass at common law. Analysis: Might be some unfairness here because the plaintiff didn’t get the benefit they thought they were going to get. However, there is no legal solution other than perhaps entering into a new contract and paying the defendant This case would also not have the burden pass in equity, because this is a positive covenant (someone has to construct and repair, which are positive actions) Avoiding the Legal Principle of Burden Never Passing A. Chain of personal covenants The covenantor agrees that if and when he transfers the fee simple estate, he will make a contract with the transferee that the transferee will also recognise the burden of the covenant, thus binding the assignee to the covenant If the chain is broken, then the common law principle applies again B. Rent charge A charge put on the registration system, which produces property consequences A periodic payment charged on the land payment Doesn’t exist in Canada C. Statutory burdens E.g. the Planning Act says the person who purchases certain land must do certain things with the land Makes the burden of the covenants run by statute D. Special rules re: condominiums The Condominium Act makes the covenants among the tenants in common enforceable against each other, even if they are not according to common law principles E. Rule in Halzall v Brizell Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 100 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. In a situation where there are mutual covenants, if someone is taking the benefit, they must be bound by the burden This doctrine is based upon the old rule, relating to deeds, that a person who claims the benefit of a deed must also take it subject to the burdens. This will only work when the covenant is mutual, with benefit and burden on both side, such that if one wants to have the benefit one must accept the burden Equitable Rules on about Burdens and Benefits Passing Don’t build on garden – statute and maintain it not covered Tulk v Moxhay (1838) Context: Case arose 14 years after Keppell v Bailey (where the court held that the burden of a covenant did not run with the land at law) Facts: Tulk transfer interest of the garden to Elms, makes a covenant with Elms that Elms will not build on the garden area, and he should maintain the garden in a nice way o Tulk has the benefit of the covenant o Elms has the burden of the covenant Elms accepts the transfer, and later transferred the garden to Moxhay Moxhay wants to build on the garden area Tulk is bringing an action to enforce the covenant against Moxhay Issue Did the burden of the covenant pass from Elms to Moxhay with the transfer of the fee simple estate? o The common law rule from Keppell would say there is no passing of the burden at common law Decision Moxhay is bound by the covenant. Analysis M took this transfer of FS with notice of existence of covenant, and the fact that it was a burden on E’s land, it would be unfair if the covenant didn’t pass. o M is not BFPFVWN If T sold land to E, and E transfer to M in a situation where burden won’t pass in FS, the property is more valuable to E because it’s no longer subject to the burden. Therefore, E can act in a way that he gets increase in value of land because he gets it without the burden. o It would be inequitable and fundamentally unfair to allow Elms to now sell the garden without the burden for a greater price, in consideration of the assignee being allowed to escape from the liability which he had himself undertaken, and allow him to profit. Ratio The common law rule says there’s passing of the burden of the covenant in common law The burden of the covenant may be passed in equity against everyone but a BFPFVWN; this is because a covenant always has an equity attached to it (so it can be enforced against anyone except a BFPFVWN) Analysis: o Consider the position of a squatter who takes possession of a covenantor’s land. Will the covenant be enforceable against the squatter? o He is not a BNPFVWN because he’s taking possession, but he’s not a purchaser for value so the covenant doesn’t apply. o There can be situations with notice but without purchasing. Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 101 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. Commentary: o The decision in Tulk v Moxhay had a dramatic effect upon both the law of contract and property, by extending the enforceability of the burden of covenants in equity, beyond Privity of contract and Privity of estate. o This equitable development means that both covenantor and covenantee under a freehold restriction could justifiably assert that each hold a form of property interest in the servient land o The covenantee’s entitlement was capable of binding all third parties into whose hands that land came, until such time as the covenantor’s land was conveyed to a bona fide purchaser of a legal estate for value without notice of the covenant. The Duke of Bedford v The Trustees of the British Museum (1822) Facts: o Duke of Bedford tried to restrain the British Museum from building an extension to house the Elgin Marbles. The Duke’s application for an injunction to restrain the museum was based on an alleged breach of a covenant entered into in 1675 by predecessors in title of the Duke and the museum Holding: The Duke’s application was unsuccessful Reasons: The character of the adjoining lands had been so altered with reference to the land conveyed, that the restriction in the covenant had ceased to be applicable according to the intent and spirit of the contract. Because the circumstances have already changed, there is no point in establishing Requirements for Running of Burden in Equity a) Notice Tulk v M Covenant won’t be enforceable if the assignee of the covenantor is a bona fide purchaser for value without notice. Will the covenant be enforceable against a squatter who takes possession of a covenantor’s land? Even though the squatter may not have notice, the squatter does not qualify as a bona fide purchaser for value, and thus the covenant will be enforceable. The concept of notice must also take account of the requirements of provincial registration statutes, and the extent to which they may define the process for establishing effective notice. b) The covenant needs to be negative in substance Positive typically requires some expenditure of money in some way (this is a good way of thinking about it) Tulk v M Negative part said you couldn’t build anything in the garden Positive part said you have to keep up the garden and keep the statue – so this wasn’t maintained because covenants apply to negative requirements Only have golf course Aquadel Golf Course Ltd v Lindell Beach Holiday Resort Ltd Facts Covenant to not use land for anything but a golf course Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 102 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. Ratio: You can’t enforce the burden of a positive covenant; telling someone to only use land as a golf course compels them to use it as a golf course, which is a positive requirement c) The person who exacts the covenant must retain land that is benefitted; this needs to be a covenant that’s related to land, not simply the person Tulk v E TEM T still had land in the square that he did own, so he has retained land that is going to be benefitted So the person who benefitted by the covenant needs to retain land that is benefitted by the covenant So if T transferred all of his interests, then he’s transferring benefit to a successor in title and then that person will be able to enforce the burden against M Not too far 880682 Alberta Ltd v Molson Breweries Properties Ltd New owner wanted to use as brewery but Land that’s too far away from the person can’t be deemed as covenant d) The requirement that the covenant must “touch and concern” the land Like the requirement in creating easements, the covenant must touch and concern the land and must not be merely a personal covenant that affects the current owner only e) The requirement for the covenantor to have intended for the covenant to bind heirs and successors in title There must be evidence of intention on the part of the covenantor to bind the successors in title to the covenant, and not just to create contractual obligations that affect the covenantor personally Tension A creative tension exists between the need to render land alienable and the need to allow private ordering by consensual arrangement. The stability and convenience of land use secured by durably binding covenants often ensures, in practice, that enforceable covenants, far from sterilizing title, operate to enhance the market value of both the benefited and the burdened land. Thus, while a sense of cautious concern still remains today at the core of the legal response, it is also apparent that in recent times the [English] courts have adopted a more sympathetic view of restrictive covenants (this is also true in Canada). This relaxation of approach may in part reflect a general change in community attitudes towards the importance of preserving the integrity and attractiveness of local environments. Basic rule: if someone is trying to enforce a covenant with the burden of the covenant in equity, then you can’t use the common law rules about the running of the benefit. You need new rules for the running of the benefit. Examples of covenants: Shopping malls tend to have covenants that owners have to comply with, often they’re also enter into neighbouring places which tend to say for example, there will only be one McDonalds in the square Discriminatory Covenants Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 103 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. Can’t sell to Jews void for uncertainty, not discrimination Drummond Wren Facts: You can’t sell to Jews Issue: Guy wanted to get the covenant removed from his land via ex parte (person makes application) Reasoning: Someone who was a government official was saying no, you can’t register something – even before you have the litigation (this case refers to the UN Charter) Holding: Void for uncertainty and discrimination Cottage can’t sell to Jews – okay Noble and Wolf v Alley (1951) Facts: E died back in 2001 at age 80, he was the person who launched this case and saw it to the end. He was 1 year out of law school when he was approached by W about buying a cottage. Covenant that the land could never be sold, used, etc. by anyone of Jewish, Negro, etc. blood. He asks lawyer if the restrictions can be released N and W make motion saying they want to it declared the covenant is void. They’re expecting this to be easy because of the decision in Drummond v Wren. They application was opposed by the cottage association. Decision: Since covenant was going to expire anyway, it wasn’t a restraint on alienation (complete restraints are void, and partial restraints can be valid) Not void for uncertainty (not too vague to be enforced) Restriction wasn’t void for being against public policy since freedom of contract isn’t to be interfered with Analysis: Differences between Drummond: o Drummond was in the city whereas this is in cottage country Cottage communities need to be able to define who is going to be part of the community o The other difference is that Drummond was an ex parte application, it’s just one person asking for the restriction on their land. In Noble, the other side is representing all the cottagers Trial judge Ruled that it might be valid, and property could not transferred Vendor and purchaser both appealed the decision on the basis of Re Drummond Wren The rest of the cottage owners become the respondents Court of Appeal Upholds the trial judge’s decision Distinguishes from Re Drummond Wren because this case is about a cottage It is common knowledge that, in the life usually led [in a summer community], there is much intermingling in an informal and social way, of the residents and their guests, especially at the beach. That the summer colony should be congenial is of the essence of a pleasant holiday in such circumstances. The purpose of cl. (f) here in question is obviously to assure, in some degree, that the residents are of a class who will get along well together. Judicial restraint: It’s trite law that common law rights aren’t deemed abrogated by statute unless the legislative intent to do so is expressed in very clear language. This isn’t the court’s business, it’s legislatues business SCC Majority Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 104 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. This covenant is not enforceable in equity because it doesn’t touch and concern the land, which is a requirement in relation both to the burden and the benefit The burden cannot pass from Nobel to Wolf Completely ignored the issue of public policy The criticism of SCC’s technical approach (p. 733): Perhaps the approach should have been a broader one based on public policy, like in Re Drummond Wren Dissent On its true interpretation, the covenant is a restraint on alienation. The covenant is also invalid due to uncertainty Drummond Wren versus Re Noble and Wolf [Re Drummond Wren] was of general interest to all lawyers because of the bold manner in which MacKay J sought out public policy without regard to previous judicial opinion on the subject. Refreshing to find a judge trying to recapture some of the spirit that enabled the greatest of his judicial forebears to systematize the common law and yet leave it the elasticity necessary to keep it in harmony with changing social needs. [LIKE BORA’S DISSENT IN HARRISON] Re Noble and Wolf, the judges of the Ontario courts took a cautious approach and refused to take notice of any change in the public policy of Canada. The two cases illustrate different approaches to reasoning about racially restrictive covenants in Ontario just after the Second World War, the covenants in both cases were held to be void and unenforceable. How different were the covenants in substance? In Drummond Wren, for example, the covenant prohibited sales to “Jews or persons of objectionable nationality,” In Noble and Wolf the clause prohibited sale, assignment, transfer, leasing, renting, use or occupation “in any manner whatsoever by any person of the Jewish, Hebrew, Semitic, Negro or coloured race or blood.” Are the same groups excluded by both these covenants? Are they equally broad or narrow in the activities proscribed? Did the language of the coven- ants affect the reasoning in the two cases? CLPA Response to Noble v Alley after OCA After the decision in the Ontario Court of Appeal, and prior to the hearing in the Supreme Court of Canada, the Ontario legislature enacted an amendment to the Conveyancing and Law of Property Act as follows: s. 22 – Every covenant made after the 24th day of March, 1950, that but for this section would be annexed to and run with land and that restricts the sale, ownership, occupation or use of land because of the race, creed, colour, nationality, ancestry or place of origin of any person is void and of no effect. Limitations of this provision: only applies prospectively & only cover covenants, not conditions in wills SCC says discriminatory covenants don’t touch and concerns the land So, now, this provision now fairly irrelevant, because it would only apply to personal covenants, which don’t run with the land The legislature responded, but then was rendered irrelevant by the SCC decision This may be why the SCC took a technical approach and not a public policy approach CHAPTER 8: ABORIGINAL TITLE TO LAND Aboriginal conceptions of property Property interest as a relationship among subjects Subjects includes people (future and past), animals, and inanimate objects Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 105 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. Crown claim to sovereignty and tenure Aboriginal self-government and title (possessory) These are two frameworks that are inherently difficult to reconcile. Consultation and consent with respect to government using AB land for its own purposes. HISTORICAL CONTEXT 1760 Treaty of Paris Title to land (Tenure & Estates) Sovereignty o Aboriginal people’s right to self-government o The idea that the French king couldn’t transfer Aboriginal people’s land to the English king because Aboriginal people never gave the French king the land 1763 Royal Proclamation At the time, the RP established the basic contents of the relationship between the Crown and Aboriginal communities, specifically making transfers of Aboriginal lands to anyone other than the Crown invalid. The RP also included numerous declarations of amity between Aboriginal communities and the Crown. Transfers of land from Aboriginal communities to the Crown were called “surrender of title.” And in some cases, treaties “may” have involved surrender of Aboriginal lands to the Crown in return for other benefits. (The Indian Act also created “reserve lands” for some Aboriginal communities.) More recently, the SCC has confirmed that the Royal Proclamation did not represent the Crown’s assertion of underlying title (based on tenure) to Aboriginal lands; and the courts have recognized that (some) Aboriginal communities held “common law” exclusive possession (communally) of lands at the time of the establishment of sovereignty on the part of the English Crown (pursuant to the Treaty of Paris of 1760 between England and France). 1876 Indian Act [The Indian Act] established a new regulatory regime, defining who could be an Indian, who could live on Indian reserves, what and how they could hold as property, what happened to their property at their death, who could do business on and in relation to reserve land, and so on. In 1996, the Report of the Royal Commission on Aboriginal Peoples characterized this regime as a “legislative straitjacket” that had “regulated almost every important aspect of the daily lives of people.” Indigenous people were not permitted to seek legal advice with respect to their entitlements AB interest is simply personal and usufructuary (right to enjoy use short of destruction) 1888 St. Catherine’s Milling (Privy Council) Tried to define the nature of Aboriginal title to and in Canada. o They call this title to land usufruct: the right to enjoy the use and advantages of another's property short of the destruction or waste of its substance. This decision became the “high water mark” of very little legal and political influence on the part of indigenous peoples in Canada. Ratio: The Privy Council held that any interests that Aboriginal communities had in the land were merely “personal and usufructuary” rights held at the will of the Crown, and that the underlying title was vested in the Crown. Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 106 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. o Usufructuary: the right to enjoy the use and advantages of another's property short of the destruction or waste of its substance. AB people have a right to use the land but they don’t have a right to possession or title (usufruct); this is a person right, which can’t be enforced against anyone Turning point case because it recognized existence of AB title 1973 Calder et al v BC (AG) Facts: This case was an important “turning point” because it recognized the existence of Aboriginal title to land, although the court did not find that title had been actually established in that case. Calder’s affirmation of Aboriginal title helped to set the groundwork for the later findings in Guerin v The Queen and Delgamuukw v British Columbia, Ratio: At the time of the Royal Proclamation, AB people had been in possession of land prior to the arrival of European and therefore they have some kind of an interest in land. If they didn’t make a treaty, the court needs to go back to possessory interest. 1982 Charter of Rights and Freedoms Section 35 recognises and protects Aboriginal rights PRINCIPLES OF AB TITLE Sui generis 1985 Guerin v The Queen In relation to title to land, this case recognized that Aboriginal communities may have a sui generis interest in land. It is no longer the “personal and usufructory” interest identified in St Catherine’s Milling: it is now an interest in land. One aspect of this new form of title to land is that it is inalienable, except to the Crown. It is not the same as any kind of common law fee simple estate because fee simple estate cannot be made inalienable. Second, Guerin recognized a fiduciary duty on the part of the Crown to deal with Aboriginal lands. And because the Crown had breached this duty in relation to the lands at issue in BC in Guerin, the court awarded damages of $10 million. Ratio: Established the basic conceptual sense that Aboriginal people hold a sui generis (it’s a unique kind of title) property interest, and it’s not the same as fee simple. o Because they have sui generis interest, they can only sell the land to the government. AND, the Crown has a fiduciary obligation to act in the best interest of Aboriginal communities o This relationship comes from the “trust” the Crown has in relation to AB The content of sui generis 1997 Delgamuukw v BC Facts: D is saying this is a fee simple estate Government is trying to say the title to land isn’t its own kind of AB right, but to say there are other recognized AB rights. Courts say yes, AB have right to fish and hunt, etc. but those are AB rights and there isn’t a right to land. The use of land does not create any kind of title, it’s just a right to use land in a particular way. Issue: Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 107 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. Aboriginal title under s. 35(1) of the Constitution Act, 1982 What is the meaning of “existing” rights protected by s. 35? Arguments: The aboriginal rights which are recognized and affirmed by s. 35(1) fall along a spectrum with respect to their degree of connection with the land. There are three categories of rights under s. 35 1. Right to engage in specific activities on land, which does not give rise to title to land Practices, customs and traditions that are integral to the distinctive aboriginal culture of the group claiming the right. However, the “occupation and use of the land” where the activity is taking place is not “sufficient to support a claim of title to the land” (at para. 26). Nevertheless, those activities receive constitutional protection. 2. Right to activities that are site-specific, and seems to give rise to a site-specific title Even where an aboriginal right exists on a tract of land to which the aboriginal people in question do not have title, that right may well be site specific, with the result that it can be exercised only upon that specific tract of land. For example, if an aboriginal people demonstrates that hunting on a specific tract of land was an integral part of their distinctive culture then, even if the right exists apart from title to that tract of land, the aboriginal right to hunt is nonetheless defined as, and limited to, the right to hunt on the specific tract of land. 3. Right to the land itself A territorial claim for Aboriginal title to land Aboriginal title to land is one of the “rights” pursuant to s 35, but it is different from the “right” to engage in designated activities on land. The right to engage in activities on land does not create title to the land itself, just a right to engage in some activities on the land. By contrast, title to land means that an Aboriginal community has exclusive rights to use the land for its own purposes (subject to the limitation above), and to determine whether and to what extent others (including governments) may use the land Majority: Lamer CJ identified 3 features of the sui generis nature of the aboriginal title: 1. Aboriginal title is inalienable except to the Crown - Lands held pursuant to aboriginal title cannot be transferred, sold or surrendered to anyone other than the Crown and, as a result, is inalienable to third parties. 2. Aboriginal title is held communally - Common law allows co-ownership, but not so in aboriginal communities, where there is very little recognition of individual property rights - If you want to occupy a home, you get a certificate of possession, which gives you possessory rights, not title rights - Aboriginal title cannot be held by individual aboriginal persons; it is a collective right to land held by all members of an aboriginal nation. 3. Source of aboriginal title is pre-sovereignty exclusive occupation - It is now clear that although aboriginal title was recognized by the Proclamation, it arises from the prior occupation of Canada by aboriginal peoples - In 1760, when the French king gave the English king all the rights and titles the French king had, and the French king couldn’t transfer the Aboriginal land because the Aboriginal community had possessory title based on prior possession Lamer CJ also discussed the content of the Aboriginal title to land Aboriginal community can put the land to any use for the benefit of the community provided it does not destroy the relationship between the community and the land Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 108 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. The content of aboriginal title contains an inherent limit that lands held pursuant to title cannot be used in a manner that is irreconcilable with the nature of the occupation of that land and the relationship that the particular group has had with the land which together have given rise to aboriginal title in the first place. The relationship between an aboriginal community and the lands over which it has aboriginal title has an important non-economic component. The land has an inherent and unique value in itself, which is enjoyed by the community with aboriginal title to it. The community cannot put the land to uses which would destroy that value. If aboriginal peoples wish to use their lands in a way that aboriginal title does not permit, then they must surrender those lands and convert them into non-title lands to do so. However, the use of land by the aboriginal community is not restricted to the traditional uses They can put the land to other uses including modern uses, but it cannot destroy the relationship between the aboriginal community and the land Meaning, they can’t use it in a manner that will permanently change the land so that future generations won’t be able to enjoy the land, such as strip mining or turning it into a parking lot In the words of Professor McNeil, it is not limited to, but it is limited by, traditional uses of lands Ratio: Sui generis has three features: Aboriginal title is inalienable except to the Crown Aboriginal title is held communally Source of aboriginal title is pre-sovereignty exclusive occupation (Test for AB title) In order to make out a claim for aboriginal title – in the absence of a treaty - the aboriginal group asserting title must satisfy the following criteria: 1. [If you’re trying to establish AB right, it’s pre-contact.] If you’re trying to establish AB title, you have to show it existed pre-sovereignty. 2. There has to be some continuity pre-sovereignty. o Because it was an oral tradition, it’s sometimes hard to assert AB 3. Their occupation has to have been exclusive o Exclusivity is AB effective control in the land; the AB community had to have said X and Y are the boundaries, even if other group had permission to come on the land This is different than the common law notion of exclusion, the AB notion of effective control is more abstract.in common law we look for activities going on, like building fences, houses, etc. Kent McNeil – Defining AB Title and Impact of Delgamuukw Chief Justice Lamer proclaimed emphatically that Ab- original title is “a right to the land itself.” It is not a mere collection of rights to pursue activities on the land that were integral to the distinctive cultures of the Aboriginal peoples before Europeans appeared on the scene, as British Columbia and Canada argued. Instead, Aboriginal title encompasses a full range of uses that need not be linked to past practices. Delgamuk says it’s not just right to engage in practices and things, it’s the right to land – this is more revolutionary You’re not confined to using your land for exactly the same purposes you used it for in the 1763, but you can’t use the land in a way that’s inconsistent with the way it was being used. o E.g. if you used it for hunting you can’t now use it for mining McNeil says “…in other words, present uses are not restricted to, but they are restricted by, past practices and traditions.” If it’s communal, surely that means they’re going to have some internal ways of dealing with the land. They will have some rules and regulations etc. this is a subtle way of recognizing the need for self-governance in AB communities Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 109 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. Lamer CJ declared that the right Aboriginal peoples have to use and occupy their lands is an exclusive right. This means that Aboriginal peoples are not just free to determine for themselves what uses they will make of their lands; they also have as much right as any landholder to prevent others—and this includes governments—from intruding on and using their lands without their consent. Indeed, they should have even greater protection against government intrusion than other landholders because their Aboriginal rights have been recognized and affirmed by the Constitution, whereas the property rights of other landholders have not. The connection Lamer CJ made between their historic relationship to the land and uses they can make of it today concerns me because it suggests that Aboriginal peoples may be prisoners of the past. Present uses are not restricted to, but they are restricted by, past practices and traditions. If Aboriginal title is supposed to confer exclusive control, then it’s not appropriate for government to dictate how they should arrange the use of their exclusive control. The limitation prevents Aboriginal lands from being used in ways that are inconsistent with an Aboriginal nation’s connection with the land. But the nature of that connection must be allowed to change over time so that Aboriginal peoples are not made prisoners of their own pasts. Canadian courts should not sit in judgment over social change in Aboriginal communities, deciding what is and what is not necessary for their cultural preservation. The Limits of AB Title to Land Sawridge Band v Canada Facts: S.35(4) gender equality in AB title The claim was that the gender equality issues in s.35(4) contravene the arrangements for men and women in this AB community Chippewas of Sarnia Holding: AB title had been extinguished but not by voluntary surrender or statute, but it was extinguished by the courts because people no longer lived there, so it wasn’t possible to recognize the AB claims The court confirmed the trial judge’s decision that Aboriginal title had been extinguished, but not by voluntary surrender or by statute. In this case, there were non-Aboriginal persons, successors in title to the person to whom the lands had been granted by the Crown in 1853, and these non-Aboriginal persons had been in peaceful and innocent possession of the claimed lands for 140 years. In this context, the courts held that the current owners should not be displaced, in spite of the infirmity of their titles. How do you have Aboriginal people to have any trust and confidence in the Canadian government, that their rights are not honoured even when they have title to the land? Analysis: This has been critiqued Post-Delgamuukw Developments Arising from two similar appeals over Mi’kmaq logging rights in Atlantic Canada, the Marshall and Bernard cases marked the first time a claim for Aboriginal title had been fully assessed by Canada’s highest court. Although the court Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 110 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. was unanimous in its findings of guilt against the appellants, the judges disagreed about what standard should be used for determining Aboriginal title. R v Marshall; R v Bernard (2005) SCC Facts Both cases involved seemingly unlawful logging being conducted by Mi’kmaq persons in Nova Scotia and New Brunswick, with the accused admitting to the facts, but in their defence is relying on a claim of Aboriginal title over the forest land in question. The trial court dismissed the claims of Aboriginal title. Decision SCC upheld the trial court decision, no title to land. Reasons: The majority in the SCC held that the claimants had not established proof of exclusive occupation of the lands to which they claimed Aboriginal title. This is a case in which the claimants are trying to prove “title to land,” not just a “right” to engage in activity on the land, and their argument failed. Dissent: The dissenting judges critiqued the way that the majority reached its conclusion that there was no “exclusive occupation” of the land. They thought the trial judge and the majority in the SCC placed too much weight on common law approaches to establishing exclusive occupation, and paid insufficient attention to Aboriginal conceptions of exclusive occupation of land. Ratio: There are three types of claims Site specific claim: activities going on in specific sites. The court might be able to recognize site specific title to land Where there isn’t occupation in the common law sense, there might be some exercise of control over the whole of the territory in which case you might have a territorial claim AB rights that don’t involve title: The court identified that they couldn’t recognize claims because these claims were site specific. Analysis: The fundamental legal issue that is underlying how McLachlin and Lebel J are approaching the issue is the idea of the clear act o McLachlin says we have to take account of AB practices and traditions, but they have to be fit into common law concepts of property which only recognize CLEAR ACTS o Lebel says that in Delgamuukw the court said we have to consider common law concepts of property AND AB concepts of property The majority fails to recognize the AB concept with respect to land and the exercise of effective control over a territory. This then becomes a major issue in the Tsilhqot’in case. The territorial claim is rejected on basis that common law would only recognize possession where there was a clear act. The right to control the land and exclude others is basic to notion of title and common law. Its critical to view exclusion from AB perspective. Can Nomadic and semi-Nomadic people ever claim land? McLachlin says the test of AB claim to possession has to fit into common law idea of possession, clear act. But this is really problematic because AB were nomadic and had different ideas of land ownership. R v Sapper; R v Gray Facts: Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 111 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. Aboriginal logging rights in Atlantic Canada Holding (Justice Basterache) Supreme Court of Canada asserted that discussions about indigenous cultures and what makes them “distinct” (a ne- cessary element of the test for demonstrating an activity-specific right) were inherently Eurocentric Culture, let alone “distinctive culture,” has proven to be a difficult concept to grasp for Canadian courts. Moreover, the term “culture” as it is used in the English language may not find a perfect parallel in certain aboriginal languages. Barsh and Henderson note that “[w]e can find no precise equivalent of European concepts of ‘culture’ in Mi’kmaq, for example. How we maintain contact with our traditions is tan’telo’tlieki-p. How we perpetuate our consciousness is described as tlilnuo’lti’k. How we maintain our language is tlinuita’sim. Each of these terms connotes a pro- cess rather than a thing.” Ultimately, the concept of culture is itself inherently cultural First time the SCC has confirmed the existence of Aboriginal title to land 2014 Tsilhqot’in Nation v BC History: The Royal Proclamation is the basis for treaties 1927 – Amendment to the Indian Act o Illegal for anyone to raise money or to pursue an Indian claim to land (illegal to hire legal counsel as an aboriginal) Repealed in 1951 Facts: T only used certain parts of the land. They never enclosed land or made fences, etc. For centuries the Tsilhqot’in Nation, a semi-nomadic grouping of six bands sharing common culture and history, have lived in a remote valley bounded by rivers and mountains in central British Columbia. It is one of hundreds of indigenous groups in B.C. with unresolved land claims. In 1983, B.C. granted a commercial logging licence on land considered by the Tsilhqot’in to be part of their traditional territory. The band objected and sought a declaration prohibiting commercial logging on the land. Talks with the Province reached an impasse and the original land claim was amended to include a claim for Aboriginal title to the land at issue on behalf of all Tsilhqot’in people. The federal and provincial governments opposed the title claim. The Delgamuukw test for Aboriginal title to land is based on “occupation” prior to assertion of European sovereignty. To ground Aboriginal title this occupation must possess three characteristics: it must be sufficient; it must be continuous (where present occupation is relied on); and it must be exclusive. Lamer CJ set out the test for Aboriginal title in Delgamuukw In order to make out a claim for Aboriginal title, the Aboriginal group asserting title must satisfy the following criteria: (1) the land must have been occupied prior to sovereignty, (2) if present occupation is relied on as proof of occupation pre-sovereignty, there must be a continuity between present and pre-sovereignty occupation, and (3) at sovereignty, that occupation must have been exclusive. The trial judge in this case held that “occupation” was established for the purpose of proving title by showing regular and exclusive use of sites or territory. On this basis, he concluded that the Tsilhqot’in had established title not only to village sites and areas maintained for the harvesting of roots and berries, but to larger territories which their ancestors used regularly and exclusively for hunting, fishing and other activities. The Court of Appeal disagreed and applied a narrower test for Aboriginal title — site-specific occupation. It held that to prove sufficient occupation for title to land, an Aboriginal group must prove that its ancestors intensively used a definite tract of land with reasonably defined boundaries at the time of European sovereignty. This approach results in small Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 112 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. islands of title surrounded by larger territories where the group possesses only Aboriginal rights to engage in activities like hunting and trapping. Issue: What degree of occupation is sufficient to ground AB title? Site specific or territorial possession of land? Holding: The SCC agreed with the trial judge’s approach and held that occupation sufficient to ground Aboriginal title is not confined to specific sites of settlement but extends to tracts of land that were regularly used for hunting, fishing or otherwise exploiting resources and over which the group exercised effective control at the time of assertion of European sovereignty Ratio: (1) Sufficiency of occupation The occupancy must be sufficient to ground Aboriginal title. What is required is a culturally sensitive approach to sufficiency of occupation based on the dual perspectives of the Aboriginal group in question (its laws, practices, size, technological ability and the character of the land claimed) and the common law notion of possession as a basis for title. There is no suggestion in the jurisprudence or scholarship that Aboriginal title is confined to specific village sites or farms, as the Court of Appeal held. Rather, a culturally sensitive approach suggests that regular use of territories for hunting, fishing, trapping and foraging is “sufficient” use to ground Aboriginal title, provided that such use, on the facts of a particular case, evinces an intention on the part of the Aboriginal group to hold or possess the land in a manner comparable to what would be required to establish title at common law. (2) Continuity of occupation Since conclusive evidence of pre-sovereignty occupation may be difficult to come by, the aboriginal group may provide evidence of present occupation as proof of pre-sovereignty occupation, along with proof of continuity between present and pre-sovereignty occupation. The Court in Delgamuukw adopted the test established in Mabo v Queensland (1992), that continuity exists where there is a “substantial maintenance of the connection” between the people and the land. (3) Exclusivity of occupation The Aboriginal group must have had the intention and capacity to retain exclusive control over the lands. Exclusivity can be established by proof that others were excluded from the land, or by proof that others were only allowed access to the land with the permission of the claimant group. The fact that permission was requested and granted or refused, or that treaties were made with other groups, may show intention and capacity to control the land. Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 113 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться. MOSSMAN PROPERTY LAW Ошибка! Используйте вкладку "Главная" для применения Title к тексту, который должен здесь отображаться. As with sufficiency of occupation, the exclusivity requirement must be approached from both the common law and Aboriginal perspectives, and must take into account the context and characteristics of the Aboriginal society Occupation at European sovereignty The person occupying can’t ruin it for future generations The crown has ultimate title is whatever is left after AB title is subtracted (AB title is the full beneficial interest) o The power to infringe on AB title comes from underlying Crown authority; it comes from s.92 and s.13 and is a legislative authority o Crown’s underlying title doesn’t amount to anything beneficial other than if it comes back to the Crown Analysis: This case is almost a complete rejection of approach taken in Bernard; in Marshal and Bernard, it seems like the court was essentially saying you’re making this AB title claim you have to fit it into the common law notion of establishment of possessory title, which usually means evidence of clear act.so in this case it was difficult for people to succeed if this was the test In Tsilhqot’in Nation v BC case, the court is saying we need to use both AB and common law perspectives to assess the claim. They are essentially re-defining the test for Ab title to take account for nomadic and semi nomadic people. So it doesn’t mean there needs to be a clear act, a fence or something, but the court asked whether it understood between you and other AB groups that you had control of the land? METIS PEOPLE Metis people tend to be more dispersed; lots live in Urban communities. Daniels Metis people are recognized pursuant to s.91(24) as “Indians” Analysis (Abella): As the curtain opens wider and wider on Canadian relationship with AB people, this case represents another move towards truth and reconciliation Ошибка! Используйте вкладку "Главная" для применения Heading 1 к тексту, который должен здесь отображаться. Page 114 of 114 Ошибка! Используйте вкладку "Главная" для применения Heading 2 к тексту, который должен здесь отображаться.
