1
THE NATURE OF PROPERTY
1.1 WHAT IS PROPERTY?
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Immaterial, chattel, real
Private (right to exclude); common (right to
access/not be excluded); public
Felix Cohen: “to the world: keep off X unless you have my
permission, which I may grant or withhold, signed: private
citizen, endorsed: the state”
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World: everyone w/ duty to uphold
Keep off: right to exclude
Permission: can exclude, gatekeeper, allow
Signed: individual who holds right
Endorsed: enforceability
Thomas Merill: points of consensus
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Rship btw ppl w/ respect to things
a. Asserting prop claim = asserting rship btw
ppl (who has control)
Tangible + intangible resources
Property ≠ possession
Institutional structure needed to enforce (state)
Bundle of rights: includes exclusion, ALSO sell, transfer, alter,
destroy, use, collect income, etc.
Single-variable essentialist: core of prop = right to exclude
Multi-variable essentialist: property = bundle of rights
Nominalist: no core/essential element; w/o substance;
bundle of rights that we define
Yanner v Eaton (1999 AusHC) License to harvest game,
Yanner doesn’t ⇾ kills crocs; statute protects native
rights but extinguished by granting of inconsistent right
by Crown; Prop = more than right to exclude
(nominalist)—no full beneficial/absolute ownership; DIS:
right to exclude necessary (variable)
Harrison v Carswell (1976 SCC) C picket emp on private
shopping mall prop; mall owner suff possession to
exclude—Dickson-precedent, leg must change; DIS-Laskin:
boycott v strike, labour dispute + right to strike; trespass
at mall ≠ trespass in home, genpop invited to malls (new
type of private prop); duty of judiciary to adapt common
law to new social contexts
Post-Harrison in BC
Labour Relations Code s66: no trespass on land to which
public has normal access (common site picketing)
Manitoba also amended in favour of Laskin op
1.2 WHY PRIVATE PROPERTY
First occupant: discoverer takes control (no inheritance /
transfer)
Labour (Locke): worker takes control (most things req more
than 1 person’s work); making land productive
Personhood (Hagel): freewill/humanity tangible over material
world; fully human when exercising capacity to control over
material world (rights-based)
Economic: efficient allocation of resources; traded in free
market; exclusivity, transferability, universality; raise wealth
Utilitarian (Bentham): Max happy/satisfaction through
ownership; more intangible to measure (compared to
economic)
Liberty (Waldron): Private prop promotes freedom, ppl can
participate as full/free/functioning in society
Tragedy of Commons: individual gets benefit from actions,
bears none of the cost (actually private + common; cow =
private)
Solution: Privatization, internalize cost through
State/Public Prop: managed for public welfare; state
determines use, no public right to access
Common Prop: members of group have right to
access/exclude non-mem; owner duty not to violate rules
Private Prop: bundle of rights, exclusion etc.
Non-prop/Open Access
Nisga’a Final Agreement, Village Entitlement Act, Nation
Entitlement Act, Landholding Transition Act: (first occupant)
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Fee simple interest: does this relate to
Crown/colonialism? Decided no, just defining time
Collective rights for nation, recognizing sovereignty
(land = Nisga’a no matter who owns)
Villages hold in fee simple, can transfer to entitled
recipient (Nisga’a citizen, member of band)
Accepted doctrine of estates, not tenure
1.3 NOVEL PROPERTY
Numerus Clausus: limits # of rights that courts rec as prop
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Stopping new forms of prop interests
Purpose of prop = not to be reversed
o Add interests, economic consequences
Keppel v Bailey: bind ppl through contracts (no 3P),
not new prop interests (3P/everyone involved)
INS v AP (1918 US) both sell news to papers, INS taking
info from AP bulletin boards w/o ack AP/$; quasi-prop:
exists only btw parties, not public—justified w/ labour,
eco, util theories, news/hist of day as ‘publici juris’ (public
right), just bcus AP no interest in published news ≠ AP no
interest at all; DIS-SV nom, value ≠ prop—only protecting
what defined as prop, news not defined as prop, so law
shouldn’t protect this
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Feudalism: social bond btw Crown/lord (protection/defence)
+ man (service)
Vic Park Racing v Taylor (1937 Aus) P as racecourse wants
D to stop commentary on radio from his prop; does
reducing $ legit prop rights? spectacle ≠ prop, not owned
in ord sense—must erect higher fence to stop looking in,
not confidential/defam
Moore v Regents USC (1990 USA) P given add
tests/surgery for cancer, informed for health BUT for
patent on cell line humans ≠ prop/no prop in cells used
no prop interest in cell line/patent, not enough ownership
of removed organ (anti-commons, labour theory); DIS:
bundle of rights, if any rights remain than prop interest
Assisted Human Reproduction Act, 2004
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Risk of creating saleable prop interest in body parts
⇾ incentive for poor women (surrogacy)
Cannot pay for surrogacy/components, only
expenses; no prohibition on giving only selling
Property language not used in the act
PROPERTY IN PERSPECTIVE
2.1 SOURCES OF PROP LAW
Indigenous (Burrows): first occupancy, in part
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Humans cannot survive w/o nature/resources,
nature can survive w/o humans
Prop rship of ppl + natural world
Non-human given agency
International
Te Urewera Act: settlement btw Maori + NZ
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Land “has an identity in and of itself”
S11: national park ⇾ legal entity w/ rights, powers,
duties, liabilities
S12: no longer vested in Crown, land owns self
S13: land inalienable, but cannot transfer/mortgage
Te Awa Tupua Act: settlement btw Whanganui Iwi + NZ
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River becomes independent legal entity
Purpose also to record ack/apology from Crown
Common Law/English Feudal Law
History of Eng common law reveals tension btw:
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Propriety: land as source of social stability/hierarchy
Preference satisfaction: as commodity—market
economy
Two Doctrines:
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Tenure: quality of interest, vertical (Crown > people)
Estate: quantity of interest, temporal rship (time)
3 Points about Feudalism:
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No alloidal title (absolute) ⇾ held by Crown
Free tenure: obligations are clear
o Security/knight service- prestigious
o Spirit/priest service
o Splendor/pomp + King-service
o Subsistence/socage/agricultural tenure
o Seisin: ID who resp for duties in tenure
Copyholder/villeins: unfree tenure, obligations not
known in advance (might be arbitrarily imposed)—
eliminated in Property Legislation of 1925
Accumulation of bundle of rights:
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Security of tenure ⇾ Statute of Tenures, 1660
Right to alienate freely ⇾ Statute of Qui Emptores,
1290
Right to specify heirs ⇾ Statute of Wills, 1540
Feudal Remnants in Canada:
Intestacy: no will, land ⇾ heir, or gov’t if none
Escheat: land ⇾ Crown if no will/heir
Law and Equity Act: British law app in BC unless modified
Wills and Estates Act
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S20: land ⇾ spouse if no descendant
S21: spouse gets furnishings + ‘preferential share’ of
estate; rest to descendants
S23(2)(f): to gov’t if no heir
S24: descendants share equally
S60: if will inadequate, court decides
Escheat Act: gov’t takes land if no heirs/forfeited; S7 clarifies
if Nisga’a land escheats, will be returned to Nisga’a
2.2 PROPERTY, CLASS, POVERTY
Waldron: “everything we do has to be done somewhere”
Private prop governs where ppl can do things (common
becomes amenity for play/work), homeless do not have
private, only access to common for all essential tasks
Ellickson proposal: green/yellow/red spaces of regulation in
common prop, higher reg (green) more comfort for rich,
lower reg (red) more avail for homeless to complete essential
tasks
Chronic nuisance: behavior that annoys/disturbs BUT
unthreatening, less likely for ppl to use common spaces
Tragedy of the commons/agora: ppl will go to private prop
like mall if uncomfortable in common spaces w/ homeless
VicCity v Adams injunction of tent city (bylaws: cannot
reside overnight in park) BUT homeless need place + govt
needs to maintain space public prop for benefit of all (inc
homeless) gov’t cannot restrict certain activities just bc
they own ⇾ bylaw struck down, Vic w/ new time restrict
Housing not classified as a right in Canada, international HR
does indicate standard of living req (Can as signatory)
Canadian realty: Tanadjaja v Can (2014 ONCA) if gov’t fail to
act then court cannot step in
Right to save your own life (Charter s7 right to life/lib/sec) has
been more successful in helping homeless
Abbotsford v Shantz (2015 BCSC) Adams⇾tents OK but
must move each day, causes unnecessary harm (isolated
area, cannot contact for help, adverse health) ack more
than overnight space req, didn’t spec location Adams was
formulaic regard accessibility (#homelessV#shelterbeds)
even if not good for person needing (trans, couple, mental
health, etc.)
BC v Adamson (2016 BCSC) injunction of tent city not
allowed Macdonald test: 1) gov’t must show harm, 2)
balance convenience of parties found highly inconvenient
for homeless to move nightly, while many benefits in TC;
adds factors: #access spaces, inhibit public, threaten
health/safety, fire code, encourage crime, improve
occupant’s lives, impacts of eviction
Later, Adamson injun allowed as new housing available
Van Parks v Williams: TC shut down, new housing BUT didn’t
work, most didn’t get into the avail housing
Fraser Health v Evans: discussed what is public land
VanCity v Cummings: homeless cutting fences to take space,
trespass into vacant lot (working to building)
VanCity v Wallstam: breaking locks, taking space; benefited
from being on lot, initial injun stayed
MapleRidge v Drury: injun w/drawn after response, working
on providing housing
2.3 PROTECTIONS FOR PROPERTY
No express constitutional protection for private prop
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Charter s7: life/lib/sec ⇾ favour of homeless
Charter s8: search/seizure ⇾ some types of prop
Charter s2: expression ⇾ can be in a space
Cons 1982 s35: affirms Aboriginal+treaty rights
De Facto Expropriation test (CPR v Van (2006 SCC)):
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Acquire beneficial interest in prop/flowing from
Removal of all reasonable uses
CPR: bylaw didn’t extinguish all uses, gov’t didn’t gain
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Mariner RE v Nova Scotia (1999 NSCA) valid leg can
restrict private prop / comp only req where auth (not
common law right); value ≠ prop interest BUT loss of
value is factor in whether comp req
Expropriation Act s30: every owner w/ land expropriated (def:
taking w/o consent) is entitled to compensation (def: market
value)
R v Tener (1985 SCC) mining comp has mining rights, land
later becomes park, mining not allowed profit a prendre
(right to go in + extract), then direct exp; minerals in situ,
then de facto exp (reg) + comp req Maj–reg taking =
comp; conc–profit a prendre, still comp
American 5th Amendment, takings clause: “nor shall private
prop be taken for public use w/o just comp”
Two assump: gov’t has right to take, only for public use
Eminent Domain Power: basically same as taking private prop
Blight: charged term, usually poor neighbourhoods (dark,
crime-ridden, dangerous, etc.)
Berman v Parker (1954): store in blighted area, OK for gov’t to
declare whole area blighted + redevelop
Hawaii v Midkiff (1984): dys housing market, leg gave anyone
in rental prop 10+ right to buy; if valid public purpose in
transfer, not just public use in the end
Kelo v New London (2005): working class area on waterfront,
no blight but City creates plan to bring in new industry for
benefit of city; can you use takings power to increase city
eco? Public use = public purpose, not just end use of prop
Regulatory Takings: gov’t does something resulting in reduced
value of prop/rights of landowner; effectively, gov’t took it
Mugler v Kansas: license for brewery, later prohib so P says
reg taking; if gov’t restricted, then could never use prop this
way and not a taking (nuisance)
Lucas v SouthCarolina: 100% loss, whole prop beyond
seaward baseline; reg that takes all econ use of land is reg
taking, req comp
PA Coal v Mahon (1922 US) homeowner w/ surface rights,
miner w/ subsurface rights; Coaler Act passed: if house
falls in, miner resp reg can go too far, can’t put burden of
public interest on single individual miners felt like losing
100% support estate rights (hard to win under 90% loss of
rights)
Penn Central v NYC (1978 US) grant central station
historic, PC trying to build on top but refused, balancing
factor test: 1) diminution in value 2) reasonable
expectations 3) character of gov’t action cannot claim reg
taking if bought prop w/ regs OR heavily reg field
NAFTA article 1110: comp @ fair market value if taken unless
public purpose (decisions at arbitration panel, no precedents)
Metalclad Corp v Mexico (2000): 5th amendment extended
through treaty, for inv protection that dom inv don’t have
BOUNDARIES
3.1 AIRSPACE
Kelsen v Imperial Tobacco: invasion of airspace = trespass, not
nuisance (sign over shop, permanent)
Bernstein v Skyviews: incursion at height which may interfere
w/ ord use = trespass (low-flying aircraft/transient: nuisance)
US v Causby: if no buildings/structures, doesn’t affect right to
reasonable airspace
Manitoba v Air Canada: taxation⇾Man no prop right/leg
jurisdiction for airspace (res opmuium communis)
Didow v Alberta Power Ltd (1988 ABCA) powerline w/
crossarm on P’s land; P wants declaration = trespass; latin
maxim (cujus est solum): owner of piece of land owns
everything above/below indefinitely, but won’t apply
outright proper remedy: trespass; air traffic (planes) not
included in this (too high to cause interference)
3.2 SUBSURFACE
Edwards v Sims (1929 US) ownership of cave under both
props, opening on Edwards, can Judge Sims force a land
survey caves like mines, equity has power to invade right
to ascertain truth (latin maxim, doctrine of ownership);
rule in Can: ownership remains intact below surface, to
depth humans can occupy person applying for inspection
must have bonafide claim; DIS–cave owner = entrance
(first occupant theory)
HOWEVER: cave entrance created through dynamite (labour);
business-partner Turner sued Edwards for breach of K;
dissenting Judge Logan gives no precedent for decision, BUT
wants to ensure title issues like this don’t arise for bigger
(local) Mammoth Cave which would be more costly
Coase Theorem: if transactions costless, initial assessment of
prop right doesn’t affect ultimate use BUT transactions are
not costless, normative claim law should mimic efficient
allocation of resources
3.3 LATERAL, LAND
Trespass Act
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S1: enclosed land (lawful fence/natural
boundary/signs)
S3: duties of prop owners (make/maintain fence, ½
cost w/ neighbour)
S4: offences for trespass (presumed permission if on
enclosed land)
S5: notice (signs)
Strata Prop Act s68: boundaries are mid-point of wall/floor,
lots of shared infrastructure
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Chan v Strata Plan (2010 BCSC): strata plan defines upper
limit to a patio lot, tree above that lot becomes common
prop, within strata discretion (must prune/cut above lot)
Blewman v Wilkinson (NZ) Blew owns, excavates,
subdivides; another purchases, sells to Wilk, builds house,
land subsides, W action against B no absolute liability for
subsidence, only under negligence policy in NZ: lots of
steep hills, don’t want to discourage/punish development
Doctrine of Support: landowner w/ absolute right to support
of land in natural state
3.4 LATERAL, WATER
Riparian rights (common law presumption): prop adj to water
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Right to natural flow: can use if don’t diminish for
those downstream
Right to fish: not owning fish until catch (latin
maxim), from ownership of soil
Right to soil/riverbed can be severed from land
Ad Medium Filum Aquae: ownership to midpoint
ONLY for non-navigable rivers in Canada
Water Act s2: now vested in ♔
R v Nikal (1996 SCC) reserve w/ land on both sides of river,
Nikal charged w/ fishing w/o license, argued don’t apply
bc AMFA riparian rights + infringing Aboriginal rights;
AMFA only for non-navigable rivers: assessment of entire
length of river, Bulkley river is nav
Doctrine of accretion/avulsion
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Accretion: slow/incremental change (sediment) –
boundary changes with accretion
Avulsion: sudden change (floods, mudslide) –
boundary does not change with avulsion
Robertson v Wallace (2000 QB) river marks boundary of
each prop, river moves giving W more prop who sells; no
express agreement, conduct creates boundary; uneasy
truce ≠ boundary, onus on party claiming ownership;
river moved due to avulsion – R keeps land conventional
boundary test: 1) adjoining landowners 2)
dispute/uncertainty of division 3) agree on division 4) rec
common boundary
3.5 FIXTURES
Chattel: something that is privately owned + can be moved
Annexation presumption: if object of setting up items to
enhance value/improve usefulness + permanent (not
occasional) in any way, presume chattel is now a fixture
Test from Stack v Eaton (1902) in La Salle below:
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Degree of annex: how strongly attached to the land
is it? Fixture presumption ↑ w/ strength
Purpose of annex: better use of land or good? If
former, then fixture; if latter then remain chattel
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Subjective intention of parties ≠ matter
La Salle v Camdex (1969 BCCA) hotel bankrupt, P title over
carpets, D mortgagee claims title through mortgage; ob
intent test 1) degree 2) purpose degree of annex: slight;
BUT object of annex: better use of hotel
NelsonCity v Mowatt (2017 SCC) City argued for
inconsistent use as well (inconsistent w/ intended use by
title-owner) reg owner of lot next to disputed lot,
incorrectly assigned as road allowance in 1920s,
escheated to ♔; Mowatt claim adverse, must prove
continuous rewards last occupation, productive use
♔land = 60+ yr continuous; for city w/evidentiary gap
Re Davis (1954) husband dies, wife gets 1/3 dower on
husband’s real prop; wife claims bowling alley as real
prop; different take on ‘enhancement’ of building
degree: slight; object: efficiency of bowling
Possible distinction between La Salle + Davis:
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Type of building? Hotel ONLY used as hotel, which
needs carpet; bowling alley could be generic
building, doesn’t need bowling items
Tenant’s fixtures treated same as owner, can be removed if
item for purpose of carrying out a trade OR ornamental in
nature/domestic convenience, AND must not cause material
injury to the freehold
Diamond Neon v TD Realty (1976) 2 signs owned by Neon
on prop sold to TD, TD discovered Neon K post-purchase,
sold signs claiming became fixtures; annex test is obj,
NOT sub, doesn’t matter what parties intended – signs
were fixtures; DIS–sign inherently chattel
Inconsistent use isn’t a proven element in BC
Statute of Limitations
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Must register security interests in PP registry
36(3): whichever charge is registered first
(mtg/interest) is which has priority
POSSESSION
4.1 CONCEPT OF POSSESSION
Popov v Hayashi (2002 US) P ~caught baseball, trampled,
H grabbed ball—which had possession? Pre-possessory
interest–only lost control bc unlawful acts; each have
undivided interest, sell + split $; test for possession 1)
intention to possess 2) physical degree of control (but
what degree is req?) – 1st occupation justification
4.2 ADVERSE POSSESSION
Adverse Possession: ‘true owner’/registered title owner
displaced by trespasser occupying land unchallenged
Test from Nelson v Mowatt:
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Actual possession: intention + physical possession
Open + notorious: not hidden
Exclusive
Peaceful: cannot keep true owner out by force
W/o permission
S16: must make claim w/in 20 yr of discovery
S48: claim w/in 60 year for ♔ land
Limitation Act
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S28: adverse poss only if ‘perfect’ before July 1 1975
o Limitation on true owner, not possessor
Land Title Act
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Personal Property Security Act
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Continuous? Always someone for true owner to sue,
though it can be a different person as prop changes,
not continuous occupation
S23: adverse poss only against 1st title-holder (if land
unreg, at moment of 1st reg)
W/ title reg system (lease, etc.) adverse poss isn’t
req anymore—intended to mirror all interests
Land Title Inquiry Act
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S1: SC can decide who has title to land
S11: if court unsatisfied w/ evidence, look for more
4.3 FINDERS
Finders: fortunate finders of lost prop entitled to it against all
world but the real owner
Bailment: rightful poss of goods by one who is not owner, by
mutual consent
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Finder as gratuitous bailee: can w/hold until sure is
claimant entitled (has resp to true owner)
True finder cases: chattel is lost/abandoned
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Presumption: finder has the right
Recovery finder cases: uncovering items hidden on pvt prop
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Presumption: owner of location has poss of thing
Trachuk v Olinek (1995) P+4D claim right to poss + title to
money uncovered by 4D on eastment they worked on
NOT land P leased; recovery not true finder, P had no
poss of easement land so no claim
Parker v Brit Airways obj found by employee during
employ; if no other claim, then employer has right to obj
4.4 GIFTS
Signed, Sealed, Delivered (handing over/intention to do so)
Gift/donative transfer V bargain/contractual agreement
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Gift: delivery, signature, attestation, etc.
Donative intent: benevolent urges
Contract: offer, acceptance, consideration
Nolan v Nolan + Anor (2003 Aus) P claims D transferred
paintings to mum/wife, at death go to P as beneficiary of
mum’s estate; gift/donate test: 1) donative intent 2)
intent to receive 3) delivery this was not a gift
Delivery can be actual (handing over) or constructive (giving
keys to a car, more than providing access to item) but it must
be specific/proven
Gifts can be retracted at any point before delivery
Burden lies on P to establish there was a gift/delivery
FREEHOLD ESTATES
5.1 FEE SIMPLE
Doctrine of estates: mediated rship btw tenant + land
♔holds ultimate/radical title
Walsingham’s Case (1579) 3 types of freehold estates 1)
fee simple (time in land w/o end) 2) fee tail (inheritable,
w/ strong restrictions) 3) life estate (no longer than for
specific person’s life)
Inter vivos: transfer between lives
Words of limitation/purchase
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To A and his heirs: purchase, describes recipient
To A and his heirs: limitation, describes temporal
quantity (not succession, but could be if A transfers)
D’Arundel’s Case (1225) transfer to Roger ‘and his heirs’
deemed limitation, not succession
Ellickson: extending prop rights into future beneficial for
conservation of resources
Thomas v Murphy (1990) wil grants prop to P, ‘their
successors + assigns’, D gives legal op as fee simple, in
wills, intention of testator is paramount, relaxed req
words of limitation testator
Property Law Act
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S10: ends fee tail
S19: sufficient to use words ‘in fee simple’
Land Title Act s186: if no words of limitation = fee simple
Wills, Estates, Succession Act s41(3): gift in will according to
terms, gives all legal/equitable interests that will-maker could
legally give
5.2 LIFE ESTATE
Rule of construction: intention of testator through interp
Power to encroach: power to diminish (sell, etc.) life estate
through duration of life estate
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Re Walker (1924) determined testator goal to benefit
wife, = fee simple 3 types of repugnancy (cannot give
more than everything) 1) gift in fee simple, NO gift over 2)
life estate, remainder in fee simple 3) life estate w/ power
to encroach, remainder in fee simple
Reversion/remainder interest: anything leftover after life
estate is given to: transferor (reversion)/another (remainder)
Re Taylor (1982) husband specifies will to wife until death,
then split w/ daughters; wife’s will specifies leftover>5ppl;
where intention is clear, must give effect to intent; ‘to
have and use in lifetime’ are words of limitation
Christensen v Martini Estate (1999) P longtime friends of
deceased, D as 2nd wife; if intention vague, look at rest of
will for context D w/ life estate w/o encroach, remainder
to P
General focus on first sentence specifying interest level, if
there are no qualifies there, then likely to be fee simple.
Doctrine of Waste: any action/inaction taken by landowner
which permanently alters physical character of land (limits on
life tenant’s actions)
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Ameliorating: enhancing value, ≠ liable
Voluntary: positive, wrongful action, perm changes
(cut trees, open mine, demolish building)
o Liable, unless specifically permitted
Permissive: de-value land through inaction/passive
(dilapidated buildings), ≠ liable unless specific forbid
Equitable: huge change/destruction (clear cut)
o Liable, unless specifically permit equitable
Strict Settlement: getting around limitations that prevented
fixing land within a family, constrained heir’s ability to do
what they want (legally + socially)