Property Summary
Ch.1 CONCEPTS OF PROPERTY IN LAW
Property: “a relationship amongst subjects with respect to objects” NOT a thing
Property interest- relativity of title- first possessor better claim than other but title has best
1. Introduction: Property as “Relationship”, NOT “Thing”
 property concerns the network of legal relationships between individuals in respect of things
o “property” comprises bundles of mutual rights and obligations between “subjects” in
respect of “objects” & study of law of property becomes an inquiry into a variety of
socially defined relationships & morally conditioned obligations
 Jeremy Waldron’s (property as relationship) = Susan and her motor car; “
o Susuan has “bundle of rights” that constitute a proprietary interest in car but can
alter by selling/giving it away
A. Property as Relationship: Implications

Complex ( diff ways to assemble rights in diff contexts, especially when objects of prop change
(land/ideas) & dynamic (meaning of prop changes (definition, perception) ie approach contexts
differently Different contexts may influence the way legal principles are applied.

the changes are related to changes in the purposes which society or the dominant classes in
society expect the institution of property to serve. Macpherson.
o Current legal arrangements about property suggest that we think of it as a right and not
a thing  changes result of commercialization/industrialization/capitalism
B. Subjects and Objects of Property Relationships
 Gray & Symes  particular persons excluded from holding (being subjects of) property
interests (serfs, women, children). Children still precluded from exercising certain kinds of
property rights
 Gray/Symes “ the definition of who can be the “subject” of property interests has “an
important political significance precisely because the delineation of potential right-holders
fundamentally affects both the balance of power and the distribution of goods within a society.”
 In 21st century few are explicitly precluded from holding interests in property  however the
legal right to become the “subject” of a property interest has not resulted in equality among all
persons in relation to property interests  important relationship b/w property law & issues of
social/economic inequality
 also dynamic quality of objects of proprietary interests.
o For ex. Women/salves were once considered objects of property but not anymore.
o There are also forms of “new property” that are often claimed as objects of property –
professional licenses, pensions, and even the right to a job or security of housing.
Discussion Notes:
Philosophical Perspectives About Property
 Law of property may reflect philosophical perspectives about nature or purposes of property.
o Community norms-common beliefs, understandings, & culture that hold property regimes
together raise issue of persuasion. How do people change norms to accommodate diff property
arrangements that might enhance well-being, where do they get understandings about property?
o Carole rose Her reflections emphasize the idea of property as a social concept
1. Defining “Property” in Context
B. “Property” in the Context of Scientific Innovation: JCM v ANA
JCM v ANA (2012) BC : Sperm Straws constituted Property
Facts:
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couple bought sperm unit in US (each had 1 child) & stored remaining 13 sperm straws but not
addressed in separation agreement (200&)
o In 2010, JCM began having a relationship with TL who wished to buy out ANA”s interest in the sperm
to have a child related to JCM’s but ANA wants to destroy them (didn’t like the idea)
Issue: are the sperm straws property? If they are, how can they be divided pursuant to family relations act
Rationale:
o No cdn legislation (fed/prov) that treats gametes as property (unique situation, doesn’t want to trivilaize)
o by relying on C.C (Canadian) & Yearsworth (UK) property Joint owners of the sperm they used to
conceive
(1) Once respondent purchased the sperm straws, those were their property to be used for their benefits
 Like in CC AW 2005;(Dispute over embryos, sperm used to conceive was a gift; court found that the
sperm became the property of the P)
(2) Medical science has advanced to a point where the common law requires rethinking of whether body
parts and its products to be considered property.
 In Yearsworth, considerd it to be “property: even though it was novel
 ALTHOUGH, distinguishable from that case because 1) sperm as property when it was the
“man” who produced it 2) no negligence claim BUT need for law to advance with science still
(3) Important for a balancing of rights: right to procreate with the right to avoid procreation
 ANA’s right to avoid procreation is not being infringed by dividing the sperm straws between
the owners as property b/c will not be the “parent”
REJECTS R’s arguments
1. Court ill equipped to handle moral arguments
2. Clear that the sperm is the property of both parties because treats like “property”
 Purchased; right to deal with it for their benefit. The moral argument of not commercializing
sperm is too late since she bought it.
 EVEN THOUGH Canada bans purchasing of sperm/ova , the act does not dictate or influence
whether they are property in this case.
3. distinguished from academic articles- shouldn’t consider best interest of existing children in this case
Jonathan Yearworth & Ors v North Bristol NHS Trust, 2009
Facts: 6 men who stored semen (undergoing chemo) sued for negligent damage to property when their
frozen samples thawed in the storage facility
Issue: had to overcome common law position that a human body and substances generated by it are
incapabale of being owned
Decision: Court concluded that it was necessary for law to keep up with the scientific advancements AND
that it in the context of a negligence claim the sperm was property because:
o (1) it was being sotred for the benefit and future use of the P’s
o (2) it was generated by their bodies
o (3) although the storage facility might have duties regarding the
sperm that could conflict with the wishes of the P’s , no one other
than each P had rights in the sperm he had produced.
CC AW 2005;
Facts: Dispute over embryos, sperm used to conceive was a gift; court found that the sperm became the
property of the P
Discussion Notes:
i.
Property Concepts and New (Reproductive) Technologies


Number of factors have contributed to sense of “urgency” about need for legal regulation concerning
human body parts: pace of technological advances, potential of economic gain,
Resulted in Federal Royal Comission on New Reproductive Technologies  Proceed with Care
adopted a new ethical orientation, the “ethic of care” and eight guiding principles
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
BUT IT DID NOT take a properitary analysis  it would be dehumanizing, injurious to human
dignity. commercialization for reproductive materials/services is inappropriate
ii. The Assisted Human Reproduction Act
 S.7 of statute precludes the commodification of sperm/ova (cannot purchase, offer to purchase or
advertise for purchase)  this section is not struck down even though act ultra vires.
iii. Humans Conceptualized as Objects of Property
 Ideas about property must also take account of the impact on human beings who are conceptualized as
objects, rather than subjects of property interests, ex slaves, abolished in 1834(british colonies)
2. Property and the “Right to Exclude”
A. Shopping Centers: “Public” or “Private” Property?
 Common law trad. Strongly protected property owners right to exclude, until “mall”
o Unresolved tension“shopping centres may have been imbued with public purposes in
Gruen’s original conception, but, in practice, they have often reflected the interests of mall
owners and their investors—quintessential private property”
3 KINDS OF PROPERTY:
- private property
- state propertyrights state has created and kept for itself
- common propertyuntil rise of commercialism areas in England regarded as “the commons”-ie
pasture animals
RIGHT TO EXCLUDE OTHERS
Harrison v. Carswell, 1976 (mall owner excludes; Not over-ruled, but distinguished pre-charter)
*owners of private property including owners of shopping malls have the right to exclude, can withdraw
invitation, akin to private home.
-
Facts: Carswell picketed in front of the shopping centre against her employer, Dominion Stores. Owner
of the plaza forbade her from picketing to not disturb the patrons
Decision: mall owner has right to exclude
Reasons:
o Majority (Dickson):
 Carswell argues rights to picket more socially imp than property rights but court says
need to follow precendent
 followed R. v Peters – picketing about labor disute outside store “an owner who has
granted a right of entry to a particular class of the public has not thereby relinquished
his or its right to withdraw its invitation to the general public and that if a member of
the public whose invitation to enter has been withdrawn refuses to leave, he thereby
becomes a trespasser”
 Peters distinguished itself from Grosvenor park because didn’t agree with
reasoning –held “The most that can be said is that the respondent
exercises control over the premises but does not exercise that control to
the exclusion of other persons” didn’t allow trespassing to stand
 Owner has not relinquished right of control , may withdraw invitation
 Analogy to private home owner – mall is private property
 Policy: protecting economic freedom of property owners;
 “a change must be made by the enacting institution, the Legislature, which is
representative of the people and designed to manifest the political will, and not by this
Court.” If override B’s right to exclude A
o Dissent (Laskin):
o *owners do not have ABSOLUTE right to exclude, quasi-public (constriants)
o Distinguish peters (not good precedent)
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Concern that- 1. Court need not adhere mechanically to precedent- diff facts here 2.
Court should balance w.o yielding to legislaute & peters was a diff context
 In peters it was boycotting sale of certain grapes (just citizen); here, picket employer
(employee) in mall with statutory labor right
 An owner reufsing picketing is undermining labor legislation
 If only allow protest on sidewalk looses the force
Conceptualizing malls
 “trespass” doctrine is ancient but new context where picketing is lawful & has good
policy
 members of public are privileged visitors (invited, given right of entry) whose privilege
is revocable only upon misbehaviour or unlawful behaviourreconciles both interests
of owner/public’s
protecting homes is not the same as protecting malls very diff uses  purpose of mall is to invite people so “public character”
 malls are the new marketplaces that exist solely for the publiccourts can draw lines later on depending on particular facts of cases.
Dissent
o context, PP but public access/invitation, no good precedent & if we do, don’t apply it
o “privileged visitors” only exclude if misbehaviour, said some parts of mall more public than priv
o This is “common law reasoning” NOT “charter reasoning” (didn’t exist yet).
Majority rules about PP from precedent, if want to change these rules for malls, it should be legislature
Differences- Dickson private/ quasi-public, the value of picketing employer more imp than grapes
Academics Macpherson Should not be confined to right to exclude others, but equally right not to be
excluded  would open up individual rights to equal access
 Fischlargues that law generally favours interests of capitalism
Distinguishing Harisson v carswell:
Wildwood Mall v Stevens, 1980, SASK(Distinguished carswell bc no analogous legislation to petty trespass act
- Similar facts but distinguished Harrison v Carswell B/C no analogous legislation to petty trespass act
- NB: possible using technical legal argument to support social policy, more respect for labour rights?
RWDSU v T Eaton, 1986 (picketers not excluded from mall; ONLY excluded if mall owners interest at stake)
- Facts: shopping mall owner prohibited union organizers from being on mall property couldn’t access
Eaton store except from inside mall so couldn’t picket outside it
- Decision: mall owners could not prohibit union organizers from entry
- Reasons: distinguished Carswell
o Importance of Ontario labour relations act which prohibits employee or agent on behalf from
interfering with trade union BUT wasn’t around in Carswell
o There is no interference to the legitimate activities of mall owner
o Mall owner does not have right to exclude when mall owner’s interests not at stake
 would not negatively impact mall owner b/c came before opening hours
o Owner promoting prohibition that tenant (employer) would not have been entitled to do bc unfair
labour practice – no purpose/benefit for owner doing what employer cant
R v Layton (after charter, allowed to distribute leaflets B/C 2(a) right)
Facts: Layton charged w/ trespassing for distributing leaflets at mall
Appealed: acquitted bc protection of freedom of expression, not disrupting customers
 Freedom of expression and assembly should be tied to property rights
 Property rights = not unqualified, qualified by values related to public interest
 Reflects Laskin’s dissent in Harrison v Carswell
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1. Tresspass in Ontario
- 1992, Labour relations and employment statute law amendment act
Legislation repealed & replaced in 1995
Ontario’s Trespass to Property Act
 s.2(1) every person who is not acting under right or authority conferred by law, who:
o a) w/o express permission of occupier, proof of which rests on the defendant, i) enters
premises when prohibited, or ii) engages in activity on premises when activity prohibited,
or
o b) does not leave immediately after directed to do so by occupier or person authorized by
occupier, is guilty of an offence and on conviction is liable to a fine not more than 2000
o (2) It is a defence to a charge under subsection (1) in respect of premises that is land that
the person charged reasonably believed that he had title to or an interest in the land that
entitled him to do the act complained of.
o “any walk, driveway, roadway, square or parking area provided outdoors at the site of or
in conjunction with the premises in which any business or undertaking is operated and to
which the public is normally admitted without fee or charge”:
o
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Shopping centres and public space
Task force (ON) on law concerning tressass to publicly used property (created as a result of complaints
 ie african-canadians being kicked out)
o Recommendation amend TPA to reflect public-used spaces
o Problem with TPA does not account for balancing of competing social interests in publiclyused property, diff types of property/uses & problem b/c public views as public. It equated it
with a home so that people, especially minorities/youth kicked off in a whim
o Trad v modern : trad common law principle of trespass based on absolute right to property, so
that yu can exclude but modern, b/c of industrialization need to limit private property rights
where their rights conflict with public interest
2. Property rights and charter
 Significant in 2 ways
a) Entrenched guarantees in s.2 (speech and freedom of assembly) issues about public access to
shopping centres, required new analytical approaches.
 Court had to balance freedoms with right of private property with that of
quasi-public aspects of it.
 Even public property has limits to reconcile with charter
b) “property” is NOT itself a protected interest in the charter, even though it is in US.
Committee for commonwealth of Canada v Canada (1991, SCC) (some, but not all, gov-owned property is
open to the public to engage in expressive activity)
Facts: tried to distribute pamphlets in airport, but against fed act; P initiates action using 2b (freedom of
expression)
Rationale:
o
o
o
o
o
Rejects carswell: its gov-owned, not PP, so gov cannot “exclude” whomever for whatever reason
 If take gov view: gov would have complete discretion so could choose b/w viewpoints and
grant access to parks/streets/ parliament hill only to those who are in agreement with them
“Antithetical to charter and prevent freedom of expression” as most space is gov-owned
Didn’t consider leaflets on PP: not before the court so did not overrule carswell
Balancing- not all areas open for activity in gov spaces; but, not all excluded as against chater 2b,
applied Behrens where as long as peaceful demonstrations that don’t interfere with legislature function
Airports on same constitutional footing as streets/parks/ b/c “contemporary crossroads” where people
can leave if they want to, HOWEVER airplanes are different b/c stuck.
no interference with interest of the owner
* context is important, AKIN to dissent in carswell, akin to balancing in charter (not absolute right)
- calls some property “crossroads”  suggest open airports and parks LIKE malls where public invited.
-significant b/c if went other way, very few public or quasi-public spaces, no more commons anymore.
-since 9/11 this has changed, more restricted
Discussion notes
Macpherson calls gov’t property “state property”
 “state property’ consists of rights which the state not only created but has kept for itself or has taken
over from private citizens/corporationsie airlines.
 The state is exercising power of a corporation- like artificial person
 State property is not an individual right not to be excluded; It is a corporate right to exclude. As a
corporate right to exclude others it fits the definition of (corporate) private property. (doesn’t
apply to commonwealth case?)
 In R v Behrens, 2001 court held that demonstrators could not be charged with TPA as long as peaceful
& not interfering with legislature.
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In r v banks begging for money seen more as commercial than political so didnt involve 2b of charter,
the expression was seen as peripheral to core values in 2b. (safe streets act prohibited squeegeeing)
Parks and “public” space
 in committee commonwealth Dube identified some parts of airport that might be more or less public
like Lasken did in shopping centre
 Dube also sees parks as “public property” thus should be accessible to those seeking to communicate
with the passing crowds …streets and parks have also acquired significance as places where one can
have access to and address his or her fellow citizens on any number of matters.
 EX “speakers corner” people can address others, lots of people avoid this area
Batty v Toronto, on, 2011 (not all public space is open; where interferes with others use of space)
 Facts: Occupy TO movement in city park, slept in tents, provided shelter to protestors & base for
demonstrations, over 300 tents, given trespass notice; tried to get injunction on s.2b, peaceful assembly
 P’s claim peaceful assembly infringed if removed b/c ruin symbolic significance (motivation to change)
 Decision: evicted from park
 Reasons:
o S.2(b) infringed- park is owned by city, camp is part of FOE (camp to demonstrate “democratic
participation” ie city ignoring homeless, showing alternative way; eviction notice infringes
o Rights are not absolute (saved by s.1)
 Eviction notice satisfied prescribed by law not vague, imprecise, should have read it
 Protestors want more participatory democracy but not following it themselves did not
ask those around them if it’s okay to be “tent city”
 NOT allowed to unilaterally take over “large portion of common public space” for
indefinite time
 Many complaints- noise, destruction of grass, breaking by-laws
 BUT protestors not banned; they just cannot erect tents or be there during night they say
being there 24/7 part of movement, but then any group would be able to come & use it
o Not all public/gov space is open

“not all public or government-owned property is available for charter-protected
expressive activity. Public streets, however “are clearly areas of public, as opposed to
private, …where expression of many varitiers has long been accecpted”
 Big diff b/w this and commonwealth (airport) is pamphlets doesn’t deprive people use of the space
 Court free to use it so long as not excluding; but protestors say anyone is welcome
 There is specific concept of park here; what if families with children?
 Unlike in adams, court rejected need to provide alternative spac to protest if no other options
“[I]f the Protesters possess a constitutional right to occupy the Park and appropriate it to their use, then the
next protest group espousing a political message would have the right to occupy another park”
Discussion notes: BALACING PUBLIC SPACE/CHARTER

Vancouver v zhang, 2010, BC –Billboards on street; protect of 2a if doesn’t conflict with 2a purposes
o spiritual group set up banners/mediation hut that encroached on street ( to raise awareness of
abuse in china) Court of appeal reversed trial and said did engage s.2 & not saved by s.1. it
relied on commonwealth.
o Rationale whether the place is a public place where one would expect constitutional
protection for free expression on the basis that expression in that place does not conflict with
the purposes s.2b is intended to serve, namely 1. Democratic discourse 2. Truth finding and 3.
Self-fulfillment
o Not saved by s.1 because didn’t meet “minimal impairment”

In Victoria (CITY) v adams (2009, BC) (able to sleep in park “temporarly” b/c no shelter, S.7
o , homeless people set up tents in city b/c not enough beds in shelter, claimed s.7 of charter
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while city tried to rely on bylaw.
Decisiondecided absolute prohibition of bylaw violated s.7, not saved by s.1
Rationale 1. Circumstances of homeless in city 2. International human rights instruments that
recognize housing as right 3. Failure of bylaw to satisfy minimal impairment of oakes.
o NOTE the court explicitly acknowledged that its judgment was based on the shortage of
adequate shelter in city for homeless & that by-laws not unconstitutional in themselves
Is s.7 for homeless more effective charter claim than s.2 for protestors?
Balancing if no beds for homeless then they can sleep during night so long as its “temporary”.
o
o
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i.
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Public space and “public interest”
Interesting b/c owner is municipality & purpose of parks is to permit enjoyment of all members of
public but some think need to create public spaces for citizen engagement and discussion
IE “From this perspective it is not only access to streets and squares which is important, but specifically
access to significant sites, often ones which symbolically represent government or are centrally located.
In this sense, even in big cities, we still seek the equivalent of the “market square” or “urban
commons” which formed the privileged sites of civic protest in our history” (BOTTOMLY)
RIGHT TO PRIVATE PROPERY: Charter protection?
 property is constitutionally protected in US gov’t actions in relation to private property must be done
with due process of law & cannot be take it without just compensation (constitutionally protected).
 Not constitutionalizing P has situated the balancing of public regulation and private property in
legislatures and the democratic process, and not in the courts (Christie)
 1 reason not to protected P is Fisheries 1979 might impair on prov legislatures to regulate around land
for public interest. Don’t want result of Manitoba fisheries to reoccur.
Some examples of “governmental takings”— governmental action (legislation or regulations) may interfere
substantially with the rights of private property owners.
Manitoba Fisheries Ltd v the queen, 1979, SCC (test of “taking”-crown compensates for taking “goodwill”[p
interest]
Facts:
o Aboriginal fishers sold to exporters but Provincial gov’t created statutory marketing board for fish to
increase wages for AB’s; created monopoly for prov & exporters left;
o P claimed compensation for their property interests (“goodwill”) against the crown b/c almost out of
business now. (when operational businesses sold, “goodwill” usually included to be soldDecision: P’s
were entitled for gov’t taking of “goodwill” (recognized property interest) of their business
o Rationale
o Freshwater act deprived P of goodwill & so rendered business useless
o Goodwill= property & so entitled to compensation
o There was such a taking that is not provided for in the act without compensation so against rule “unless
the words of the statute clearly so demand, a statute is not to be construed so as to take away the
property of a subject without compensation”
o Compensation fair market value of P’s business as a going concern minus residential value of
remaining assets
o Testfor undertaking
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1. Taking must involve identifiable interest in property (goodwill in fisheries), so that regulations which
change way property can be used or diminish economic value insufficient must be a taking of a
property interest
2. State must also acquire the property subject to the taking- a test that is a huge hurdle where gov’t simply
defines how prop to be used but w/o actually acquiring it as a proprietary interest
 Expropriation act only gives compensation if property interest so if framed as “goodwill’ can be entitled
 Is this a case of economic regulating or actual acquiring an interest?
Discussion note: fisheries
 little effect on other court decisions, most gov taking cases have failed, including on regulating land use,
rent controls (ie. Need to acquire prop interest), may have been influenced by sympathy, it was
economic regulation
Mariner real estate ltd v Nova scotia, appeal (interfering with uses of prop is not “taking”- no acquirement of
prop interest)
Issue: whether designation of PP as a beach under beaches act, constituted expropriation of PP
Facts: P owned land at beach, beachfront area, denied building permits to build family residences since
permitted gov’t to have regulatory power over beach to protect environment.
Outcome: dismiss- interference in way you can use property is not acquisition of property interest
Rationale:
 Trial judge erred:
1. Loss of economic value from land use regulation is not taking of land within the expropriation act
2. No loss of virtually all rights of ownership or that province acquired any land as a result of designation
(trial judge said acquired b/c prov value went up)
De facto expropriation
- Canada courts determine if property holders should be compensated, NOT to pass judgement on way
legislature apportions burdens flowing from land use regulation, diff in US where limits on legislature
- Extensive, restrictive land use regulation is norm here settled law that regulation of land use which
decreases value of land is not expropriation
expropriation goes beyond “limiting use” or “reducing value” of owners property
o BC v Tener denial of permit so couldn’t get mineral rights (denial of interest), Manitoba
fisheries prevented business
Test for de facto expropriation
1. Confiscation of ALL reasonable private uses of land in question when virtually all aggregated
incidents of ownership have been taken away. Extent of bundle of rights of ownership must be
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assessed, in both land’s potential highest and best use and regard to nature of land and range or
reasonable uses to which its been used
2. In evaluating a regulation, it is actual application in specific case to be examined, not potential.
3. Only when land is coupled with acquisition of land by expropriating authority can the
expropriation be made out
Application
1. Didn’t consider possibility of development designed in a way that protects the dunes
2. The regulatory sheme did not constitute exprop b/c refusal build is not inevitable consequence of desnating
lands as a beach, but from refusal to develop land
3. loss of economic value of land is not loss of land under Expropriation act based on precedent
4. No suggestion that prov acquired legal title or any aspect of land. It is still P’s. P argues that gov’t virtually
took acquisition of interest in land but for a taking this isn’t enough
o
o
Should have considered other uses, possibility that social benefit influenced
Possiblitty of legislatures creating a compensation scheme instead when developments halted
Discussion notes: do we need right to property? Ie took Japanese property durng ww11
ALTERNATIVE VISIONS OF PROPERTY
A. ABORIGINAL CONCEPTIONS OF PROPERTY
 How do you reframe P as relations when AB have no “objects” & “subjects” include animals,
natural life (sea/rocks) & past & future generations?
 Premise is different not to exclude but “to include”
 Didn’t realize gave up property in treaty b/c “cant own”; thought they were sharing.
Leroy little bear, “aboriginal rights”
a. Aboriginal peoples standards
 views western linear (forward/days separate), aboriginal cyclical (time is circular, days repeat)
 ownership: aboriginal land is “communal” (tribe, animals, people)
 similiarity in title- aboriginals believe as long as on land & not alienated title can be traced back to the
creator
 Conclusion Indians did not surrender much, if they did at all, they believe land is non-transferable &
thus inalienable. When signed, thought they were sharing
1. They shared with Europeans, but didn’t intend to give same rights as Indians b/c not descendent
from original grantee.
2. Indians did not give unconditional ownership (fee simple) to Euo’s b/c didn’t see themselves as
“holding” fee simple ownership from their creator
3. Indians could not have given interest equal to what was originally granted b/c breaks condition
under which land granted by creator land belongs to all past generation could not surrender
their interest
4. Thus, any interest native may have given must have been smaller than what they “had”
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RE-ENVISAGING PROPERTY INTERESTS AS HUMAN RIGHTS
- Clear conflict b/w common law property conceptualism (private landowner almost exclusive right to
decide who may be on land and terms of it) with conclusive, civic concerns about human rights
- Property usually gives power and lack is usually vulnerability. Ie independence v dependence
- Macpherson thinks property should be redefined to “right not to be excluded from use or benefit, rather
than right to exclude
Discussion notes
1. Property and access to notes
- Local united steel workers –US steel wanted to demolish two plants that employed 3500. Employees
argued they had a property right so they should be able to buy it but court said no
- How could we make this entitlement? Think of property as social relationship, poverty power
- Singer“ we should focus on various ways in which vulnerable persons rely on relationships of mutual
dependence” his view is on prop as relations among subjects with respect to objects
2. Property reform
- Are there arguments about nature of property that can be used to challenge economic inequality
- C ROSE Yet even with those, what you see in property is what you and others have talked yourselves
into about those “things”; and given some imagination, you may always talk yourselves into seeing
Delgamuukw
- SCC recognized Aboriginal title to land as sui generis (= unique in characteristics) interest held on
communal (not individual) basis
o Not same as idea of common property
o Challenged fundamental notions of common law by seeing land as owned communally
Ch.2 POSSESSION
1. CONCEPT OF “FIRST POSSESSION”
Possession is a proprietary interest; it is a prime example of how property interests may be created without a
contract. In some cases, possession takes priority over title
o Person entitled to legal possession has property right/interest
- usually possession results in property interest = possessory title
Personal property:
- “in personam” remedy = remedy against person whom litigating against (damages)
Real property: land
- “in rem” remedy = remedy w/ respect to land, could actually get land back (specific
performance/injunction)
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The 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 na action against the defendant, even if there is a “true owner” – a person
with a better title than the plaintiff’s
o Third party in this case, the “true owner” is referred to as the jus tertii
Possessory Title: possession by itself may create a proprietary interest
Carol Rose, “Possession as the Origin of Property”
 Labour Theory: (John Locke) An original owner is one who mixes his or her labour with a thing and, by
commingling that labour with the thing, establishes ownership of it.
o Criticisms: without a prior theory of ownership, it is not self-evident that one owns even the labour
that is mixed with something else. Even if one does own the labour that one performs, the theory
provides no guidance in determining the scope of the right that one establishes by mixing one’s
labour with something else
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Societal Theory: people engage in an agreement within a community to define what any individual possesses
– the original owner receives title through the consent of the rest of humanity.
o Criticisms: administrative costs – how does everyone get together to consent to the division of
things among individuals?
Common Law: First possession is the root of title
o What counts as possession? Why is it the basis for a claim to title?
Carol Rose: philosophical justifications for possession as right to title
- labour theory: original owner is one who mixes labour with a thing and then owns it issue is scope ie
pour in an ocean, do you own it?
- social consent theory: as long as person can get consent from everyone/relevant ppl w/in community
that this was in fact their property, they will have title.  Ie officials create rules about ownership
o common law combines both first possession is root of title ie fox- clear act & rewarded
o Ex pierson case, person who killed fox has POS but not one who chased it: 2 principles out of
o It seems that common law of “first possession” in rewarding one who communicates a claim, does
reward useful labor; useful labor is very act of speaking about claims.
o Issues: disadvantages aboriginals & some things incapable of clear demarcation ie ideas
- In fox case, majority’s definition of first POS depended on certain audience and symbolic context
- Issue of Marshall didn’t mark land? audience presupposed by common law of first possession is based
on commercial people where objects are managed
Pierson v Post (need clear act (to communicate have possession), foxes)
- fox hunting
- Issue: what act constituted first possession?
o Killing fox vs. chasing fox w/ horses, dogs etc
Pierson v Post (First pos is 1st clear act to warn others)
Post was hunting a fox on a beach; interloper appeared, killed the fox and ran off with the carcass. Post sued for the
value of the fox on the theory that his pursuit of the fox established his property right to it.
Ratio:
 Occupancy or possession went to the one who killed the animal (or at least wounded it mortally or caught it
in a net)
o Actions which brought the animal within the “Certain control” that gives rise to possession and
hence a claim to ownership
 Test for Possession
o (1) Notice to the world through a clear act
o (2) Reward to useful labour
 Decision: 1st possession = 1st “clear act” to establish exercise of control  killing fox
o Act = killing gives notice to community that entitled to possession (labour + consent theory)
 Dissent: possession should be based on reward for useful labour
o decision will undermine fox hunting
What is a Clear Act?
 The clear claim must be made in a language that’s understood by your audience
o May depend on norms of a certain group (e.g. sportsmen)
 This assumes that there is such a thing as a clear act that everyone will understand universally
Ziff killing seals insufficient to be a clear act, needed to harvest them too otherwise deemed “abandoned”
CONTEXT IS IMPORTANT TO DETERMINE WHAT A “CLEAR ACT IS”
Discussion notes
- In nakhuda Darwin (illegal monkey, considered property) picked up by animal services. Court had to
decide if wild or domesticated (then a pet) but said it was wild b/c of behaviour.
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Outcome: when monkey ran away, lost possession so lost ownership, no right to have it returned
Johnson v MacIntosh
- Debate over possession of land – title to land derived from Aboriginal ppl in area
- Apply “clear act” as first possession from Pierson
- Court found P could not succeed based on title – even tho granted title from Aboriginal ppl, not in fact
better entitled than D B/C aboriginals did not do a “clear act” so could not have given it away
Perry v Gregory (custom in trade, evidence after discovery taken into account)
- Facts:
o P got signal on metal detector, started digging, called D to help – D is one who actually found
and held object for 1st time, then gave it to P
- Issue: what was clear act that communicated making claim to possession?
- Decision: P, who detected item and began digging, had first possession
- Reasons: types of evidence for clear act
o Judge accepts p’s rendition of facts, D’s touching it first is inufficient
o court will look at evidence after the fact
 D handed it over to p & returned after borrowing; D no claim until 10 months later
o expert testimony based on custom in given area also considered
 Expert evidence on metal detector etiquette said person w/ first reading got possession
o Owner of field where found is jus tertii = 3rd party, not involved
FINDERS OF LOST OBJECTS:
LOST OBJECTS
The Rule:
The finder of a lost object can keep it against everyone but the rightful owner (Armory v Delamairie - P
chimneysweep found an item and shoed it to a D jeweller, the D took the object and the court ruled for P)
OBJECTS FOUND ON ANOTHER’S PROPERTY/ESTABLISHING PRIOR OWNERSHIP
The Rule:
The mere right of an occupier to exercise control is not enough to give rights in relation to lost property on its
premises: there must be a manifest intent to exercise control over everything on the property in order to establish
ownership without knowledge (Parker v British Airways Board)
 In British Airways, the court found that the D airport’s argument of restricting access to the lounge was not
enough to manifest intent to exercise control
There is a better claim to prior possession if the object is embedded in the land than if it is found on its surface (S
Staffordshire Water Co.)
Parker v British Airways [1982]
RIGHTS AND OBLIGATIONS OF THE FINDER
(1) The finder of a chattel acquires no rights over it unless:
a. It has been abandoned or lost;
b. He or she takes it into his or her care and control
(2) The finder acquires limited rights if the above occurred through dishonest intent or while trespassing
(3) The finder has the right to keep the object against all but the true owner or one with a prior right
(4) If the chattel is found during the course of employment, the finder acts as an agent on behalf of the employer
who acquires the above rights
(5) The finder has an obligation to take reasonable measures to reunite the object with its true owner
Parker v British Airways [1982]
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RIGHTS AND OBLIGATIONS OF THE OCCUPIER
(1) The occupier has rights superior to finders over chattels that are in or attached to the land, regardless of his or
her knowledge of its presence;
(2) If the chattel is not in or attached to the land, the occupier’s rights are superior to that of the finder only if the
occupier can prove manifest intention to exercise control over the land and everything in it (although it is not
clear what will establish this manifest intention)
(3) The occupier who meets the above criteria has an obligation to take reasonable measures to ensure lost
chattels are reunited with the true owner and care for it in the meantime
(4) The occupier of chattel such as ships, cars, etc. is treated as an occupier under the rules above
MULTIPLE FINDERS
The Rule:
In two cases involving groups of children finding lost money, the money was divided equally between the children in
both cases, but were inconsistent with each other in that one case hinged on the moment where knowledge existed
(Keron v Cashman), while the other was decided on the basis of an intention or state of mind with reference to the lost
property (Edmonds v Ronella).
Armory v Delamirie, 1722, EN (possession of finder is better right than anyone except true owner)
- Facts: boy chimney sweep discovers jewel in chimney, takes to jeweller but wont return it
- Issue: how to decide ownership of found object where rival claims and neither is rightful owner?
- Decision: boy has possessory title – first finder has greater right
- Ratio: right of possession on part of finder is actionable against anyone who subsequently interferes,
except true owner
- Reasons: entitlement of first possession – best right to possession (found it & took control)
o Finder of object, althought not absolute ownership, keep it against all but rightful owner
o The jeweler is answerable for neglect; if doesn’t return has to pay damage
 Need reform on issue who has a better claim, owner or finder b/c rights are
determined by common law (precedent only in limited sense)
 Finder= find + take control
South Staffordshire water, 1896 (if chattels attached to land or buildings & found, occupier has best right &
then finder does)
Facts: D was employed by occupier of land to remove mud from a pond, found 2 gold rings.
Outcome: occupier was owner
Ratio: when chattels are attached to land or buildings and found, if finder is not a wrongdoer he has some rights
but occupier of it stronger title.
Rationale- proff thinks because chattel to be treated as part of realty as against all but true owner so incapable
of being lost or that finder has to do something in order to detach chattel through some sort of permission
otherwise a trespasser.
bridges v hawkesworth, 1851 (if owner is UNAWARE of object w/o more, being on their land, not enough to
claim)
facts: P (bridges) found parcel on ground on way out of H’s shop, notes inside were dropped by someone else
by accident, they were lost. H called for true owner but no one came. Bridges wanted money after 3 years but H
refused.
Issue: is finding a lost item INSIDE an owners property “finding” it, that is does he get title to object?
- If D has the right, when did it accrue to him?
Decision: p is entitled to it against D, rule is to prevail
Ratio: unknown presence of an object on premsis of owner could not w/o more give them any rights or impose
any duty upon them in relation to the object
Rationale;
- Rule right of finder to any lost article is against all but true owner (armory)
- If p picked it up outside and gave to H to find owner, wouldn’t have waived right to title.
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Notes were never in custody of D, nor within protection of his house, D not responsible for it,
Only steps of control was offering an ad to find owner but more so acting for P and P offered to pay it
Hannah v peel, 1945 (when finder finds object on NON-occupying owner’ land better claim than owner)
Facts; finder found brooch when non-occupying owner of house, occupier was the crown, which made no claim
as occupier or employer of finder.
Outcome: non-occupying owner had no right to brooch and finder’s claim prevailed
Rationale: relied on bridges v hawkesworth
Parker v British Airways, 1982, ENG (need manifest intent to control; outlines test/duties/rights)
- Facts: Parker found bracelet in airport lounge, claims first possession (first saw/picked it up), handed it
to airport official (not police) who then put in lost items dep, D sold it
o D claim that rights before P found it, and that their claim is superior. Tried to claim occupier has
rights over all lost chattels even if unaware of it
- Decision: Parker had 1st possession
- Rights and Obligations of Finder
Finder rights
1. Finder has right if:
a. It has been abandoned or lost
b. He takes it into his care and control
2. Finder acquires limited rights if takes in care/control w dishonest intent or while
trespassing
3. Finder does not acquire absolute ownership but right to keep against all but true owner
or one who can assert prior right to keep it
Finder Obligation
4. Agent find chattel in course of employment takes into care on behalf employer who acquire
finder’s right to excl. actual finder
5. Finder has obligation to take measures to reunite object w/ true owner as are reasonable
Occupier rights
1. Occupier has rights superior to finders over chattels under or ttached to that land (whether
aware or not) or if attached to a building
2. If chatterl found NOT ATTACHED to land/building only has better right than finder if
occupier proves he had manifest intention to exercise control over building and everything
in it (& communicate)
 The firmer the control, the less will be the need to demonstrate
independently animus possidendi
occupier duty
3. Occupier who manifests intention has obligation to take such measures as are reasonable
to ensure that the lost chattels are found and acquainted with true owner and care in
meantime. Intention implied or express, including whether obliged by law for liability for
lost items (ie. innkeeper)
4. occupier of chattel (e.g. ship, car, etc.) is treated as occupier of building for rules above;
Application
- Right of an occupier not sufficient to give rights in relation to lost property on his premises; must
have manifested an intention to exercise control over lost objects to have superior claim over a
finder
o P not a trespasser in executive lounge and by taking bracelet into his car/control he was
acting honestly. He therefore had a full finders right and obligations
o Distinguishes “prior possession” of occupiers based on whether found objet “in” or “on” land 
when object “in” or under surface, generally belongs to occupier rather than finder on theory
that occupier had possession of things in or under land
 By contrast, if object on surface e.g. on floor, occupier has “first possession” only if
occupier has “manifested an intention to exercise control over lost objects” AND
the lounge
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They did not go looking for items no evidence that they had manifest intention to
assert custody and control
 Even though employees told to take lost items to lost dept more on what to do with
them and not published to visitors
o BA had to do more to manifest intention to exercise control over lost objects
 1. Had to give notice to public that BA has intent to exercise control over lounge and
all objects found in it
 Had such policy communicated to employees (found objects to be turned
over), but had to show this applied to anyone
 2. Regularly search for lost objects (in order to manifest that intention)
o Policy: need common law rules that will facilitate rather than hinder finding true owner
(Milas v BC)
 person who lost property more likely to make inquiries at place of law if know will still
reap reward if true owner not found
 otherwise incentive to conceal discoveries
o public vs private space more public: not restricted enough (not enough control) to make private
(Bridges)
Defendant
- tried to use south staffordshire v sharman but that is distinguishable b/c found rings in mud and thus
part of realty, or finder employed by P so had clear right to direc how mud should be disposed.
- Court said “possession of land carried possession of everything which is attached to or under the land,
and in absence of a better title elsewhere, right to possess it also
- . It makes no difference that the possessor is not aware of things existence…it is free to anyone who
requires a specific intention as part of a de facto possession to treat this as a positive rule of law.
- Rejected argument that leaving it with occupier will assist in finding true owner, said if we do this then
finders more tempted to keep it themselves
- Precedents:
o City of London corp v Appleyard , 1963
 Facts: workmen found money in a safe that recessed in a wall. The lease of corp allowd
building owners right to any artciel fo value found upon any remains of former
buildings and workmen hired by building owners
 Outcome: corp’s claim won, workmen had to tell contractor, contractor tell building
owner and building owner being the corp had to tell the corp.
 Ratio: agent who finds in court of employment or agency obliged to tell employer
 Rule: where person has POS of house or land, with manifest intention to control over it
and things that on or in it, then if something is found on land, whether employee or
stranger, presumption is that possession of thing is owner of locus in quo.
o Bridges v Hawksworth (BA’s lawyer wanted to distinguish by saying lounge is private area,
court did not accept this)
 B found money in shop, told owner to see if could find owner, never did, shop owner
refused to return money
 Court: bc money found in public part of shop where others invited and owner did not
exercise control over them (not in his custody/control), finder had best rights, not
employer
 Rule: where a person has possession of house or land, with manifest intention to
exercise control over it and things which may upon it or in it, then, if something is
found on that land, whether by an employee of the owner or by a stranger, the
presumption is that the possession of that thing is in the owner of the locus in quo”
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o Bird v Fort Frances – case involving trespass
 Facts: little boys went into abandoned house, found can of $100 bills
 Decision: boys found to have possession bc contrary decision would create open
season if finder had no rights
o South Staffordshire Water Co v Sharman - distinguished
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Facts: rings found in mud
Reasons: where person has control of land and manifests intention to prevent
interference from others i.e. wholly private, any object found on land is presumed
to be in possession of owner regardless of whether item is found by employee of
owner or by stranger
 Occupiers intention to exercise control over anuthing which might be on the premesis
was manifest but right to exercise control is not sufficient to give him rights to lost
property on his premesis w/o overruling bridges
 Something attached or embedded in occupier’s property belongs to them
 Thief may have possessory interest
o Grafstein v Holme and Freeman - distinguished
 Facts: 2 employees told not to touch box by employer, they opened box later, found to
be full of money
 Decision: once employer told employees what to do with object, that was clear act of
possession (manifest intent to control)
o Kowal v Ellis, 1977
 Facts: finds something driving across someone else’s land
 bc landowner permitted them to be on land, not trespasser, do acquire finder’s rights;
 like Perry v Gregory – owner gave metal detectors right to be on land, so occupier of
land had no rights over found object
 occupier imposed no restrictions to finder’s access; if had made terms of access and
finder violated them, would have lost finder’s rights
 policy reason worried about liability if owners always responsible for items left on
land, whether abandoned or not
o Waverley BC v Fletcher (p.122)
 Facts: Found gold broach below surface of public park owned by municipal council
 Application of Perry v Gregroy + Southfordshire
 Won bc finder was wrongdoer (no metal detecting allowed in park)
o Millas v BC (p123)
 man finds garbage can full of money in park, turned it into police, when found no
evidence of crime finder applied to have money returned
 Decision: finder entitled to possession
 Reasons: policy grounds - finder should be encouraged to fulfill obligations e.g.
trying to find true owner, essentially reward for finder’s behavior
Discussion notes
I.
II.
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Rights of finders and occupiers
As court stated, the law was hard to reconcile.
Bridges allowed finders keepers, others favoured occupier when lost object found (south staff),
Some are crticial of distinction of ‘on’ or ‘in’ the land, b/c it could become buried
Waverley detected gold brooch underneath the land but court said occupers better claim b/c ‘in’ or
‘attached even though public park and no control of it. Howveer, detector also not allowed ot be used
there
Possession, policy issues, and duties of finders
Can we better explain parker and earlier cases better with policy?
Parker defined duties of finders of lost objects and of occupiers who may discove lost items
How do we enforce them?
Millas v british Columbia  finder tried to get 937,000 returned to him that he found in a garbage in a
park. Handed it to police and didn’t find owner/not crime. Court returned it to him b.c not acting in duty
of police officer and want to encourage obligations of calling police. Right decision?
Thomas Thomas got envelope accidently sent to him with cash and police could not find rightful
owner so tried to keep it but on behalf of Canada post feds tried to claim; court said no b/c IV agency.
They also said shouldn’t have opened it but rejected this. The criminality of him opening letter was
more accidental as in bird (boy trespassed and found can of money) than in baird (knowing stolen
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travellers cheques
III.
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Interpreting judicial decisions and scope of legal advice
Principles of parker establish rights to lost object for occupier where ‘in’ but not attached to building
but only if before object found, he had manifested intention to exercise control over building and
things upon or in it.
Why was British airways insufficient to demonstaret intent to control?
JOINT FINDING: CRITICAL PERSPECTIVE
Joint Findings:
- typically court comes up with “inclusive solution” – manipulates facts to award everyone share of
finding seems to be about moment of exercising “control”
Keron v Cashman US ( if no one exercises control over object before its found, & all in pos then equal f’s
moment of finding is where knowledge of the property exists )
- Facts: group of little boys found stocking, it breaks and they discover it was filled with money. Boys
have diff versions
- Decision: money not found until sotcking broke and during that time in POS by all so equal finders
- Common POS b/c at time it opened it was in use by ALL d’s and for playing only
- Before it opened no one seemed to exercise ownership or POS for examining it
- We don’t know if first boy tried to control it or whether he handed it to other boy and in any case
seemed to only play with it
- Moment of finding is one where KNOWN what it is
Edmonds v Ronella, 1973, NY (FINDER one who takes first possession AND has intention)
- Facts: little boys find envelope of money, get older girl to help them;
o girl claims to be finder – she took control by taking money home and getting parents to call
police
- Decision:
- Get to share money bc acts of finding more or less equal
o Clear example of manipulating facts
o It was not legally found until P and D removed it from parking lot with the girl
o A finder is one who takes first POS of lost property, but need intention
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if POS is flexible to include joint finders can we do the same with finder/occupier
POSSESSION OF LAND
Trespassers (possessors will likely fail)
Masidon (ONCA)
Keefer
St Clair Beach
Perry v Clissold* (exception: at time, fact he was
trespasser did not pose obstacle to claim, no
discussion of intention, court just looked at
actions)
Innocent Mistakes (possessors will likely
succeed)
Wood (ONCA)- mutual mistake
Piper – we don’t know if unitaerl or mutual
beaudoin v aubin- mutual mistake
teis/ancaster- mutual
Bradford- unilateral mistake
Canada reform 2002 registration act enacted after this case- electronic conveyance and
anyone claiming a pos title had to apply to register it, cant just say Ive been here. To register it
need to give notice to person with title
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Three Key Concepts/Considerations
(1) Possessory Title – perfectly good title against all but rightful owner (Perry v Clissold – established
possession though the acts of building a fence and the payment of municipal taxes and then willed away the
property)
(2) Relevant Law (Real Property Limitations Act) – after a period of 10 years (s. 4) that begins to run at the
time of dispossession or the discontinuance of possession by the title holder (s. 5) the title of the title holder is
extinguished (s. 15)
a. Important note: the court can give an order to register the property in the possessor’s name under the
Courts of Justice Act
(3) Judicial Interpretation & establishing what acts constitute dispossession and discontinuance (generally
something like building a fence; honesty can be a key factor – lack of intention to steal) [Piper v Stevenson –
hinged on the fact that the dispossession was an honest mistake]
Test For Possession (from St Clair Beach)
1. There must be actual possession for the statutory period (indicated by clear act)
2. Such possession was with the intention of excluding from possession the owners (dispossession) AND
3. Discontinuance of possession for the statutory period by the owners
4. (added in Keefer v Arillota) Inconsistent Use Test: the possessor is using the land in a way that interferes
with the way the title holder wishes to use it – possessor’s actions are inconsistent with the owner’s intention
a. Inconsistent use test cannot be used in cases of mutual mistake
b. Only needed when a trespasser (one who knows the land belongs to someone else) seeks possession.
There is a higher onus needed to gain possession because we do not want to reward trespassing
Importance of Intention
 Keefer seems to say to have possession, a person must know he doesn’t own the land, know who does own
the land, know their intention with regards to use and act in a way inconsistent with those intentions.
 It is very had to prove all of these intentions over a 10-year period. Especially owner intention regarding land
they haven’t used in 10 years.
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Step 1: has common law possession been established? (best right to possession – Perry v Clissold)
1. Possession for limitation period (Piper v Stephenson)
2. Intention to dispossess (St Clair Beach)
3. Discontinuance of dispossession (St. Clair Beach)
4. inconsistent use test: intention to dispossess opposes owner’s intention (Keefer v Arillota)
 does not apply to unilateral mistake (Bradford)
 if owner has no present intention, fails this part (Masidon)
 trespass: unequivocal acts of possession will presume intention (Beaudoin)
 mutual mistakes: can infer intention from actions (Wood v Gateway)
Step 2: apply statutory provisions - RPLA
 S.15: extinguished owner’s right of title after limitation period
 S.4: 10 year limitation period
 S.5: clear act = discontinuance of possession OR dispossession
o NB: Re St Clair changes test to “AND”
Inconsistent User Test (Keefer v Arillotta)
 Dispossession + discontinuance of possession + intention to exclude + inconsistent with owner’s intention
with respect to the land
 The dispossession, discontinuance of possession and the intention to exclude have to be viewed alongside the
intention of the owner with respect to the land
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The use of the land has to be inconsistent with the owner’s intended use in order to constitute
dispossession/discontinuance
POSSESSORY TITLE: EXTINGUISHING THE RIGHTS OF THE TRUE OWNER (DISPOSSESION)
a) owner has abandoned chattel, finders possessory interest (one that is good against all but true owner)
appears to be more significant.
b)provincial legislation, statutes of limitation for bringing lawsuits action against a finder with title
within 2 years after claim arose
Statutes of limitation: history and purposes
 Defines relations b/w paper title holder & possession holder
 Common law emphasizes physical POSS, rather than abstract title so pos-based ownershop is
recognized & protected
 In Ontario- 10 years to bring an application/action to recover land after pos interest established.
real property limitations act
S. 15 extinguishes paper titleholder right after limitation period; precludes action, DOES NOT transfer title
(don’t get paper title)
s. 4 A person (who has a prior claim, including a “true owner”) shall bring an action to recover land within 10
years after the right to bring such an action accrued to the person. (Note that the period differs across Canada)
s 5(1): Where the person claiming an interest in land was formerly in possession and was
dispossessed OR has discontinued possession, the right to bring an action to recover
the land shall be deemed to have accrued at the time of the dispossession OR discontinuance
of possession. Ie dispossession- clisshold built fence so that could start it.
 Court changed 2 things of statute  1. Has to be dispossession AND discontinuance now. 2.
Introduced an old common law principle not in the statute- intention to disposs animu possedendi.
 it is clear that it is necessary to define exactly what acts constitute “dispossession or discontinuance
of possession” in order to define the moment when the limitation period begins to run.
 Registration statutes may disallow claims of possessory title on land that original owner has
registered, regardless of time passed.--> Ontario land title act
Rationale of Limitations
- Common law focuses on physical pos b/c no registries before but why do we have them today?
- Callaghen argues we allow b/c
1. law is punishing owner for neglect of land (she disagrees with this)
2. encourage use of land by rewarding active use of possessor-( disagrees)
3. clearing of title to land- registry sometimes unmatched with on the ground pos
Larissa katz (rationale for adverse possessors)
 pos claim to land is moral claim with some rights; thief steals in secret with no right to it
 don’t look at adverse possessor as land thieves thief doesn’t claim to be owner, hes PRETENDING
to be the owner in secret, while adverse possessor is demaning public recognition of BEING owner
Remedies for recovering possession of land: cause of action/self-help (physicial retaking but not encouraged)
THE NEED FOR REFORM?
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In the UK, land registration act, 2002, is elecontric conveyancing system so better protection for
registered homeowners against squattors.
Requires those trying to claim pos title to apply to be registere as proprietor of land. Existing owner
would be servd with notice an could object to registration enhances security of register and unlikely
for titleholder to lose land. Is statutory or judicial reasoning best for reform in Canada?
Senecal v the queen
- Facts: A loading supervisor for air Canada found packet of money in dorval international airport. Took ti to
police and 10,000, gave a finders recept and if not claimed within 3 months itd be retuned.
- But airport refused to five I back, relying on s.3, sued.
Decision- airport won
Reasoning:
- The offering of P the 1500 as a reward not shockingly low
- Don’t think s.3 should be applied consecutively
 Is parkers decision better? How could we reform new regulations in airports?
POSSESSION AS PROPERTY INTEREST IN LAND: “POSSESSORY TITLE”
Perry v Clissold, 1907, AUS (possessory interest of land is transferable & good against all but rightful owner)
Facts Clisshold had possessed land and rented it out but paid taxes. He also built a fence. Gov’t decided to
expropriate this land
Issue: does C have a property interest that leads to compensation for expropriation and can go to trustees?
Outcome: yes because possessory interest, died so property to his estate to get compensation
Reasoning: “it cannot be disputed that a person in possession of land in the assumed character of owner and
exercising peaceably the ordinary rights of ownership has a perfectly good title against all but rightful owner”
o Title based on possession of land clear acts: fenced in & paid taxes
o Person in possession of land has right against anyone except true owner – best right based on possession
o possession gives right to compensation
o limitation: if owner doesn’t come forward in time, his right is forever extinguished and
possessor acquires title
Asher v whitlock, 1865(prop interest based on pos can be willed away; good against all but true owner)
Facts
o Lucy’s Granddaughter argues she has possession of land b/c grandfather left it his wife or if she
remarried to his daughter (mary), when mary and grandmother died she gets possession through mothers
will, but grandmother’s 2nd husband is staying on land
o Thomas Williams enclosed unused part of land with a fence, lived there for 20 years but husband claims
Thomas didn’t have prop intere b4 fencing
Issue: did Thomas have an interest in the land (based on possession of it) that was capable of being devised?
Outcome did establish possessory title that can be transferred by will so granddaughter won
Reasoning”
o Cockburn CJ possession is good title against all but the true owner
o Justice mellor fact of possession is prima facie evidence of seisin in fee (proff- possession is merely
evidence of seisin and seisin was basis for P’s entitlement to succeed
o Jus tertii issue (whether better claim by someone else other than P would defeat P’s claim against D)
o Note how granddaughter not in possession, second husband is
o Again possessory interest is one that can pass in a will (took possession by fence)
o It seems that court is influenced by “seisin” not a lot of records at time?
Medivall times- “siesin”
 In medieval times few people read so few records of land title/ownership
 “seisin” in early law, 15th c descried special nature of possessory entitlement of an owner to land or
 Not everyone in possession has seisin, ie tenant
 Transfer of intere in land required a transfer or seisin, usu by “livery of seisin”- symbolicly
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Idea of seisin influenced common law principles, ie factual POS
Recovering land after dispossession influenced common law principles of POS of land.
Possession and aboriginal title to land
- court has recognized a sui generis aboriginal interest in land (Guerin & delgamuukw)
- Mcneil says not too late to enforce their right to land
COMMON LAW POSSESSION
Carol rose- possession as the origin of property
Brumagim v bradshaw (court favours claimant who gave sufficient notice to have possession)
Facts: 2 claimants to land that had become residential/commercial district by the time litigation brought
- Each said ownership based on title extending back to original possessor of land
- Those claiming treat had POS said he had repaired a fence, pasturing livestock
Issue:
- Did they really possess the land at all? Successors in interest cannot claim ownership through them if not
and title would go to those claiming first possession
Reasoning
- Court told jury to decide if treat gave sufficient notice to public that he appropriated the property.
- If yes he had ownership and can pass it
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Rose court valuing clear act theory but labor theory b/c other side said fence is not suitabl
Original owner has to communicate its his or else lose it through adverse pos, ie taxes/fence
Adverse POS seems to reward useful labor again, ie someone farming on anothers land gets title
POS as basis of ownership is about saying its mine but if allow someone to act likes it his will get it
Economical rationale need clear communication b;/c clear title facilitates trade/minimize resource
wasting conflict; if people get interested in land they will bargain for it at highest value, not fight,
Piper v Stevenson, 1913 (early ex of unilateral mistake, fenced in neighbours, won possession)
Facts
- 1901 accidently fenced in neighbours land with hers, farmed on it, 1906-built house, 1912 action brought
- She farmed on it and 1905/6 built house
Reasoning:
- Until 1906 acted as owner, dispossessed her neighbour according to s.5(1) and limitation period begun in
1901 when she fenced it in
- Clear act is fencing, more than 10 years, her intention not discussed b/c it was accident
- Seems court is presuming intention from objective acts (intent principle later in beadoin)
- Does it accord with statute? In terms of intetnion
Re clair beach estates ltd v macdonald, 1974, OR (raises threshold from stature- both dispos &
discontinuance; limitation did not begin b/c lost on test)
Facts
- Clar estate buys land from grant (wants to register the land according to land title act) but macdonalds claim
pos title now b/o using grants land w/o objection.
- Macdonalds took pos of land in 1961, removed trees, 1962 set up dog, flowers, 1963 picnic table w/o asking
- Reasons:
changes language of statute  dispossession AND discontinuance (Raises threshold for pos)
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test court uses
 1. possession during statutory period
 2. Possession with Intention to disposses: intent to exclude owners or person entitled to possession
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from possession
o intention shown through clear act on part of possessor
3. Discontinuance of possession by true owner and act of dispossesion by owner/person entitled
to pos during statutory period
application
 No discontinuance or dispossession : Grants were picking cherries, & ploughed as far as they
could go, smallest act is sufficient to show no discontinuance of possession (constructive
posessesion here )
 no intention to disposs- Actions suggest McDonald’s knew occupying land that grant owned (tried
it buy it twice
 owners do not need to perform positive acts of ownership all the time
Acts of macdonald were clear acts of possession but Limitation period did not begin b/c no
discontinuance/dispossession; grants had constructive pos of land (as much as needed it for
No clear act until 1965- picnic tables
Is intention consistent with rationale of limitation periods?
Discussion notes
A) : can register land (hard to be dispossessed if registered), in ON use courts of justice act leichner v Canada, 1997, OR (b/c fencing not done with intention failed )
facts: P tried to claim POS of strip of land along Rideau canal, part of fed crown reserve
reasoning: P insufficient act to show POS and intention to exclude owner
even though P predecessors had fenced in property they didn’t do it to take possession so not sufficient
is it diff than piper?
B) Possessory claims among co-owners
 Issues in family, ie when parent dies and goes to children, but some leave; are they dispossessed?
 Re o’reilly, 1980, OR- USED laches principke to bar beneficiaries to claim when allowed siblings
to run farm for 33 years, its based on flexibility of unconscionability so few rules more flexible
 Periods of possession by continuous succession of persons may be added together to create statutory
period of POS “ tacking”
Keefer (r) v Arillota, 1976, OR (possessory title not granted against owner by depriving him of uses of
property that he never intended or desired to make of it- Possessor MUST HAVE intent to exclude owner
from ususes that wanted to make of his property)
Facts: cloy sold to ariollota; keefers trying to establish POS, strip of land b/w both lands (given right of
way) that is driveway, grassy area and garage
o Keefers used it since 1956, parked car, gravelled, removed snow but cloys vacationed during
winter so not imp, they used grassy area for picnics, & did skating rink but cloys gone in winter
o Important that cloys didn’t object when keefers put garage there
o Cloys used house for business (if had delivery used strip as driveway for car/cart), didn’t live
there & also allowed tenants upstairs to use grassy area as side entrance
Issue: was there exclusive possession?
Trial: keefers won
Reasoning
o Even if keefers exceeded right of way, cloys didn’t intend to give possessory title
o The use owner intends to make of prop may be limited & intermittent uses so that title cannot be
acquired against him of property that he never intended to make of it
o Will be hard to prove disposs when given right of way
Test
1. Actual possession for statutory period
2. Possession with intention of excluding possession from owner or person entitled to pos
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Did the possessor preclude the owner from making use of property that he
wanted/intended to make of it?
 Acts relied on as dispossessing true owner must be inconsistent with enjoyment of
property intended by owner.
3. Discontinuance of possession for statutory period by owner and others if entitled.
Application (fail 2/3)
1. Had possession
2. Keefers don’t seem to intend to exclude cloys from pos of the limited use they intended to make of
the property cloys used it for delivers/tenant upstairs & never intended to park there (never did),
also skating rink doesn’t matter b/c cloys gone on vacation
3. Cloys did not discontinue except for area with the garage, ie still used for deliveries/tenant BUT
possession of part is possession of the whole if the possessor is the legal owner” thus doesn’t
matter if didn’t use whole strip.
 Now dispossessor has to show their and possessors intention to property
 POLICY- courts don’t like others intentionally dispossessing (elevate test)
 Ambiguous actions seem to need higher test of intention
 Swtiched from objective (possessor) to subjective (owner)
 If owner has no intention cannot dispossess?
 Court relief on lee v jack but overturned in england
Dissent:
o Shouldn’t reverse trial- no evidence of misapplying law.
o Keefers did intend to exclude-acted as if own it
o Use for deliveries by cloys insufficient to stop clock from running on limitation
 More interested in actions than thoughts, objectively took posession
Masidon v Ham, 1982 (where no intended use by owner no ability to dispossess (no use to contrary)
Facts:Ham built landing strip for planes b4 masidon bought half of it (to sell later); claims pos
Decision: no possessory interest or title in light of absence of intended usage on part of owner
- Reasons: applies Keefer – fails inconsistent use test-its incapable of being contrary if no intention
- Note: USES keefer b/c statute of limitation is up.
- contrary to perry v clisshold? Same facts but in perry no mention to owners intention (got pos there) so
if perry occurred today would have lost, piper did not discuss intention as well.
 Principleperson in poession of land he does not own can acquire title only he knows he does
not own lands, knows who does, knows the intentions which true owner has of use of land and
acts in manner inconcistent with those intentions
Beaudoin v aubin, 1981 BEFORE HAM, AFTER keefer (clear, unequivocal acts of pos lead to
presumption of intention; no need to look into intention BUT if equivocal acts NEED INTENTION)
- Facts- beaudoin bought home in 1966 but occupied strip of land from 1951 (rented it b4) b/c thought it
was theirs BUT when bought house found out not theirs & used it anyways; a brought action in 1979.
- Decision- decided for B’s
o 1.intention
o When thought it was theirs couldn’t have intention to disposess but once bought it they knew
not theirs and possessed it.
o Certain unequivocal acts of pos will lead to presumption of intentin to possess.
 Objectivity of the acts of possession is given primacy over the subjectivity of the
parties’ intentions for the land
 criticized subjective intention b/c inconsistent with s.4 ad 15 of statute/earlier cases
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How can you have intent to dispossess owner if mistake?
If unequivocal acts of possession then presume intention to dispossess owner
from possessing land BUT if acts equivocal then need to find subjective
intention to dispossess
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This is more similar to piper b/w neither neighbour knew at first who owned
land, whereas in HAM he knew it wasn’t his.
Reform
The tests for the running of a limitations period have been reformulatedcalls for “open, obvious and
continuous” usage, “peaceful, open and obvious usage” and “usage as of right” are, however, all ways in which
the court seeks to establish whether or not the claimant to a possessory title has in fact been enjoying the type of
estate which the common law protected.- ths helps to define clear acts in situations of ambiguity
* intention helps where ambiguity but shouldn’t be threshold- in mistakes cannot claim intention
Ja Pye,v graham ENG 2002 (overrule lei v jack- no longer law- allowed poss when owner had no use)
Facts-farmer had lease land next to own to farm from 1983 and 1 year lease but when expired, and
someone told him to vacate he continued to farm on land until 1999, ja pye (owner) said its fine,
because holding for future develop (like ham)
Decision- for farmer, during pos acquired title to the land
CA- reversed it but house of lords restored
House of lords fits with limitation act, calls for “adverse pos”
 European court of human rights overtuned b.c unjustified w.o compensation
 UK reformed law after this; Canada relies on Lei v jack-ie ham
Treloar v nute-1976
Decision- reject Possessor argument that used land for years to graze animals and actions not inconsistent with
owners lack of intentions for use of land
COURT OF APPEAL- Reversed b/c possession in limitations statute simply required possession
-It would be difficult to establish POS if only inconvenience b/c then likely to take proceedings
- also called cases where titleholder had no immediate intentions for land “special purposes”
-rule if possession, and in absence of special purpose of Property, time begins, irrespective of whether
Posessor suffered inconvenience of possession,
-UK law reform subsequently added pos meaning in law in limitation act.
MISTAKES: INCONSISTENT USER TEST
Wood (a) v Gateway, 1990 (inconsistent user test does not apply to mutual mistake for policy reasons)
- Facts: Woods used neighours land for 17 years (they/neigh’s thought belonged to them), 1989 find out
not theirs through old survey done; they farmed, used as driveway, lumber yard
Decision: Wood established possessory title against Gateway
- Reasons:
1. Dispossession/discontinuance of owner- extinguished in 4 and 16 of limitations act
o Use was constant, continuous for 18 years, repairs/maintenance, statute of limit up
2. They intended to exclude true owners fom possession
o Where mutual mistake- INFERENCE (burden on possessor to provide evidence) can be
drawn, NOT presumption (fact presumed so owner to rebut) to exclude all others; however,
look at all evidence, ie not when equivocal acts
o Cites beaudoin- justify inference, distinguish ham (where IUT) B/C ham knew not his
3. Inconsistent user test- does not apply to mutual mistakes only tresspassers/1 side mistake
o If use this then possessor could never win & prior case law allows- legal impossibility of
proving use contrary when owner didn’t even know
o Policy-the test arose to avoid injustice to rightful owners & prevent unjust enrichment (by
requiring inconsistent use (otherwise implied consent) & the intent) but this does not apply
to mutual mistakes
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o
-“In cases of trespass, the law has placed a very high onus on those who would seek to
dispossess the owner. The reason for this is simple: it is a rather shocking proposition that
the trespasser should be able to make use of property knowing full well that it belongs to
someone else.” (206)
 We are constructing subjective intention out of objective actions (clear acts, ie fence)
Teis v ancaster, 1997, OR (affirmed gateway- inconsistent test doesn’t apply to mutual mistakes)
Facts-T thought strip of land was his & town took no action.
Decision T successful
Reasons: inconsistent test wold defeat adverse pos claims in mutual mistake (Here it really is unilateral
but court claims its mutual) and but allow in trespass
policy-the test would reward squatter and punish innocent.
 What about unilateral mistake? Clear manipulation of facts to accord with
policy really is unilateral mistake
Bradford Investments v Fama, 2005, OR (inconsistent user test does not apply to unilateral mistakes-paying
taxes alone is insufficient for owner)
o Fama believed land belonged to her (fenced 1964, garden) but bradford has been paying taxes
o Leibel hasn’t visited since 1973 but paid taxes since 1959; said didn’t care if they used it but
would care if they built a fence, he says fama asked permission/diff facts than d’s
o Akerman also using land-1961-1988
Decision: Fama gets possessory title
- Reasons: inconsistent user test does not apply to unilateral mistakes
1. Did Fame have possession? yes
o Fame since 1964, Akerman since 1961- more than 10 years- acts open, constant, peaceful
2. Did d’s intent to exclude Bradford from pos? yes
o Presumed they intended to exclude everyone strong acts of pos- fence
o If d’s asked for permission from brad than diff –doesn’t believe p b/c his memory is worse (more deals)
3.
o
o
o
o
o
Was ownder excluded from possession? yes
Doesn’t accept liebel’s account of visiting properties/ no else contacted/exercised control
Taxes are more related to ownership than possessionThe IUT nothing to do with exclusion from pos; IUT is about future intention for prop, not relevant for
decising if owner is IN pos
teis “law should protect good faith reliance on.at least the settled expectations of innocent adverse
possessiors” not like masidon where tresspasser
infers D intended to exclude owner
 BUT famas have to pay for unjust enrichment (paid taxes)
 Bradford and taxes diff from taxes by clisshold- 1. Bradford not living there (ONLY paying taxes) 2.
Clisshold (owner) is paying taxes but here corporate entity could be mechanical for company,
don’t know which property paying for
 Interesting b/c assessed credibility of Bradford
 Interesting that taxes not as imp for owners as it is for possessors (clisshold)
 Possessory title being confined mostly to mistake
Marotta v creative investments, 2008, OJ (thinking you acquire pos interest is not unitlateral mistake)
Facts-CI bought land in 1960’s, plan to build more houses, paid taxes, and even appealed a tax assessment
in 1986, M bought property in 1975 & knew block A not theirs but real estate agent told them they could use
it; parties, plus trees, built on it, fence, THEY HAD TRIED TO PURCHASE IT. M argues unilateral
mistake b/c thought they acquired possessory interest
Decision- denied pos claim,
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Reasons: met pos but didn’t pass inconsis test, not mistake, it would be contrary to legislation,
Ch.3 FUNDAMENTAL PRINCIPLES GOVERNING LAND AND PROPERTY
INTERESTS
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Interesting that UK did major legislative reform in 1925 but Canada has not
Many principles came out of conflict b/w king & aristocracy & parliament/CL & equity crts
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Constitutional act, 1763- reiterate tenural rel of free and common socrage
Conveyance act- s.10(3) says “all real property lie in grant…”still in livery”- seisin
Reception of English law in Canada (1792 into quebec)
 each prov has a reception date where declares law of England as law BUT ONLY LEGISLATION, not
common law b/c not all cases are binding. Legislation before reception date law unless changed/gone
 ALL tenure abolition act (1660) quia emptores (1290) and statute of uses (1535) all suitable and in force
 In Quebec 2 receptions, 1st of French and then of English so mixed legal culture
 French title (allodial) recognized by import of law BUT aboriginal is not tenural- it is sui generis
interest- based on long possession recognized by imperial and royal proclamation of 1763
(constitutional doc based on consent, basis for treaties)
 All of Canada, except quebec, is held in “free and common socage”
 Only lasting effect of tenure is leaseholds (ie subtenancy) & escheat but now governed in act-
escheats act
Reception of English Law in Ontario:
Treaty of Paris 1763: transfer of sovereignty over all North American territory of France, and ungranted lands of France to English king BUT recognition of grants previously made to French settlers
- 1774 Quebec Act: French settlers remained secure in holding property previously held under French
Crown; all areas English now own will have English law, but French can have French law (civil law)
- Imperial Constitutional Act, 1791, s.43: free and common socage tenure only
- Property and Civil Rights Act 1792, s.1: application of English law re property and civil rights will
now be law in Ontario (including Tenures Abolition Act, & emptores)
o As result, these medieval doctrines introduced in Ontario law
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Tenure: hold interest OF the crown, no outright ownership (before king), CROWN has allodial interes
Policy-promotes ideas of prop as relations rather than thing- given certain rights in hierarchy
Tenurial system
 tiered landhling- pyramidal relations with obligations- lord owed tenant tenement unless didn’t do
service
o diff types- ie free and common socrge still exists- make use of land productively
o tenure had obligations/priveleges, including incidents (taxes)
o reform- b/c people evading incidents attached to tenure, led to tenure abolition act & converted
all existing free tenures into socrage tenure which didn’t have onerious incident.
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Tenures abolition act: 1660 (still exists in on)
o didnt abolish all forms of tenure- “free and common socage” remains (use land productively)
o all crown grants now made in “free and common socage”
o abolished all incidents of tenure except “escheat”
“SEISIN”- (no abeyance of seisin) someone must ALWAYS be entitled to possession (have seisin)
 Means possession, tenure relied on seisin to know who was in possession; thus owing duties to superior
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Even though can have conveyance of estates in livery of seisin none recent
Principle about relativity of land title based on prior possession remains in effect today ie if A
dispossesses A better prior possessory claim than a third party
Had livery of seisin to keep track of who owns land but eventually statute of frauds which required
signing so ceremony gone
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Escheat: (escheat act) if holder of land dies w/o will (intestate) and w.o family who takes interest
interest escheat to crown,
o Before 2 types: 1. No heirs so fee simple ends or 2. Treason/felony to feudal superior
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“Quia emptores”, 1290 (law today)-prohibit new tenurial relations by suninfeudation (adding new
rungs to feudal ladder- no new relations b/w tenant & lord)  trend towards freely alienable land
o by 1290 recognize affecting alienability of land b/c cant just buy/sell land easily (have to pay
uppers/ask them). INSTEAD people would substitute for that person
o all tenants in fee simple are holding property of crown- “tenants in chief”
BRIAN SLATTERY – the hidden constitution” aboriginal rights in Canada, 1984
 French couldn’t give aboriginal lands to Britain b/c didn’t have it
 British made royal proclamation, 1763 still basis today for their land claims, reserve lands are protected
for their use unless previously ceded to crown (voluntarily). Crown claims lands as dominion but
recognize their interest in land.
 purpose “ ensure that no indian lands in America are taken by british subjects without native
consent” by 1. Colonial gov cannot grant any unceded Indian lands 2. British subject cannot settle on
them and 3 private individuals cannot purchas them
 Preamble  “with whom We are connected, and who live under Our Protection, should not be
molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having
been ceded to, or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds.
DOCTRINE OF ESTATES
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did not own land itself but estates in land (slice of time in land) from focus on “physical” to abstract
Estate bundle of rights delimiting the period during which the holder was entitled to possess
Defines” both quantity and duration of interest in land (interest of crown)
Benefits: fleixiblity in who, when, and what interests/ future/present interest, Gray-mng wealth/power
role of lawyer
 In property law, layer mostly to advise: conflict of addressing every option while trying to be simple
 Lawyer usually gets court guidance on ambiguous terms b.c trustee/executor can be liable if wrong
 Drafting: words of purchase: who gets the granted interest; words of limitation: define king of interest
 Grants “inter vivos” conveyance/transfer b/w live people/ corporations usually at time of transfer/
will- upon death
Freehold vs leashold estates
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Freehold BEST-leaseholder depend on others (known duration) VS freedhold end only by actions/death
Freehold estates and law of succession (uncertain duration)
 Can transfer by will, if no will descend by intestate succession, ie with will or inestate (w/o will)
found in succession law reform act
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Friedman “law of succession is to the social structure in some way what the genetic code is to the
biological system.it perpetuates the social structure over time…it helps define the rich and poor, upper
and lower class.”
In Ontario, abolition of primogeniture (genetic heirs) more controversion, not until 1851
By time of devlotion of estates act all property of dead person whether real or personal treated as fund
and vested to executor if will or administrator if not to pay off debts/distribute to those entitled
reflects view of capitalist- market based society- property less imp than exchange value
Improvement for married women-1985- gets sum on top of inestates new estate, ie get 200,000
FamilyImprovement of married women & children-get certain sums, if intestacy to be heir need to be
married or if have dependments can be cohabitating for 3 year.
Conveyancing and law of property act, 1886, (statute in 1990 today)
5(1) In a conveyance, it is not necessary, in the limitation of an estate in fee simple, to use the
word “heirs.”
(2) For the purpose of such limitation, it is sufficient in a conveyance to use the words “in fee
simple” or any other words sufficiently indicating the limitation intended.
(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.
(4) Subsection (3) applies only if and as far as a contrary intention does not appear from the
conveyance, and has effect subject to the terms of the conveyance and to the provisions therein
contained.
(5) This section applies only to conveyances
 S 5. Don’t need to use heirs to make FS (before x and heirs”) if wrote FS insufficient/LE
 AFTER 1886- can write forever, kids whatever
 Subsection 3, is subject to 4-would apply where write “to a “and in another paragraph but if a dies go
to b so first no limitation but then contrary intention later on.
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Freehold Estates:
Does not apply to personal property; 3 kinds; Uncertain duration
Default by legislation is FE so to create LE needs words of limitation ie “life” / “natural life”
1. Life estate:
o Create: legislation requires words of limitation b/c default is FS: can be confused with license
(contractual agreement vs interest in land)
o last as long as holder of estate (life tenant) is alive.
o Termination: MUST have reversion in fee simple back to grantor or third party called
remainder OR if grantor is dead or if no heirs, it will escheat
o rights: usus & fructus (use of land/income) BUT not full abusus (can lower capital value of
land for B’s interest)
o Tort of “waste” where remainder-person can get injunction to stop destruction (sword) OR
shield by life tenant
o 4 types: A) voluntary (prohibit from damaging capital value in non-trivial way B)
persmission- LT fails to maintain prop but only if obligated to C) ameliorating- alters
for the better (hard t justify injunc b/c for the better D) equitable waste- prevent
malicious destruction when no liability for waste attached to LE
o waste rarely used todaynow successive interests usually held in trust where trustee can
make sure property is maintained/allocate expenses b/w life tenat & remainder person
o alienability: can alienate by sale or gift BUT not by will b/c interest ends at death
o ontario settled estates act: ;
o few unilateral powers to life tenant
o alienability: can lease, sell, mortgage or gift BUT subject to court approval & usually
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need all to consent; CANNOT will it away b/c interest ends at death
o “life estate pur atre vie” : if LE alienated (life for another): if B gets a’s
interest then limited to when A dies, & if A survives B cannot resume property
b/c alienated rights already.
2. Fee simple estate: (largest estate in law)
o Last: indefinitely; as long as heirs to inherit it; ie A sells to B & B wills it away
o Alienability: can transfer by inter vivos conveyance (in place of A) or will (if no will “intestate”
then succession law reform act – has method of distribution- ie family
o Creation: “to a and heirs”- to a “words of purchase” who gets interest under grant & “to his
heirs” is limitation, “what” estate A is getting BUT A can alienate w/o permission of heirs
o Grants inter vivos: common law required “and his heirs” to create FS but altered by
statute after July 1 1886 (if didn’t use this, LE created (helpful b/c kept in family but
now focus on alienation of land)-conveyancing and law of property act, s5
o Will: not as picky, look at succession law reform act, s.26
o Fee simple holders assume upon sale that they will pass on totality of rights connected to land,
including rights (ie quia emptores)
o Termination: grantor has reversion so if grantee has no heirs or will, it will escheat (unlikely
that FS will end tho bc FS almost indefinite)
o medieval times, males 1st & then to daughter; if no blood relatives it ended & would go to
crown (escheat); spouses would get life estate
o Rights: almost allodial (equiv), right to uses/fructus (right to profit by lease/exploit land) &
absus (alter land), right to alienate land by transferring fee simple & to create lesser estates ie
life/lease.
3. Fee tail estates (short FS)
o Last as long as “heir of body” (cannot be relatives like FS) capable of inheriting it (pretty much
indefinite), but in 1956 converted to FS in ON
o Ie “o grants to c and the heirs of his body” needed to be children or else revert to A and if
dead, to his will or intestacy
o Beneficial before: control who got land (not very alienable;no one wants it when last as long as
A had heirs) 2. Can be refined to only go to males
o Some remain b/c repeals not retrospective
Estate of peter p ryan v Elizabeth boulos-ryan, 2007 (Interpreting w/o charge of LIFE ESTATE)
 Facts: deceased left marriage K where wife would “use and occupy w/o charge” the home during her
lifetime &his trustee would pay for major expenses; wife argues w/o charge means ALL expenses
 Ruling: only related to rent- SHARED expenses-life tenant (property ones) AND remainder-person
Macdonald estate, 2008 ( LE interest remains when permissive waste (no obligation)
 LE to wife & remainder to step son; wife moves out & disrepair to home; son says it ended her LE
 RULING – Permissive waste b/c not obligated to repair or live in it so still had an interest in it
R v waters,1978- RULE: determine intention by context, circumstances when will made/language to see if LE
facts: will stating wife use as long as she lives, or remarries or writes notice not needing it OTHERWISE goes
to residue of his estate; IS IT LE or License?
Held: LE, not license
TEST-judge to place himself in shoes of testator and try to determine intention using context, circumstances
will was made and language use
APPLICATION
1. Language- as long as she lives (very imp) 2. Context- got contents of house and responsible for repairs
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Re powell, 1988, eng (IF “USE” and “POSESSION” stressed and come before “death”- likely license)
Facts: will left house to daughter where right to possession, use for as long as she “remains in possession of the
said premesis” and if no longer in pos or marries or upon death goes into trust for other children; she got sick &
is in the hospital so not in possession
Held- license NOT LE b/c to use only if in possession & would terminate if not in posession
language: shows intent to give license (to USE only if in pos or else it terminates), NOT LE- license has ended
b/c she’ll never be in pos again
- Emphasis on “use” and “possession” and court misses “death” because it came after those terms
Absolute estates and qualified estates
Absolute estate
 no conditions attached to the estate ex. “to a for life”
Qualified estate
Determinable
[Condition of retention]
Subject to Condition
Subsequent
[Condition of retention]
Subject to Condition
Precedent
[Condition of acquisition]


Language
So long as;
Until;
During;
While
Theory
The determining event is
the inherent part of the
grant language
On condition that;
Provided that;
But if
The condition is added to
the grant language
If (for example: G grants to
A if he is called to the Bar
of Ontario)
The condition is a
requirement for the grant
to determine
Consequences
If the determining event
occurs, the grant
automatically determines
(the grantor has the
possibility of reverter)
If the condition occurs, the
grantor has the right of reentry (no automatic
determination)
If the condition occurs, the
grant automatically
determines (the grantor has
the possibility of
reverter?)
MUST refer to event that may/may not occur; ie“to A & upon death to B” NOT condition of forfeit b/c
A’s estate ends at her death
2 kinds: APPLIES TO LE & FS
1) Forfeiture (Retention): IF AN EVENT happens, grantee looses estate through will or grant inter vivos
1. condition subsequent
o WORDS: on condition that, provided that, but if (it is added to grant lang) right of re-entry
o Ie “to c in fee simple, but if she ceases to farm, I may re-enter”
o C has FS interest which can be terminated if breach condition; o has interest -“right of re-entry”
o HOWEVER, c’s estate terminated only if o uses right to re-enter
2. Determinable estates
o WORDS: so long as, until, during, while (inherent of grant language)possibility of revert
o Ie “to c in fee simple until she ceases to farm”
o Diff than CS b/c here grantor retains interest of “possibility of reverter” if forbidden event
happens, C’s interest ends immediately & reverts to grantor; not really a C, b/c defines estate
2) Eligibility: conditions precedent: certain event happens BEFORE grantee is entitled.
o O grants “to b in fee simple upon being called to the bar” or “if called to the bar”
o Called to bar is CP to B’s entitlement to estate & B’s interest contingent ON it (only if called)
o Possible issue- hard to distinguish CS from CP sometimes.
o IF VOID condition  estate ends
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o FEE SIMPLE:
o Determinable: time language, determining event is INHERENT part of grant, it is the
grant; possibility of reverter
o Ie “ to a in fee simple so long “
 IF VOID condition- FS ends b/c granted nothing
o Condition subsequent: conditional language; condition is “added”- no automatic
reverter (grantor has right of re-entry)
 IF VOID condition- get FS absolute
o Condition precedent: (eligibility)
 O grants to “B in fee simple upon being called to the bar” or if called
 Being called to the bar is CP to B’s entitlement to estate & his interest is
contingent ON it (only if called)
 Possible issue: sometimes hard to decide b/w CS & CP sometimes
 IF VOID condition  estate ends
Conditions VOID for:
(a) Uncertainty
(b) Restraint on alienation- (ie cannot make condition to never sell land b/c undermine alienation policy)
Void Conditions in Fee Simple Estates
Condition void in Fee Simple Determinable
The whole grant fails.
It is as if there was never any grant because the
determining event is inherent in the grant
Condition void in Fee Simple Subject to Condition
Subsequent
Condition void in Fee Simple Subject to Condition
Precedent
The added condition is void
Will result in the condition being struck off, leaving the
grantee with an absolute, unqualified estate.
The whole grant fails.
If condition does not occur the grant is wholly void and
cannot be separated from the grant itself.
Re down, 1968 (if CS is void for uncertainty get absolute estate)
Facts: will to son Harold “arrives at the age of thirty years, provided he stays on the farm,” then all the
testator’s property to go to Harold and his brother Stanley in equal shares
Issue: is it subsequent or determinable?
Reasoning: could be condition subsequent or precedent
- If precedent then H reaching 30 and reside on farm, he and brother entitled to property absolutely
- If subsequent upon same events immediately entitled but should H cease to reside on farm lose property
Decision it’s a condition subsequent but void for uncertainty so got it absolutely (uncertain how long on farm?
- There is both precedent (arrive at 30) & subsequent (provided) & THERES A COMMA B/W 2
- Uncertain condition: What does staying on farm mean?
- Want to characertize it as condition subsequent b/c get to keep interest but not if precedent
- Court will always try to find condition that validates looks out for consequences
Alienability
 Determinable and defeasible estates, condtingnt interests, rights of re-entry and reverter are all
alienable-latter 3 alienable by statute convetancing and law of property act
 Although alienable in theory, in practice few purchasers, grantees of determinable or defeasible estates
can convey only interests they hold.ie if subject to forfeiture for event beyond control of purchaser is
likely to render it inalienable in practice.
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1. X grants (or conveys/sells): to A for life
 A has life estate
 X has reversion: after A’s death, estate will revert back to X (or X’s estate, if there are no heirs it
will escheat)
2. X grants: to A for life, remainder to B in fee simple
 A has life estate; known as life tenant
 B has fee simple remainder interest (it remains away from grantor)
 X has reversion, but not likely to be exercised bc fee simple estate not likely come to an end (goes
to heirs)
 A is entitled to possession at time of grant; B’s entitlement to possession is postponed until end of
A’s life (and determination of A’s life estate)
 ** Yet, even tho B not yet entitled to possession, his interest is a present interest in land, which he
can sell or devise by will
o value of B’s present interest will probably change according to age and health of A
3. X grants: to A for 20 years
 A is tenant or lessee, with leasehold estate (estate with defined duration)
o X is lessor: interest is called lessor’s reversion
All examples are present interests – bc nothing to prevent from selling the interest presently
Re McColgan, 1969, ENG –
Facts:
o trustees of colgans seek advice from court; Kovalchick says patient but good friend (discussed
marriage); she has illness so had to leave to see a doctor
o will says “to hold the property of…until Mary dies or until she does not reside there personally,
whichever first occurs” (there is 2nd LE to carrie)
Issue: What estate? Has it been terminated by her absence at house?
Decision- life estate condition- and void so absolute
What are intentions?
o look at circumstances of testator, beneficiaries and estate (very close to her/aware of illness)
o License or estate-like the Court in Waters, the Court starts with the beginning of the
phrase. This is a device to say “until her death”, that grants a life estate because it describes
the duration of the estate in Mary’s life. Not mere license b/c “home” and until death
o Determinable or condition subsequent- part of the phrasing “or until she is not residing
there…” seems to be external
o is it void for uncertainty?-yes uncertain. B/C how does she breach? Ie vacation?
 influenced by testators wishes; condition sub so that absolute (looks like
Determinable), COMMA helps to make it look like ADDED
-
Limitation ON Creating qualified estates
 a lot of judicial discretion
1. Restraining alienation: ie if prevent selling to anyone- but partial restraints allowed
2. contravene public policy: ie discrimination on race/religion/marriage
3.Not certain: test from clavering – can we tell from first part of grant what condition it is?
Miller estate-1938- (offering trust to most births is not against PP)
-Lawyer left residuary estate to trustees to give to mother with most births in TO; next of kin said against PP
Decision-not contrary (didn’t buy that injurious to mothers)
Canada trust co and Ontario humans rights commission, 1990 (cy-pres used to save a trust so not discrim)
Facts; school scholarships from a trust, “whites, Catholics, British,” – said superior- many complaints
Issue: whether terms of scholarship est. 1923 is contrary to public policy now? If so, can cy-pres
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doctrine be applied to preserve the trust
Decision: cy-pres to rewrite trust in manner that close to original intention but short of discrimination
ReasoningRobins: the recitals cannot be isolated from balance of trust doc – read doc as whole
 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 Harms public; against social values today
Tarnopolsky
 Need case-to-case assessment when trusts are discriminatory; not all will be void
 Only where trust is a public one devoted to charity will restrictions that contrary to pp of equality
render it void
 Charitable trusts are special vs private, family ones b/c they are public in nature so ned to conform to PP
 To dispose of propery is not absolute right- restrictions ie conveyancing and law of property actconvenants that purport to restrict sale, ownership or occupation or use of land b/c of race, creed,
colour are void
 many sources, statutes, cases which prioritize public policy over discrimination ie s.15 charter
o Should they look at recital (purpose), need to balance freedom of owner/social interest
Restraints on alientation and clauses
 Need estates to conform to law; otherwise assume power to make one unknown to law; ie cannot
say unable to transfer this estate by will; partial allowed (ie but cant restrict to say 4 purchasers)
Re Ramsden estate, 1996 DLR (cy-pres used & other entity to distribute scholarship- NOT against PP)
Facts;
o Ramsden made trust in her will where half residuary estate paid to U of prince Edward island for
scholarships for “protestant students” however, U had act that disallowed prejudicial gifts
Issue: against public policy?
Decision: NOT against PP; against U act b/c would have to administer a religious test to applicants, but
cy pres could be used to maintain it if entity other than university could be trustee
Reasoning Other entity to administer so not against their U act; leonard trust diff b/c more blatant racism
 no public policy issue and fine if other entity administers
university of victori v british Columbia, 2000 –followed ramsden and held that testamentary trust
providing for scholarship to “practicing roman catholic student” didn’t offend PP or BC human
rights code b/c intended beneficiary was a “private one” beyond reach of code.

RATIONALE “Testamentary freedom is precisely the freedom to choose [the] beneficiary and
to set the conditions for the benefaction. As with any gift, the grounds of this choice are entirely
personal to the benefactor.. . To invoke Charter values to upset what the testator has done strikes at
the core of testamentary freedom in circumstances so personal that Charter values are peripheral”
peach estate, 2009, testator had in a home drawn will, provided that property be sold to Anglican or
Presbyterian, and Nova scotia found provision contravened human rights act, 1989 5(1) that no
person shall in purchase or sale of P discriminate against using religion and therefore that executor did
not have to sell to that faith (ME probably said not private b/c of issue of alienation )
Restraints on marriage
 Like restraint on alienation usually partial okay but not total; can be contrary to PP
 Before 1945- restraints on marrying certain faiths upheld (me- is this private in leonard?)
 Policy: wants to encourage marriage, so if goal to break up invalid
Re Goodwin,1969 (preventing marriage not contrary to PP; ie provide while widow)
o Testator left prop by will to deceased son’s widow as long as she didn’t marry and if did to go to
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her son, court decided intention only to provide while widow, and not contrary to pp
Fox v fox estate, 1996 (Trustee cannot act discriminatorily if testator cannot; forbade son to marry non-jew)
Facts: Testator appoints wife as executor of estate & given life interest in 75% of residue & son got rest
o Wife had power to encroach on benefit of son and took away his interest b/c married non-jew
Decision COURT decided improper exercise of power (acted as if her prop) based on public policy, if
settlor cannot dispose of prop which discriminates on race/ religion nor can trustee
 Court did not look at the “private” family context BUT she was just truste
Re curran, 1939 (allowed grator to be discrimatory in family context; ie to marry of same faith)
o Grantor -grandkids share in estate who reached age of 25 and they & if spouses, be catholic
o Court allowed the condition precedent even though improper?
Certainty (OLD)
Pew v lafferty, 1869 – son gets prop if “steady boy and in respectable family at time of age”-the condition is
certain - violates b/c in army
Jordan and dunn, 1887-father left land condition that to abstain totally from intoxicating liquors and card
playing, be kind to mother and be industrious man- found to be certain and lost bc habitual
CL principles : PRESENT (AND FUTURE) INTERESTS
VESTED AND CONTINGENT INTERESTS

Today both equity and CL apply, if conflict equity wins
Enforceability: if legal interest, good against all but if equitable; all EXCET bona fide purchaser
 So today if purchaser doesn’t check registar or the homes to see if owner there has notice.
“PRESENT INTEREST” – interest in existence even though entitlement to pos may be postponed
o Ex. “to a for life, remainder to b in fee simple” B has present interest b/c entitled to fee simple,
subject to a’s life estate.
o B may predecease A and so may never have possession but B may direct by will who is to have
remainder after death and once A’s life estate ends, B will have possession
o Ex “grant by o to A for life with no remainder  o’s reversion is a present interest and even if A
outlives o, o can direct by will who is to get the remainder
“FUTURE INTEREST” is where an interest is subject to fulfillment of a contingency
o Ex “to b when b is called to the bar”
estate vested in interest + possession
Estate vested in interest only
Contingent interest




Current title
Current entitlement- interest
Future entitlement-interest
Yes right of possession
No right of possession
No right of possession
“estate vested in interest & possession” – current title + possession
“estate vested in interest only” –current entitlement but no right to possession
“contingent interest” – future interest
If successive estates- first estate in series is “particular estate”
VESTED AND CONTINGENT INTERESTS (ALL ESTATES 1 OR OTHER)
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
Courts have preference for vested if ambiguous b/c whether grant/will intended vest or contingent
Vested interest1. Held by ascertained person/so Interest is contingent on fulfilling criteria- if don’t fulfill then NEVER vest & revert back
to grantor or his estate
o ex “to my first daughter to graduate from laws school” cannot be vested, if grantor has no
daughters who graduates b/c grantee is not ascertained & will revert to grantor

2. Ready to fall into possession forwith, subject only to ending of prior estateso Need to distinguish b/w vest in interest and pos- if interest than present but one where pos
is postponed b/c a life estate hasn’t ended yet.
o Ex to a for life, remainder to b in fee simple- b has fee simple that vested in interest
but not in pos if a is alive, when a dies then b has pos. if b dies before a bs’ heirs can
assume pos when a dies. Bs interest takes pos when a dies, no condition to fulfill,
o a’s death is NOT a condition precedent to existence of b’s interest, only to its vesting
in pos
Vesting in interest and pos can happen at same time, ie “to n for life, upon his marriage” if he is
unmarried at time of grant, interest is contingent marrying and then it will vest in interest and pos
Contingent Interest: (future)
- Common law principles and courts eventually limited kinds of contingent interests that could be created
- Development of these principles of Equity provided basis for creation of trust
- More fragile than vested interests
Contingent interests arises in one of three situations
-
-
-
1. Potential holder of interest is not yet in existence
o e.g. G grants to A for life and then to A’s first child in fee simple (A is childless)
2. Holder’s identity is unknown
o e.g. G grants to A for life and then to A’s widow in fee simple: widow is unknown until
moment of spouse’s death; if A is alive at time of grant, “widow” is unknown
3. There is condition precedent to the holder’s entitlement to the interest
o 1. E.g. G grants to A for life, remainder to B in fee simple if he gains admission to law
 at time of grant: A has estate vested in interest and possession, B has contingent
interest
 at time of B’s admission: A still has estate vested in interest and possession, B now
vested in interest
 at time of A’s death: B now has estate vested in interest and possession
 BUT: IF A dies before B admitted: reversion to grantor, B gets nothing
 Rationale: common law principle (no abeyance of seisin)- A to go to B
 Solution: G should have created trust to solve this problem – if B has not been
admitted by time A dies, property would be held in trust by trustee until time
of admission when could go to beneficiary (B)
o 2. E.g. (p299) X to A for life and then remainder to B in fee simple when turns 21 (B 15 at time
of grant)
 A acquires estate vested in interest and possession, B’s interest is subject to condition
precedent = contingent remainder
 Once B turns 21 estate will vest in interest, then vest in possession when A dies
History of Contingent Interests
o law began to change to permit land owners to create valid contingent interests; people found
ways to avoid feudal duties to king; Henry VII mades deal if people make payements he enacts
first statute of wills which allows people to convey property by will
o Inherited in Ontario law through Property and Civil Rights Acts 1792
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o
Basis for creation of law of equity (in England and Ontario), so basis for trust
COMMON LAW REMAINDER RULES
Margaret mccallum,
 Rationale for Legal remainder rules; developed by CL 1. Set time limit within contingent remainder
must vest in interest (if it does) & prevent gaps in seisin.
o In feudal times, lord would need to know who had seisin so know who should do services
 Once “quia emptores, 1290 in effect, estate holders could transfer them w/o permission of lord so that
courts developed rules to restrict imposing conditions on transfer that would result in uncertainty of
whos next in line
 Legal remainder rules APPLY today to limit future interests BUT only at CL (not equity)
 To be a remainder legal interest must be created in same instrument that creates a prior particular estate
1. A remainder is void unless, when it was created, it was supported by a particular estate of
freehold created by the same instrument (no “springing interests”).
o A particular estate is an estate less than a fee simple that precedes a remainder.
o Ie “to a for life, remainder to be in fee simple” is valid bc a for life is partic estate, less
than fee simple and prior to
o “to a and his heirs 1o years from today” or “to a’s daughter for life” when no daughter
yet is where estates spring up in future so invalid, no one to receive seisin from o right
now so gap in seisin
2. A remainder after a fee simple is void
o Nothing left to give if already gave a fee simple whether or not contingent or vested.
3. A remainder was void if it was designed to take effect in possession by defeating the
particular estate (no “shifting interests”).
o Ex.. “to w for life but if she remarries to z and his heirs” is invalid b/c allow z to cut off
w’s life estate
o Where interest shifts on an event happening
o Applied to defeasible but DOES NOT APPLY TO determinable
o ie “to w for life during widowhood and then to z and heirs” fine b/c if remarry life
estate ends but seen as natural and determinable limitation seen as part of definition of
estate, z not seen as cutting in
4. A remainder was void if it did not in fact vest during the continuance of the particular estate
or at the moment of its determination.
o I.e. “to r for life, remainder to s and her heirs upon her marriage”
o If s marries BEFORE r dies then her interest is vested in time, vested in interest and
once r dies it is vested in possess BUT If she doesn’t marry in time than lose interest
through natural destruction and revert back to o
o However it will suffice if holder of remainder is identified at moment of particular
estate-holders death
o ie “to k for life and then to her eldest son alive at her death and his heirs” is validdon’t know who eldest son is until she dies but fine b/c it’ll flow smoothly from k to
her eldest, remainder only void if k lives with no sons at all



EQUITABLE ESTATES
medieval conveyancers sought ways to avoid restrictions by CL on future interests/taxes on seisin
They began using a device “the use”, which is ancestor of trust
Chancellor (in kings council) called on to supply equity where CL was harsh in some cases-followed CL
but intervened for certain parties “equity that follows the law”
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USE” BEFORE STATURE OF USES, 1535


Chancerys protection of use more widespread so look like estate in land called “equitable LE/FS” yet
no rules so more FLEXIBILITY (less concerned with seisin)
EX if A transferred land to B to hold for use of C, B is holding land for C’s benefit OR if A arranged
land to be held by group of people in joint tenancy to the use of himself and family so that never pay
taxes when he died
o Ex. X grants to T and his heirs to the use of A for life, remainder to the use of B and his heirs
when he turns 21
o X is feoffer to uses who holds the reversion in fee simple in equity
o T feoffee to uses, who holds the legal fee simple and thus seisin
o A is cestui que use, who holds equitable life estate, vested in interest and possession
o B cestui que use, holds equitable contingent remainder in fee simple
o Significance: Under rule 4 at CL if B doesn’t turn 21 before A dies his interest would be
destroyed but NOT here- it will be “resulting use” to X or his estate so that T is like trustee
who would pay profit to X until he turns 21 & once 21 he will get legal title and full owner in
CL and equity.
o B dies b4 21: T holds land for X and his heirs b/c X retained reversion in FS at equity
“resulting use” b/c estate hasn’t been fully disposed off goes back to grantor or testator
o
o
o
o
o
o
Ex 2 – X grants to T and his heirs to the use of Y and his heirs, but if he ceases to farm the
land, to the use of Z and his heirs
X feoffer to uses who holds reversion in FS in equity
T foeffee to uses, holds legal fee simple and thus seisin
Y- cestui que use, holds equitable fee simple, defeasible on condition subsequent
Z – cestui que use, equitable “executory (shifting) interest in fee simple (b/c cannot be legal
remainder so “executory”-estate has not yet vested and may never vest-only if Y ceases
Significance: At CL would infrgine rule 3 of no shifting interests
Statute of Uses (1535)
Where any use has been created, seisin – that is, the indicator of common law title – was to be taken from the feoffee to uses and
vested in the cestui que use. The statute was said to “execute” the use. United legal and beneficial title in the cestui que use.
The Statute applied to one person “seized” of lands to the use of another person or corporation:
Thus, the Statute did not apply:
a) Where the feoffee to uses had only a leasehold estate
b) Where the feoffor to uses was a corporation; and
c) Where the feoffee to uses had active (rather than passive) duties to perform




Posed problems in terms of taxes- ie if A transferred land to B for A’s own use, A was in substance the
owner but common law regarded B as owner so creditors can’t go after A. & not as formal as CL- Ie
more flexible- oral or informal writing unlike a deed. Issue of proof
Breach : if B withheld profits from C (beneficiary) then B could be ordered to ive profit back
B looses title? If B died and title went to his heir then bound to act in C’s favour
B alientates prop by inter invivos then conveyance bound to C if purchaser knew of his use (if didn’t
then free of C’ claims and have title)
Statute of uses, 1535



Solution: statute of uses, statute of wills and statues in explaination of wills: changed by executing
the use so now the use is “legal” and thus requires taxes
This use came to look like proprietary claim bc enforced against all third parties except bonda fide
purchaser for value of legal estate wo notice
Margaret mccallum,
Rationale: parliament passed statute of uses b/c didn’t like chancery being in control of conveyances
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




Affects today: repealed in England but still in Canadian law
Before statute: BEFORE statute the person receiving grant for use of another had legal seisin (ie FS)
and then for B’s use so B had equitable FS A seised to the use of B
After statute: drop A from the grant and move seisin to B so now he is owner in FS in equity and legal
by statute of uses executing the use”  A being written out; gets estate for second, then moves to B
2 steps: splitting of legal and equitable title by conveyance and 2. Reuniting of legal and equitable title
when statute executes the use
BUT courts/lawyers developed ways around the statute that it failed to eliminate conveyances to uses
Conveyances of uses that Protect the uses from the statute: Blocking
 Statute only apples where person is seised of property to use of another , feoffee granted present estate
1 way: Giving feofee to uses a leashold estate
 A grant to a for 999 years to the use of b for 999 years is almost as valuable to b as an equitable FS
2 way: with conveyance to a corporation; uses would not be executed & corp retained legal title subject
to obligations to the cestui que use
3 ways: give feofee active duties to perform (ie pay rent); S applies only if A did nothing but hold
seisin,
Exhausting the statute: ie only execute once: NOT after FS
 Thus, found way to acheieve “uses” prior to statute, partly b/c of tenures abolition act
o Ex. “to a and heirs to the use of b and heirs to the use of c and heirs” was interpreted as A given
legal fee simple for a second, then statute executed use and gave A’s legal fee simple to B who
already had equitable fee simple b grant but then nothing for c, c part ignored bc seen as
inconsistent
 After tenures abolition act court of equity read it as b got legal and equitable title but b held legal title
for benefit of c so equitable title moved from b to c but only in equitable title.
 The statute having executed first use of fee simple to b was exhausted and did not execute second use
of fee simple to c
 Statute will executive grant of c’s use of fee simple following b’s use of life estate or if life estate and
life estate
o ex“to a and heirs to the use of b and heirs to the use of c and heirs”- use of c is a use upon first
use to a so not executed by statute, a required to give up equitable title to c since grant a was to
hold for estate for use of c
o ex. “to a and heirs to use of a and hiers” was shortened to “unto and to the use of and heirs”
which was equivalent so now had form of conveyance with which to separate legal and
equitable estates as if statute of uses had not been passed
 Everntually passed statute of wills so that possible for wills to grant a fee simple without using words of
limitation “and heirs”
 Devises also didn’t have to comply with legal remainder rules since treated as creating executory
interests regardless of whether the words of devise expressly raised a use
Statute of uses and executory interests
 Ex. where O conveyed to “D and heirs for the use of A and heirs but if A marries B then to the use of C
and heirs,” for a split second D has a legal fee simple, and A an equitable fee simple subject to C’s
equitable shifting executory interest in fee. Statute then executes, D disappears, and A has a legal fee
simple subject to a legal shifting executory interest in fee simple in C.
 Rationale to allowing springing/shifting despite common law rules is that when statute turns equitable
interests into legal interests they AREN’T common law remainders legal executory interests
 After 1536 could create 3 kinds of contingent future interests legal remainders, equitable executory
interests and legal executory interests
 3 possibiltiies of contingent interests in GRANT TO USES or will
a) Defy legal rules from outset- treated as executory so free from rules
b) Comply with rules at outset- ie vest in time
c) Be capable of complying but may not do so
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Re crow
Testator devised a farm to grandsons R and W for their lives with remainder to their children. If they had none,
children of two other grandsons were to share remainder. J and C had kids after w and r died. Court held the
interests were legal and subject to remainder rules. The remainder of w’s life estate could have vested during
lifetime but it didn’t so could not be construed as a legal executory interest and subject to natural destructions
POLICY:reform of law of future interests
 Only Manitoba had act that didn’t repeal statute of uses but made it irrelevant by providing all
successive legal interests whether valid at common law or as executory interests would take effect as
equitable interests behind a trust
 OLRC want to impose statutory trust whenever successive legal interests created and abolish statute of
uses. It would abolish legal remainders and make common law rules regarding them irrelevant
THE MODERN TRUST
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Through device of “use upon use” the courts allowed conveyances that split legal and equitable title in
same way before statute of uses, 1535
This device became basis for trust where assets conveyed to a trustee to manage on behalf of
beneficiaries
inter vivos trusts, statute of uses must be invoked still to create a use upon use
o I.e. “ to the use of t in trust for a”
Corporate trustee: when trust deed to corp trustee don’t need formula b/c corps exempt from statute of
uses
Provincial leglation: testamentary dispositions gov by prov & deems personal rep of deceased (ie
executor if will or administrator if not) TO BE TRUSTEE of assets
Effect: Statute of uses has in effect been repealed to testamentary dispositions.
Personal property: while estates cannot be made for personal prop, a trust AT EQUITY can be
MODERN FUNCTIONS: TRAD. To protect minors/vulnerable or in investment world (pension funds
as trusts or in philanthropy) ….landinvestments now

G grants to A and his heirs to the use of B and his heirs in trust for C and his heirs
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G grants to B and his heirs to the use of B and his heirs in trust for C and his heirs
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G grants unto and to the use of B and his heirs in trust for C and his heirs
The trustee and beneficiaries (can be same person*)
 Trusteeo legal title to all trust property with accompanying rights of disposition, management and
possession but diff than their own property ie none of trust property can go to creditors if go
bankrupt
o MAIN duty: fidicuary to the beneficiary and not use person interests to influence decisions
o Other duty: to be prudent investor- meet a certain threshold
o breaches: B has personal action; if sells estate, recover if not bona fide purchaser w/o notice
 beneficiaries
o have equitable title- or beneficial title which involves right to enjoy net profits of trust
propertyin proportions set out in trust
o usually no possession of property but can ie home
o interest is fully alienable, liable to be mortgage and for debt
Ending the trust
 Usually by specified time in trust document
o ex it creates equitable life tenancy followed by remainder to a kid its common that trustee will
sell trust assets on death of life tenant and then give proceed to kid so that trust would end since
full owner in law and equity
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
BUT beneficiaries can terminate the trust prematurely, contrary to the trust creator’s intention.
o Requirements: If all the beneficiaries of a particular trust are of the age of majority, of sound
mind, and have no conditions attached to their interests, they may together demand that the trust
be ended and that legal title to them
o trust assets be transferred to them in the proportions to which they are entitled under the trust
instrument.
POLICY: LAW REFORM
 estates in land and extension to personal property by means of trust allow flexibility
 many archaic rules and in Canada except in Manitoba but even they have troublesome not much
reform distinction b/w determinable and defeasible estates
 judges unwilling to change them b/c deferring to legislature and they haven’t and can only change 1
rule at a time
 lack of budgets in 90’s law reform commissions in some provinces including Ontario disappeared. New
ones created but who knows if they’ll change it
Ch.5 TRANSFERING PROPERTY INTERESTS BY GIFT OR SALE: ROLE OF
EQUITY
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contract: transfer of property involves mutual exchange of obligations/promises that are enforced by
legal & equitable remedies for breach
gift is unilateral gratuitous transaction which is non-bargain promise, and not enforceable
need for lawyer even for gifts, ie mivhael gruen v kemika gruen –promised painting for birthday but
would have attracted tax
transfer by : gift inter vivos or deed of gift
Transferring property interests by Gift
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sometimes regulated by law, ie 1884, outlawed potlatch (seen as wasteful gifts)
not all legal cultures treat gift separate from contract ie civil code of quebec treat gift as obligations,
1)
o
o
o
gift by inter vivos
real prop or personal prop made by deed or gift by declaration of trust
if big chattel can use deed
personal property also by delivery if intention from donor & acceptance by done
2)
o
o
o
o
deed of gift
deed: doc in writing, signed by donor, sealed (can write seal) & delivered (seal for consideration)
property: deed transfers title to done from moment of delivery so if donors withholds pos, breaches
chattll: usually if big
requirement of delivery: need evidence that person executing deed intended to be immediately and
unconditionally bound by it BUT not necessarily physical delivery
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Schilthuis v arnoold (marriage plans = no gift if unfilled condition)
Facts executed a deed conveying one-half FS to donee, then 2nd deed giving remaining one-half interest
as well after discussing marriage but when it didn’t happen wanted to set aside 2nd deed.
Decision- TRIAL valid gift, gift separate from marriage plans, lasting consequences for a gift,
APPEAL- gift conditional on marriage and no gift if condition unfulfilled.
Gifts inter vivos: delivery, intention and acceptance
 3 criteria if no deed
1. intention to make a gift by donor
o Dill Thomas looses manuscript and tells cleaverton if he can find it he can have it, but when he
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dies he fights with the widow. Court says yes there was intention to gift it.
2. acceptance by donee
3. delivery- provides proof of gift & demonstrates intention, ie cannot declare will give a gift at a wedding
unless act of delivery before, during or after declaration (all about transfer of control/possession)
Delivery
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In re Cole, 1964, CA (if live together= no delivery, no gift here for furniture; (bankruptcy)
facts husband went bankrupt but wife says furniture is hers. He told her when she came to the house its
all yours but he was insured for it.
Issue: how do you prove delivery if live together?
Decision- no gift
Analysis:
o wife argues : bringing her to chattel is enough for delivery with words of “gift”
o need delivery: if no deed/will need it for consideration (Cochrane)
o no trust: will not convert imperfect instrument into a trust
o witervv winter delivery can be “constructive delivery”- worked on fathers ship and gave it to
him after but this was sufficient b/c delivery before gift b/c actual pos before.
o Lock v heath- if bulky can have “symbolic delivery” ie chair
o Test- has there been delivery or change of possession before or after words of gift?
o No change of possession: putting her in house is not enough
o need delivery b/w spouses (ie said pony is hers) bashall v bashall shows
intention of donor wanting to transfer
o rejects Ramsay v margrett which wife relies no authority bc wife bought from
husband
o rejects Vallier v wright- car not wifes bc no actual or constructive delivery
conclusion: when wife lives with husband, she uses the furniture but no more posession of it than a
servant who uses furniture
delivery according to bashall need act of delivery to show donor wanted to transfer, here it cannot be
shown whether wanted her to use it or own it
 importance of intra-family- may need deed or gift
Langer v mctavish brothers, 1932 BC
 Man brought fiancée to new home, showed furniture and said its all yours, Court: yes it’s a gift
Different b/w langer & cole:
 fiancée in langer is diff than married & living together
 in cole, wife is trustee for bankruptcy so concern of invalid claims to avoid paying
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Second judgement pierson this is a question of evidence, if wife wants to claim a gift she has onus of
proiing it was a gift.
Has to show husband intended it ws gift, facts here are inconclusive.
mcleod estate, 2012, AB ( husand gives tools upon dying to wife (live 2gether) delivery is unnecessary
mackedie estate , 1998, BCJ (dad kept in his possession but fine b/c “wrapped up” for birthday (paintings)
 Deceased owned 5 paintings, he wrapped them up and gave to his son on each birthday but he kept them
in his pos, in will left them to someone else.
 Court said yes gifts b/c “”wrapping” is delivery even tho still had it; intention, including birthday card
Constructive and symbolic delivery
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Expression of intention that preceded by or followed by delivery may allow constructive when chattel
too large ie car; delivery = change of control ie keys
Bauernschmidt (need both sets of keys or no change of control) gift in safety deposit box but kept 1
Tthomas admr –when gave the only key to safety deposit box it was gift
Intent vs motive in law of gifts
Mcnamee v mcnamee , 2011, ONCA (motive is irrelevant so long as its gratuitous)
facts
o Man separates with wife but his dad transferred him 500 shares in his business; written declaration of
gift and the delivery of them
Issue: is it a gift, b/c gifts excluded in Ontario family act
Decision
- Trial No gift b/c fathers concern not altruistic one but rather to protect business from creditors
- Appeal – confused motive with intention- intention was to transfer gratuitously; motivation is irrelevant
Acceptance by done
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Need not be explicitly acceptedie acceptance presumed until dissent even if not aware of gift
Ie beaverbrooker art gallery thought paintings on loan so couldn’t accept but still gift
In standing v bowring 1883- p transferred stock to joint account to man however it was a secret, when
she got married told him it was a gift and asked for it back but refused. Court said donee right to decide
whether to accept when learn about it
Thus- common law seems to view gifts unilateral so don’t want to make acceptance formal requirement
Gifts inter-vivos: declaration of trust
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Also possible for donor to retain legal right and transfer only equitable title to done.
Property: transferred to trustee (holds legal FS) & holds for benefit of B (equitable interest)
Governed by trustee act: trustee cannot use for own benefit
Enforceability: trustee against all but Benficiary against all EXCEPT bona fide purchaser w/o notice
Notice: was trust document on the registrar in relation to the property, if so that is notice
Watt v watt estate, 1987, appeal
Facts:
o after Richard watt died, Shirley watt (unrelated) said he signed the boat to be jointly owned by them
o His widow denied it and trial awarded her the boat. Widow is appealing.
o She helped work on boat & when done R gave her set of keys and her family had free use on it
o Log book showed her as an owner
Decision: given express trust
o Not gift: duplicate keys so suggests use; no delivery of control/possession
o Richard was trustee: for shierleys 1/2 share: gets ½ interest in boat, not sole title
o The letter says she is joint owner and if sold that she gets half and even told people she owned part
o In Cochrane v moore – B who owned horses gave ¼ interest in a horse to Cochrane but wo delivery, he
later sold all horses including the one given to C to Moore. She was trustee for ¼
- Courtl look at context as whole, ie doc, partial control & saying even tho doesn’t meet gift it is a trust.
Cochrane v moore, 1890, (given trust, no gift b/c no delivery of horses)eng involved race horse named
kilworth; benzon gave moore a quarter interest in it through words of gift, but after borrowing money
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o
o
from Cochrane he executed doc saying that horse and others would be hers however cochrane says he’ll
recognize moores interest. Moore said could sell it b/c his gift was done before the execution of that
doc. Trial : no delivery needed
no valid gift to moore b/c no delivery
trust: c knew of moores interest and said it was alright so he became a trustee for moore.
Express trusts (usually in writing; deed of trust but can be oral)
 Trusts first recognized in 17th c when courts of equity provided protection for grant of use upon use.
 Usually execute a deed of trust, defining property that is to form the trust; can be done orally
 3 things 
1.. Intention to create a trust
2. Subject matter of trust ie duties of trustee/property
3. Objects (beneficiaries)
Resulting trusts (no intention to gift; only intention to transfer property interest)
 when transfer of property w/o an intention to gift ie possibly deed but no delivery & no intention to gift.
 Ie a may transfer to b to avoid creditors and b holds in resulting trust
 Can also occur when a person purchases property in name of another w/o intending a gift
Constructive trusts NO INTENTION to create trust; situations of unfairness; just 1 type of remedy)
 Rationale: arise even in absence of intention to create a trust; prevents unjust enrichment on part of
title holder when others have contributed
 especially, to cohabitation- unjust not recognizing an interest when valuable contributions to property
 court can declare: holder a constructive trustee and person contributing a beneficiary of defined
interest that corresponds to contribution
 REQUIRES:
A) B is enriched
B) A suffered deprivation
C) NO juristic reason for A’s contribution
 Constructive trust is only 1 type of remedy to unjust enrichment
Pettkus v becker, 1980, scc
 No trust b/c even tho Becker didn’t spend money/labour over 20 yrs to be gift, her partner said he
didn’t INTEND to hold property for her benefit
Capacity
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Intention requires capacity
Csada v csada, gave 2 gifts to brother& claimed undue influence, trial: intention & capacity
Transferring interests in land: legal and equitable interests
The Pre-Conditions for Conveyance
(1) The transfer must be in writing pursuant to the Statute of Frauds
(2) The contract has to be capable of specific performance
(3) There must be a valid contract in accordance with contract principles
(4) The vendor must have the title and be able to convey
A. conveyances and contracts for sale
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only transfer land through deed
o conveyancing and law of property act- and registry act require deed & registration to
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transfer interests in land to be enforceable against third parties
Before Contract
Vendor (fee simple)
Vendor (fee simple)
Law
Equity
Contract
Vendor (fee simple)
Purchaser (fee simple)
Conveyance
Purchaser (fee simple)
Purchaser (fee simple)
2 Step Transaction:
1. CONTRACT for the sale of land (agreement of purchase and sale): the vendor
and purchaser agree on the terms of the transfer and on the date when the title will
be transferred; purchaser does a deposit- its consideration
o Owner has legal fee simple interest
o purchaser: equitable fee simple b/c assumption of k being performed in equity ie
specific performance, not damages (look at semlgago), carries risk of loss to prop
but K alters this.
 transform to equitable FS IF a) k capable of SP, b) k is valid c) k
complies with statute of frauds
 What if vendor & p sign K but before closing, vendor signs deed with 3rd
party? Purchaser enforces if 3rd party is not a bona fide purchaser w/o
notice (3rdparty has legal FS through deed). Should register land to give
notice
o
2 trusts created at time of k (lysaight v Edwards)
1) Vendor for purchaser- in relation to land, vendor is trustee so liable if
wilfully damages or doesn’t take reasonable care
2) Purchaser for vendor- in relation to purchase price
-
o NOT transferring legal fee simple under deed in part 2
Rationale for gap b/w closing and contract purchaser needs time to check register, home inspection
2. Conveyance of the legal fee simple estate by a DEED of transfer: (the closing date).

Problems may occur b/w date of contract and date closing –
o P gets both legal FS + Equitable FS interest so long as transfer abides by Statute of Frauds,
1677 (received by England) OR by s.4 of land registration act by doing it electronically
o Effect: legal FS transferred only when deed signed by parties & only then recognizable interest
o Rationale ensure written evidence of transfers of interests in land, thus preventing fraud
o “reduce the opportunity for perjury…[which] was easy enough when a contract for
the sale of land…could be created orally
o S.1(1)Requires writing and signed by parties or else result in estate at will only
o S.1 (2) requires leases are void unless made by deed
o S.1 leases under 3 yrs excluded from operation by s.3 so don’t need writing
Equitable interests in agreements for purchase and sale
Specific performance
Sharpe [w]hile the availability of specific performance was shaped and explained by the historical factors
produced by the division between law and equity, courts are becoming less willing to justify
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decisions in terms of historical categories and more willing explicitly to recognize and state
underlying principles.
Lysaght v Edwards (1876) (purchaser uses equitable interest for SP for vendors estate to transfer legal FS)
 Decided shortly after common law fused with equity
Facts: purchaser paid deposit and agreed upon closing date
in interval b/w time of k for sale and time when supposed to transfer deed, vendor died – cannot sign
deed after death
o Purchaser who has contract with now deceased is trying to enforce contract against estate (3rd
party)
Decision: successful b/c has equitable estate at time of k before gets legal estate when deed transferred
Vendor has right in court of equity- pay me or lose estate & back to owner,
Reaons: 2 trusts created at time of k
1. Vendor for purchaser- in relation to land, vendor is trustee so liable if wilfully damages or
doesn’t take reasonable care
 if purchaser dies, vendor can ask for price against his estate
2. Purchaser for vendor- in relation to purchase price
 Purchaser to get vednors estate to transfer
Semelhago v Paramadecon, 1996, SCC (TEST for SP- MUST be “UNIQUE” (OBJ)to get SP over damages)
Facts vendor reneged on agreement for sale in context of risking prices. Purchaser supposed to buy for
205,000 but time of trial worth 325. Purchaser sued for loss of 120 but purchasers home rose in value as
well (110 in profit)
Trial and appeal gave the profit, 120
SCC: gave SP
o Damages v SP may need to be reconsidered in light of modern real estate developments (not as unique)
o Test for SP: must be unique “substitute would not be readily available”(objectively) or else damages
Criticism:
- What is “unique”? Da silva: to use damages instead leaves purchaser unfairly undercompensated b/c
damage award may fail to account for purchaser’s unique interest in prop.
,
John E Dodge Holdings 2003, OR TEST for uniqueness (SUB now)- suitable for intended use not available
elsewhere, (got it here;wonderland)
Facts: vendor (d) agreed to sell commercial land to P (close to wonderland & P wants to build hotel)
o Breach of agreement, purchaser sought specific performance but vendor said not unique
Decision: SP b/c unique
o From semerhago- specific p only if p can show unique “substitute would not be readily
available”
test unique (subj): must show property has quality that makes it especially suitable for
intended use and cannot be readily duplicated elsewhere
 Should relate to proposed use of property, quality that makes it particularly suited for
that purpose
Application unique so SP, closer proximity, lower price etc
Note this case seems to have made it easier for p so maybe responded to criticism of
semelhago
- Here its commercial vs private, hard to plan for b/c don’t know what would be unique, easy for P’s
Statute of frauds and contracts of sale
Acting on breaches: need in writing or electronic (s.2) and person charged to sign (s.4) OR ELSE look to
part performance below.
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S.2-Requires deed for land in writing
s. 2 provides that no estate of freehold or leasehold can be “assigned, granted or surrendered”
unless by deed or note in writing signed by the transferor
 Prevent fraud b/c hard to prove orally
land registration reform act, 1984 changed s.2- need not be in writing if electronic.
S .21. Despite section 2 of the Statute of Frauds Act… an electronic document that
creates, transfers or otherwise disposes of an estate or interest in land is NOT REQUIRED to be in
writing or to be signed by the parties and has the same effect for all purposes as a document that
is in writing and is signed by the parties.
s.4 of SOF-TO have equitable interest need to have K in writing signed by party to be charged
4. No action shall be brought to charge…unless the agreement upon which the action is brought,
or some memorandum or note thereof is in writing and signed by the party to be charged therewith
or some person thereunto lawfully authorized by the party
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Ie if A and B make a K, and A tries to sell with C, then B can sue A but only if he signed it
Party charged differs- IE Whether A backs out or A, person charged needs to have signed
“gazumping” A makes K with b and C but only b and C signs and NOT A
PART PERFORMANCE: EQUITY BEYOND THE STATUTE OF FRAUDS
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Rationale: b/c s.4 can cause fraud so equity will intervene with part performance
NOT enforcing K enforces equities b/c k doesn’t meet s.4

the Court is not asked to give a better remedy in aid of a legal right, based on the contract, but is called upon to enforce
an equity (independent of the Statute …) which has arisen by force of circumstances subsequent to the contract itself,
namely by acts of part performance sufficient to attract the equitable jurisdiction of the court

requires evidence of what p did (part performance) and inferring from it the existence of k and what
terms were (as long as acts can be explained by alleged oral K, court overlooks no written K)
result: PP can enforce a k for sale of land even if k doesn’t meet s.4 of statute of frauds
As long as act done which can only be explained by alleged oral k court overlook no written evidence of
o For ex, vendor makes oral agreement to sell land and before execution of deed, p pays for
improvements but then vendor refuse to execute a deed relying on statute of frauds
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TEST of Part performance) Deglman v guaranty SCC (Mere payment of money not sufficient for PP
o Cartwright:” part performance relied upon must be unequivocally referable to the contract
asserted. The acts performed must speak for themselves and must point unmistakably to a
contract affecting the ownership or the denture of the land and to nothing else”
1. Performance must be unequivocally referable to K
o means basic terms of agreement can be determined with enough precision to enforce
agreement
2. Acts relied on to establish part performance must have been performed by P
o “unequivocally referable to contract”
o Diff of acts of preparation, ie taylor- doing conveyance can be seen as prep
3. K must be one that, if were properly in writing, would have been specifically enforceable
4. Must be “clear and proper evidence, either oral or written, of existence of a K”
-
deposit is not part performance but payment of purchase price is
Taylor v rawana, 1990, or (inferred PP from repairs; p more credible than D)
o P states D agreed to sell land with down-payment payable over 2 years. P moved in and made
repairs; p says had K but D kept copy; D says only tenant & that sale over 6 months
o Decision- p more credible and agreement existed and numerous actions that p did to constitute
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performance of agreement. Said principles in deglman fulfilled . ordered d to sell
Starlite Variety Stores v Cloverlawn (1979, Ont CA) (Macs; gets damages; look at reliance)
Facts:
o
Draft agreement to lease with verbal terms; Meyers from S gives to clovers owner (didn’t negotiate with
him), which is signed by meyers with deposit but not signed by C; clover assigns mall space to macs (doesn’t
know about S); s.4 is barrier; S also does some work (shelving/construction/buys ads) so wants to rely on PP
to establish oral agreement
Decision: p has equitable interest based on PartP but cannot enforce b/c macs is bona fide purchaser w/o notice
so gets damages instead
Reasons:
o The signature of clover is standard form (letterhead) but ON (unlike England-leeman) need signature
o Differences b.w preparation & pp acts: air condition can be seen as prep; has to be acts that
demonstrate reliance on a K Ie
o Payment of deposit still doesn’t count (adhere to delgman) but ads/shelving does
o THUS: agreement to lease is enforceable& D breached so damages (20000 but no reason for number)
o Look at inequity of performance of actions in reliance on something, and if can find those
acts and link them to a promise, we will recognize the existence of an equitable interest
Alvi v lal, 1990 – “[w]hatever may be the current judicial trend, it seems clear that until the Supreme Court of
Canada accepts Steadman, the payment of money cannot constitute part performance of a contract involving
land.”follow deglman
Neighbourhoods of cornell v ontario, 2003, declined to take Steadman, I am bound by Deglman…This rule
requires that a plaintiff who relies on part performance to take an oral agreement respecting land out of the
operation of the Statute of Frauds must show that the acts by themselves unequivocally refer to a dealing
with land of the kind which is alleged to be the subject matter of the agreement sued upon
Neighbourhoods of Cornell, (reasons why steadman isn’t good- part P should be narrow for land or abolished
for sale of land)
- judge seems to come up with reasons why not to use Steadman
o Courts in Ontario consistently considered themselves bound by Deglman
o Even if weren’t bound, would not use Steadman
o Would be unwise to relax requirements of part performance for agreements for purchase and
sale of land
o Looks at amendment to equivalent of SoF in England – England is getting rid of principles of
part performance
Suggest failure to have agreement in writing goes to validity of contract, not mere
enforceability
Principles in context
Hollet v hollet, 1993, newfoundland (likes Steadman more; excavation doesn’t count; family context)
Facts
 D verbally agreed to give brother ½ land to make home, p would pay for ½ purchase price in 1965;
made 4 payments b/w 65-66 but stopped b/c afraid wouldn’t get title; D tries to sell in 1986 & p wants
½. Brother gave receipts but saying “payment of sale” not bill of sale
Reasons
 Complied with statute of frauds b/c receipts establish parties to the k, consideration and subject of k
 Only question is whether “for payment of land” describes subject matter implies purchase
 “ it is an open question as to whether the Steadman approcach is the law in Canada”
 It seems to me that a court ought to be sensitive to the fact that land holding, from a practical point of
view, is often based upon arrangements which do not fit neatly into formal legal categories
 if follow deglamn –won’t satisfy test b/c common in that community to allow family to build houses on
property w/o asking whether gift but it would pass Steadman
 Wants to move toward Steadman
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future developments
Erie Sand and Gravel v Seres Farms (deposit with offer wont always count as PP but here PAYMENT OF
FULL PURCHASE PRICE and third party HAD NOTICE)
Facts:
- Sand & Gravel want to buy land but seres farm said TriInc has right of first refusal (have 5 day to match
all terms and vendor has to accept) so they negotiated offer (agreed to terms) and they would get it
UNLESS tri matched offer, Erie gave written offer and full price; Tri didn’t match but got it anyways
Issue was there agreement to agree or a k? if k was there part performance
Decision: The court upheld the trial decision of ordering Specific Performance to sell to S&G
Reasons:
Is it unconscionable to allow tri b to benefit from s.4
o HILL principles if one party to an otherwise unenforceable agreement stands by while the
other party acts to its detriment by performance of its contractual obligations, the first party
will be precluded from relying on the requirements in the Statute of Frauds to excuse its own
performance.
o Eerie did suffer detriment bc didn’t get property they needed
Test: IS there pp?
o delivery of an offer to purchase land, with a deposit, will not normally amount to part
performance..[BUT] the offer was not in standard form and the “deposit” was not a deposit in
the ordinary sense..as it was for the full purchase price.
o We have a situation where T Ltd is NOT a BFPFVWON so it is possible to have an order for
SP
Ch. 6 CONCURRENT INTERESTS AND FAMILY PROPERTY
-
Concurrent interests in property: two or more persons hold shard interests
-
Historically, such concurrent interests were used in conveyances to uses to ensures that the “owner”
never died and thus avoid feudal incidents
In modern times there are numerous examples of interests held as concurrent interests:
o Arguments are made by environmentalists about interests held “in common”
o Aboriginal title has been recognized on the basis of “communal” rather than individual interests
in land
Sometimes CL restrictive, for example, some western provinces attempted to restrict communal landholding arrangements among the Hutterites
-
-
Distinguishing Concurrent Interests
- Understand concurrent interest entitlement of property holders to share possession
- Distinguished from:
o Successive interests: e.g. to A for life, remainder in fee simple to B
o Trustees and Beneficiaries: e.g. unto A in trust for B
 Although A holds legal estate, A does so on behalf of B, who is likely in possession
- Concurrent holders of interests more likely to occur among family members, especially spouses
1. Joint Tenancies
-requires 4 unities and right of survivorship (so cannot will interest away)
o 4 unities:
 1. possession: right to possession of whole
 2. interest: must have same interest in property
 e.g. must both have fee simple
 3. title: must have on document that is creating joint tenancy
 Ie both from same will
 e.g. can’t have grant from A to X and from B to Y to create unity of title for X
and Y  they would just be tenants in common
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o
o
o
o
o
o
o
 4. time: must each gain interest at same point in time ie not from will of dad & mom
Entitlement: Both completely entitled to whole interest
If 1 one dies: their interest extinguished; sole title holder (NOT passing b//c cant will it
away)
If both die: s.55- unless contrary intention assume TIC
If 1 unity is destroyed: severed and TIC
if one person tries to sell joint tenancy, it results in severance of joint tenancy and becomes a
tenancy in common
presumption of TIC”in statute so need to write joint and not TIC”(fairness, do what you
want)
cl liked it b/c easier to trace owner
Succession Law Reform Act (if both die: TIC)
- s.55: unless contrary intention appears, when 2 or more joint tenants die at same time (or impossible to
determine who died first), each person deemed to have held as tenant in common
- s.43: 2 corporations, or corp and individual, are capable of holding property as joint tenants in same way
as humans
Conveyancing and Law of Property Act, s.13
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.
-
solution: “To A and B in fee simple as joint tenants, and not as tenants in common”
rationale: equity: do what you want with your interest.
Cases interpreting s.13
- Mitchell v A
o people receiving interest got it as executors and concurrent interest as beneficiaries under estate
- Campbell – s.13 doesn’t apply to conveyance in agreement for purchase and sale
o Court said presumption for tenants in common did not apply b/c agreement for purchase and sale is
just a contract, and not actually included in language of s.13
Reform:
- Some say need for same interests is wrong and allowing both”joint tenants with survivorship or “both
without survivorship”
- Courts in BC have denied severing interest 70/30, holding that courts can only divide concurrent interests by half
interests (Re Speck). This decision sparked reform proposals from the BCLR.
-
2. Tenancies in common:
Requires: possession (no right of survivorship so that tnenants in common can will away interest)
o
each person has undivided share of 50% interest, but each entitled to possession of whole
McEwan v Ewers and Ferguson
Facts: in will leaves LE to wife, 1 lot in FS to son; other 2 lots in FS to 2 daughters; one daughter dies
and devises interest to brother, sister argues she is now sole tenant
to my daughters jointly, if they decide to sell they should be entitled to equal share of profits”
Decision: tenancy in common
Reasons: looks at words of will
o CLPAs.13 (then 12) says unless explicitly states otherwise, assume tenancy in common
 unless on face of will there is clear intention to create joint tenancy, will assume it is
tenancy in common
 “jointly” implies joint tenancy according to common law
 POLICY: common law liked joint tenancy b/c easier to trace history of title if
when each joint tenant dies their interest extinguished until end up with sole
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owner BUT statute has reversed this.
“equal share” implies tenancy in common
 also words like divided, equally
 “anything which in slightest degree creates intention to divide property…
creates a tenancy in common”
brother could inherit interest as left in will b/c tenancy in common

o
condominiums
o
o
o
o
a)
b)
c)
d)
e)
In co-ops people hold shares and tenants have rights to each particular unit
Condominium act
 created so that only interest in unit and NOT land
 Tenants in common so condos attractive b/c get FS to unit AND TIC with other unit holders in
relation to structure, walls, water, hydro & amenities (from CA, not CL). Positive covenant b/c
need to pay for “pool, roof”,
 Also enforceable covenant 3rd P: very hard to enforce positive covenant against anyone other
than parties to the K (even tho can enforce negative ones) so issue is that when tenant A agrees
to pay convents but then transfer to B but B hasn’t signed the K BUT the act overcomes
this by statute conveants are enforceable against third parties.
Area for reform: some don’t like TIC (all pay for new roof) & when they lease board members decide
on matters
Review finds 5 issues of the ACT:
Governance arrangement
Methods for dispute resolution
Financial management- condos fees/reserve fund
Transparency of cost of condo living: ie condo fees up up
Qualification and training of condo management
FAMILY CONTEXT
CLEMENT: People experience class not only as individuals but through households, both within the household
and between the household and the labour market. We say “people” but in fact the experience
is specifically gendered. Men tend to be empowered by their households, while women
have their powers diminished because of domestic responsibilities.
This is one area of Property Law which has been substantially reformed, especially in response to the increased
accessibility of divorce in Canada after the enactment of federal divorce legislation (for the first time) in 1968
Trad: marriage the husband and wife is one person”…so no property/father could make her a trust tho




Divorce act, 1968- first act but need parliamentary divorce (highly restrictive)
Divorce act, 1986- 2nd one but no provisions to share property b/c Fed act & prop is prov
Family Law Reform Act (1978: Ontario) Public opinion sided with Mrs. Murdoch and the dissenting
judgement. This statute was enacted for the sharing of matrimonial property at divorce or separation.
Family Law Act (1986: Ontario) replaced the Family Law Reform Act. Provided for equal sharing of all
“property” (defined broadly) at the end of the marriage.
Section 4 of the Family Law Act states that “Property means any interest, present or future, vested or contingent, in
real or personal property and includes:
 Property over which the spouse has, alone or in conjunction with another person;
 Property disposed of by a spouse but over which a spouse has, alone of in conjunction with another person, a
power to revoke the disposition or a power to consume or dispose of the property;
 Entitlement under a pension plan”
 In divorce, the title of property does not pass, but there has to be an equalization of value.
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Property and the Impact of Divorce Reforms
Murdoch v Murdoch (1975) – divorce act
The Murdoch case (1975) was the first major case to reach the SCC after the 1968 Divorce Act. Wife and husband
were ranchers & worked hard on it, after 25 yrs of marriage husband had title to all prop; she wanted some
Issues:
What kind of claim can be made? (The Family Law Act was not in existence)
Analysis:
 Trial- no partnership but gets spousal support
 Trustee (Mr. M)?
o No resulting trust- must be an intention to create a resulting trust (needed at time); in order to show
intention you had to be able to show that you contributed financially; no financial help, “just a ranch
wife”
 no claim to any of the property
 DISSENT: Laskin, J suggested entitled to a beneficial interest pursuant to the doctrine of constructive trust

AFTER THIS CASE- many provinces reformed laws due to public reaction
Professional Degrees and Property
A LLB degree -property in Corless, -said no value though
MD and PhD NOT prop in Keast and Linton respectively.
All of these decision were remedied with an order for spousal support; even though the LLB degree was recognized
as property in Corless, the court held that it had no value.
Caratun (professional degrees NOT property (overturning trial judge (said prop b/c gave constructive trust)
was based on three premises:
(1) Profession degrees are not transferable
o Degree belongs to person who has it so doesn’t fall in trad definitono of prop
(2) Professional degrees require the personal efforts of the holder; so potentially not worth anything
(3) The only difference between such a license and any other right to work is in its exclusivity
(4) Too complicated to assume work qualifications are property- system would be inefficient to examine
a. Embedded in this final consideration is a concern about the “floodgates” that would be opened
otherwise;
b. Because licenses are not property they cannot be subjected to a constructive trust
Policy:The court was also concerned about the inherent difficulties in valuing these licenses in the equalization
process and the fact that professional degrees are inherently non-transferable.
criticisims
-
-
(1) similar to pensions - included within the definition of property pursuant to s. 4 of the Family Law Act,
they possess similar issues with profession degrees (difficulty in valuation; not transferable)
(2) similar to assessing tort claim: Valuing profession degrees is not that much more difficult than that
Contrast with the US where there are three basic approaches: reimbursement of costs; sharing in an enhanced
capacity; opportunity costs
o Remember that Mrs. Caratun’s claim is cased on the assertion that she supported Mr. Caratun while
he was pursuing his dental degree
(3) inconsistent with idea that prop is abouty rel among us in respect to objects
(4) better off in business partnership McCollum
o
-
1. Mrs Caratun paid premium to join partnership (gave up own aspirations to support
partnership),
o 2. There has been misrepresentation on part of partner – she thought she was supporting him
thru degree to benefit family unit, but seems this was not situation as he divorced her as soon as
had degree and seems was his intention all along
“woman who sacrifices own career opportunities to support husband, she is making a bad
investment…”
“but legislation works best for women who least need it – those who have resisted idea that marriage is
a partnership and invested in themselves”
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Cohabitees and Constructive Trusts
Current Context
 The statutory regime in Ontario and in other provinces concerning property – sharing at separation or divorce
initially applied only to married couples. This limited application (excluding cohabiting couples from these
remedies) was confirmed in SCC decisions in Nova Scotia v Walsh and again in Quebec (AG) v A in 2013 –
do not be concerned about the cases beyond the fact that the SCC decided that there was no Charter
infringement in treating married and cohabiting couples differently
 Some provinces (Manitoba, Saskatchewan, Northwest Territories, Nunavut and BC) amended their family
property legislation to include cohabiting partners who have been together for legislatively-defined periods of
time
 Other provinces (Nova Scotia and Quebec) provided arrangements for “civil partnership” regimes in which
cohabiting spouses (and sometimes any two persons) may register themselves as “registered partners” and
they then automatically have the same rights re property sharing as married spouses if their relationship
breaks down
 ONTARIO
 In Ontario, cohabiting partners have NO entitlement to share in family property at the breakdown of
their relationships pursuant to the Family Law Act of 1986. This statute basically provides that the
spouses in a marriage shre equally in the value of all the “property” at marriage breakdown
 By contrast, cohabiting couples hold title to whatever property they have at the end of the relationship,
even when one of the partners has made significant contributions to property owned by the other. In some
cases, this results in unfairness
o What is the law’s response?
o Is there an appropriate remedy for possible unfairness
Remedies for Cohabiting Couples in Ontario
Two Steps:
(1) Is there unjust enrichment?
a)enrichment of party
b)deprivation of another
c)absence of juristic reason
(2) What is the appropriate remedy?
a. Quantum Meruit (monetary remedy)
b. Constructive trust
Pettkus v Becker (1980) SCC (business; given constructive trust; TEST for constructive trust/UE
Cohabiting relationship of 19 years; business together and acquired property together under Mr. Pettkus’s name.
Analysis:
 constructive trust is appropriate where:
o Requirements: One person in a relationship tantamount to a spousal relationship prejudices herself
in the reasonable expectation of receiving an interest in property and the other person in the
relationship freely accepts the benefits conferred by the person in circumstances where he knows or
ought to have known of that reasonable expectation, it would be unjust to allow the recipient of the
benefit to retain it
o There will be different remedies where the link between contribution and property cannot be shown
[quantum meruit]
 The following unjust enrichment elements must be met in order to justify a constructive trust:
o (1) the enrichment of one party
o (2) the deprivation of another party
o (3) the absence of any juristic reason for the enrichment
 This last element involves juristic discretion
(4)INTRODUCED 4th here- “nexus requirement”-causal connection b/w acquisition of prop &
deprivation
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

-

Policy/legislation: Pettkus tried to argued that the legislature had already decided that there was no good
reason for property sharing for co-habiting couples when the relationship ends
o Dickson: not applying the Family Law Act, but applying an equitable principle
o Equitable jurisdiction came first and takes precedence over the legislature
The SCC NO resulting trust because there would have to be a common intention to create a resulting trust
o not resulting trust bc no “common intention” that Becker would enjoy interest in land
proportion: court must determine proportion of property as remedy in relation to contribution
Concurring judgments
o Ritchie J: don’t need constructive trust, thinks could apply resulting trust, don’t have to deal
with UE
o Marland and Betz: could have relied on existing principles w/o recourse to law of UE and
constructive trust; majority engaging in judicial legislation
 adoption of UE concept involves extension of law, such extension is undesirable,
extension w/o any guidance
Proff: discretionary language: what is tantamount to spousal, reasonable? Does person know or ought to
know?
Peter v Beblow SCC (hone-making and child care should be recognized & CONSIDER DAMAGES B4 CT)
a pernicious one that systematically devalues the contributions which women tend to make to the family economy.”
Reserve lands:





None of prov family legislation applies to reserve land
Reason federal gov has enacted indian act so no room for prov legislation.
There is a need to manage this situation though and none of prov extends
1 issue is that aboriginal community wants to decide
In reading guide, pg 9 legislation enacted at fed level, & it introduced system for family law resolution but
not in effect until 2014
Equitable remedies not used much for aboriginals because of constitutional issues
Aboriginals may resist legislation because want to self-govern


Property relationship in family where located on reserve
- 2 SCC decisions: Aboriginal women living on reserve land in BC experience family breakdown
situation, in both cases women wanted to rely on BC Family Property legislation
- SCC said provincial legislation did not extend to reserve lands bc of federal/provincial division of
jurisdiction
CH. 7: NON-POSSESSORY INTERESTS
Types of non-possessory Interests: (but hae property interest)  all get to do something on another’s land
 Significant usually only end when negotiate with other party
1. Profit à prendre
2. Easement
3. Covenants
-
Some scholars suggest no need for 3 separate categories, should be one “law of servitudes” to replace
easements and covenants
Easements and covenants been used as mechanisms of “private” planning, esp before planning and
zoning statutes existed
o e.g. in relation to conservation and heritage preservation
o may be overlap b/w private and public interests in land
o should also examine discriminatory covenants – intersection of private property and human
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rights law
(1) PROFIT A PRENDRE
-
Permits someone to go on land of another for purpose of removing something
o Could be produce, but usually mining rights (minerals or oil)
o Profit does not permit holder to remain on land or confer any right to possession of land
-
Profit a Prendres are based on contractual agreements (therefore, aboriginal rights made through treaty
rights are not profit a prendres, as they are sui generis – as in R v Sparrow)
-
They are distinct from licenses because a license is a contract, but not a property interest and can be revoked
by the licensor.
enforceable against anybody except the bona fide purchaser for value without notice. (Unlike licenses,
which are not enforceable against third parties)
Mason v Clarke ,ENG (didn’t meet s.4 of SOF so only equitable profit a prendre to hunt rabbits)
Facts: M pays for profit a prendre to hunt rabbits but prevented by owner (oral agreement)
Decision: Mason entitled only to an equitable profit a prendre
o Used equitable principle of part performance b/c didn’t meet s.4
o legal interest need something in writing that corresponds to s.4 of Statute of Frauds
profit not a licence
o Profit preferable: unlike licence, profit could not be revoked at any time with reasonable notice
 licence = revocable - unless something attached to K of arrangement which makes it
irrevocable by licensor
- Definition of Profit a Prendre (545):
o “Confers a right to take from [another’s land] some part of the soil that [land] or minerals
under it or some of its natural produce or the animals feraie naturae existing upon it. For
example, the right to depasture cattle, or to graze sheep is a profit, and so is the right to take
sea-washed coal from the foreshore. The subject-matter of a profit must be something which is
capable of ownership.”
BC v Tener SCC(has profit a prendre mining rights)
Facts: had mining rights but prov gov’t enacted legislation which turned area into a park
- “An integral interest in land in the nature of a profit comprising both the mineral claims and the surface
rights necessary for their enjoyment”
- Granted: compensation in respect to mining rights which were adversely affected by the enactment of
legislation establishing the lands as a Provincial Park
EASEMENTS:

right to use land for particular purpose or prevent owner of land from utilizing it in certain way –
right of way
“”principle of numerous clauses”- reluctance or refusal to recognize new easements.
English law is notorious for its reluctance to recognize new interest in land. Within the particular confines of the law of
easements this reluctance has been illustrated by the fluctuation of opinion over the years on the question of whether or not
new rights may be admitted to the company of the old and well recognized easements”

Easement by prescription: if use land for 20 years (limitation period) similar to pos title through use
Transferability If A has easement, transfers land with easement to C, C enforces against B only if
deed/registered (legal) or orally created (equitable)
o If it was created by deed/ registered (legal) or created orally (equitable)
 No easemenet in gross (unlike US)-ie truckdriver purchase some along highway
o McLean: Easements in gross are progressive idea – “if to give effect to what is a socially
desirable use of property it is necessary to have easements in gross”
- Ontario Law Reform Commissions report: Recommended adoption of easements in gross
-
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4 requirements (Ziff)
(1) The existence of a dominant tenement, which enjoys the benefit of the easement, and a servient tenement,
which is burdened.
o Example: A (dominant) has right to take cattle across B’s (servient) land to reach the river [Ackroyd
(2)
The easement must accommodate the dominant tenement (most significant)
o
o
o
Must confer benefit on dominant land, NOT just the owner of dominant land, b/c that would be
“personal” benefit, not prop interest (ellenborough
 communal park benefits not just owners, but prop to have access
enjoyment and, to some extent, add value or usuability although this second consideration is not
necessary [Depew v Wilkes]-ie cottage and parking
 If have right of way nextdoor then land more attractive-ie mutual easement (each
dominant and servient to other) both more attractive
Critique (gray/symes): may reflect value judgement- assessing merit and types of activities
(3) The same person cannot own the dominant and servient tenements
o
o
If there is an easement and then the land subject to the easement is acquired by the person owning
the dominant tenement, the easement is extinguished need 2 to satisfy 1
If divided to 2 owners again- MAY have easement again but depends ie mutual driveway (easier)
(4) The easement must be capable of forming the subject matter of a grant
o
o
Since the easement permits activities by a non-owner on the land subject to the easement, the
easement must be definable: it is not possible to have an easement that cannot be described in words
in a grant [Re Ellenborough Park] burden defined precisely
Ellenborough Looked at 3 grounds for determining whether this is met




A) The rights claimed not too vague (Garden ok-allows enjoyment)
B) Rights claimed did not amount to claim to joint possession or occupation
Shelf holding- ROW for mining-so detailed it was license, and easement
C) Right to claim is of real benefit and utility not merely recreation
Gypsum Carrier (not easement bc no intention of crown to make one (policy reasons)
Facts: railways companies have right to use bridge (say they have easement in K); want damages from
gov’t (owner) for interference with ability to use it (ship hit it) need to prove prop interest (easement)
Issue: does interest in contract qualify as easement, even tho not called that
Decision: NOT E, even tho K meets 4 criteria NO INTENTION TO CREATE EASMEENT
Reasons:
o Contract satisfies all 4 requirements – but even still, this is NOT an easement b/c have to have
intention b/c no intention on crown to create it
Mossman: wrong, going back to contract law, which considers intention of parties, not property
requirement; Perhaps lawyers should have thought more carefully about nature of interests they were trying to
create BECAUSE GOV’T?
Re Ellenborough Park (garden is easement; accommodates)
- K b/w home owners & contractor to use the garden & nothing to be built on it but transferred to new
people & they claim they have easement
o Right to use garden accommodated dominant tenements (houses) – enhances their
property to have this access, not just owners  increase value of home to have access
Depew v Wilkes (parking cars did accommodate their cottages b.c of usuability)
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-
-
Facts: only way to get to lake and cottage from roadway is to drive across land of servient tenement;
Depew says yes ROW but exceeded by parking cars now; dominants say got easement to park through
extended use (easement by prescription)
Issue: whether right to park their cars “accommodated” their lands
Decision:
o Concluded parking did accommodate land, b/c easement MUST be reasonably necessary
for enjoyment of property, ie increased usability
Negative Easements
-
Positive easement: entitling owner of easement to do something on someone else’s land
Negative easement: restraining owner in context of negative easement (very strict)
Policy: Restrict negative easmenets bc limit freedom and numerous clasuses issue- don’t want to create new property
interests- ones in existence are fine but don’t want to expand.
o
o
Restrict what neighbor can do on own land ie tear down building (phillips)
TYPES: no air, light, support for house or water
Phipps v Pears (no recognition for neg E for weather
Facts: 2 houses side by side very close together (#14, #16), so close together that side of one house not
weather-proofed; when 14 demolished 16 wants damages b/c no weather protection
Decision: does not recognize negative easement for weather
- Reasons:
o No right of support need to actually be ATTACHED
o No right to weather protection no precedent and unfair to party who didn’t plan; could
have made covenant
o Doesn’t want to recognize more negative easements give benefit to 16 that unpaid for 14
 Policy: resect freedom; couldhave made convenant
Fontainebleau Hotel v. Forty-Five Twenty-Five:
 Addition to hotel that would block neighbouring hotels sun and create a shadow over their pool. P
argues negative easement in relation to air and light
 court finds do not have right to air and light in this context.
Covenants


Covenant creates non-possessory interest- property interest
At time had to do a lot of private planning b/c not a lot of committees
POLICY ISSUES AND HISTORICAL DEVELOPMENTS
 Policies: the law needs to balance the rights of land-owners to protect the value of their land by entering
into contractual arrangements with their neighbours; and also the need to ensure that the use of land is
not tied up indefinitely in problematic ways
 History: most of the cases involved individual lawsuits between adjoining land-owners; and thus, there
is not always perfect congruence in the cases
 In addition, common law and equity developed different rules about whether burdens and benefits could
pass to subsequent owners of land
REFORM


law reform commission report- recommend new interest in land called “land obligation” and should permit both
positive and negative obligations and permit transfer of them across transfer of freehold land.
Should include pos and neg, and should exist in gross and not just c’s in connection with land
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

PROFF this would transform covenants but published about 20 years ago so unlikely to see this reform
New develop- “conservation easements” (really an easement)- landowner transfers interest to environmental
organization and owner gets tax break
Terminology
Person who has the burden = covenator
Person who has the benefit = covenantee
Assignor and Assignee (when take over land that had covenants b/w original owners)
 Sometimes mutual covenants so it doubles up
2 CL principles: Burden CANNOT pass but benefit does (if touch and concern land)
Consider the following scenario:
 A agrees with B that A will not build something larger than a personal dwelling on A’s land
 A has the burden of the covenant and B has the benefit of the covenant
 A transfers to C; B transfers to D (both in fee simple)
 Problem is C and D not privy to contract
Two key questions follow:
1. Has the benefit passed from B to D?
o Possible, see requirement below
2. Has the burden passed from A to C?
o No, the burden of a covenant never passes at common law (Keppell v Bailey)
o The burden of a negative covenant may pass in equity
D can enforce against A (contracting party), but not against C.
IN COMMON LAW
Passing of the Benefit
1. For the benefit to pass, covenantee has to have the legal estate
2. Covenantee has to have transferred the legal estate
3. The covenant must touch and concern the land to a future holder and not simply be a personal
covenant (must enhance/benefit the land for the covenantee) ie pay
Running of the Burden (at Common Law)
The burden of a covenant never runs at common law
 Policy: land is alienable & buyers should not be restrained to use it; not to last forever (kepple v bailey
o
“Great detriment would arise and much confusion of rights if parties were allowed to invent new modes of
holding and enjoying real property and to impress upon their lands and tenements a peculiar character which
should follow them into all hands, however remote”
Parkinson v Reid (BURDEN CAN NEVER PASS AT CL
Facts: D’s predecessor in title covenanted for himself, his heirs, and executors and assigns to (1) construct
stairway on his lot to serve as common entrance for both lots (2) to repair/replace stairway as needed and (3)
permit P’s precedassor in title free access via stairway. It has been destroyed, so p wants it replaced
Decision: DID NOT ALLOW MANDATORY INJUNCTION
Duram condominium (it is unfair BUT reform up to legislature and not court b/c require lots of complex
changes and need to maintain certainty in commercial transaction)
Creative Ways to Avoid, “Burden Never Runs With the Land”
 A chain of personal covenants- ie when A and B make convenant also agree for it to pass to purchasers
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A rentcharge – NA
Doctrine of hosol- if claim benefit of deed also take burden- MUTUAL ( B and A agree not to build)
Statutory burdens, e.g. Planning Act,
Special rules re condominiums (chapter 6) ie condo act- statute makes it enforebale
Halzall v Brizell (If claim benefit of deed take burden too- only if benefit to be climed)
a person who claims the benefit of a deed must also take it subject to the burdens.
Requires: (1) a benefit to be claimed under the deed, and (2) only so long as the assignee of the covenantor
continues to claim the benefit.
Durham Condominium Corp (change to CL reform to be done by legislature)
Covenant for payment of expenses in relation to a condominium development. “[the rule that burdens do not run
at law] at times causes inconvenience…its application in some cases may even result in unfairness and the
present state of the law should be modified to meet the needs of modern conveyancing. However, it is my view
that the call for reform is not one for the courts to answer but for the legislature. Any change in the law in this
area could have complex and far-reaching effects that cannot be accurately assessed on a case-by-case basis.
The need to preserve certainty in commercial and property transactions requires that any meaningful reform be
achieved by legislation that can be drafted with careful regard to the consequences” – Charron JA
AT EQUITY
Running of the Burden (in Equity)
The burden of a covenant can run in equity when the person whom the land transfer to acquires the estate with
notice of the covenant (Tulk v Moxhay)
5 requirements for the burden to pass in equity
1. Notice on the part of the assignee of the covenant
o A squatter cannot enforce a burden because he is not a BPFVWN (Re Nisbot and Potts)
2. The covenant must be negative in substance
o The test is substantive (a covenant can be phrased positively, yet be negative in substance), if
hybrid ONLY enforce negative aspect
o The involvement of money indicates a positive covenant
3. The covenantee must have land that is able to be benefitted by the covenant
o Person who has benefit must own land capable of being beenfted from the covenant
o Volvo: homewoners did not have land and consequently they could not enforce the covenant
o Alberta v Molson: the land to be benefitted was too far awar to be touched and concerned by
the covenant
o Re Ballard’s Conveyance: the issue was that there was too much land and the covenant could
not benefit such a large plot
4. The covenant must touch and concern the land
o Canada Safeway v Thomson
5. There must be an intention on the part of the covenantor to bind successors and not just the
covenantor personally (intention to bind successors)
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Gray and Symes: critical of restrictiveness of 5 requirements for running of burden
o anxiety of judges in 19th c to limit kinds of encumbrance that might be imposed on freehold
estate not particularly appropriate in modern life where most ppl live in large cities (611)
o property law of 19th c was highly individualistic
o now most ppl live in incredibly urban environment
o law did not make way for idea of ppl living in close proximity and sharing amenities
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Note that non-competition covenants end up being construed as related to land rather than as personal
covenants (Re Ballard’s Conveyance)
Tulk v Moxhay (if purchaser has notice of convenant with previous seller then cannot act contrary-POLICY)
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T (P) transferred interst to Elms (through deed) and asks for covenant from Elms that he won’ build on
garden & maintain it (2 duties) but then Elms transfers to moxay & tries to build. Wants injunction
Holding cannot do it
 When an equity is attached to the property by the owner, no one purchasing with notice of the equity
can stand in a different situation from the party from whom he purchased
 Covenant = equity, BFPVWN applies and will pass with sale
Analysis
 D purchased the land with a covenant attached to it as to not use the land for any other purpose than as a
square garden
 The resale price would be affected by the covenant, and nothing could be more inequitable than the
original purchaser should be able to sell the property the next day at a greater price, in consideration of
the assignee being allowed to escape liability which he had himself undertaken
 The covenant runs with the land to the new purchaser, and the new purchaser has to adhere to the
covenant that was on the land
 Policy-> wold be highly inequitable to allow escaping burden
IF the covenants are enforceable against assignee, then the contract made by the previous owners will not be
enforced by and against parties who were NOT contracting parties
COVENANTS AND DISCRIMINATION
Currently
Pursuant to s. 22 of the Conveyancing and Law of Property Act, no discriminatory covenants can be enforced
 “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.”
 SCC criticized for using technical approachs rather than public policy so led to reform BUT may
have done more if applied retrospective and to wills as well.
 Can still have personal discriminatory covenants, just not ones which concern land
 In US- ALLOW, ie to only single family home so prohibit 2 single men, group home ect
Historically
Discriminatory covenants have historically been the cause of controversy in the common law.
In Re Drummond Wren, deed stated that the “land not to be sold to Jews, or to persons of questionable
nationality”, the covenant was voided on a public policy basis. However, the court also held that the phrase “of
objectionable nationality” was void for uncertainty.
In Re Macleay, condition to not be sold to anyone outside the family was not a restraint on the free
alienability of the land and void because, there was a large family and, thus, a wide pool of potential owners.
Subsequently, in Noble and Wolf v Alley, covenant excluded “Jews, Negroes, etc.” from purchasing the land but
wolf Is jewish, the SCC did not want to engage in policy development and looked to traditional property law
principles to void the covenant (distinguished from Re Drummond Wren because there was no respondent in that
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case). Rand J, Kellock J and Fauteaux J discussed the covenant as a restraint on alienation and also pointed to
uncertainty based on Clavering.
 The ONCA’s earlier judgment caused controversy (said valid b/c cottages smaller community than
urban and wants to maintain collegiality + legislature to fix it) and led to legislative reform
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Duke of Bedford case (606)
- Facts: Duke wants to prevent extension of neighbouring British museum
- Decision: court will not grant Duke of Bedford’s application to prevent extension of British museum
- Reasons
o bc Duke has been selling off lots of land around estate and ppl have been building multi-storey
buildings
o extension of museum will not change Duke’s land in way that he himself has not allowed
1. Notice (607)
- could have actual or constructive notice
- need to look at register to see if there is document that creates covenant
o if don’t look and it is there = constructive notice
2. Covenant must be negative in substance (607)
- Haywood v Brunswick
o Court said no jurisdiction to enforce positive covenant to build and repair, but only those that
restrict use of land
o Negative in substance – even if seems like positive covenant, considered negative if restricts
use of land
o Distinguishing of Tulk v Moxhay
 Covenant seems to have aspects of both positive and negative
 Positive – have to do maintenance
 Negative – has to be uncovered with any buildings, restricts use of land
o Possible to severe covenant
 If both positive and negative, court can enforce negative part and ignore positive part
o One test for whether positive or not
 Whether have to expend any money to perform covenant
- Ontario Law Reform Commission Report (608)
o talks about how law should be reformed and positive covenants should be enforceable
o seems would require legislative action
- looking at Durham v Amberwood
o it was a positive covenant so would not run in equity either
o why had to look to Halzall v Bizell principle
3. Covenantee has to retain land capable of being benefited
- 880682 Alberta Ltd v Molson (609)
o brewery transferring some land owned in Calgary , extract covenant from purchaser that won’t
construct brewery on this land
o have another brewery in Edmonton – land of covenantee that would benefit from covenant
o purchaser eventually sold to new purchaser who wanted to build brewery
o argued land owned by covenantee was too far away to benefit from covenant
o issue: if covenantee has to retain land that is capable of being benefited has to have some kind
of reasonable geographic connection to land that has burden
o decision: has to have some reasonable geographic connection
- some cases where municipalities tried to enforce covenants
o e.g. 125 Varsity Rd v Township of York
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o not enforceable bc municipality did not retain land capable of being benefited
some statutory exceptions: e.g. agency where statute that creates agency says this agency has right to
enforce burden of covenant even if doesn’t retain land capable of being benefited
o e.g. Ontario Water Resources Act
Potential Reform of Covenants (642)
- Ontario Law Reform Commission’s Report
- 2 recommendations
o positive covenants should bind land and run with land
o should have covenants in gross – covenant arrangements that can be enforced even if don’t hold
title to neighboring land
- neither has been taken up by legislature in Ontario
- contrasts these recommendations with bigger reform project in US that tried to take easements, profits
and covenants and create new category
o wanted one category of enforceable non-possessory interests called servitude
Private planning, public planning and conservation (note 644)
- in absence of governmental regulation of planning, zoning and bylaws, landowners themselves engaged
in easements and covenants to protect their environment and amenities they had
- in 21st c when have all this gov regulation, role of covenants and to some extent easements has
decreased
- at same time new rising interest that comes out of environmental and conservation communities
o (middle 645) individual and group efforts, in addition to gov, to protect environment
o trying to think of land as part of community’s amenity as opposed to just commodity
ch 8Aboriginal law claims
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Aboriginals were seen as threat to English settlement b/c strategic role with French in 7 yr war
treaty of paris in,1763 France ceded territory to Britainhad soveireinty & title to ALL land
Royal proclamation act, 1763- English king tried to protect aboriginals from settlement
o Recognized lands possessed by AB reservered to them unless ceded to the crown
o Many AB land claims based on it; try to determine effect of it today
o Cases still try to de
But despite this act, conditions worsened- epidemic, loss of buffalo/power
AB thought that Gov’t was “partner” but not; 1890 realized gov’t wanted their land
o Johnson: wanted to co-exist as independent entities-but instead controlled
o Connection b/w land claims & self-gov- want to self-govern over land
Conception of land: they say didn’t give anything to French so couldn’t have transferred land;
don’t believe they own land- belongs to ancestors/future people/animals/earth
Treaties: most land is covered (not quebec) meant to structure relations b/w crown & them
Tenurial effect: AB does not have transferrable interest; only sell to crown; they use it
Indian act, 1876 the issues of ab sovereignty and title to land became invisible
o Regulates statutes/reserve lands/how they hold property
o Decides who’s indian; still colonizing AB by making their law; theirs is “inferior”
S.35 of charter- only applies to EXISTING aboriginal rights
Tshil: 1st time SCC confirmed AB title to land in specific context in s.35
We are not part of Canada
 six nations confederation number of formal protests/defiant assertions of independence
 To submit to foreign nation is to forsake the confederacy outside circle (culture, lang)
 1890 petition to governor-general of Canada- claimed indian act was violation of ancient
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treaties and covenants; claim, forcing laws on them; want own laws/customs
Wampum belt - two roads, two vessels = separate peoples autonomous and independent of
each other, beads in-between symbolizing peace, friendship, and respect
evolution of abrotiginal title to land
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st Catherine milling and lumber co v the queen, 1888- court decided ab interest in land was
“personal and usufructary” rights held at will of crown and underlying title was the crown
For long time, AB interest in land seen as a limited personal interest & underlying title to crown
Calder et al v attorney general of bc, 1973, SCC (agreed on thing as “aboriginal title” but no here)
 Divided over issue of whether ab title has been extinguished in BC after prov joined
confederation and issue of necessity of permission from lieutenant general to sue the crown,
BUT united in affirming ab title is grounded in the history of ab occupation & selforganiz that predated royal proclamation- before settlors came and not “personal or
usufructuary right”
Guerin v the queen, 1984, scc (crown has fiduciary duty; AB have sui generis interest)
Facts
o Devlopers approached dep of Indian affairds to develop golf course on reserve; band council agreed
ORALLY to draft agreement but when written one produced very diferent.
Ratioo Fed gov’t/crown has fiduciary duty when managing AB land- implicit duty to act in their best interest;
they cannot alienate to anyone other than surrendering to the crown; following royal proclocmation
Reasons
o gov’t breached role as trustee to band council b/c responsible for transfer of lands but didn’t act in best
interest
o Confirms calder- Royal proclamation reveals AB title not extinguished by crown declaring soveirgnty
over Canada
o AB have “sui generis” interest: unique prop interest to AB b/c of inalienability of their land; shaped
by historical occupation of Canada & first nations/relations in royal proclamation
o The nature of the Indians’ interest is therefore best characterized by its general inalienability, coupled
with the fact that the Crown is under an obligation to deal with the lands on the Indians’ behalf when
the interest is surrendered.
o Cannot have fee simple that forbids alienation completely so that’s why sui generis (inalienable)
o To sell to gov’t is to “surrender” to the crown, and then fiduciary obligation to aboriginals
Delgamuukw v British Columbia (SCC, 1997) (outlines features/contents of sui generis prop interest)
o AB argue have AB title over land; inalienable fee simple.
o Gov’t argues either right to use land (activities-van der peet) or use/occupy land (st.Catherine)
- Issue: What is scope of s.35 to AB title? What is content/proof? How do you treat evidence?
Decision: order new trial but want them to settle; confirm they have sui generis prop interest
o Starting point on AB title is st Catherine that said it was “personal and usufructuary right”
o Sui generis in sense that features cannot be completely explained by reference to common law
rules on real property or to rules of prop found in AB legal systems- need both to explain
Features
1. Inalienable- land with ab title cannot be sold, transferred or surrendered except to crown so
inalienable to third parties. Court has tried to clarify only personal in this sense and NOT that it
is license to use land
2. Source- it was thought to be royal proclamation but actually just recognized by it, it arises from
prior occupation (prior to 1760 b/c French couldn’t give land to English)- both physical
(common law principle that occupation is proof of pos). what makes it sui generis is that pos
BEFORE british sovereignty whereas normal estates arise afterward
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3. Communal – cannot be held by single person, collective right to land by all ab, decisions
made by all, this is another feature of ab title which is sui generis & distinguishes it from
normal property interests.
Content of aboriginal title
 No other case has defined content of ab title
1. Ab title- right to exclusive use and occupation of land for a variety of purposes which
need not be aspects of ab practices, customs and traditions that are integral to
distinctive aboriginal cultures
o This is because of 3 sources
o a) Canadian jurisprudence on ab title
o b) relations b/w reserve lands and lands held pursuant to ab title
o c) Indian oil and gas act
2. Lands pursuant to ab title cannot be used in way which is irreconcilable with nature
of attachment to land which forms basis of groups claim to ab title
o AB title from prior occupation- physical & pre-existing systems of AB law
o Uses that threaten future relationship are excluded from content of title
o Policy: if occupied there will be special bond b/c group + land so part of distinctive
culture ie hunting ground or ceremonial so cant be a parking lot
o Not alienated: if it is brings an end to entitement to occupy land b/c no special bond
o Akin to equitable waste- cannot destroy- presverd for future like in FS reaminder
o Can convert to non-title land- want to use in inconcistent way can surrender to crown
Aboringal title under s. 35
o Aboriginal title is protected “the existing aboriginal and treaty rights of the aboriginal
peoples of Canada are hereby recognized and affirmed”
o Doesn’t create rights; constitutionalizes existing rights; it was recognized in common
law before charter but now elevated to constitutional status
o Adams-AB title is 1 form of AB right-distinct b/c land which is central to culture
o AB rights on spectrum; ie depending on connection to land
o 3different types of rights to land
o 1.specific type of ativity on land but no title- ie look for mooseactivity tied to place (ie forest)
o 2. Claim to land iself- TITLE
o 3.site specific activity that tied to a site- title to site
o Ie middle- activity may be tied to PIECE of land & not have title but
have site-specific right to USE it
o At end- title to LAND, not just activity.
o Can have site-specific right to activities under s.35
o AB title differs from rights, b/c less emphasis on “activities”
o To be right-ACTIVITY that’s integral to culture BUT title is to land
and can be used for many different activities –none has to be “right”
TEST for proof of ab title
1. Occupancy of land before sovereigntyo establish you occupied land at time at which crown asserted soveirgnty over
land this is diff establish ab right for specific activities (prior to contact)
o Rationale for time at sovereignty:
 1) ab title arises out of prior occupation and relation b/w common law
and ab law- ab title crystallized at time sovereignty asserted 2) Ab
title doesn’t raise problem of distinguishing b/w ab practices and
traditions- at common law poses enough 3) Date of sovereignty is
more certain than date of first contact
o Takes account of common law and ab law- recognition of rights by their law- in
van der peet – if at time of sovereignty ab had land laws to establish occupancy of
land those laws would be relevant to establish occupation of land which subject to
claim
o But, at CL physical occupation is proof of possession which grounds a title to
land ie fence, fish, hunt;
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2. If present occupation is relied on as proof of occupation pre-sovereignty there must be
a continuity b/w present and pre-sovereignty occupation
o Allows present occupation as proof b/c proving acts before would be too onerous
o DOES NOT need to be unbroken chain even tho need continuity; just substantial
connetion
3. At sovereignty that occupation must have been exclusive
o Needs exclusive use and occupation of land
o Rationale:If no exclusivity could have multiple ab nations vying for same land
and all want exclusive use of it
o As with proof of occupation, can rely on common law and ab perspective equally,
o Have to be cautious of times, so okay that others used land
o Test-:intention and capacity to retain exclusive control- can move around
AB title is mot than right to specific acitities- to land itself-not confined to 1 activity,
constitutionally protected prop interest.
Critiques:
Not restricted to prior uses but if present use incompatible with old then disallowed
Kent mcneil: what is special nature of AB title tied to past?
Shouldn’t restrict to past & not allow them to change-paternalistic b/c disallows autonomy
they should decide by self-gov what internal limits should be to AB title in cultural preservation
Delgamuukw and justification test
 Constitution act, 1982 placed ab right in s.35 outside of charter so s.1 of charter inapplicable to
s.35 BUT in sparrow said “recognized and affirmed” in s.35 made it vulnerable to infringement
 Crown must show infringement is reasonable, court to decide1. it promotes a legislative goal that is pressing and substantial
2. Infringement conducted in manner consistent with fiduciary duty b/w crown and abs
 Sparrow said conseveration; Gladstone said economic and regional fairness all PRESSING
 Delgmauk extends it now infringe only if gov can demonstrate it adequately consulted affected
ab’s and provide compensation for infringement
 Some criticize the economic justification- ie “court appears more concerned with protecting
federal powers rather than protecting aboriginal rights”
 At first only about ideas of conservation but broader now- public interest
 Aboriginals need to be consulted even though no veto right
Aboriginal right and ab title to land
- With respect to s 35 courts view ab title as being specific type of right under concept of “aboriginal
rights” so that larger jurisprudence of ab rights still plays a big role in enforcement/scope
o Even if don’t get title can get right to perform a certain activitity on land, ie fish (sparrows.35
offers constitutional protection to AB rights not extinguished prior to contact)
- Cote, scc, 1996 ab right to fish could stand alone, independent of ab title over fishing ground
- Adams-1996, scc- even further, wo ab title could perform activity-specific right on certain tract of land
Limits to ab title to land
o R v pamajewon, 1996, scc- held lottery that violated CC not protected by s.35 bc members
accused failed to demonstrate that regulation of gambling was integral to culture according to
test of ab rights in r v van der peeto Sawridge band v Canada, 1995, court rejected that Indian act inconsistent with 35 b.c
required gender equality when determining band membership, it b/c 35(4) states
“notwithstanding any other provision of act” rights guaranteed equally to males and females
o cheooewas of sarnia v Canada, AB title had been extinguished bc innocent trespass (140yrs)
Post-delgamuukw deelopments
marshall and Bernard (first case where claims to AB title fully assessed by SCC; changes test)
o unlawful logging in both but relied on treaty right to log there or had AB title to land
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decision
o In split decision Mclachlin said trial court test right so convicted (no title) but othes questioned
her new formulation of delgamuk test favouring CL conception of prop over AB’s
issue: whether pre-sovereignty practices est. by evidence corresponds to rigt to title to land
test whether practices established by the evidence, viewed from aboriginal perspective, corresponds
to core of common law right claimed MUST consider AB and common law
o to exclude others from land is basic to notion of title at common law
o BUT crucial to view question of exclusion from AB perspective, b/c maybe exercise control by
sharing/few people using it as crossway
1. Demonstration of effective control- need not be exclusion but just show control which can lead to
inference that could have excluded others if wanted to
o They don’t think exclusivity in control here
2. Continuity-connection to pre-sov group upon whose practices they rely to assert title to ab right
 lebel critiques mclachlin- role of ab perspective cannot be just to interpret practices to assess
whether pass common law test of title but it shapes very concept of ab title-more than just
evidence , it is law
 note: ab legal system seen as inedquate; disconnected from social relations
Douglas lambert, the tsilhqot case
- If court of appeal right then economic balance against ab that consultation is meaningless,
accommodation an empty gesture
- BUT thinks their decision wrong because:
o Site specific title and site specific rights-first time site-specify been applied to ab title
o In delgam- explained that even if not title if show site for regular practice that integral to culture
than claim to site-specific ab right
o In court of appeal they took delgam “definite” tract of land and conflated it with “specific sites”
where activities took place
o Court of appeal is limiting aboriginal title to such specific sites
o Court of appeal said specific activities took place but not where definite tracts of land occupied
exclusively by ab people
o To think that ab title as site specific wrong & not derivable from “definite tract of land
(delgam)
o In haida scc did not mention that ab title is site-specific and confined to village sites or buffalo
jump
Duty to consult with first nations
 First articulated in haida nation v bc, 2004, scc- duty to consult requires crown to consult with
& sometimes accommodate first nations when gov or third parties neg affect their interests in
land. Although delgam identities need to consult that would affect est claims of ab title it is
now required even when has not est title/activity specific rights
 By assessing case for ab title/rights alongside harm could come from gov / 3d parties actions
court will determine what level of consultation is necessary
 HOWEVER duty to consult is NOT a de facto veto for aboriginal communities
 Could be from simply informing community of proposed plans
 Ie haida court found logging was integral to culture so strong need to consult/accommodate
 Mikisew cree ss 2005 duty to consult also to land subject to treaty rights even if not ab rights
and title claims
 Wahgoshig first nation- proposed gold mine on treaty lands, court issued injunction against it to
enforce duty to consult
Toward future: we are all treaty people
 Former gov general – clarikson- treaty was supposed to end only when sun doesn’t shine, rivers
down flow and entered into by natives in good faith, shold honour them
 We are all treaty people bc takes two sides to make one
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Aboriginal status and devlopments
 Rv Powley 2003, scc upheld acquittal of powley who metis bc charged with unlawful hunting.
Said part of integral cultue in that area
 even tho s.35 mentions metis, constitution act, 1867 may have too even tho gov for years said
“Indians” didn’t include them
 daniels v Canada fed go said “Indians” is statuts Indians and metis and non-status Indians too
 principles on ab title to land may become applicable to metis later on
 Manitoba metis federation v Canada, 2013, scc –claimed gov owed fiduciary duty bc of
Manitoba act, 1870 promises grnats of land in s.31 to them but didn’t. SCC said didn’t create
fiduciary duty bc metis ideas of land didn’t adhere to sui generis conception of ab title- ie didn’t
live communally
 Majority did say violation of honour of crown though s.31 solem promise that engaged crown
so now changed balance of power bw metis and crown- invoke honour of crown during
negotiations
TSHIOLQUOT CASE: BC court applies site specifc beyond what was used before for activities but now to land,
aboriginal title over tract of land used by BC appeal as specific site.
Aboriginal Title
Overview
Note that, pursuant to the Indian Act, aboriginal law is delegated to the federal power.
Aboriginals cannot, therefore, rely on provincial provisions (for example, an aboriginal woman on a reserve cannot
rely on provincial protections [i.e. Family Law Act] upon the breakdown of a family relationship)
There are 7 elements of Aboriginal Title according to Delgamuukw
1. Aboriginal title is sui generis (unique; “the only one”)
2. Aboriginal title is a communal interest in land as opposed to an individual interest
3. Aboriginal title is inalienable to anyone except the Crown
4. Its origins go back to possession that aboriginal people held prior to the assertion of sovereignty by the
Royal Proclamation
5. The source of title is not just possession that aboriginal people had at the time of the Royal Proclamation but
also aboriginal systems of law
6. The occupation must have been exclusive
7. The limitation of aboriginal title is that its current use must be reconcilable with the traditional use of
the land
Features of Sui Generis Interest:
(1) Entitlement is based on prior occupation (principle in existence before the arrival of English Law);
a. Continued occupation consistent with the form of traditional occupation;
b. Exclusive to band or nation at the time the English arrived;
(2) It is a communal ownership relationship to the land (no individual titles);
The land is inalienable and can only be recalled by the Crown
The claim in Delgamuukw also concerned sovereignty over aboriginal lands. This concern was unresolved and
continues to be an open question.
Delgamuukw was the first time the SCC recognized the property interests of Aboriginals. While it has changed the
bargaining relationship between the government and aboriginal people, the decision has not necessarily had a
transformative impact
Lottery activities that are banned under the criminal code are not protected by s. 35 of the Constitution Act, 1982
because these activities were not sufficiently shown to be part of aboriginal culture (Pamajewon)
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Section 35(4) of the Constitution Act, 1982 ensures that women get equal status regardless of culture (Sawbridge).
Aboriginal Concepts of Property
 Holistic, cyclical conception of reality extends to property too: land is communally owned, not by an
individual. Land also belongs to past and future generations and creatures other than humans.
 Not equivalent to fee simple ownership because the condition of ownership is that the Creator granted it to the
Indians and all living creatures
 When Indians signed treaties, they were really agreeing to share the land - they could not give up fee simple
ownership because they didn't have it themselves
 The norm is that land is not transferable, they had no property interest in it - they had no right to sell the land.
 If it belongs to everyone there's no right to exclude
 Really it's relations between subjects in relation to other subjects, which are all equal. There are no objects.
Aboriginal Cases
 In Guerin v Queen, the SCC held that the government of Canada did not have a trust relationship with
aboriginal peoples (insufficient evidence of intention to create an express trust), but that it did have a
fiduciary obligation. Also first recognised sui generis interest.
 SCC held that the Crown had breached its equitable obligation to act in good faith and in the best
interest of aboriginal persons.
 Royal Proclamation 1763 – Forbidden to sell land to anyone but the Crown. Many treaties were made in this
context that transferred land to the Crown in exchange for reserves and other benefits
 St Catherine’s Milling (1888) PC - The nature of aboriginal property entitlement was merely “personal and
usufructory”, right to use the land
 Van Der Peet (1996) – Certain activities on the land are protected by the Charter, recognised right to hunt
and fish
 Sawridge band litigation - Band opposed legislation that required gender equality saying it wasn't consistent
with s. 35. Courts granted an injunction to prevent lack of gender parity in band membership, litigation was
settled.
Possessory Rights and Aboriginals in Canada
 Why does the English common law not apply to Aboriginal possession? Aboriginals possessed the land before
the British came and unless they were purchased or confiscated by legislation
 Gives them a strong basis for their claims in a negotiation process
 Even though English law had recognised possession for a long time, maybe arguments about Aboriginal
possession were never made. No one would have thought Aboriginals could have title to land equivalent to
British title, and Aboriginals would be in no position to make these arguments.
 Can't claim the English law didn't apply because colonisers used it to justify their property
Delgamuukw (1997) SCC – Determined the right to land not transferred under treaties
Rules on the nature of aboriginal title to land?
Affirmed that it is sui generis
1. The aboriginal property interest was inalienable;
2. The aboriginal property interest was based on possession, including conceptions about possessory title based
on occupation in the common law; but also based on possession prior to the establishment of British
sovereignty in 1763; and
3. The aboriginal title was communal (eg, no individual title, but title based on communal interests and
occupation).
Held:

Recognised for the first time that Aboriginal title includes the right to exclusive use and occupation of the
land which is not limited to traditional aboriginal practices; but the uses must not be irreconcilable with
the nature of the group’s attachment to that land.
o No decision about whether they actually had title in this case
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

A different standard of proof which allows oral histories should be allowed in aboriginal cases trial judge
erred in this, new trial ordered
New trial not held. This ruling formed the basis for negotiations.
McNeil critique:
On the one hand, present uses (by aboriginal peoples) are not limited to historic uses, but on the other, present uses
that would preclude historic uses, or destroy Aboriginal people’s special relationship with the land, are not permitted.
In other words, present uses are not restricted to, but they are restricted by, past practices and traditions – prisoners of
the past.
 Paternalistic for court to impose restrictions on aboriginal title for the purposes of cultural preservation –
shouldn’t they decide what they want to preserve?
o e.g. Lottery activities not protected by s. 35
 Also held that Ab property rights could be infringed for economic development benefiting private persons or
corporations – this isn’t so with any other exclusive property right
First Nations Property and Self-government (McNeil)
 land and jurisdiction over land go hand in hand (George Ersasmus, first nations chief)
 even though self-government was integral to the claims in Delgamuukw, the court didn’t address it because
of the errors made by trial judge in accepting evidence
 By acknowledging pre-existing systems of aboriginal law, presupposes that there must also be a form of
government to enforcing it
 An if decisions about use of land are made communally, that entails a community structure for decision
making, some form of gov’t
 Decisions about limits of use for cultural preservation should be made by Aboriginal gov’ts
 Inalienability of aboriginal land to anyone but the Crown may limit their ability to develop resource on/under
the land without gov’t cooperation

6 Nations sovereignty - used to be an equal relationship between the 6 nations and the British. Canadian
gov't has failed to recognise this.
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The main evidential issue in the Tsilhqot’in Nation case was whether Aboriginal title has to be proven on a
site-specific basis, or can be proven on a territorial basis.
Like Delgamuukw, this case involved a claim to Aboriginal title, but only over a portion of the traditional
lands of the Tsilhqot’in people.
Mcneil: they basically oveturrned marshall b/c didn’t use territorial approach b4
On appeal, McLachlin CJ rejected the BCCA’s site-specific and intensive use approach, and adopted Vickers
J’s territorial approach: “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.” (para. 42, my emphasis)
TSILHQOTIN NATION
Facts: semi-nomadic group of 6 bands lived in remote valley in BC, 1983 BC gov’t allowed commercial logging
license when considered their trad land. Want title over land.
o trial: yes AB title occupationRegular and exclusive use of sites or territory: title not only
to sites but to larger areas where ancestors regularly and exclusively used for hunting, fishing
o appeal no only AB right to hunt, trap and harvest
o said occupation established by showing regular & exclusive use of sites or territories within
claim area and small area outside it. APPLYING narrower test based on site-specific
occupation requiring proof that AB groups ancestors intensively used a definite tract of land
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o
with clear boundaries at time of
said trial test was territorial, whereas correct test is regular and intensive use of specific
sites.
o
Decision: granted AB title over area & BC breached duty to consult owed nation
Reaons:
TESTDelgmamuukv
the [A]boriginal group asserting title must satisfy the following criteria: (i) the land must have been occupied prior to
sovereignty, (ii) if present occupation is relied on as proof of occupation pre-sovereignty, there must be a continuity
between present and pre-sovereignty occupation, and (iii) at sovereignty, that occupation must have been exclusive.
TO OVERRULE: Jude needs to have done overriding and palpable error he did not, UP TO HIM to rule on
conflicting evidence AND does not accept such a narrow test of occupation mountainous and small population
o
(1)Occupation pre-sovereinty:
o SCC- approach from CL and aboriginal perspectives; act as if belonged or controlled and under
exclusive control of group BUT depends on AB practices; SIDES WITH TRIAL
o He found lands regularly used by AB; appeal says need intentive use on particular tracts but
not supported by precedent.
o
(2)Continuity of occupation (when present occupation relied on as proof of occupation pre-sov)
o Need not be unbroken- decided by trier of fact
o Trial said yes so will not disturb
(3)Exclusivity occupation of land at time of sov
o “intention and capacity to retain exclusive control” over lands
o FOR AB right just regular use but title need exclusivity
o Depends on circumstances of culture/land but needing permission or disallowing will suffice
o Here yes, they had demamded permission/repelled others
o

USES TO NOT BE INCONSISTENT WITH PAST USES but need not be trad.
o
Crown had duty to consult in good faith wih AB who claim tile and if appropriate accommodate
interests; it will vary on stenth of their claim & potentiality of adverse effect upon interest claimed
o
o
S.35 hen title established Crown must justify incursions on AB title by ensuring gov’t action is
consistent with s.35; need compelling gov’t objective and that it is consistent with fidicuary
duty of crown to AB: rationale connection, minimal impairment and proportionality apply
HERE: crown neither consulted them or accommodated interests when prov issued licenses
Aboriginal title “encompasses the right to exclusive use and occupation of the land held pursuant to that title for a
variety of purposes”
SUMMARY
o
o
o
To determine look at AB culture/tradtions & compare in culturally signigicant way with what
was required at CL to est title on occupation; NOT confined to specifc sites of settlement but
extends to tracts of land that regularly used for hunting, fishing or other explotation where
exercised control at time of European sovereignty
HERE: trial judge said AB did regularly use parts of land  sufficient occupation & they had
repelled other eople from land and demanded permission fo those who wanted to cross, so
exclusive
The claimant group bears the onus of establishing Aboriginal title. The task is to identify how presovereignty rights and interests can properly find expression in modern common law terms. In
asking whether Aboriginal title is established, the general requirements are: (1) “sufficient
occupation” of the land claimed to establish title at the time of assertion of European sovereignty;
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(2) continuity of occupation where present occupation is relied on; and (3) exclusive historic
occupation. In determining what constitutes sufficient occupation, one looks to the Aboriginal
culture and practices, and compares them in a culturally sensitive way with what was required at
common law to establish title on the basis of occupation. 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.
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