1
Common Law Property– Fall 2005
Professor: Dennis R. Klinck
Notes: Laurence Bich-Carrière
Of notionally being in Peterborough, of the Youth Fountain and Fertile
Octogenarians, Unborn Widows and Precocious Toddlers, of
Springing Interests and Heads-spinning-counter-clockwise
Table of Contents.
A. INTRODUCTION .........................................................................................................................................................3
I. ASPECTS OF THE IDEA OF PROPERTY: QUESTIONS AND BACKGROUND ISSUES .............................3
1. WHAT IS PROPERTY? – DEFINITIONS. ..........................................................................................................3
2. WHAT ARE THE JUSTIFICATIONS OF PRIVATE PROPERTY? ...............................................................3
3. WHAT "THINGS" ARE (OR CAN BE) OBJECT OF PROPERTY? ...............................................................3
4. WHO "OWNS" SOMETHING? WHY?...............................................................................................................4
II. THE CULTURAL RELATIVITY OF “PROPERTY” ..........................................................................................4
III. CLASSIFICATION/CHARACTERIZATION OF PROPERTY (COMMON LAW) .......................................4
1. INTRODUCTION ...................................................................................................................................................4
2. REAL VS. PERSONAL PROPERTY: THE TRADITIONAL CATEGORIES ................................................5
3. ISSUES OF IDENTITY: WHICH CATEGORY? ...............................................................................................5
B. POSSESSION AND PROPERTY.................................................................................................................................6
I. WHAT'S POSSESSION AND WHAT'S POSSESSION FOR? ..............................................................................6
II. PERSONAL PROPERTY .........................................................................................................................................7
1. CONCEPTS OF OWNERSHIP AND POSSESSION ..........................................................................................7
1.1. ELEMENTS OF POSSESSION..................................................................................................................................7
a. Physical Control ..............................................................................................................................................7
b. Intent to Appropriate ........................................................................................................................................7
1.2. POSSESSION IN RELATION TO OWNERSHIP (“IUS TERTII”) ....................................................................................8
2. POSSESSION AND FINDING LOST PROPERTY ............................................................................................9
3 BAILMENT: SEPARATION OF TITLE AND POSSESSION ......................................................................... 11
3.1. THE NATURE OF BAILMENT .............................................................................................................................. 11
3.2. RIGHTS AND DUTIES OF BAILOR AND BAILEE AND OBLIGATIONS OF POSSESSOR TO TRUE OWNER. ................ 11
3.3. RIGHTS OF BAILEE AND BAILOR AGAINST THIRD PARTIES 380-81 ................................................................... 12
III. REAL PROPERTY ................................................................................................................................................ 13
1. RIGHTS OF POSSESSORS VIS-À-VIS SUBSEQUENT TITLE OWNERS .................................................. 13
2. RIGHTS OF POSSESSORS VIS-À-VIS TRUE OWNERS: ADVERSE POSSESSION. ............................... 13
C. ACQUISITION OF PROPERTY INTERESTS........................................................................................................ 14
I. “ORIGINAL” ACQUISITION. ............................................................................................................................... 14
II. ASPECTS OF DERIVATIVE ACQUISITION ..................................................................................................... 14
1. GIFTS OF PERSONAL PROPERTY ................................................................................................................. 15
1.1 BASIC REQUIREMENTS FOR INTER VIVOS GIFTS: DELIVERY & DONATIVE INTENT ............................................. 15
1.2 PROBLEMS OF DELIVERY ................................................................................................................................... 16
1.2.1 Choses in possession ................................................................................................................................. 16
1.2.2. Choses in action ....................................................................................................................................... 17
1.3 THE INTENTION REQUIREMENT.......................................................................................................................... 17
2. TRANSFERS OF INTERESTS IN LAND(REAL PROPERTY) ..................................................................... 18
2. 1. HISTORY: FEOFFEMENT WITH LIVERY OF SEISIN, DEED, AND STUFF ............................................................... 18
2. 2. BENEFICIAL OWNERSHIP OF PURCHASER AFTER VALIDITY OF CONTRACT IS FOUND: EQUITY ........................ 18
2. 3 REGISTRY SYSTEMS. ......................................................................................................................................... 19
3. THE INTERVENTION OF EQUITY ................................................................................................................. 19
D. PROPERTY INTERESTS IN LAND ........................................................................................................................ 20
I. BASIC CONCEPTS OF LAND “OWNERSHIP” .................................................................................................. 20
1. DEFINITION OF “LAND” (HANDOUT) .......................................................................................................... 20
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2. DOCTRINE OF TENURE.................................................................................................................................... 20
2. 1. INTRODUCTION ................................................................................................................................................ 20
2. 2. HISTORY: FEUDAL PYRAMID AND SUBINFEUDATION. ...................................................................................... 20
3. DOCTRINE OF ESTATES .................................................................................................................................. 21
II. INTERESTS IN LAND............................................................................................................................................ 22
1. ABSOLUTE (UNQUALIFIED) ESTATES ......................................................................................................... 22
1. 1. ESTATES OF INHERITANCE ............................................................................................................................... 22
a. Fee Simple ...................................................................................................................................................... 22
b. Fee Tail .......................................................................................................................................................... 23
c. The Rule in Shelley’s Case ............................................................................................................................. 23
i) What is the rule? .......................................................................................................................................................... 23
ii) Why the rule? ............................................................................................................................................................. 23
iii) Explaining Re Rynard ............................................................................................................................................... 24
1. 2. THE LIFE ESTATE ............................................................................................................................................. 25
a. General rules.................................................................................................................................................. 25
b. Types of life estates ........................................................................................................................................ 26
c. Estate pur sa vie ............................................................................................................................................. 26
d. Estate pur autre vie ........................................................................................................................................ 26
2. QUALIFIED ESTATES ........................................................................................................................................ 27
2. 1. GENERAL NATURE ........................................................................................................................................... 27
2. 2. PROBLEMATIC QUALIFICATIONS AND THEIR CONSEQUENCES ......................................................................... 29
3. FUTURE INTERESTS: SEQUENTIAL OWNERSHIP ................................................................................... 30
3.1. COMMON LAW FUTURE INTERESTS .................................................................................................................. 31
a. Basic Concepts, 296-302 ................................................................................................................................ 31
b. The Remainder Rules at Common Law, 302-06 ............................................................................................. 31
3. 2. EQUITY ............................................................................................................................................................ 34
a. Pre-Statute of Uses Equity, 306-312 .............................................................................................................. 34
b. Effect of the Statute of Uses (1535) ................................................................................................................ 36
c. The Modern Trust: Avoidance and Exhaustion .............................................................................................. 39
3.3. FUTURE INTERESTS AND WILLS, 319-20, 323 ................................................................................................... 39
3.4. THE RULE AGAINST PERPETUITIES .................................................................................................................... 41
a. Common Law Rule ......................................................................................................................................... 42
b. Statutory Reform ............................................................................................................................................ 42
III. CONCURRENT OWNERSHIP ............................................................................................................................ 44
1. TYPES OF CO-OWNERSHIP AND THEIR CREATION ............................................................................... 44
1. 2. JOINT TENANCY ............................................................................................................................................... 45
1.3 TENANCY IN COMMON ....................................................................................................................................... 46
2. CREATION............................................................................................................................................................ 46
3. SEVERANCE OF A JOINT TENANCY ............................................................................................................ 46
3.0 INTRODUCTION .................................................................................................................................................. 46
3.1. ALIENATION BY ONE OF THE TENANTS OF THIS PERSON'S SHARE....................................................................... 47
3.2. MUTUALITY OF ACTS AND MUTUAL AGREEMENTS .......................................................................................... 48
4. PARTITION OR SALE ........................................................................................................................................ 49
4.1. THE BENEFIT ANALYSIS OF SEVERANCE ............................................................................................................ 49
4.2. THE PHYSICAL SEPARATION OF LAND. .............................................................................................................. 50
4.2.1. How do you decide? Which remedy do you apply? .................................................................................. 50
4.2.2. What are the criterions? ........................................................................................................................... 50
IV. RIGHTS IN THE LAND OF ANOTHER ............................................................................................................ 50
1. “NATURAL RIGHTS” (BRIEF CHARACTERIZATION ONLY) ................................................................. 50
2. GRANTED RIGHTS: INCORPOREAL HEREDITAMENTS: EASEMENTS.............................................. 51
a. Basic Characteristics ..................................................................................................................................... 51
b. Creation of Easements ................................................................................................................................... 53
i) Express Grant .............................................................................................................................................................. 54
ii) Implied Grant or Reservation. .................................................................................................................................... 54
APPENDIX WITH EXTRA READINGS circa p. 57.
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A. INTRODUCTION
I. Aspects of the Idea of Property: Questions and Background Issues1
«[T]here is nothing which so generally strikes the imagination and engages
the affections of mankind, as the right of property.»
"[Property is] that sole and despotic dominion which one man claims and
exercises over the external things of this world, in total exclusion of the
right of any other individual in the universe".
-William Blackstone, Commentaries, 1765-1769
1. WHAT IS PROPERTY? – DEFINITIONS.
Mossman [1-5]:
Contrary to what everyday discussions would make us think, "property" is a relationship, not as thing. It is a dynamic
notion of the relationship among people (subjects) with respect to objects, , a legal recognition that the law attributes
to the people with regard to things. The notion of "subject" has also tremendously changed historically (serfs, black
people, women were traditionally excluded from being "subject" of property). Property is also a social concept, and
thus its definition has a lot of social rationales.
Property is a bundle of rights linking people to things From this definition, we see that property is not the
thing (rather the dominion). Also problems with what is an "external thing" (slave, wives, things undefined). Note
that this rule excludes God. But most importantly, it excludes the fact that man lives in society: or, if we all lived on
a deserted island, there would be no need for property laws; such laws are necessary because there are many
individuals, each seeking property. This definitions doesn't explain the limits of ownership (say, you can destroy
your own property for rebuilding purposes, but you can't arson it down).
2. WHAT ARE THE JUSTIFICATIONS OF PRIVATE PROPERTY?
We have a tendency to assume this exists, because (1) we'll always have this model, (2) anyways, we don't
think there any other models (of course, civil law property exists, but it's not dramatically different: to be different,
we'd need something that is not dividing things up and attributing them to individuals) and (3) this helps us
determine specific rules.
Now, here are some underlying rationales for such division-and-attribution:
 Optimal in se (egotistic incentive, pure economics, tragedy of the commons, mechanical application of
the optimal law); Social order (knowing boundaries, for fear of chaos and looting, having something to
lose and to protect); Basic right (like the right to freedom): it's a tangible right, a practical one, that
insures a certain autonomy, perhaps, it's an expression of the personhood; Desert2: what someone put
his energy into, he deserves; Human nature: if there is one at all, one could argue that it characterised
by an acquisitive instinct; is greed inherent or socially constructed?; Given by God (says a text dating
back to 1654, but there is also the "Thou shall not steal" of the Ten Commandments).
3. WHAT "THINGS" ARE (OR CAN BE) OBJECT OF PROPERTY?
"Love is not a thing; you don't take it off like a ring"
-Taff Russ, Love Is Not A Thing [country song]
What are the limits of property? Are there things that are beyond the reach of this concept? Why can't love
be the subject of property? Because it's intangible? No, that can't be (most of our economy is intangible). Because
it's subjective and spontaneous? Two kinds of entities are problematic with respect to this notion of "property".
 The things that suffer from an inherent inaptness to property: are there certain features of things that
are essential before they can be treated in law as property?
 Some things not inherently intractable to the notion of property, might be so because of social or
ethical concerns (ex.: a kidney).
Are there characteristics that make something appropriable?
1
2
"We don't think about property until somebody invades it" 13.15-, 050901j
And not dessert, desert as in "we deserve it".
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
Intl New Services v. American Press: after voluntary sending to others, if you cannot
exclude them, you do not have property rights.
Caratun v. Caratun: In order for something to be property, you have to be able to
negotiate/transfer it, it's not because it has value to someone else that it should have propertywise for you.
Victoria Park and Recreation Ground v. Taylor: There is no right of property in spectacle.
Moore v. Regents of the University of California: one has no property on his cells and body,
but the scientists, for the effort they put and what they did to modify it, have property.



4. WHO "OWNS" SOMETHING? WHY?
What are the considerations for stating someone owns something? Example: John Dellinger, a Robin Hood of the Depression. After he
was shot by the FBI (and on a trap set by his girlfriend), people dipped their handkerchiefs in his blood. Whose property is the blood?
a) Nobody (it is an affront to human dignity to treat bodily substances as property, whether illegal or merely un-appropriable);
b) Given that is something that is not property might be of value, to preserve social order, one might create some sort of recourse:
c) Can you own the handkerchief only (not the blood, which is an "accident")? Owners of the handkerchiefs: doctrine of desert (they
exercised the initiative), accession (the blood has become a part of something that they unquestionably own).
d) Person who owns the blood: Dellinger (or estate of) –but this means bodily substances are the subject of property rights.
e) FBI (State agency), for it created the availability of the blood (lien Pierson v. Post). This is all state property and subject to
confiscation.
Of course, each answer comes with a bunch of concepts: where does property derive (source, capture, derivate product, assimilation)?
Case where a guy discovers the mouth of a cave system: he explores it, but it turns out some of the caves might be on somebody else's
land. The owner of the surface seeks an injunction to prevent the cave-guy from deriving commercial activity, on the basis of from the sky to hell.
But the judge says: no, it's all about initiative (right of discovery, conquest and exploration). The rhetoric is delighting.
II. The Cultural Relativity of “Property”
Mossman 80-84:
Law of social property is a social construction. The aboriginal ("every part of the earth is sacred to my people" and all generations,
past and future, for time is a cycle, see Delgammukw) and the European (right of discovery, conquest, individual, singular and
"despotic" dominion) conceptions of property are discussed here.
III. Classification/Characterization of Property (Common Law)
1. INTRODUCTION
Classification of Common law Property
All things
Property
Real property/realty
Corporeal Hereditaments
(action in rem)*
Estates
Fixtures



Personal property/personalty/chatels
Incorporeal
Hereditaments**
Hereditaments***
(actions in rem):
Easements
Rent charges
Profit à prendre
Other interests
(actions in
personam):


Res nullius
Covenants
Licenses
Chattels reals (actions in
personam/rem)
Certain leases
Chattels personal/pure personalty
(actions in personam)
Choses in
possession/goods
(tangible, movable)
Choses in action
Share in a co.†
_________________
*
Intangible, that is non-possessory, often right with respect to other people's property (equivalent des servitudes en
droit civil)
**
Physical substance somewhere, so possessory right.
***
Hereditaments: because it used to descend immediately to the first-born son.
†
You can sure hold the certificate but not the actual right, money
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2. REAL VS. PERSONAL PROPERTY: THE TRADITIONAL CATEGORIES
Historically, the distinction between the categories of property has its origins in the
difference between procedure in action. A successful action for real property grants the right to
the return of the object; this is an action in rem (usually land, close to immovables in civil law).
Personal property represents an action in personam because even if the action is successful, the
individual would not have the right to the return of the property, just damages (usually the
equivalent of movables). However, today, the rule doesn't apply anymore and you can bring an
action in rem for a watch.
The historical characterization stuck, though in practice, it only has one application left:
you cannot own land, only the Crown does (what you own in the estate in land) but you can own
personal property.
Note that there can be two concurrent proprietors, one with legal title, the other with
equitable ownership, lien p. 22.
3. ISSUES OF IDENTITY: WHICH CATEGORY?
Chattel = piece of personal property
Fixture = chattel annexed to real property and, as such, has become real property.
Of course, it is not always easy to say what given objects are: all building materials are
chattels but houses are fixtures; or if you are selling turf, it's probably a fixture when it's
growing, a chattel when it's rolled up, whether on the seller's grass, the buyer's or on the truck,
and probably a fixture again when it takes. The grass can thus have various manifestations/nature
by result of the operations on it. Bottom line: the things are not static, what starts off as personal
property might end up being real property. This makes a difference for real estate mortgages3:
calculating the value or having (or not) the turf part of the mortgage.
Biss v. Saskatchewan Government Insurance Office takes the test from Holland v. Hodgson
(1872) [para 5] and refines it [para 6.]
1. Is the thing attached?
 YES (even if very slight, simply something more than gravity): presumption that they are part of the land.
 NO: presumption that they are not attached to the land
2. Can this prima facie character be altered by the degree and purpose of the annexation (objective test)? Consider
affixation and affinity. Is the "annexed" things used for the better fulfillment of the land or of its nature as a chattel?
The concrete reality of the thing must be taken into account (you can't fix the nature of
something by contract (Biss), as well at the intention of the owner (Biss). However, concerning
that last point, the owner's own intention (subjective) should be taken into account, possibly to an
extent where it outweighs the circumstances and conditions (Royal Bank of Canada v. Beyak,
where the owners thought of their moho as a fixture but the Court decided to say it was a chattel;
Chelsea Yatch para. 22), degree of non permanence and removal without damages to land are
indicators of a chattel (Chelsea Yatch & Boat Co)
Royal Bank of Canada v. Beyak et al. (1981), 119 DLR (3d) 505 (Sask. QB) [hdA p.2]
Reasoning. There are a few attachments (the pole, the septic tank –but one could argue it's simply hook-up of
services), but the rest is mostly resting: the degree is slight. Now, the object: one could argue that the moho has the
3
Mortgagor = guy who owns the land and needs money; mortgagee = lender; historically, the mortgagee was the
proprietor of the land of the mortgagor.
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features of a permanent residence (landscape, deck, patio): the Beyaks testified they had always thought of this as
their house, on their land. The judge decides that no.
Ratio. The owner's own intention (subjective) should be taken into account, possibly to an extent where it outweighs
the circumstances and conditions.
Chelsea Yatch & Boat Co. Ltd. v. Pope [2001] 2 All ER 409 (CA) [hdA p. 4]
Ratio. Degree of non permanence and removal without damage to the land are two elements of a chattel. + Original
parties can treat anything as they want, but third parties can only be expected to treat it objectively [Ziff].Of course,
there's a problem when the originals parties are in litigation [Chelsea Yatch = UK and North York = Ontario,
whichever's more authoritative in the country will win]
North York General Hospital Foundation v. Armstrong (2004) 69 O.R. (3d) 603 [hdA p. 7]
Facts. Foundation leases property to GCA who builds houses. Armstrong buys a land.
Issue. Is the complex a “land lease community”, in which case the respondents have the right to sell or lease homes
without the consent of the Foundation?
Holding. Yes. Respondents are owners of the homes.
Reasoning. Usually, they should have but there are exceptions: a express agreement to the contrary, b where the
contractual arrangements give tenant complete control of the house (landlord is no better than dead) or c agreement
must proved that the tenant has the right to remove the house at the end of the term.
Ratio. Some building may be owned separately from the ownership of the lands (a) (b, and c not clear).
Comments. That means by agreement a fixture can be treated as a chattel. Chelsea?
Though, like in Chealsea, as soon as a third party is involved, private agreements do not hold.
B. POSSESSION AND PROPERTY
I. What's possession and what's possession for?
"Possession is very strong on the law"
"Possession is nine-tenths of the law"
"It is possible to write a whole treaty on property without
mentioning or defining ownership. It's all about possession"4
Ziff quotes Lord Mansfield5 (1774): “Possession is very
strong; rather more than 9 points of the law.”
Pierson v. Post [C. 97]
Facts. Hunter 1 was chasing the fox, which Hunter 2 took down. They both claim the fox, which until then was a res
nullius.
Issue. Whose fox is it?
Holding. Hunter 2's (2:1)
Reasoning. Majority. Hunter 2's killing of the fox was a clear mark of his taking possession of it. This act was clear
and thus good. Dissent. All sportsmen would agree that the fox is Hunter 1's for he put the effort in it. Otherwise, all
"saucy intruders" could use the product of other people's hard work by being apostles of the last hour.
Ratio. Two principles for defining possession (1) there must be notice to the world through a clear act and (2)
reward to useful labour.
Comments. In this case, principle one and two are contradictory but this is not always the case: usually, "the useful
labour is the very act of speaking clearly and distinctly about one's claim to property". Here, principle (1) was
stronger because the rule it sets is easier to apply.
After Popov v. Hayashi, could you talk about a pre-possessory right for Hunter 1?
4
5
Of course, this statement has to be nuanced, once again, just for the matter of titles.
Great English judge who came from Scotland, a civil law jurisdiction. He tried to influence the common law, but…
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Possession can be the origin of property; if things are abandoned (bona vacantia) or have
never had an owner res nullius), or acquisitive prescription or, in common law, adverse position,
where you can displace the title owner if you display certain possession characteristics). Lien p.
13. Also, very often, the disputes will not involve the true owner. The law recognises that
someone who has possessory rights do have rights that can be vindicated at law.
But why give this recognition to this mere possession? There's no ownership! Why?
 Efficiency (efficient user, if the true owner is not paying attention to his or her
property).
 Public order: country of law, not group force, no free for all [Popov v. Hayashi?],
otherwise, unless you're an owner, anybody can come and stay on your land
 Way of representing to the world how things stand (a notice, perhaps even evidence of
ownership [Carol Rose?]).
 Carol Rose fox and "saucy intruders".
II. Personal Property
1. CONCEPTS OF OWNERSHIP AND POSSESSION
1.1. Elements of Possession
Two elements: physical control and intention (animus possidendi)6
a. Physical Control
The physical aspect of possession, that is the degree of control required, can prove to be
relative, depending on the nature of the object at issue.
 Re Tubantia show that the physical control requirement is satisfied when the
maximum degree of control of which it is susceptible is attained.
 Popov v. Hayashi: You need unequivocal control by a clear act for possession.
However, pre-possessory rights may change things: "Where an actor undertakes significant
but incomplete steps to achieve possession of a piece of abandoned personal property and the effort is
interrupted by the unlawful acts of others, the actor has a legally recognisable pre-possessory interest
in the property [which] constitutes a qualified right to possession which can support a cause of action
for conversion [p.3 of the hd.]".
b. Intent to Appropriate
Keron v. Cashman (1829) High Court of New Jersey [C. 124-25]
Facts. Kids come home from church and find a sock with a small lump, which turns out to be money. [In another
case, kids found an envelope full of money.] At one point in their game, the sock breaks and the money starts
coming out (775$). Obviously, none of these kids is the true owner, who can't be found. Physical control is an issue.
Issue. Is there an intention to possess? When something is contained in something else, what are the elements of the
intention with regard to the interior thing?
Holding. No. See Ratio.
Reasoning. As long as it was a play thing, there was no animus possissendi. [Now, what if the sock is understood as
"a sock with something valuable in it"?]. For the judge, there has to be something more than intention to possess the
outside, there needs some sort of curiosity as to what is inside. The nature of the container also plays a role when it
comes to the intention (if all socks had money in them, one could more easily argue that the intention behind the
physical control over a sock is actually the intention to get to control the money). Crawford's argument is that the
sock with the waded toe was interesting because of the lump, it was not abandoned; it was taken away from him.
6
C. 95  latin problem.
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per Emery V.C.:“All of the cases agree that some intention or state of mind w/ reference to the lost property is an
essential element to constitute a legal 'finder' of such property, and the peculiarity of the present case is that the
intention or state of mind necessary to constitute the finder must relate to the lost $ enclosed w/in a lost stocking,
and not to the lost stocking itself, in the condition when first found; and under the circumstances established by the
evidence in this case, the finder of the lost stocking was not, by reason of such finding, the legal finder of the lost $
w/in the stocking.”
Court makes the decision that to be the “legal possessor” you:
1) must know what is in the container and intent to posses that, or
2) the container must be such, that you intent to posses the normal contents of such (eg. a wallet)
3) or if the container was taken with intention to investigate what is inside7.
Ratio. For the judge, there has to be something more than intention to possess the outside, there needs some sort of
curiosity. The animus possidendi must be sufficiently specific. The intent to take possession of the container doesn't
imply the intent to take possession of the content.
Comments. DRK would argue that Keron had an intention with respect to the "specialness" of the sock.
1.2. Possession in Relation to Ownership (“ius tertii”)
Wilson v. Lombank (1963) High Court of England [R. 3-4]
GET BETTER SUMMARY
Facts. Mercantile finances the acquisition of a Renault Dauphine under an arrangement of "higher purchase" (rent to
own) with A (but until sale is completed, Mercantile stays the owner, A merely being in possession). Relying on his
possession, A sells it to B. And then B (who thus doesn't have title, because nemo dat quod non habet: one cannot
give more than he has) sells it to C. So possession is being transferred here, but there is still no title! When C tried to
sell to Lombank, possession never got to Lombank even if he paid, and C sells, without title, to D, who then sells it
to Wilson. And Wilson has taken the car to Ffrench's garage for some repairs: so at the time of the problematic
transaction, Wilson didn't have possession. So Lombank goes to Ffrench's garage and takes the car away. And then
learns that it's owned by Mercantile and gives it back. So Wilson and Lombank had both paid £470 and gotten no
car in the end.
Issue. What, if anything, should happen? Where there are competing possessory interests, what impact does the
identification of the true owner have on the possessory claims?
Refers to. Perry v. Clissold, 147: it is no defence for the person claiming possessory rights that there is a true owner.
Holding. Even when better right in a party in the picture (the t/o's), we will still vindicate the possessory.
Compensation given to Wilson (price of car + repairs).
Reasoning. Lombank can't argue he has possession, but he uses the ius tertii (if a third party, i.e. the t/o has a better
right, you can't sue) defence. JUS TERTII Below.
According to Salmond on Torts, the ius tertii plea (i.e. I don’t have the right to the property, but neither do you; a
third party does) is generally unavailable except 1. If plaintiff has actual possession (a) defendant defending the
lawsuit on the behalf of the true owner; (b) defendant "recapted8" for title owner (c) defendant returned chattel to
title owner or 2. Plaintiff has only right to possession (defeated by title in third party)
This is a 1c situation. You might argue it's close to 2 because Wilson's contract with Ffrench, the garage owner,
which created a type of bailment9 where it was said the return of the property could be demanded by the bailor at
any time, but the Court doesn't accept this argument (he quotes Lord Porter): "[Only the garage has possession].
Only true when the bailor10 at his will". When it the chattel can be retaken at any time, we talk about possession
directly and thus, we go back to 1 [though one could argue that once the work is done, the bailment is finished and
the possession is back –but this was not raised] So 1c. And the judge just says it does apply, without saying why
[maybe to discourage principle from making justice].
Ratio. Possessory right is not erased even when there is proof of ownership. Question as to actual possession (car in
garage). Jus tertii: since there is a party with a higher right, you are precluded from suing (see above). Possession
supposed to confer rights: you can sue for breach of your possessory right, even when better right in a party in the
picture [Perry v. Clissold, 147]. Possession can give right even against the true owner.
7
From the summary of Ryan Rabinovitch as edited by Joëlle Rudick (version 1) and Catherine Lambert (version 2).
Recaption of chattel = taking back the chattel you claim to be used.
9
Infra p. 10. The essence of which is the relinquishing of possession for temporary purposes.
10
The guy who gives the car, the receiver being the bailee.
8
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Comments. This is a really desirable car, ain't it? More seriously, isn't it unfair to have Lombank pay for the car
twice (by returning it to the t/o even if he paid B and by his paying damages to Wilson or interfering with his right
of possession? ALSO, how can this be justified, rationally, when the title owner has the thing? Preventing a free for
all, lawlessness and disorder.
2. POSSESSION AND FINDING LOST PROPERTY
Armory v. Delamirie [1722] England [C. 106]
Facts. Apprentice of chimney-sweeper finds a stone mounted on some sort of jewel on the street (public place).
Goes to the goldsmith, who of course, offer almost nothing and keeps the rock.
Issue. Who has rights over the stone?
Holding. The boy. He is the finder and has the right to recover the jewel or its money value.
Ratio. The basic principle of finding is to the effect that while the finder doesn't have absolute property, his property
is sufficient to have him keep the thing against all but the true owner.
Comments. Now, what if he had found it in the chimney and not in the street? Would that change something?
Occupier of the land (if not owner). Hierarchy.
Finding requires the taking of possession: it's not enough to be away of the existence of
(animus possidendi), says Parker (f.ex. there is also often a fight with the person on whose land
the object was found [occupier/possessor-finder] –the possession of land attenuates the "intention
factor"). Parker summarises the law on finding [C. 116-117].
Relative rights of finders
True owner
(Moffatt v. Kazana)
↓
Those deriving rights from owner (substitute owners [gift, sale]; bailees)
↓
Other with continuing antecedent rights
↓
Land owner (or 'container' chattel owner) (in occupation: Hannah v. Peel)
Previous possessor (finder).
Re Tubantia
↓
↓
Embedded in/attached to land Manifest intention to control (obiter in Sharman, Parker)
or 'container' (Sharman)
(Or satisfying test in Kowal)
↓
Employer or principal (where finding occurs in course of employment, agency)
(Sharman, Grafstein?)
↓
Finder (Armory) and co-finders (Keron) – must establish possession
↓
Those deriving rights from finder (bailee)
↓
Land owner (chattel owner) without manifest intention
Or (possibly) land owner (chattel owner) who doesn't meet the Kowal test
↓
Trespassing finder (obiter in Parker)11
↓
Everyone else.
11
Now what if the finder is a trespasser? The occupier will have superior rights (superior doesn't mean the
trespasser has no rights). Trespassers will only have a better right in specific circumstances (otherwise, it would
encourage trespassing). It's a sorta policy decision.
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Relationship of thing to the land (attached contra resting) [C. 110, in Parker]. Gold rings
embedded in mud at the bottom of a pond (Sharman) (a) has the thing become a fixture? – no
question here! (b) Donaldson J. address this on p. 110 and says where chattels are attached to
realty, "if the finder is not a wrongdoer, he may have some rights, but the occupier of the land or
building will have a better title. The rationale of this rule is probably either that the chattel is to
bet treated as an integral part of the realty against all but the true owner, and so incapable of
being lost [and thus found] or that the "finder" has to do something to the realty in order to get
at or detach the chattel and, if he is not thereby to become a trespasser, will have to justify his
actions by reference to some form of licence form the occupier [you may not be a trespasser and
still disrupt the land]."
Parker v. British Airways Board [1982] 2 WLR 50 (CA) [C. 107]
Facts. Parker is in executive lounge of British Airways and finds a bracelet. He turns it in to an employee (if he
hadn't been in a rush, he would have given it to the police). They sell it and retain the cash.
Issue. Does a Parker have more right than BAB?
Holding. Yes.
Reasoning. The British airport authorities are the occupiers (they own the premises). Since the employee's rights
were derivative, the BAB has to say the had anterior rights, rights even before the finding? This would be true if the
BAB had the intention to make the property theirs (or if this were a private lounge to which Parker wasn't supposed
to have access: shopping mall v. bank vault, private house v. street, private lounge).
Ratio. "Only where the land occupier has a manifest intent to exercise control things found on his land, will the lost
property be his." [C. 113].
Comments. Donaldson LJ. tried to summarise the hierarchy of finding, and list mini-principles [mini code pp. 116117, ¡! it can be dangerous].
Kowal v. Ellis. (1977), 76 DLR (3d) 546 (Man CA) [C. 115+]
Facts. Somebody with right to be on the land finds a pump on somebody else's land. T/o not an issue.
Issue. Between the finder and the occupier (landowner), who has the better right?
Holding. Finder by virtue of his having become a bailee by finding12.
Reasoning. A finder has right not because of legal possession rather, his rights are deemed to be conferred upon him
by the true owner (he is implicitly deemed to be acting for the true owner). However, he must also surrender
possession to the true owner.
Unless the occupier has become a bailee before the finder occurs, he doesn't have better rights. This is arguably a
more onerous test, unless you expand the concept of bailment to anything you come across. This test is tougher for
the occupier, nicer to the finder (is it?). He thinks there's a flaw in the reasoning, in the sense that the Court finds a
consequence and turns it into a condition. Is the judge saying that other people's rights must be derivative of the true
owner (in the case of the finder, the t/o is obviously not consenting), so DRK thinks it's better to base it on
possession (but he accepts the idea that maybe it's no as stringent as he says, though he does think so).
Ratio. Unless the occupier has become a bailee before the finder occurs (that is, he is aware of the presence of the
thing and has accepted responsibility for it), he doesn't have better rights than the finder.
Difference. Higher threshold than manifest intention (though intention is not that much of a key issue: if the
landowner has control and dominion, without intention, he still gets it).
Moffatt v. Kazana (1969) UK [C. 133-136]
Facts. The Russells are moving to a new house where he hides a cookie tin full of cash. They move again, selling to
the Kazanas, and Russell forgets the can in the new house. A workman finds the tin in the attic. Instead of waking up
the new owner, he turns it in to the police.
Issue. Who, of the true owner (or his estate, per Moffatt, for Russell's dead), the finder and the land owner, should
have the tin?
Holding. The true owner's claim is stronger: given the value of the tin can, there was no abandonment.
12
It is often said that the finder has a gratuitous bailee towards the true owner (try ot find the true owener, etc.)
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Reasoning. The finder's (the workmen) right is probably inferior to Kazana. On the basis of Parker, Kazana having
hired them (in the course of employment) to do some construction on his house, it is manifest that he wanted to
retain control over his property. Plus they had to break through to get to the container (some sort of embedding in
plaster, disruption of the integrity of the land to find it13). But one could agree that Kazana couldn't have the
intention to have control over the tin, for he didn't know it existed and was not excavating to find a "treasure". As for
the situation between Russell and Kazana, it is reasonable to think Russell is the true owner (true, he could have
stolen the money, but…). It looks like abandonment but it's missing the mental component: abandonment must be
deliberate, forgetting, which was the case here, is not enough of a positive act.
Comments. On the basis of Kowal, would the Kazana's dominion be enough? In any case, whether it's the finder or
the occupier of land, they are deemed bailees of the true owner, that is Russell.
3 BAILMENT: SEPARATION OF TITLE AND POSSESSION
3.1. The Nature of Bailment
Bailment: transfer from A to B of possession for a temporary or limited purpose. Two
keys: possession and delivery of possession. The definition in Heffron per Estey JA [C. 369]:
"a delivery of personal chattels [if they are chattels, aren't they personal property?] in trust, on a
contract, express or implied, that the trust shall be duly executed, and the chattels redelivered in either
their original or an altered form, as soon as the time or use for, or condition on which they were bailed,
shall have elapsed of been performed" [DRK: ¡! A lot of bailments are gratuitous].
…whereas a licence is “The grant of authority to another to enter upon land for an agreed purpose as to
justify that which otherwise would be a trespass and its only legal effect is that the licensor until the
license is revoked is precluded from bringing an action for trespass.”
So bailor delivers possession to the bailee who assumes possession. Sometimes, it is said
that bailment is a separation of possession and ownership (for often the bailor is the owner of the
property –but it's not always the case, for sub-bailment exists).
Goldsworthy [R. 5] sets out a few categories, some of them overlapping;
o Is the element fungible?
o "Contractual" bailments (that is "for reward, i.e. some value is attached to it) and
gratuitous bailments.
o Who benefits from the bailment? [often who pays when contractual]
o Sometimes, you also have a mutual benefit (notion of consideration is extended).
Per Heffron v. Imperial Parking:
o Also, as a matter of general law: Upon non-delivery, the onus is on the bailee to prove either
he's not at fault for the loss or that such fault was excused by an exculpatory clause.
o Bailment arises when control and possession (keys, control, attendant, hours) of the chattel is
effectively transferred from bailor to bailee: there was change in possession.
o Anything you might reasonably expect to found in the container you will be responsible for
to the extent you are responsible for the container14.
3.2. Rights and Duties of Bailor and Bailee and Obligations of Possessor to True Owner.
Bailment is usually not strict liability, there has to be fault. In a bailment, if the bailor
proves the bailment and the damage during the period of the bailment (that is, within the context
13
But the plaster's a weaker argument. ¶ This is not the recaption that is spoken of on C. 136: reception being a right
to trespass but no right to disruption of the land.
14
We'll see in Minichiello v. Devinshire Hote [C. 380] that this also covers unexpected things that one was aware of
(the lady told the clerk that there were valuable jewels in the car).
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of the bailment), this raises a presumption of liability on the part of the bailee (Heffron), and the
onus would be on bailee to prove that the damage was not due to his fault.
Licence
Bailment
Mutual benefit
(reward)
Traditional standard of care.
Gratuitious
Solely for benefit of bailor
No standard of care, no
positive obligation
Solely for benefit of bailee
Lower standard of care
(only for gross negligence)
Higher standard of care
(slight negligence)
Now, this has changed to what Ziff calls "post-modern": general standard of care
depending upon all the circumstances, one of which might be the nature of the bailment (value,
portability, choice of bailee, and thus expectations, etc.). But it's not clear the courts are fully
applying this (Goldsworthy).
3.3. Rights of Bailee and Bailor Against Third Parties 380-81
The “Winkfield” (1902) High Court of England [R. 8-10]
Facts. Any letter sent through mail constitutes a bailment, the bailors being the senders, the bailee, the Postmaster
General. The Post Office "sub-bails", so to speak, letters to The Mexican, a boat hit by The Winkfield. The
Postmaster (bailee) sues the Winkfield (third party, tortfeasor) for recovery of their cash value.
Issue. Is he entitled to do so? Is the possessor's right independent of the true owner (even if he might still have so
things to set straight with the true owner)?
Holding. Yes: the bailee has an independent right to sue based on possession. Possession itself it the source of the
rights15.
Reasoning. Possession of the Postmaster here is fictious but this wasn't raised at the trial 16. The only precedent
available is Claridge, that states that only where a bailee is liable (that is, at fault 17) to the bailor, he can sue a third
party [link with Kowal: where the finder was deemed to be a bailee of the true owner: here also, the bailee is linked
to the bailor]. Winkfield argues this because the Postmaster has crown immunity and is thus not liable. This is
rejected (overruled) by the Court who state that the bailee has an independent right to sue. Any link between the
bailor and the bailee is to be sorted out later (not directly linked to the bailee's right of suing whichever third party it
sees fit). “The wrongdoer is unconcerned with that the rights are between the bailor and bailee and must treat the
possessor as the owner of the goods for all purposes quite irrespective of the rights and obligations as between him
and the bailor.” […] “An action against a stranger for loss of goods caused by his negligence, the bailee in
possession can recover the value of the goods, although he would have had a good answer to an action by the bailor
for damages for the loss of the thing bailed.”
Ratio. (1) Possession confers rights on the possessor. Against a wrongdoer, bailee’s possession is equal to title. (2)
All bailees have an independent right to sue a third party wrongdoer. (3) Once the bailor recovers, because of his
obligation to the bailee, he has to (re/on)deliver the good. [R. 9 left]
Comments.
15
DRK thinks it sets common law property straight, that it's the orthodox position [R. 8 middle column]
Perhaps it was an error in pleading [R. 8 left], but it is now the law. The Court here assumes something somewhat
contrary to the facts.
17
This is not strict liability, the bailee is not an insurer.
16
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

Link with Wilson and Lomback, p. 8: Possession supposed to confer rights: you can sue for breach of your
possessory right, even when better right in a party in the picture
This being said, in Claridge it that the bailor could only sue a third party if the bailee was liable vis-à-vis the
bailor. Here, the bailee was not negligent. This is like Kowal where the finder had rights only by virtue of his
relationship with the true owner (not from possession, 'twas an implicit bailment). Though this is overturned:
possession is the source of rights.
III. Real Property
1. RIGHTS OF POSSESSORS VIS-À-VIS SUBSEQUENT TITLE OWNERS
Another quote from Perry v. Cissold [C. 143]: rights of the possessor vis-à-vis
subsequent claimants and vis-à-vis true owners: "[A] person in possession of land in the assumed
character of owner ands exercising peaceably the ordinary rights of ownership has a perfectly
good title against all the world but the rightful owner". Affirmed in Asher v. Whitlock [1865].
2. RIGHTS OF POSSESSORS VIS-À-VIS TRUE OWNERS: ADVERSE POSSESSION.
Mossmann 156-63 Statutes of Limitation
The common law has indeed always put weight on possession than the "abstract title", but the owner of the "paper title" still has
rights (he has ten years to recover possession of the squatted land, as per the Ontario [Real Property] Limitations Act). Careful: it's
not because the ten years have lapsed that the title is transferred to the possessor, no it simply means the ex-title owner cannot
claim on basis of his title. This is explainable historically but less defensible with today's registries.
Carole Rose, "Possession as the Origin of Property", discussed the case of Brumagim v. Bradshaw, 39 Cal. 24 (1870) [C. 158]
where both claimants both tried to establish they had the land through title owners. Claimant 1 had an older possessor, but it's
unsure whether this "George Treat" was an owner. If he wasn't Claimant 2's claim would succeed. How can one establish such title?
According to the clear act theory, Treat was the owner: he put fences up, had livestock. Therefore
Adverse possession: A doesn't exercise his property rights but B exercises possession. A will lose their property rights: the loss of
the owner's rights will establish the possessor's rights. Statutes usually set the time limitation to 10 years. From the moment where
there's permission, there can be no more adverse possession.
If you are the owner of property and someone has dispossessed you (interfering your right
of possession), if you don't bring an action for a certain period of time, you are precluded from
bringing an action (ss.4-5(1)). S. 15 of the Ontario Limitations Act says that not only can't the
true owner bring an action but also his rights are extinguished [C. 157]: this is not explicit
transfer of title, but by default, who then has the best right? The possessor (that is for the
common law to deal with).
Looking at the Ontario situation where the doctrine of adverse possession is alive and well. Now,
there are two types of land registry: Land Registry Act and Land Titles Act (where the doctrine of adverse
possession doesn't apply, but that's a detail for newer-ly settled land titles). In the West of Canada
(Alsama+BC), we have Land Titles jurisdiction (simpler system of recording titles) and very often
adverse possession very often doesn't exist anymore (maybe not in Alberta, thought). In Atlantic Canada,
generally, the system is a Land Registry system in which the adverse possession does apply (though some
parts of New-Brunswick have gone to the new system)18.
Time period might also change. Why allow this?


18
Because the title might not reflect what's truly going on (discrepancy between form and
reality);
Protecting order (in the sense that this is the prima facie evidence of the thing) [problem is
that is that today we can look at registries, which was not the case historically];
Detail, not on exam.
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

Efficiency: historically, the common law said that the development of property was the best
thing to do with the environment (if the true owner is neglecting to use his land, he should
lose his right to someone who'll actually do something with it) [now, should every square
inch of land be used? environmental concerns, social policy, jachère, etc. contra old PEI];
What are Limitations Acts for anyways? If you've got a right, you've got to exercise it, can't
just sleep on it: (a) reliance: people might rely on your not doing anything (b) abandonment
(c) etc.
Keefer v. Arillotta (1976) 13 OR (2d) 680 (CA) [C. 182-189]
Facts. Originally, Cloy owned all the land; it got subdivided at some point: Cloy had ownership of the middle
section and one half19, and Keefer, new neighbour, had use of a passage (easement, right of way) between both
properties. Keefer had used the driveway more than Cloy (whose it was), notably by shovelling it, holding picnics
and barbecues. He also built a garage and changed the surface (garnotte, to be precise): for these purposes, Cloy's
car was pushed to the street. Cloy granted an easement and right of way, he had customers use his driveways and
delivery trucks too. Then Arillotta replaced Keefer who claimed possession of the garage and stuff.
Issue. Does Keefer have adverse possession (in other words, has his use of the land challenged Cloy/Arillotta's
enough to make him loose title?) Does the right of way change anything?
Holding. Only for the garage, for the rest, the Keefer's rights were all coming from the easement (2:1).
Reasoning. The garage's presence prohibited Cloy from using this part of his land [C. 187b end] –sounds like
implied permission [C. 184]; for the rest, the use of the driveway didn't change anything, it didn't cause any
interference with Cloy's exercise of his proprietary rights (the exercise was minimal but it still was). This is not a
case of trespass [C. 186]20. Dissidence. Cloy's title was extinguished and Keefer showed enough animus possidendi
to oust anyone everywhere.
Ratio. Where there is permission (as is the case here) there can be no adverse possession 21. A person claiming
possessory title must have [as per Pflug and Pflug v. Collins R. 186b] (1) had actual possession for the statutory
period (2) intention to exclude owner* (3) actually having evicted the owner (discontinued possession of true
owner). Also, nature of adverse possession has to be open, not hidden.
Comments. *Wilson J. sets a test. [C. 186 1st full para] "A possessory title cannot be acquired against a true owner
by depriving him of uses of his property that he never intended or desired to make of it " (you can only dispossess
someone of what he wanted to do). The Cloy had the intention to use the strip of land, but in a very minimal way 22.
C. ACQUISITION OF PROPERTY INTERESTS
I. “Original” Acquisition.
Things can be given or transferred to your, granted or devised. You can also acquire res
nullius or bona vacantia, finding: by taking possession, you have acquired rights which are not
conferred upon you by the true owner23.
II. Aspects of Derivative Acquisition
19
Yes, this will amount to two halves and a strip, it's like pastis.
This sounds like a trespasser is in a better position than a licensee to claim adverse possession (higher test for the
person who has some right to be on the land).
21
But permission has to be explained (granting of a licence). Unlike in civil law, where the reconnaissance d'un
domaine supérieure destroys any hope of acquisitive prescription, common law doesn't discourage such trespasses.
22
Student Q: if you buy a land just to walk around it and someone comes, builds a house but lets you walk around…
23
Kowal v. Ellis where the Manitoba CA kinda says you get rights from the true owner (though DRK strongly
disagree.
20
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1. GIFTS OF PERSONAL PROPERTY
Here somebody has property rights and conveys, transfers or confers those property rights
onto another, whose rights thus derive from that first person's. One gives, one takes [Lavoisier!].
The requirements will vary depending upon what is given (chose in possession has to be
delivered but it's harder for a chose in action, and lands work with their own set of rule).
Transfers can be:
(1) contractual (sales, you can buy something!) and
(2) gratuitous (that is gifts, volunteer24), which can be subcategorized into:
(a) testamentary disposition of property (passing of property upon dead) and
(b) inter vivos (by a living person to a living person), which can be subdivided into:
(i) direct gifts and
(ii) indirect gifts (gifts in equity, that is trusts)
and perhaps (iii) not important narrow concepts25.
Milroy v. Lord. It is quoted in Re Cole. It says how a good giving of property is to be
made [C. 455]. "I take the law of this Court to be well settled, that, in order to render a voluntary
settlement valid and effectual, the settler/donor must have done everything which, according to
the nature of the property comprised in the settlement, was necessary to be done in order to
transfer the property and render the settlement biding upon him.", i.e. a Court will not enforce an
imperfect gift.
1.1 Basic Requirements for Inter Vivos Gifts: Delivery & Donative Intent
Cochrane v. Moore (1890) [C. 442-448]
Facts. Benzon owns a horse which he parks at Yates' stable (bailment). Cochrane is claiming that he purchased that
horse (he has a contract of sales with Benzon). Moore is claiming that he was given a one-quarter interest in the
horse prior to the sale (gift, one-quarter of the proceeds of the horse). Cochrane says the gift was not valid,
incomplete for lack of delivery.
Issue. What is required in order to make an effective gratuitous transfer of what looks like a chose in possession?
Holding. There was no delivery, but Moore wins because a trust was constituted for him.
Reasoning. What was the nature of the transaction involving the horse? Oral exchange: Benzon told Moore +
Written statement: Benzon wrote to the stable owner (expression of intention + acceptation of the gift but delivery
has never occurred [but the owner/guy in possession Yates having been told, maybe there's something]). The trial
judge said delivery was not necessary "…perfect gift". The CA says that was a bad judgement: it was always part of
our law that delivery (physical change of possession) was always required (with the exceptions, later developed, of
certain forms of sale and deeds). In the absence of that, delivery is required because [Escher J. C 446+] (1) intrinsic
to the nature of a gift that there be a giving and a taking (this is, to him, an essential characteristic of this transaction
under the common law and that it cannot be transformed by fiat); (2) [not in the book, other author]: so the donor
feels the wrench of parting with the thing (psychological demand) [the deed performs the same function]. (3) proof
(if you've got a deed, you've got a proof, if the thing has changed possession, it could always have been stolen [proof
not absolute], but still pretty good): significant act.
So, there was no delivery between Benzon and Moore. Between Yates and Benzon: they have a bailment situation,
where Benzon, owner, doesn't have possession: was the communication enough to change the nature of Yates'
possession (+ evidentiary effect) and count as delivery? We don't have to decide whether there's been delivery
because (majority): [C. 445b] "assuming delivery to be necessary…admits a delivery…" But who cares, the facts
support another theory of effective give: a trust was constituted before Cochrane purchased the horses. Basically,
this means Cochrane constituted a trustee of ¼ of the horse for Moore. Trust can arise in two ways: x transfers
property to y stating an intention that y should take the property on trust for z or x declares himself a trustee of the
24
25
Someone who hasn't given consideration for an excepted benefit.
Il vient de prononcer les mots «mad horse in Medicine Hat».
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property of z. Here, it's number two [C. 443], because Cochrane said it was "all right" [pretend that's clear] that
Moore had ¼.
Ratio. It was always part of our law that delivery (physical change of possession) was always required (with the
exceptions, later developed, of certain forms of sale and deeds). There needn't be a concordance in time between the
statement of intention and the possession.
Comments. In Milroy, the Court states it will not perfect an imperfect direct gift by construing it as something else
(f.ex. declaration of trust). Isn't this exactly was the Court did here? Transaction #1: Benzon to Moore (attempted
direct transfer). Had there been nothing else in the case, this would have run afoul of the rule in Milroy v. Lord. But
if you want to rationalize the Court's decision, you need to look at: Transaction #2: Benzon sells to Cochrane (there
is delivery of the chattel, but sale doesn't require delivery because there's consideration, but in addition to that, given
the discussion between Yates, Benzon and Cochrane, a trust was created, though the word is never actually spoken).
1.2 Problems of Delivery
1.2.1 Choses in possession
Think back to The Tubantia p. 7: there is a whole range of chattels that cannot be
physically possessed in the common sense, and thus cannot be delivery in the traditional sense.
In re Cole [1964] 1 Ch. 75 (CA Eng.) [C. 453-461]
Facts. Suddenly rich, Cole rented a house, bought a lot of stunning and expensive furniture. Then, he brought his
wife home and told her "it's all yours". He subsequently went bankrupt. The wife claims the furniture is hers and
cannot be claimed by the creditors (via the trustee of bankruptcy).
Issue. What this a valid gift? Was there delivery?
Holding. No.
DRK's comments. The trial judge's problem is that if he says there is no delivery, it would imply that the only way a
husband could give furniture to his wife is to make a deed (isn't this asking a bit much of spouses). What about
symbolic delivery? What have you got to do? Put a big bow around the chesterfields? "Symbolic passation" (I put
my hand, you put yours, I take my hand). Who thinks of that26? But what does a spouse mean when saying: "It's all
yours?" Is there some sort of sharing implied?
Cases referred to. C. 485: did he create a trust in furniture to his wife by marriage settlement? Any new furniture
that comes along will have to be added to the trust. Isn't it a sufficient thing that the trustee (the wife) saw her trust?
Can this be reconciled? Kilgen?: father-in-law purchases furniture (consideration). Takes an assignment by deed
(father = owner). Brought the furniture to the wife, leaves 27 (no occupation of the house on part of owner, DRK
thinks that consistent with delivery).
Reasoning. Gifts are always hard to prove in a family relationship because of the requirement of delivery (equivocal
act). Harman L.J.: “In order to transfer property by gift, there must either be a deed or instrument of gift, or there
must be actual delivery of the thing to the donee.” Also, it is very probable that Cole meant "you can use it all" (her
capacity as his wife). “I cannot find that there was any change of possession here. […] She has the use of the
furniture by virtue of her position as wife, but that gives her no more possession of it than a servant has who uses the
furniture.” Pearson L.J.: “An act to constitute delivery must be unequivocal – one which in itself shows an intention
of the donor to transfer the chattel to the donee." Here, the act is unclear: he could have retained possession and just
given her the right to enjoy the chattels.
Ratio. Intent and delivery go hand in hand and must be clear and unequivocal.
Comments. There's a misprint: Cole is Austrian and not Australian.
 Couldn't you argue that given nature of objects, there was constructive delivery (best delivery possible given the
nature)? It would be true if the chattels had been brought to the donee and not the donee to the chattel. And yet
another proof of the common law court's suspicion towards gifts.
 Is the case really about delivery? Or rather about an insufficiently strong expression of intention (equivocal).
DRK thinks the components are linked (don't stand apart). If the expression of intention is not clear, it could be
a bailment and not a gift.
 Would the Court have treated this differently is there had been a break-up in the marriage. There is a danger of
collusion here.
 Sure, sometimes, the delivery is equal to the intention, but not always (parallel with mens rea and actus reus).
26
27
Lawyers.
Who was claiming? Wife of husband?
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1.2.2. Choses in action
Symbolic things, these choses in action: you can't physically give the chose, so verbal act
in the form of writing for transfer (share in a company28, a debt29). S. 53(1) CLPA says there's an
obligation between the creditor and the debtor. For the creditor/assignor to give to the assignee
right to the debt, there has to be writing: from the creditor to the assignee and to the debtor.
In re Rose [1949] Ch. 78 [R. 10-11]
Facts. Testator Rose left shares to Hook, unless such shares were transferred to Hook before Rose's death. The
shares were issued prior to his death, but signified only after (the company waited a long time before agreeing to the
transaction).
Issue. Was the transfer a valid inter vivos assignment? Was the chose in action transferred?
Holding. Yes (well, no, but the testator did all he could do: his intent is clear).
Reasoning. In order to make an effective transfer of the chose in action, in this case you need: (1) execution of
transfer (document saying “I hereby transfer these shares”) (2) delivery of the share certificates representing the
shares (awareness of all parties is crucial) (3) registration (on the company books), this having to be done by the
company whereas the rest can be done by the shareholder, which steps were done by Rose prior to death. The rest,
he had no power over, but his intention to be bound was crystal-clear.
Ratio. Where the nature of the gift involved a decision by a third party, the transfer shall be deemed completed
when all the donor can do is done (clear intent). A person must do everything in his power to make a valid
disposition of property in a chose in action. When you have done all you can, and all that remains is the consent of a
3rd party, a valid gift occurs. From the point of view of the gift, only the transferor must do everything in his or her
power to make a valid transfer30. See Milroy, supra.
Comments. It has never been clear why it mattered in this case whether Hook took the shares under the will, or by
inter vivos transfer (as a matter of tax). The outcome would have been the same either way.
Other problem: if the transfer had never been registered (no completion), or if Rose had gone bankrupt before his
death (interruption)? Maybe theses issues should have arisen.
1.3 The Intention Requirement
The intention (animus donandi) must be clear, that we know (In re Rose). It's important
because there can be delivery in other transactions (bailment, gift, sale, resulting trust, see p. 20).
Thomas v. Times Book Co. [1966]1 WLR 911 (Ch. D.) [C. 464-469]
Facts. Dylan Thomas's widow claims the Under Milk Wood manuscript31 from Times Book who say it was given to
Douglas Cleverdon, a BBC producer, by the late Thomas in the following circumstances: Thomas produced a
manuscript for Cleverdon, wanted it back before he took the plane, lost it and told Cleverdon: "if [you] can find it
[you] can keep it". Cleverdon found it, kept it and, a few years later, sold it to the defendants.
Issue. Was this a good gift?
Holding. Yes.
Reasoning. Intent. To establish a gift you need two things: animus donandi and delivery. The intent was clearly
there ("if you can find it, you can keep [understood as keep it for yourself and not keep it until I come back] it":
Thomas told the story a couple of times, even 32). This is not raised, but there is a general rule is to the effect that
there is a locus penitentiae period (moment of repentance), possibility to change your mind before completion of the
gift.
Delivery. In Cochrane v. Moore, we said that there needn't be a concordance in time between the statement of
intention and the possession. There was no delivery per se, Cleverdon having simply found the manuscript in one of
28
You can't hold a right. But the certificate is a symbol.
Typical chose in action.
30
From version 2, supra.
31
The manuscript itself is a chattel but it has value as a form of expression, subject to copyright.
32
Maybe Cleverdon was a wishful thinker, it's Thomas's state of mind that is relevant, close enough here.
29
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the places. Thomas had told him it might have been, but possession with consent of owner is constructive delivery.
As for the rest of the testimony, the plaintiffs have to prove Cleverdon was lying, which they failed to establish.
Ratio. To establish a gift you need two things: animus donandi (immediate, unconditional and irrevocable) and
delivery, which can be constructive (possession + consent of owner).
Comments. Could Cleverdon claim it against an hypothetical finder (who has the better right)? Can Cleverdon says
he's acting as an agent of the true owner? This sound like a Kowal v. Ellis argument. Unless the finder argues the
gift was conditional.
2. TRANSFERS OF INTERESTS IN LAND (REAL PROPERTY)
2. 1. History: Feoffement with Livery of Seisin, Deed, and Stuff
What are the required elements to make this inter vivos transfer work (whether by actual
transfer or by a representative form), and how can these transactions bind third parties?
Historically, the standard way of transferring land was "feoffement [giving of a fief/fee]
with [de]livery of seisin [possession, but better]". There would be some sort of symbolic passing
over (a twig, some mud). This is outdated and very rare today.
To X for life, remainder to Y in fee simple: X takes immediate possession; Y gets
possession only after X dies, cannot get his interest by livery of seisin, so there has to be some
sort of representational form: the deed (this is thus good for third parties). See hdE. Writing is
required for transfer of land to be enforceable (as required by the Statute of Frauds33 [C. 489]). It
doesn't have to be a deed, but there needs to be some sort of writing –this is not necessarily true
of personal property (except for choses in action).
2. 2. Beneficial Ownership of Purchaser after Validity of Contract is Found: Equity
In the transfer of land, the basic concept is as follows: at time 1, there's an agreement of sale
between A and B. The deed will be closed at time 2. However, in between the signature of the contract
and the closing, there might be a time for verification. In the middle of that time, as soon as the contract is
found valid, B is the owner in equity, but not yet the owner of the title.
T1
agreement of sale (a/s)
Dec. 23rd, 1874
T1a
(equity)
valid k
T2
deed (closing)
Oct. 10h, 1875
The question is as to how is the property interest characterized when the situation changed over
time? The easy questions are the ones of the ownership before T1 (the vendor's) and after T2 (the
purchaser).
[C. 491] "A valid contract actually changes the estate in Equity": as soon as the contract is found
valid (i.e. there's no reason to set it aside), the purchaser becomes the owner by equitable title (also called
"beneficial ownership"), he's a trustee of the vendor, who doesn't have the right to change the property
while still retaining legal title (for default of payment, for instance).
The point here is that a transactions is not simply X was the owners, sells and bam Y is
the owner, there's some sort of in-between. This was illustrated and set in Lysaght v. Edwards, a
1876 case.
Lysaght v. Edwards (1876) 2 Ch. D 499 (Ch. D) [C. 420]
Facts. Both parties agree on all terms of their sales contract on Dec. 24, 1874, but Edwards dies in May, i.e. before
the closing, which was scheduled for Oct. 10, 1875.
Issue. Is the property's Lysaght and why?
Holding. It is: he has equitable title from valid contract.
33
In all common law jurisdiction, 1667 +
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Reasoning. There are two steps to the contract, the agreement in writing (s. 4 of the Statute of Frauds) of a valid
contract and the conveyance by deed (s. 1 of the Statute of Frauds). As soon the written contract is found valid (title,
servitudes, mortgages), the purchaser has equitable rights, is a trustee and provided he pays, the vendor will have to
transfer him the legal title after the deed. If the title is accepted by the vendor, a valid contract should not be set
aside.
Ratio. “The moment you have a valid K for sale, the vendor becomes in equity a trustee for the purchaser or the
estate sold, and the beneficial ownership passes to the purchaser, the vendor having a right for the purchase-money,
a charge or lien on the estate for the security of that purchase-money”.
Comments. Careful: equity is always tricky because it is usually unspoken, unwritten.
Of pots and pans: let's play ifs! now what if the value of the house doubled (or was reduced) between the signature
of the contract and the closing of the deal. Should the purchaser pay the new price? Of course not, he'll pay the
agreed price: the difference is all for the equitable owner. The only thing the vendor retains is the security to the
extent of the purchase price and no more.
2. 3 Registry Systems34.
This is the reason why there are two registry systems: in one, all transactions documents dating
back forty years are found and you are to look them up (in New Brunswick, for instance, or in Ontario),
they are simply filed. The Land title system, used in Saskatchewan for instance, is where the government
does the work for you and issues a certificate stating you are the owner if you fill certain forms.
3. THE INTERVENTION OF EQUITY
Equity and common law are two ways of seeing the law. In theory, they never contradict
each other, equity simply adds a right, finds one that common law doesn't see: in Cochrane v.
Moore or In re Rose, for instance, and dame in Lysaght, the law "reads-in" a trust.
2 kinds of trust
Expressed trust
(manifest intent)
Trusts imposed by law (equity): the circumstances
created a trust (split of legal and equitable title)
Resulting trust
Constructive trust
Mossmann 449-452 Gifts and trusts
In Cochrane v. Moore, the Court concluded that delivery was required for an oral gift. Since it was
lacking, they decided however a trust had been created: it was an expressed trust because of the
discussion between Benzon, Yates and Cochrane.
A resulting trust arises when there is a transfer of property without an intention to create a gift (there
is delivery, but no intention): the recipient of the property holds in trust for the transferor. It may also arise
when one buy property in the name of another, but has no intention of giving it to them (there is a
presumption of advancement for families).
Finally in the absence of intention to give or to not give, courts can "read" a trust: this is the
constructive trust: it recognizes that one had made significant contribution to someone else's property (to
avoid unjust enrichment of the title holder). This is the case in Hussey v. Palmer.
Poem (a great one judging by the punctuation): There was a man/Who owned a land/Or so he thought…/Because,
great distraught!/It wasn't registered properly\/So no more roof for the family!.
34
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Note that in a resulting trust, A could have bought the entire house with his money and
keep in on resulting trust until B, in the name of which he has bought the house, repays him. Or,
A and B could pay 50% of the value of the house, in B's name: A and B own it 50-50. This is
close to Hussey v. Palmer, well according to Lord Denning anyways.
Hussey v. Palmer [1972] 3 All ER 744 (CA) [C. 517]
Facts. Mother is an old widow who lives in a dilapidated house. Daughter offers her to come and stay with her and
her husband. Mother pays the contractor 607£ for the construction of an add-on room to the son-in-law-owned
house. Tension arises. Fifteen months later, she leaves. She still is impecunious, so she asked the son-in-law for one
pound a week. The son-in-law never replies that letter. So she decided to sue, claiming she should get back the
money she paid for the extension. Son-in-law says it was a gift.
Issue. Is the case?
Holding. No: not a gift, not a loan but a constructive trust.
Reasoning. The widow argued it was a loan, and is claiming the money back, plus interest. Lord Denning, in a
sophistic sentence35 [C. 519: based on justice and good conscience], if I may say, argues that would this have been a
loan, this situation wouldn't have happened, so it can't be a loan [problem is, she keeps calling it a loan]. But a
constructive trust can be imposed by equity: her son-in-law and herself own this house (each in proportion of what
they paid).
Ratio. A constructive trust might arise when there is a transfer of property without an intention to create a gift
Comments. She couldn't have raised expressed trust because there was no writing and the onus of proof would have
been on her. The only trust that doesn't require writing are the trust imposed post facto by law.
An equity claim gives the widow more rights in the sense that she would get property interest. If the value of the
land was to rise, her proportionate share would bring her more money than a loan, which she might have been better
of with if the value of property was declining.
Student question. This assumes the widow's add-on added value to the house, because if it was one hideous cupcake of an addon, could we still "in justice and good conscience" say she owned the fraction of the money she put in the construction?
D. PROPERTY INTERESTS IN LAND
I. Basic Concepts of Land “Ownership”
I do not own Blackacre.
I am tenant in free and common socage
[doctrine of tenures] for an estate in fee simple
[doctrine of estate] in Blackacre36.
1. DEFINITION OF “LAND” (HANDOUT)
2. DOCTRINE OF TENURE
2. 1. Introduction
 Ownership can be allodial (absolute way of thinking about ownership) – today only the
Crown.
 Or tenurial (instead of holding the land for yourself, you hold it by some sort of "grant"
from the original owner, that is the person who holds it allodially). – most of today's
property.
2. 2. History: Feudal Pyramid and Subinfeudation.
35
DRK quote: "if they're a Heaven, that's where Lord Denning is, and if I go there too, I'll probably shine his shoes.
[ad lib] But I disagree and take objection to his legal opinion here." It's for sentences like I want to have him on my
keychain.
36
Subjectively, it's the same.
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The High Court of Australia, in Mabo (1991) says the doctrine of tenure is the skeleton of the law of land. The
Law Reform Commission of Ontario says it's so irrelevant it's not worth repealing. The paradox is that both are true.
Historically, treaties could (and were) written on the subject –so conceptually, it's still at heart of the system–, but it
has lost all its implications (there is no more duty owned to the Queen's representative) –so practically irrelevant.
There is still an "after-image" (Ziff). The tenurial system involved the fact that the King owned all the land back
then, and granted out land to chief noblemen (tenants-in-chief): it wasn't absolute, it wasn't ownership, it was holdit-against-services-every-now-and-then. The tenants-in-chief usually sub-granted tenures to mesne-tenants37, who
might sub-sub-grants to tenants-in-demesne38. The type of services determined the tenure (military, religious,
household, agricultural [socage tenure, from residuary tenure, it became the only one left, and probably the only one
introduced in Canada]).
There were also obligations, incident ones, cyclical. There was wardship: if the tenant died leaving an infant,
the lord was to take his place until he reached majority. There was also relief, when you died, your land descended
to your heir, but some sort of dead tax was due (payment of year's profit). There was also aids, a special tax, pur
faire filz chevalier or socage, pur file marier. Finally, there was escheat: if the tenant died without heir, the property
returned to the lord (in a way, this still exists today). Of course, people started to try to work around these
obligations: a tenant going to war might leave his land to three people, so that they use the land in joint tenancy for
the good of the family: thus relief and wardship are avoided. But the obligation is simply moral: when the ownership
is transferred, there's a way of rationalising your way out of obligations that are not legally enforceable. You can do
it, but it's precarious. And so the underage infant went to see the Chancery39, who, eventually, enforced the moral
obligations. The trust was born (truce, at the time). This creation of equity is antiquated today, but it still has some
sort of continuing relevance.
The sub-granting got out of hands and the lords had the feeling they were being cheated. Result: Statute of Quia
Emptores (1240). It was received in Canada and reenacted in Ontario in 1890: if you want to alienate land, you can't
do it by subinfeudation, you can only do it by substitution. At the same time, the land became freely alienable (the
lord used to have a word on who the new tenant would be). Because of escheat, the pyramid tended to flatten and
more people got their rights directly from the Crown.
Tenures Abolition Act (1660), just after the English civil law, abolished all the incidents of tenures, except
maybe escheat. It also simplified the system: everything came from the Crown 40, there were practically no more
services, the only kind of tenure that stayed was the free and common socages.
3. DOCTRINE OF ESTATES
DRK
Mossmann 236, 240-41
It has much more practical that the
doctrine of tenure. See handout: they both talk
about the estate in fee simple.
What is an estate? "It's a time in the land or
land for time. […] There are diversities of estate
and thus diversities of time" (epigraph in Ziff). It is
limited (you're ok as long as you have heirs). Heirs
of his body (direct lineal descendants) or your life.
So: Crown grants the fee simple to X
(longest period of time you can possibly have). X
doesn't want to give all the time to, say A. He can
give it to A for life, then B for life, then C for life
and heirs of his body (sons, and grandsons, this is
The estate was developed as a response to certain
problems created by the fragmentation of interest
created by the tenures. The doctrine of estates was
seen was a fragmentation of interests over time;
hence, it also permitted that more than one person
hold an interest in the same piece of land, this
interest behind a succession of possession. The
tenure by which one holds land determines the
quality of the property interest. The doctrine of
estates determines the quantity of the interest.
Whereas leasehold estates have a maximum
duration (fixed term or sufficient notice: the going
back to the owner is called reversion), freeholds
And not mini. And then joke about puisne/puny judges…
This is like living in the McGill Ghetto…
39
Referred to as the mother of all mercy.
40
And not, we can't really hold the Crown as a universal heir (which is closer to the civil law perspective), because
of the doctrine of tenure.
37
38
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called the fee tail), and D, his heirs (collateral as
well as descendants)41. And after (his interest will
come to an end when we has no more heirs, as the
fee simple runs as long as you have heirs) that, it'll
go to the Crown (escheat or Escheat Act).
Now, a fee simple might be shorter than a
life estate if X died. Or if D dies before A does.
But still, fee simple is theoretically better than life
interest.
have uncertain duration (life estate, fee simple
estate; here after the hold has expired, the land
goes to a third party and not back to the original
grantor). Note that historically, the leasehold was
understood to be a contractual agreement (thus,
there was no seisin and the landlord remained
responsible for the land).
One thing about these estates is that they are all
present estates in the land.
II. Interests in Land
1. ABSOLUTE (UNQUALIFIED) ESTATES
Absolute estate refers to the estates recognized by the common law without further
qualification, that is, restriction.
1. 1. Estates of Inheritance (capable of passing to the heir or death of prior owner)
a. Fee Simple
The fee simple is the largest estate you can own in the common law. It lasts as long as the
person who is given it has heirs. These heirs can be of lineal (sons and grandsons, relationship of
descent) and collateral (brothers, sisters, who also have lineal descents) descent. When X
transfers the fee simple to Y, it's Y's heirs that count and not X's. It's an exception to the nemo
dat rule (sorta)42.
[Mossman 241] There could only be escheat where the tenant died with no heir (narrow
interpretation until the 1540 Statute of Wills by which tenants acquired the right to devise their
property to whomever their little heart desired).
As there was a historical preference for the life estate over the fee simple [though this
was changed by legislation (Conveyancing and Law of Property Act 1990 s 5, Ontario
Succession Law Reform Act s 26.) to a fee simple presumption], the common law developed
strict rules regarding the precise words required to create an estate, regardless of the intention of
the parties: inter vivos, the conveyance grant had to include the word “heirs”. More liberally,
testamentary dispositions “to X forever” or “to X and his issue” were sufficient to convey a fee
simple estate to X, but there had to be something after “to X” (otherwise, life estate only).
This formula mentions two categories of person: (1) X and (2) his heirs.
If it said children, one might interpret it as co-ownership, whereas "heirs" conveys an idea
of the owner being dead43 (so successive ownerships, the grant is to X and "his heirs" simply
gives the size/length of the grant).
 The words "to X" are words of purchase: they identifying the class of interest in land
is given.
 "His or her heirs" are understood as words of limitation (they set a limit in time on the
estate). D'Arundel's Case (1225)
 The formula has today changed and is reproduced on C. 242. (s. 3)
41
Here, we mean "direct heir" (as in blood relation, blahblah), by default, not by will.
Per Mossman, C. 238: Originally, the fee simple estate was created by a grant of land to A “and his heirs”. This
estates continued as long as A had lineal descendants. At the beginning, when A sold to B, the estate continued as
long as A had descendants! This was changed in 1306 to B's descendants.
43
Say Prince Charles is the heir apparent and not the heir punto. He might die before Elizabeth II.
42
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b. Fee Tail
Historically and anomalously, there's also the fee tail. "Tail" comes from "tailler", which
means cut into a shape, that is, a smaller estate (the fee tail) in the fee simple (which the grantor
kept): it is limited only to your direct (lineal) descendents44.
To create a fee tail, you had to add "words of procreation", "to X and the heirs of his
body". It could be narrowed to fe/male descendents (general). It could also be special (to you and
the heirs of his body by spouse number two)45. [Mossmann 239] While it was in the interest of
wealthy families wanting a specific estate to remain forever in the family (whoever held the estate at any
given time held only a life interest and could not convey a fee simple to any purchaser), this made the
land inalienable for all practical purposes, thus underdeveloped and undervalued.
Also (consequently?), the fee tail could only be transferred as a life estate. Concerns arose
however that this might not be the optimal use of land, that is was static, and in 1956 (Ontario –
but it happened everywhere in Canada except Manitoba), s.4 Conveyance Act converted all fee
tails in fee simples.
c. The Rule in Shelley’s Case
i) What is the rule?
We saw that "To X" were the words of purchase because X was actually getting the
interest and that "and to his heirs" are only mentioned to mention the size/duration of the grant.
But there are sneaking anomalies. Shouldn't we just get rid of these? Most probably but
someone decided that philosophically/historically/common-law reasoning-ly they have some sort
of purpose, we'll keep them. Alberta got rid of it, but elsewhere, it remains one of the "deepest
mysteries" of the common law.
Mossmann 283-85, 295
The rule in Shelley’s case is an anachronism but unfortunately one that continues to lie in wait,
ready to catch the unwary legal drafter. […] (Wolfe v. Shelley [1582], known as Shelley's Case).
“If a freehold estate is granted or devised to a person and, by the same instrument, an estate is limited by
way of remainder to his heirs or the heirs of his body, whether the remainder immediately follows his estate or follows
an intermediate remainder, the words “heirs” is construed as a word of limitation and not purchase”
“Heirs” simply indicates the size of the estate given to the grantee and the heirs themselves had
no interest in the grant. Basically, even if it looks like a life estate, X has a fee simple, so the heirs have
the same rights (the interpretation doesn't change anything to their rights), but they have to pay up.
This rule is a rule of law (and not a rule of construction), which means is surpasses any will,
unless is it clear in that the testator had one specific heir in mind for the second part of the wording. Also,
the rule applied even if there was an intermediate remainder in the grant, as in “A to B for life, then to C
for life, remainder to B’s heirs” [B has two life estates, one for his life and the other following B's life].
Should there be no C, here, by the doctrine of merger, B would acquire the fee simple, as, the lesser life
estate is said to merge into the greater (the remainder in fee simple), i.e. an immediate f/s.
ii) Why the rule?
The reasons for this rule are historical:
44
In Jane Austen's Pride and Prejudice, the fee tail is the whole preoccupation: how do you set five daughters in life
when you are a tenant in tail (the fee simple is not his). Magnus Opus: common law property as the basis of 19th
century English literature.
45
Ça sonne tellement comme une vieille tante haïssable qui s'amuse. Or just to keep the land in your family: tension
between the State wanting to extract property and you wanting to work around it + people's desire to limit their
letting go and control their property.
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Retail. The relief was paid by the heir to get his inheritance. However, this did not apply
to inter vivos gifts. People tried to get around by making purchases "To X for life, remainder of
fee simple to X's heirs", this was X has a life estate and remainder of fee simple to X's heir, but
by purchase and not inheritance: so no tax!
Does that still make sense today, when we know the 1660 Act abolished feudal
obligations? Some say when the reason for the rule ceases, the rule itself ceases (it can only
persist as long as is relevant), but judges seems to be reluctant to this kind of argument46.
DRK's plural. But there's another reason (DRK's very own reason): in medieval times,
you only had one heir, your oldest son. So the plural in "heirs", by the rules of primogeniture
could only mean direct descent, and not all of them could be purchasers, only one could be, so
"to his heirs" might refer to the indefinite succession, that is the size of the estate (words of
limitation). But some C19 act made clear that heir could be anyone, and that the rule of
primogeniture didn't apply (a next of kin could inherent). But still, the rule is obsolete.
Others. And maybe one could make an argument about the alienability of property. But
still, it's about traditional values.
But point is: it exists. And it's a rule of law and not a rule of construction (it applies even
in the face of a testator's intention).
iii) Explaining Re Rynard
Re Rynard (1980) OR 35 (2d) 157 [C. 285]
Facts. Mrs. Rynard dies, wants her property to benefit some people while still retaining some control over it. Her
will basically states [C. 286] "to Kennedy for life, bunch of restrictions, and the balance [remainder] to his heirs".
Long after his mother's death, Kennedy whom inherited something wants to sell it.
Kenny says he can sell the fee simple, as he holds it because the rule in Shelley's Case applies.
His kid say all he can sell his the remainder of his life estate because that's all he's got (because of the other
restrictions, "to the heirs of Kennedy" should be interpreted as words of purchase (not limitation as they usually are).
Issue. What is the nature of the estate Kennedy inherited?
Holding. A life estate, remainder to his next of kin.
Reasoning. First question is about Maggie's estate. Maggie's father's will [C. 293] gave the use and benefit of his
land to "Maggie Rynard, for her life and then to the heirs of her body*". Shelley converts this in a fee simple (well, a
fee tail actually, but she had it converted to a fee simple in 1956**).
*If Maggie's father had talked about "kids", Shelley's rule would be no good and she would only have had
a l/e. And Kenny would have had the f/t or the f/s, unrestricted 47.
**If Maggie hadn't desentailed her estate, Kenny wouldn't have been able to alienate more than a life
estate. Sucky.
So Maggie having a f/s, it's possible that this is what Kenny's got. Question: how did Maggie testate her f/s?
If she meant "to Kenny for life, remainder to his heirs", then Shelley's Case applies and Kenny's got the f/s.
UNLESS
Courts don't always like this kind of argument (judges are not law-makers…) and will often say people have relied
on it so it can only be changed by the Legislator who can give rise to transitional measures.
47
There's no question that Shelley's Rule applied in Maggie's father will, says Wilson JA: he gave Maggie the life
estate, and then "heir or heirs" [! – DRK thinks that he was just thinking of the next generation] "surviving" (i.e.
those who are alive when I die, that suggests the next generation only). DRK would dispute Wilson's assertion that
the rule in Shelley's case obviously applies. DRK thinks it's inconsistent, her exercise of constructive and that all
Maggie has was a life estate and Kenny and Bernie would probably get the fee simple as co-tenants under Maggie's
father will (secondary purchaser) and nothing under Maggie's will (for she has nothing to give). Butbutbut, she had
her life estate converted into a fee simple! It might be too late to go back, so all we're doing might have been a big
theoretical exercise.
46
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(fundamental argument) Shelley doesn't apply anymore  --but it's taken for granted by Wilson JA that's it
good law [C. 288m VanGrutten v. Foxwell48]..
2. Construction exercise. By "heir" the testatrix meant next of kin (words of purchase, Shelley doesn't apply) and
not indefinite succession (words of purchase, Shelley applies), so Shelley exists but doesn't apply49  this is
never stated clearly, but Wilson seems to say it is the case because the will keeps referring to life estate.
3. In any case, Shelley's case doesn't apply where the estate is qualified (as is the case here, clause 5).  though
Kenny's lawyer tried to say it's repugnant [C. 291], i.e. if you are giving something, you cannot restrict its use
by limiting its essential characteristics (more nicely put: certain interests in property must, of their very nature,
confer upon their owner the right to do certain things, that is if you have a fee simple, you MUST be able to sell
it!), Wilson JA said this is not a condition subsequent, it's a determinable estate, so repugnancy doesn't apply. 
this is Wilson's main argument for saying all Kenny has is a life estate50.
Ratio. (1) Wilson holds that the rule of Shelley’s case exists
(2) It is only applicable to words of limitations (not purchase).
(3) It only where a person is granted an absolute life estate (and Kenny's estate is qualified).
(4) The repugnancy principle doesn't apply to determinable estates.
Comments.
 Careful, the judges might read Shelley in your will.
 The main criticism that can be addressed to these rules is the absence of rationale (at the time of their creation,
there was one, sometimes it still applies, sometimes, it has been replaced, and sometimes,
 To X for life, then to X's heirs  you can't make a present gift to an indefinite line of people stretching in the
future: strict logic would make "then to X's heirs" have no sense. However, Shelley's Rule gives it a sense: at
least, it has the effect of making the whole fee simple effective (sure, it seems to be going to someone other than
intended, but whatever51), its meaning in the contemporary context is to give a size to what looked like a life
estate.
 It's a sucky judgment, not enough reasons are given, it's taken for granted that Shelley applies, though it's
weakened.
 Beginning of clause 3 looks like pur autre vie (father's death), but then he also gets the estate for his life. "Use
of" is not an issue here, but it could be (less that freehold).
 Also, one could (could) interpret clause 5 of Maggie Rynard's will as giving Kenny's life estate to Bernie (but it
makes no sense with the rest)
1.
1. 2. The Life Estate
a. General rules
O: to X for life, then to Y;
Y has the remainder, O, the reversion.
48
«To X for life, then to their heirs of her body, if more than one to be equally divided among them, such lands to be
conveyed to them in equal shares as they respectively attain the age of 21, and to their respective heirs forever». As
a lawyer, you might want to say this is a life estate to X and then the fee tail to the rest (heirs of her body): Shelley's
Case! Words of limitation and not words of purchase. On the other hand, one might say all the specifications give
rise to a preliminary question of construction: what did the testator mean by "heir of her body" (the next generation
in the same degree of relationship to X –the next of kin [words of purchase] or indefinite life of succession
[Shelley's Rule then applies: words of limitation]?) –and then a lawyer could argue that you can't divide property
equally when you have an indefinite line of people: therefore, the testator certainly meant "next of kin", a finished, a
discrete class among which property can be divided equally. Plus, at the very end, you have the standard words of
limitation for the creation of a fee simple: two sets of words of limitations would be useless (and there's a rule of
limitation to the effect that all words should mean something). HOWEVER, the HOUSE OF LORDS decided
Shelley's Rule APPLIED (nice arguments, but not enough).
49
DRK thinks it means life estate and not necessarily next of kin, and Shelley's case should apply, but that's not the
law, just his criticism of it. Unless Wilson is putting the preliminary enquiry too high.
50
From the wording, we could even see as far as saying all he has is a license "use of" is not an issue here, but it
could be (less that freehold), since clause 3 looks like an estate pur autre vie (his father), but obviously Maggie's
intention was give Kenny more than a personal right.
51
What about reversion?
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Basically, there are two freehold estates in Canada: the fee simple (let's forget the fee tail)
and the life estate. A life estate is an estate whose temporal size is measured by the duration of
someone's life. Typically, it is limited to the life of the person who owns it: it cannot be inherited
(except for the estate pur autre vie). These estates typically arise when you want to benefit one
person, then, another. Historically, life estate to the first generation and then fee simple to the
next generation: very clear in England (managing your property after your dead). You can have a
series of life estates (as in Re McColgan [C. 272]). This being said, everybody has a present
estate, B’s interest can be sold or otherwise alienated at any time. The relevant question is
always: where is the rest of the fee simple52, the remainder? If you fail to specify or the
remainder is invalid, the rest goes back to the grantor (or his estate): that's called reversion.
b. Types of life estates
Good Examples. To X for life; To X for as long as s/he lives; To X, and after her death to Y.
Bad Examples. To X, remainder to Y [more problematic: if there's a remainder, there's only a life
estate – historically sure, but today, the fee simple is the default position: X could have the fee
simple and then, there would be no remainder for Y –though the Statute says that words to the
contrary blabla]; To X, then to Y [also more problematic: how long does X have it? See above.
Bad drafting: a responsible lawyer should avoid litigation…].
Re Waters (1978) 21 OR (2d) 124 [C. 269]
Facts. Waters hoped he would marry Ellen Jones, but died. His will stated he “[gave] the USE of 48 Walker Ave. to
Ellen Jones for as long as she lives, or until she re-marries, or gives […] a written notice that she no longer needs
and desires the property. [Then] it shall become part of the residue of my estate.” Jones wants to rent the property,
but the estate says all she has is a licence (under which she could not get revenues from the land), at best a qualified
life interest.
Issue. What is the nature of Jones's property?
Holding. She has a life estate (she can rent but she's also responsible for the repairs), that is personal rights to
occupy the property.
Reasoning. Pennell J. says the will created either (1) a license (personal right to occupy and use ["gave the use"
{emphasis added}] the property, but no right in property), (2) a life estate ("as long a she lives" and "residue of my
estate" sound like it's a life estate), either (a) qualified53 or (b) absolute. "I take it to be a cardinal rule of
construction that the judge must endeavour to place himself in the position of the testator at the time the will was
made, and try to ascertain the intention of the testator": it was clear the interest was given without condition. If
there hadn't been anything after "as long as she lives", there wouldn't be any question about it. There are no word in
the devise requiring occupancy on Jones's part, especially since he gave her furniture and household (consistent with
the devise of a life estate). She's then responsible for all matters relating to housing-bylaws.
Ratio. When no words limit the use of an estate that otherwise seems like a life estate, it's a life estate. The grantee
can rent it, collect the rental money but must also do the repairs a reasonable tenant would do.
c. Estate pur sa vie
In the normal course of a life estate (that is, an estate pur sa vie), the holder and the
measuring life (cestui que vie) are the same ("to A, for A's life"). However, they are two separate
roles and therefore can be held by two different people. Thus the estate pur autre vie, where the
holder is not the measuring life (to A, for B's live).
d. Estate pur autre vie
52
Instead of what is the meaning of life, or is there a God.
Well, it is a qualified life estate, in the sense that it's cut short if she remarries, but we're talking about
absolute/qualified with regard to occupancy.
53
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It's unusual but not unheard of, mostly because it's not very attractive (but could make sense in a
caretaking capacity, f.ex.). In the sense that if one sells (or otherwise alienates) his life estate pur
sa vie, it becomes an estate pur autre vie (as could be the case in Rynard [C. 286]). Though
buyer Y could only argue adverse possession is he kept the property for n years after seller X's
death (without the true owner doing anything). It's a chance to take. The Conveyancing and Law
of Property Act, 1990 ss. 46-52 provides that A will be deemed dead when is state of life is
unknown.
2. QUALIFIED ESTATES
2. 1. General Nature
Both the fee simple and the life estate can be subject to qualifications of some sort.
Rynard involved a qualified estate (it could end if Kenny tried to alienate during his lifetime).
Waters involved a qualified estate (it was a life estate subject to the other qualification of
remarriage or non-desire). 54
Determinable and Defeasible Estates
Determinable Fee Simple
Fee Simple subject to a
Condition Subsequent
You have a fee simple. BUT
(independent clause, added)
your estate will be defeated
should a condition be met.
Event
There is an event, that might never
occur, but should it occur, it will
terminate the estate of the grantee.
Grammatical
note.
We can
wonder if this
is not just an
indicator (Re
Rynard).
Purpose
The clause is not independent
("while", "during", "as/so long as",
"until", "no longer than") because it's
intrinsic with the state (its size).
This difference comes from Re Essex
The clause is independent,
added ("provided that", "if it
happens that", "on condition",
"unless", etc.)
F/s given then condition
Intended only to give the land for a
stated use and when this use has
ended, the land automatically returns
to the grantor.
The determining event sets the limit
for the estate granted.
Repugnancy doesn't apply.
Possibility of reverter If the even
occurs, the land automatically goes
back to the grantor.
Note that historically, this gave you
an interested vested immediately
(thus the automatic reversion and the
fact that heirs can inherit it55).
Compel compliance with the
condition, on the pain of
forfeiture.
Critical
feature
The grantor’s
interest
Ziff's image
54
55
A fence post tells you how
big the field it (the post is not fixed:
one can remarry tomorrow or never).
Fee Simple Subject to a
Condition Precedent
Acquisition is
conditional to the
satisfaction of a
requirement; contingency
upon which you get the
estate
Condition then f/s
Condition of RETENTION
Condition
ACQUISITION
of
the grantor retains a right of
(re)entry (only one who can
benefit this: plus he has to
exercise his right in the
prescribed time for it's not
vested (s. 15 of the
Perpetuities Act removed the
perpetuities problem)
Evil cloud that can happen
anytime.
Has it until the condition
is met.
Nothing is vested in
interest: [equitable if
will] executory interest.
Famous condition precedent: some writer's wife was to remarry, so at least one man would regret his death.
It's weird that a possibility (depending on a future contingency) give rise to a present interest, but…
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If the
qualification
is void [249]
Estate is no good because the
condition determined the temporal
size of the estate and now, it's vague
(courts will tend to construe the grant
as a condition subsequent rather than
a determinable fee simple estate).
Note that s. 15 of the Perpetuities Act
have changed this rule: if the clause
if void, the gift fails.
All conditions lifted, absolute
fee simple.
The whole estate fails
(courts are thus reluctant
to find such conditions
void);
Courts are more inclined
to recognize as valid a
c/p; test for certainty
seems less demanding
[Re Tuck 249].
Re Essex County Roman Catholic Separate School Board and Antaya (1977) 17 OR (2d) 307 [C. 250]
Facts. Testator made will in 1925, saying “The property was to be used for school purposes only. The said grantor
reserves to himself and his heirs the preference to buy the said property at the current price should the same cease to
be used for the purpose intended”.
Issue. Is the devise a determinable estate (interest vested in the grantor from the time it is made, so no perpetuities
problem –careful, this rule has changed) or a condition subsequent (in which came the right of re-entry is subjected
to the rule against perpetuities)?
Holding. It's a condition subsequent and an invalid one so the rules against perpetuities changes it into a fee simple
absolute.
Reasoning. As per Re Tilbury West Public School Board v. Hastie where it was deemed that "For long as it is used
for school purposes” meant a determinable estate, it is set that the essential distinction appears to be that the
determining event in a determinable fee itself sets the limit for the estate first granted. A condition subsequent, on
the other hand, is an independent clause added to a complete fee simple absolute which operates so as to defeat it.
The language doesn’t give more than right to buy; at best, you have the creation of an option to purchase;
however, the heir's obligation to pay for the property should the presumed condition be met doesn't defeat the idea
that it's a condition subsequent.
It is a “superadded condition upon a grant of fee simple rather than an integral part of the very limitation of the
estate creates in the School Board”.
So, bottom line: it's a condition subsequent because it's superadded. But as it was not defeated within the time
period, it fails.
Ratio. The difference between determinable estate and condition subsequent lies in this test: is the condition
superadded (condition subsequent) or it is an integral part of the limitation (determinable estate) [C. 252]?
Comments. Also, if you want to create an effective qualification, you might want to make it determinable because
more events could work than with condition subsequent
What kind of grant? Is it a reverter (vested, determining event: no remoteness, it's already
vested!56) or a re-entry (no vested until the happening of the even, beyond the perpetuities period
[too far in the future, condition subsequent], then it would be void, and the school board would
now have an absolute fee simple, which is the case here).
Re McColgan (1969) OR [C. 271]
Facts. Testator grants the trustees the legal fee simple, but leaves the equitable fee simple to woman who took care
of him (Mary Kovalchik), to hold as home until death or not residing, then another qualified life estate to Carrie
Leftdahl, and the remainder to John Allen Leftdahl.
Issue. Does she have (1) a mere licence or (2) a life estate, and in this case, was the devised estate (a) determinable
or (b) defeasible?
Holding. She has an absolute life estate because the condition subsequent is invalid.
Reasoning. Theory. (A) Ideally, Mary would agree she has a defeasible with void (repugnant or not clear) condition
subsequent (then she gets an absolute estate). (B) Next best thing is arguing that a condition has not occurred
56
But if it wasn't valid, then, they have adverse possession.
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(whichever57 –she's still residing there –well, that's what she has to argue, whatever residing will mean). Then, to the
licence (C) [a licence at will can be ended by the trustees?]. (D) Anything else means she's got nothing. If she argues
the condition is void in a determinable estate, she doesn't have anything, same if the she argues the condition was
met.
Practise. (1) It's obviously at least a life estate (2) It's a condition subsequent because the clause is divided 58: so
determinable estate (per Re Tilbury West Public School Board). – Then is the condition good? No, it's void (per
Lord Cranworth in Clavering v. Ellison: "Where a vested estate is to be defeated by a condition on a contingency
that is to happen afterwards, that condition must be such that the Court can see from the beginning, precisely and
distinctly, upon the happening of what event it was that the preceding vested estate was to determine."  The
condition completely fails in meeting the test and the estate is an absolute life estate. .
Ratio. So: determinable estate or condition subsequent? Test says the clause is external ("until she is not residing"):
it's condition subsequent. Also, "residing" is vague so the condition is defeated. There's also a rule of construction of
wills that says it has to be interpreted in a manner consistent with the intention of the testator 59: had it been found
that it was a determinable life estate, she wouldn't have gotten anything.
Comments. Moore60 v. Royal Company – different courts can see the effects of the language differently. Another
problem comes out of Perrin v. Morgan [C 274]: "the duty of a judge who is called on to interpret a will containing
ordinary English words is not tot regard previous decisions as constituting a sort of legal dictionary to be consulted
and remorselessly applied whatever the testator may have intended, but to construe the particular document so as to
arrive at the testator's real meaning" (precedents don't apply when construing wills).
Re Down (1968) (Ont. CA) [C. 259]
Facts. When my said son, Harold Russell Down, arrives at the age of 30 yrs, providing he stays on the farm, then I
give, devise and bequeath [half my estate to said son]”.
Issue. What is the nature of this clause?
Holding. Junior has legal interest the vesting in possession of which is subject to a condition precedent (his reaching
30). and which can be defeated (condition subsequent) by his leaving the farm.
Reasoning. The first part is a condition precedent (and a historically common one too) that causes no problem. The
qualification of the second part, however, is more problematic: are these words merely precatory [hope or wish] or a
condition, if the latter, condition precedent (acquisition, to get the land, he has to have stayed on the land until age
30; two conditions and then gift) or subsequent (retention, he has to stay on the land once he's 30)? Arguments: they
are close in the sentence (so not c/s). However, it says "stays" and not "has stayed" (so not c/p).
In any case, is the condition valid? No, there is uncertainty as so what "staying of the farm" means, and therefore, it
should fail.
Since we have a will, which of the options is more generous61? Seeing it as a condition subsequent.
Ratio. Two rules of constructions: common law favours early vesting and, when given two equally logical
interpretation of a will (genuine ambiguity), the more generous one should prevail.
Comments. However, if the condition wasn't void, construing it as a condition precedent would make more sense.
2. 2. Problematic Qualifications and Their Consequences
There are some kinds of qualification that law doesn't like:
(1) repugnancy (Re Rynard) absolute restraint on alienation OR partial [that is absolute
for a limited of time; or to a particular class of people] restraint on alienation (clause 7 in Re
Down)
57
Theoretically, defeasible would be better because re-entry has to be exercised, and reverter happens.
"Until" important; "are to my mind external to the limitation…"DRK doesn't see many ways of making it closer,
doesn't agree with the application of the criteria, but she's fine with the criteria itself.
59
There is a construction rules with wills, that they are more benevolent that inter vivos gifts (because it's "the guy's
last kick at the can"). The testator wanted to give something to Mary (and Carrie didn't bother showing up, so she's
probably not very interested in the property).
60
Moores are to common law property what Morins were to civil law property.
61
DRK thinks that condition precedent is textually more there, but that the consequences of this are no estate, so it's
better to go with condition subsequent.
58
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(2) uncertainty (what does "reside" mean? Re McColgan, Re Down – here, you want to
argue condition precedent because the test is more lax about what is certain, unless you have
Lord Denning, who says this is "cackle")
(3) where the qualification is against public policy (often deals with personal
relationships such as restraints on marriage, choice of religion, discriminatory provisions).
Against, with respect to uncertainty,
In re Tuck’s Settlement Trusts [1978] Ch. 49 (CA) [C. 254]
Facts. Tuck becomes a baronet (inheritable title). And he wants the next baronets to be rich [C. 254], but they can
only get the money from the trust if the oldest sons married good Jewish women (as described in the will, in case of
doubt, see rabbi). So, the son gets married to a "good" wife (both conditions precedent are met, he can touch the
estate). However, he then marries a goyette: was there a qualification of retention, a condition subsequent according
to which he had to stay married?
Issue. What is the nature of the condition (precedent or precedent and subsequent)? Is it uncertain?
Holding. It's a condition precedent and the rabbi clause makes all uncertainty go away. But the categorisation of
uncertainties is illogical for Denning LJ.
Reasoning. Son argues it's a valid condition subsequent because of the rules against perpetuities, which would make
it fail (can't predict things too far in the future).
Per Clavering and Ellison [C. 277]. ''must be sufficiently clear that judges see from the beginning [DRK assumes
that's the time of the grant/devise] what will constitute a breach of the condition". Lord Denning calls this difference
"cackle": there is no real distinction between certainty for condition subsequent and precedent. He doesn’t like
dichotomy between conceptual uncertainty (when the words of the will themselves are not sufficiently precise) and
evidentiary uncertainty (when the testator was clear enough, but it is difficult to apply the words because of the
uncertainty of the facts of a precise situation). Lord Denning finds the dichotomy most unfortunate, as, amongst
other, conceptual uncertainty may avoid a condition subsequent, but not a condition precedent (these differences are
illogical and may contradict the generous testator rule).
Why the difference? For a c/p, all you have to know is: is the situation clearly outside or clearly inside, even if
there's a big gray are (the first wife was ok, the second is not –gray area fails: the condition is uncertainty, but if
you're not in the gray area, whether failed or met, you can say it's certain [but that's done on the facts of the case and
not in general] + in this very case, Denning LJ says there can be not gray area because of the Rabbi clause: so
everything is clear). In c/s, seems gray areas are allowed. Question as to why remains is it easier to satisfy a c/p than
a c/s (thus the cackle).
However, there is no uncertainty here because of the rabbi clause. If there is any conceptual uncertainty, it is cured
by the Chief Rabbi clause. If this clause is not valid, LD would hold that there is no conceptual uncertainty.
Ratio. Courts are more inclined to recognize as valid a condition precedent; test for certainty appears to be less
demanding [249]
Comments. This case deals with money, not land, so personal property. Also, public policy is not an issue here.
3. FUTURE INTERESTS: SEQUENTIAL OWNERSHIP
Mode of creating interests in Land

Common law: "To X and his heirs"
o X has the legal fee simple
 Pre-1535 Equity: "To A and his heirs to the use of X and his heirs":
o A has the legal fee simple; X the equitable fee simple. Still works if A is a
corporation.
 Statute of Uses (1535): "To A and his heirs to the use of X and his heirs":
o A has the legal fee simple; X the executory equitable fee simple (statute executes
the use).
 Trusts (~C17): "Unto and to the use of A to the use of/in trust for X",
o A has the legal fee simple and the executory (merged); X has the equitable fee
simple.
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
Statute of Wills (1540): language of statute, interposition of executor/trustee; more
liberal recognition of interests. All devises are equitable.
3.1. Common Law Future Interests
a. Basic Concepts, 296-302
“The doctrine of estates in expectancy [future interest]
contains some of the nicest [picky] and most abstruse
learning in the English law”
-Blackstone
Mossman Basic Concepts, 296-302
Present and Future Interests
Def. A future interest is an interest in property in which the right to possession and enjoyment is
postponed until sometime in the future. The point is to insure a form of certainty as to who will later take
possession of the estate (the discretion of the estate holders on this matter is thus not unlimited, after all,
they don't have the fee simple). Most basic example: “X to A for life, remainder to B in fee simple”: B's
interest is only vested at the moment of A's death and it is a prior particular (anything less than a fee
simple) estate. Any reversion or right of re-entry is a future interest.
There are different senses to the word "future":
 Certain estates (that is, vested)
o “To A for life”
 A has immediate interest.
 Future interest is reversion (rest of fee simple that hasn’t been disposed of).
o “To A for life, then to B”
 A has a life estate, vested in interest and possession
 Future interest is remainder to B, vested in interest; when A dies, his property is
vested in possession.
 Uncertain estates (that is, contingent)
o Where the recipient is NOT alive yet (or might not be)
o “To A for life, then to B's heirs (next of kin)”, B is alive.
 B has a vested in interest: as long as B is alive, he has the possibility of having
children (principle who may qualify), the number remaining uncertain. When B
dies, however, the heirs can be identified so their interest is vested in these
people62.
o “To A until he marries B”; “To A provided he does not thereafter marry B”
 Possibility of reverter. The interest is right of re-entry of grantor.
o Where there is a condition precedent
o “To A when he arrives at 30” (A = 12)
 Future interest is A’s because he has to wait to get the property. Possibility of
divesting person who already has interest.
b. The Remainder Rules at Common Law, 302-06
Mossmann 302-06
Vested and Contingent Remainders
62
Does that mean, B is like the "guardian of the interests"?
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An estate may have two possible vestings, it can “vest in possession” (holder is entitled to
immediate possession of property) or in “vest in interest” (he has the interest as soon as it's said, but only
has possession at the termination of a prior particular estate).
Def. a vested remainder is limited to an ascertained person in existence and can't be subject to a
condition precedent. Otherwise, it's a contingent remainder, to which some specific rules apply (in
addition to the rules that apply to all remainders).
Four rules were created to avoid springing interests (not supported by and do not vest during a prior
particular estate) and shifting interests (implying hasty shifts from one person to another upon a
condition):
 No remainder after a fee simple: otherwise, the absolute essence of the fee simple is defeated.
 No springing freeholds: abeyance of seisin prior to the taking effect of the grant is no good; as a
result, no freehold can suddenly appear, when an estate terminates, someone else has to be in
possession of it. There are particular rules with regard to leases (as a leaseholder cannot support a
remainder).
 Timely vesting: A contingent remainder must be vested at the latest at the end of the prior particular
estate (otherwise, there'd be abeyance of seisin).
 No shifting freeholds: any remainder which, by definition, will lead to the termination of the prior estate
is void, as the latter estate must end naturally. Note that this rule applies only where there is a life
estate subject to a condition subsequent with a remainder to a stranger and doesn't apply to
determinable limitations.
**Only apply to grants**
If you can do it in the form of a common law grant, do it63.
Where the remainder is vested in interest, the common law has no problem (to X for his
life remainder to his heirs). However, where the vesting of the interest is contingent upon
something, it was more problematic and some limits were imposed; they are the common law
remainder rules. If your grant runs afoul one of those rules, the grant will be void. They are the
foundation of the old law (but what is old law to England in the law here –because the old law
was abolished in 192664?). Four rules relating to limitations of common law creation of future
interest:
 No remainder after a fee simple
o "To A and his heirs, remainder to B and his heirs": doesn't look like a contingent
remainder: the A part looks ok, but B part: how can you give A's heir the fee
simple, how can there be a reminder. So rule: no remainder where the fee simple
has been given.
o "To A and the heirs of his body, then to B and her heirs": part-A would have
created a fee tail, therefore, B could receive a fee simple. But after 1956, in Ontario
et al., the fee tails were converted into fee simple, so the basic rule applies. Still
logic.
o "To A and his heirs, but if A marries B, to C and his heirs": this is wrong because
A has a qualified fee simple (can be defeated by event of marriage with B), so you
could give it away (logical) but the common law says that even where the first fee
simple is qualified (no matter what the condition is, whether determinable or
defeasible), you can't have another fee simple (less logical, but the rationale is that
63
64
This being said, most of the grants today will be done in the form of a trust.
So much for swinging progressive Canada.
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the right of re-entry could only be for the benefit of the owner –DRK doesn't see
the sense of that –but equity later allowed this)65.
 You cannot have a grant that creates a gap in seisin: there must be an immediate
passage of seisin (no springing interest, that is, an interest that will suddenly appear),
the new owner must be immediately vested in possession.
o The grantor O wants to benefit his son, but not before he reaches the age of 21: At
the time of the grant, A is only fifteen. First problem is the gap (useless land at
some point) –when dying, O gave up seisin and thus property. But A only takes
seisin 6 years late. In the meantime, nobody had seisin (so no feudal obligations
could be met for that period being: abeyance [gap] of seisin).
o Again, it's NOT the same for devises (Statute of Wills): as we have seen in Rynard
(and Re Down too!), "three years after my death", it's ok.
 A remainder must vest no latter than the end of the prior particular estate.
Related (no abeyance of seisin).
o "To A for life, and one year after A's death, to B (in fee simple) ". Since the life
estate terminates at your death, there's a gap. This however would be correct: "To
A's life, remainder to B, if/when, before A's death, B marries C".
o What about "To A for life, remainder to B if/when B marries C": it's not very
common law-y to have a wait and see (B could marry C before A's death, the grant
is valid, or after, it's void), but it's accepted.
o The rule in Festing v. Allen: When the grant is given to a class of people, only the
people who have satisfied the contingency at the time of the grant are included, the
others, even if they meet the condition at a latter time, are excluded.
o "To A for life, then to such of A's children who have reached 21": you want a class
to benefit, and not a person.
 A's children who have reached 21 at the time of the grant have a vested fee
simple in interest in remainder.
 Should there be children under 21, they don't get anything. [DRK thinks it's
irrationally strict: if one child's ok, then there's no abeyance in seisin].
 Should all the children be under 21, the contingency is not satisfied and the
grant fails (condition precedent).



Only the grantor can take advantage of the breach of a condition subsequent.
The right of re-entry is always the grantor's.
"To A for life, provided that he does not marry B, but if he marries B, then to C".
Qualified life estate instead of qualified fee simple (rule 1: only the grantor can take
advantage of the breach of a condition subsequent, DRK doesn't find it to rational;
unless this is seen as giving the owner a right to re-entry and then, a fee simple to C).
On the other hand, "for A for life until he marries B then forthwith to C" is ok
(determining event marks the normal size of the estate: the estate is not cut short by
the cloud, the fencepost is simply met –this doesn't apply to rule 1 and DRK doesn't
know why).
65
What about to A for life, if A marries B, to C [and his heirs], if he doesn't to A's heir and his heir? Ponder it. And
try Shelley.
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Bottom line: if when making your grant it looks like one of these rules will make your
grant run afoul, DO NOT stick with common law rules.
"To A for life, providing he stays on the farm [c/s – though Re Down makes this
condition invalid for uncertainty], but if he doesn't [c/p to C's estate], then to C".
This grant seems invalid because it looks like it's C's who'd be profiting from the breach,
and not the grantor. Only C's part fails.
Note that if this were in a will, given the condition is probably invalid for uncertainty (Re
Down), and the devise would fail. But C's interest is vested in possession at A's death. (test for
certainty being less onerous, this is fine).
3. 2. Equity
a. Pre-Statute of Uses Equity, 306-312
The feoffor says "To X [the feofee] to use of Y". So, pre-1535 equity, which is still
relevant in the absence of other modifying factors, it is the law, f.ex. it is the law with respect to
all personal property. Plus this interaction between legal and equitable interests is the basis to the
analysis of post-1535 equity. Why the "use"? (1) Avoid the incidents of tenure (2) Until the
Statute of Wills (1540), you could not give your real property to people other than your heirs: it
was thus a way to give your land to someone else

"To A (and his heirs) to the use of B (and his heirs)"
o A has the legal fee simple vested (seized) in interest and possession.
o Because of the common law rule of no fee simple after the fee simple, B's rights cannot
arise from common law: equity kicked in and recognized this as a concurrent fee simple.
o B has the equitable fee simple vested in interest and enjoyment.
o Note that enjoyment and possession comprehend interest
 "To A and his heirs to the use of B for life, then to the use of C and his heirs "
o A has the legal fee simple vested in possession.
o B has an equitable life estate vested in enjoyment.
o C has the equitable fee simple vested in interest contingent to the ending of B's estate
(normal ending of prior particular estate).
 "To A and her heirs to the use of B for life"
o A has the legal fee simple vested in possession.
o B has an equitable life estate vested in enjoyment.
o The remainder of the equitable fee simple reverts to the grantor who thus has the
equitable fee simple in resulting66 use].
 Always ask yourself is all of the fee simple has been granted away, if it hasn't,
there's a resulting use for the owner, for equity assumed that A was never to
have enjoyment, so if you want A to have more than possession, you'd have to
add "remainder to the use of A and his heirs".
Mossman Pre-Statute of Uses Equity, 306-312
Religious institutions tried to evade the Statutes of Mortmain (according to which corporations couldn't hold
interests in land without a Crown licence): hence arose conveyances of use such as "to X but use and occupation to
the monks of Y". Such disposition of land made testamentary tenure evasion easier, as the devisor's heir (feofee to
uses) never had seisin67, and nor did cestui que use.
However, the feofees to uses sometimes went back on the words on the will: cestui que use didn't have any legal
resources, so then came petitions for Justice, and by C15, the Chancery granted equitable interested, which
66
67
Resulting, with resault, sauter, sultare in latin or something of the kind, jumping back.
Though eventually, the livery of seisin was replaced by the contract of sale of land…
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eventually led to the creation of an equitable estate. It was possible to separate the legal from the equitable estate
and both could be subdivided into lesser estates. The protection was about the same, except that the Equity courts
would not use their jurisdiction to the disadvantage of the “bona fide purchaser for value without notice." If he had
actual or constructive notice, however, he was bound.
Where an equitable springing interest was deemed to have been created, the Chancery imposed a
resulting use in favour of the grantor. The courts of equity also permitted the creation of shifting interests
in property. This was a first! These executory interest (new class of future interests) permitted to avoid
most incidents of tenure.
By the 1535 Statute of Uses, Henry VIII tried to eliminate this new creation (this was partly received in
Canada68).
To the point: equity is not bound by the common law remainder rules, so if your grant
would have failed because of the common law remainder rules, you could accomplish something
very similar by the grant to uses.
Rule 1 – two f/s can arise after two f/s, but no two f/s of the same nature can coexist.
 "To A and heirs, to the use of B and heirs then to the use of C and heirs."
o A has the legal fee simple vested in possession
o B has go the equitable fee simple vested in enjoyment
o C, who's got nothing at common law, and nothing in equity.
o Same rule, it's logical, and it applies (there's no remainder to a fee simple). C
gets nothing.
 "To A and heirs to the use of B and heirs, but if B marries C, then to the use of D
and heirs"
o Here, B's fee simple is a qualified estate. Since at common law, B's breach
would benefit D and not the grantor, it's evil. But it's ok in equity.
o B has the equitable fee simple vested in enjoyment subject to defeasance.
o D has got the equitable executory69 interest in the nature of a fee simple
contingent upon B marrying C.
Rule 2 – There can be a gap in seisin
 "To A heirs to the use of B at 21 and his heirs" where B is 15 for the moment.
 At common law, because of the no springing interest rule/no gap in seisin, this
wouldn't be valid.
o A has the legal interest vested in possession. He's also got mostly obligations
and no benefits. If A sold the property, all B could get was damages from A
and not from the purchaser of good faith (who was protected from equitable
claims, "equity's darling", unless, of course, he had notice).
o B has the equitable executory interest in the form of a fee simple70, contingent
upon his reaching the age of 21.
o Grantor has the resulting use vested in enjoyment subject to defeasance when
B is 21, as always where all the fee simple has not been given.
Rule 3: Remainder can vest later than the end of the prior particular estate
68
The Statute was abolished in England in 1925. However, it is still part of the received law in the common law
provinces of Canada.
69
Executory means it's a contingent interest that would be invalid in a pure common law grant.
70
It's not a fee simple yet, he doesn't have it.
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
"To A and heirs to the use of B, then to the use of D if/when after B's death C marries
D and heirs" [anytime after, but not before, the contingency is satisfied].
o A has the legal fee simple, vested in possession.
o B has an equitable life estate, vested in enjoyment.
o D has an equitable executory interest in the form of a fee simple, contingent to his
marrying C.
o The grantor has an equitable executory interest in the form of a fee simple by way
of resulting use, subject to defeasance by C's marriage, otherwise vested in
enjoyment at B's death.
 The rule in Festing v. Allen doesn't apply: anybody who qualifies will be entitled to
share the estate (no mechanistic cutoff point)71.
 "To X in fee simple to the use of A for life, then tot the use of such of A's children
who have reached 21".
o When A dies, A1, 22 and A2, 17.
o A1, who has the equitable fee simple vested in enjoyment, can't sell alone because
even if A2 doesn't have an estate, he has an equitable executory interest in the
nature of a fee simple as co-tenant, contingent upon his reaching 21: thing is, if the
land is sold, the buyer knows that he might have to get his land parted for the kid's
interest. Unless of course, he's a good faith ignorant purchaser of legal title (but careful,
it's supposed to be registered, so he's deemed to have notice).
o If A1 dies at age 23, A2 is 18, doesn't yet satisfy the contingency, so the grantor has
an equitable interest vested in enjoyment, subject to defeasance by A2's being 21.
Same while A's alive, since his children might not reach the age of 21.
Rule 4 – Not only the grantor can benefit for the breach of a condition subsequent.
 "To A and heirs in fee simple legal to the use of B for life, provided B does not marry
C, but if B marries C, then forthwith to the use of D and heirs in fee simple"
o Shifting interest, from B to D instead of it going back to O. C is a condition
subsequent to end B's estate, but precedent to start D's. It's ok at
b. Effect of the Statute of Uses (1535)72
Mossman, Effect of the Statute of Uses, 312
Remember the 1290 Quia Emptores statute that prohibited subinfeudation and alienation of land
without the consent of the lord? As a result, most of the land came to be held directly from the Crown and
uses were not very good for feudal incidents (less revenue).
The purpose of the Statute of Uses was the reunion of legal and equitable titles. The method was the
conversion of the legal title from the feofee to uses to cestui que use (thus, the use was "executed").
SofU's effect was that the previously equitable executory interest held by B is converted into a legal
interest recognized by the common law courts.
As a result, the use changed forms and became the trust (see below).
Basically, the SofU had to effects:
71
C'est-à-dire qu'au lieu d'encourager le parricide, on encourage le fratricide.
Sir Francis Bacon liked the Statute of Uses: "It is the most perfectly… conceived law in the book, induced with
the most persuading preamble…". Lord Birkenhead, very instrumental in the property law reform in England, on the
other hand, disliked it "barbarous if necessary invention of scholastic … and has no contact with modern life".
72
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 Make equitable interests merge into legal interests
 (corollary) create legal interest that wouldn't have been valid at pure common law.
It's a legal title, sure, but a special one, one that retains some characteristics of the
equitable title (Calvin's transmogrification chamber).
However, the SofU "missed" some interests, with regard to which, the situation is the
same as pre-1535 equity [Mossman 313 Limits of the Statute of Uses:
 Uses involving personal property (because it starts with "anyone seized", since there's
no seisin in personal property…)
o Why? Because at the time, personal property was of little importance; of
course, this is not the case today.
o Also, leaseholds are untouched.
 Where the feofee to uses (the original transferor, today, we'd say trustees) is a
corporation ("body politic" in the language of the statute).
o Why? Because corporations have no conscience or soul. And equity acts
upon the conscience of the grantee to uses: no conscience, no possible
application of equity.
 Grant "to A to the use of A": if A has both the legal and the equitable title?
o Why? Because the statute says "anyone seized for another person"
 Where you've got an active use (this is judge-made law): situation in which the feofee
to uses has active management duties to perform (Statute only applies to bare uses,
for these were direct evasions).
o Why? Because here the use is not a mere evasion, it's not within the
mischief of the statute (that is, the problem it seeks to address).
Examples.
 "To A (f/s) to the use of B (f/s)"
o Before 1535.
 A has the legal fee simple, vested in possession.
 B has the equitable fee simple vested in enjoyment.
o After the SofU where "the statute executes the use(s)", which means it "carries out,
it brings to fruition" the use by making it the most it can be, i.e. a legal interest).
 B has the legal fee simple vested in possession
 A can't have the legal estate, so he has nothing
 From X "To A (f/s) to the use of B (f/s) at 21". B is now 15. [C. 312, #3]
o At common law this is no good.
o Before 1535.
 A has the legal fee simple, vested in possession.
 B has an equitable executory interest in the form of a fee simple.
 X has an equitable fee simple by way of resulting use, subject to
defeasance upon B's reaching 21. .
o After the SofU where "the statute executes the use(s)", which means it "carries out,
it brings to fruition" the use by making it the most it can be, i.e. a legal interest).
 A drops out.
 B has the legal equitable executory interest in the nature of a fee simple,
vested in possession (because it's legal), contingent upon his reaching 21.
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
X has the legal interest, vested in possession, subject to defeasance to B's
turning 21
Mossman, 315 The Rule in Purefoy v. Rogers
The legal remainder rules were not all ousted by conveyances to uses per the SofU. The Purefoy
v. Rogers rules of contingent remainder contained in a conveyance to uses still applies: "if a legal
executory interest can comply with the common law remainder rules, it must." Otherwise, it's void. If it
can't comply, it's a valid legal executory interest.
E.g. “to A and his heirs to the use of B for life and then to B’s first child to attain 21 years of age”,
the first child contingent remainder must vest in interest during B’s life or the interest will be void (to avoid
this, the grantor had to add “either before or after B’s death”: this is an explicit springing interest so it can't
comply with the remainder rules and Purefoy v. Rogers doesn't apply).
The End of the Statute of Uses
The Tenure Abolition Act (1660) converted all tenures in free and common socage, so the Crown lost its
claim to the various incidents of tenure. The rationale of the Statute of Use was thus gone, and “X to A
and his heirs to the use of B and her heirs to the use of C and his heirs” was now being interpreted giving
a fee simple to B and moving the equitable fee simple to C.
Rule in Purefoy v. Rogers (1671), which has been described as a "sacred rule": Once a
remainder, always a remainder. If an interest could possibly be valid as a legal remainder, it will
be treated as such and not as an equitable interest post-SofU. This only arises in the context of
common law remainder rule #3 (no interest can vest latter than the end of the prior particular
estate):
 X "to A to the use of B for life, then to the use of C in f/s when/if C reaches 21" C is
15 when B dies.
o At pure common law
 The grant was not valid ab initio, for C could have been 21 at B's death.
 But he's 15, so, as there is a gap between C's taking interest and B's death,
the grant is void. Against the rule that says that interest must vest at the
latest at the end of the prior particular estate.
o Equity pre-1535:
 Valid: C has an equitable executory interest in the nature of a fee simple,
the vesting in enjoyment of which is contingent upon his reaching 21.
o Equity post-1535
 C has a legal executory interest in the nature of a fee simple, contingent
upon his reaching 21.
 However, he could have satisfied the contingency, because he could have
been 21 at B's death. So Purefoy says since it could have satisfied the
contingency but didn't, it's void.
 However, if you added "if/when C reaches 21 later than the death of B",
you would have created an explicit executory interest (can't be valid at
common law), so it's not subject to the common law remainder rules.
 Festing v. Allen rule: "To A to the use of B for life, then to the use of B's children =
21"; B is dead, B1 is 22, B2 is 17.
o At pure common law
 Only B1 had it,
o Equity pre-1535:
 B1 has the equitable interest vested in enjoyment
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
B2 has the equitable executory interest in the nature of a fee simple, to be
vested in enjoyment if/when he reached 21.
o Equity post-1535
 B1 has the legal interest vested in possession
 B2 has the legal executory interest in the nature of a fee simple, to be vested
in possession if/when he reached 21.
 However, B2 could have satisfied the contingency, because he could have
been 21 at B's death. So Purefoy says since it could have satisfied the
contingency but didn't, it's void.
 However, if you added "either before or after B' death", you explicitly
create a springing interest and Purefoy doesn't apply.
c. The Modern Trust: Avoidance and Exhaustion
Mossman The Modern Trust, 324-27
The trustee (ex-feoffee to uses) and the beneficiary of the trust (ex-cestui que use) were bound by a
trust only were it was duly executed: it seems logical (and it is) but there were many formalities to the
construction of a trust.
However, it could also be created even in the absence of expressed intention (resulting and
constructive trusts, the former = beneficial interest under trust has not been fully disposed of, the resulting
trust is in favor of the grantor or gratuitous transfer of property; the latter = way of preventing unjust
enrichment).
Exhaustion: the SofU can only executed once. If you have three estates (or "use upon a
use"), you have an equitable interest:
 "To A (f/s) to the use of B(f/s) to the use of C(f/s)" [was prolly a drafting error first]
o The SofU executes the first use and creates a legal estate. The second use,
however, is a perfectly valid executable use.
 "To A to the use of A to the use of B" (or "Unto and to the use of A to the use of B")
o The SofU doesn't apply to A's estate, but A still has only the legal estate, the
equitable one having merged into it.
o B has equitable interest: this defeated the operation of the SofU.
Today, grants which are either not covered by or obviate the SofU are known as trust.
They obey the rules of pre-1535 equity (trust is the safest way to go).
 X "Unto and to the use of A in fee simple to the use of C in fee simple at 21". C is
now 15.
o A has the legal fee simple vested in possession, the equitable interest having
merged. [to A to the use of A].
o C has an equitable executory interest in the nature of a fee simple, contingent upon
his reaching 21.
o X has an equitable fee simple by way of resulting trust (use), vested in enjoyment,
subject to defeasance (divestment) if/when C reaches 21.
3.3. Future Interests and Wills, 319-20, 323
Mossman . Future Interests and Wills, 319-20 323
The Statute of Uses (1535) and Testamentary Dispositions [C. 319-20]
Before the Statute, a conveyance to uses was the only way to make a testamentary disposition of land
because landowners had no right to chose their heir upon death (always first heir in line). The SofU was
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deemed to have eliminated the conveyance to uses power. Protests arose, so in 1540, Henry VIII passed
the SofW: the landowners could devise their land at their “free will and pleasure”. These new dispositions
have been interpreted more liberally; for instance, they do not need to comply with the common law
remainder rules, hence permitting the creation of legal executory interests in a devise. However,
questions remain about whether the rule in Purefoy v. Rogers applied: Re Robson, an 1916 English case
says it does not (the personal rep conveys the interests, they become legal rather than equitable (), but
Re Crow, a 1984 Ontario case says it does.
Future Interests Under Wills [C. 323]
S. 2(1) of the Ontario Estates Administration Act (1990): personal representative [closest to executors]
hold the estate's property in trust for the beneficiary (statutory trust). The English equivalent has been
held to have the effect of converting all legal interests in a will into equitable interests (may render the
Robson/Crow/Purefoy problem moot73).
DRK: This suggests the standard representative is the trustee (that is, the person with the legal estate), to the
benefits of the beneficiaries (equity): read very closely, this could mean all the dispositions of a will are equitable.
So, a devise “to B at 21” (B is 15) will take effect as a springing devise because (1) the common law
remainder rules do not apply to devises and (2) the personal representative is deemed to hold the estate
in trust for B (B thus have an equitable executory springing interest).
The SofW said "Owners of estates in land may dispose of their estate at their own free
will and pleasure". It was understood as "irrespectively of the expression 'to the use of', you can
create all the interest you could have created in an inter vivos grant to uses that you could have
operated under the SofU." Wills are, basically, post-SofU grants.
Now, if the disposition is in a will (that is, a devise74), the rules are different.
 You can devise property without a specific form.
 Using a deed to uses doesn’t add any protection; the common law remainder rules do
not apply to devises.
 Uncertainty as to application of Purefoy.
o Re Crow, somewhat unauthoritative Canadian case.
o Re Robson, somewhat authoritative English case.
Re Crow (1984) 48 OR 36 [hdJ]
Facts. The testator has four grandchildren. He gives Robert and William an estate and adds "the children of each
shall have a interest only in their parent's part." (they are tenants in common, but their estate is conceptually divided
for understanding their children's rights). Should R or W have no children, any children of the remaining three
brothers could take interest in his part. W dies in 1944 (there are no great grandchildren), R dies in 1983 (there are
many). It's a will so we don't have any sort of language problem, but there is still a logical problem.
Issue. What type of interests do the great grandchildren take in W's interest in property?
Holding. [p. 45] In the absence of statute abrogating the rule, the remainder fails (with respect to totality), the legal
interest create precluding the springing of interests.
Reasoning. "To W for life, then to great grandchildren". W has a legal life estate, vested in possession. The grandgrandchildren have a legal executory interest. However, given it was possible for R to comply with the common law
remainder rules (Festing v. Allen class gifts), it should have been the case for W too. If the rule in Purefoy v. Rogers
applies, the grand grandchildren are out of luck (reversion of the estate to the testator's estate). As no trust was
created, Purefoy applies.
Ratio. Purefoy v. Rogers applies to wills because when executed they give rise to legal executory interests (and as
legal interests, they are subject to Purefoy).
73
Obbiche: Yeah, well, I'm not so sure. To me, one could argue this interpretation misconstrues the Estate
Administration Act which was not designed to split title but to pay out costs associated with administering estate
(contrary to pith and substance and purposive approach).
74
Grant = inter vivos gift, devise = will + real ppty, bequest = will + personnal ppty.
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Comments. To get around, you can talk about the children born before and after, which creates two categories of
children, the former can satisfy the common law remainder rules, but the second category cannot, so the rules don't
apply. Re Robson was not cited at trial, was Re Crow decided per incuriam?
Re Robson, [1916] 1 Ch. 116 [hdJ]
Facts. Testator "Unto and to the use of my daughter for life, then to the use of her children when/if they reach 21".
When the daughter dies, 2/4 kids have satisfied the contingency.
Issue. Does Fester v. Allen apply, cutting the younger children from the estate?
Holding. No, all children can benefit for the will has created an equitable interest (which can spring).
Reasoning. The devise says "unto and to": this sounds a goddamn lot like an equitable interest created by trust.
However, a trust requires three fee simples (and not three uses), this one only has two because the daughter has the
legal fee simple and an equitable life estate, and those of her kids reaching 21 have one fee simple to uses 75. So the
SofU creates one trust only; technically, no trust for the kids, class-closing applies and the younger kids get nothing.
However, a trust was statutorily created (Land Transfer Act), which implies the beneficiaries have an equitable right,
and not a legal executory interest which could have been defeated by Purefoy.
Ratio. Statutory change in the law: the Land Transfer Act (Ontarian equivalent is the Estates Administration Act: all
real or personal property of person who dies is vested in personal representative as trustee. Fiction so the devisee has
an equitable interest (legal interests are remade into equitable interests so Purefoy doesn't apply).
Bottom line: Robson held that all interests created by will are equitable, except the personal
representative's. Crow said they were all executory and subject to Purefoy.
Mossman: If Robson is good law, then from the EAA the personal rep has the legal
estate, and all other interests are equitable. However if Robson does not apply
(because of Crow), then if CL remainder rules could apply, then they do.
3.4. The Rule against Perpetuities
"The law of God as well as the land abhors a perpetuity should stand".
-Alexander Pope, Imitations of Horace
"To X for life, then to X's older son for life, then to X's oldest son's son and so on, and so
on". Creating an indefinite sequence of life estates created a problem as to uncertainty, though it
doesn't go against the common law remainder rules because all the heirs might not be born at the
time of the grant, but their interest always vests at the end of the prior particular estate.
However, issues were taken as to the land being held and controlled like that for so long
"Unto and to the use of X in trust for the first of my descendants to the grad law school in the
23rd century". Sure, it doesn't go against the common law remainder rules because it's a trust, but
quite honestly, it doesn't promote the alienability and the value of land. Originally, there was
some issue with the fact that controlling the future was playing God.
Contingencies will be allowed, but there will be a limit. This could be a numbering
approach (no more than two contingencies), a generational approach (nothing can arise after two
generations form the grantor), most jurisdictions have adopted a time limit (BC says interest has
to be vested before 80 years). In Manitoba, the rule against perpetuity has been abolished.
**BEFORE
APPLYING THE
RULES ARE SATISFIED**
RULE
AGAINST
PERPETUITIES,
MAKE SURE THE FUTURE INTEREST
75
Proper drafting would have been "Unto and to the use of H to the use of H for life, then to the use of H's children
at the age of 21".
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a. Common Law Rule
Mossman Common Law Rule, 327-33
Future interests restricting the alienability of land, they shouldn't be able to go on forever. The rule
against perpetuities is designed to strike balance. Some limitations were set by the common law
remainder rules, and the Statute of Uses (1535) and the Statute of Wills (1540) added new ones.
The basic common law rule can be stated as follows: An interest is valid if it must vest, if at all, within
the perpetuity period76. This period is calculated by taking the lives in being at the date the instrument
takes effect, plus 21 years.
This applies to almost all contingent interests Future interests vested in interest are not subject to the
rule against perpetuities because, being already vested in interest, they will not vest in interest at some
remote time in the future. It doesn't apply to reverter (because it's a vested interest), but it does apply to
the right of re-entry (though most statutes abolished that rule). Unless changed by statute, as is the case
almost everywhere (see s. 15).
This rule has been modified by statute (see below).
Rule against perpetuities. To be valid, an interest must vest during (the lives in being at
the date the instrument takes effect + 21 years) 77. This rule, which applies to both personalty and
realty, to grants and devises, still applies in NB, in Saskatchewan.
Also, though the legislation changed that, if a single bizarre scenario (usually involving
multiple simultaneous deaths) would create a possibility of the interest not vesting, it will fail
from the beginning.
A life in being is any natural person (no corporation) who is in existence at the time the
disposition takes effect (parents to child, grantor to anyone, could probably include the spouse if
"children" is mentioned, unborn child78). This person should be linked to the grant unless
otherwise explicitly specified (you could use the Queen's living descendants [class, but it
shouldn't be too broad/vague] +21 years, but it's unusual).
At the time the instrument takes effect: a devise takes effect at the time of the testator's
death (because all the children who could satisfy the contingency are born, they have to get
married during a live in being, theirs). The lives in being of a grant are the ones alive when it's
made, unless otherwise specified. "To X to the use of my first child to marry/have married". This
would be invalid if a child, unborn at the time of grant, married 22 years after the last life in
being has died.
b. Statutory Reform
Mossman, Statutory Reform 333-35
As many contingent interests were voided, statutes kicked in to correct some things. (1) If the gift
complies with the old common law rules, it's valid (2) Statutes will provide realistic assumptions for
perpetuity problems (3) There will be a “wait and see” period (interests shouldn't be voided because they
can possibly vest outside the period).
The Perpetuities Act, 1966, Ontario: s. 2 says: unless provided otherwise, common law
applies.
 Grant: X "To A to the use of my first child to marry." (assuming that no child is yet
married).
The perpetuity period varies from one conveyance to another, depending on the relevant “lives in being” (anyone,
really, but only those mentioned). This rule was at some point deemed to strict and from person the common law
evolved to class, given that the interest of this class of person would vest in time (see Andrews).
77
Historical reason: provide for the living children + grandchildren haven reached majority.
78
English expression for that was en ventre sa mère ("conçu" in French)…
76
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o Common law: can it vest outside the perpetuities period?
 If X has a child, B, after the grant (not a life in being), and then everybody
dies. B could marry before age 21, but he might not: the grant is void79.
o Statutory modification (Ont.)
 s. 3: reverses the common law rule: a mere possibility that it won't vest is
not enough to make it fail (it's possible that it does vest).
 s.4: if it's capable of vesting during the period, it's presumably valid (until
events confirm or infirm that).
 Let's wait and see instead of making it absolutely void.
Note that common law accepts the idea that a 80-year-old-female can procreate, thus
creating children that are not lives in being (fertile octogenarian rule)80, and that a two-year-old
could procreate too (precocious toddler rule). S. 7 of the Perpetuities Act in fact created some
presumption about this not being true. Male can conceive from 14+, woman from 12 to 55. Also,
a wife unborn at the time of the grant will be deemed alive at that time (s. 9 of the Perpetuities
Act)81.
Practical Examples
Method.
Are the various dispositions in a
grant valid to begin with?
Identify the different elements in a
grant or the devise.
Identify all interest
Vested
O.K
Contingent
Test Re future interest Rules
Check if cml Grant?
Is it a Grant to Uses?
Does SofU come into Play?
Valid
Test for perpetuities
Common law
remainder Rule
Satisfied
O.K

Does not Satisfy
Invalid
End of Inquiry
Legislation
(1966 in Ont)
S.4
Wait and See
Special Rules
S.7, 8, 9
"1To B for life, 2remainder to B's first child to marry for life, 3remainder to the last
survivor of B's children".
o Are the various dispositions in a grant valid to begin with?
 We have a pure common law grant, and it could go against the common law
remainder rules (per rule 3, no vesting later than the end of the prior particular
estate), because B's first child to marry could after B's death. But let's say we
waited and saw it was satisfied, the perpetuities rule would be irrelevant
because B having married before the death of life in being B, we wouldn't
need to count 21 years. If it satisfies the common law remainder rules, there
can be no perpetuities problem. In a trust, this would be invalidated by the
79
To make it valid: to X to the use of my first child to marrying within 21 years of my death (but that's shorter).
Why? Possibly because of Holy Writ, Sarah (Abraham's wife) and maybe Elisabeth (mother of John the Baptist).
81
Common law situation of the unborn widow. For instance, W dies and 21 years after, C remarried V, age 18, V is
not a life in being and the perpetuities might not be satisfied.
80
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perpetuities rule because there could be a springing interest, i.e. possibly more
than 21 years.
 Same for the last survivor of B's children: to be valid with the common law
remainder rules, it has to vest no later than the end of the prior particular
estate. In addition, B's first child to marry could have the child who will end
up being the last surviving one after the grant is made (i.e. he won't be a life in
being, and his interest might arise more than 21 years are B's death). At
common law, this would fail, but s. 4 of the Perpetuities Act says "wait and
see".
 Grant O: "To X to the use of my first child to reach 30". O has three children, C 125,
C223, C320.
o This grant satisfies does satisfy the common law remainder rules, but it's a use, so
springing interests are fine, Cx having a valid executory interest in the nature of the
fee simple contingent on his reaching 30.
o Now, if C1to3 died as O was delivering C4 (who would not be a life in being
because he was born after the grant), C4 will reach age 30 after the 21 years of the
perpetuities period. This weird possibility would make the grant invalid without s.
4, and more specifically s. 8 and 9 of the Perpetuities Act.
 O: "1To C for life, 2remainder to C's widow for life, 3remainder to C's eldest
surviving child at the death of C's widow". C is married to his soon-to-be-widow at
the time of the grant.
o Common law problems? No, all interests will vest at the end of the prior particular
estate.
o Perpetuities problem? No, but if C's wife hadn't be born at the moment of the
grant, she wouldn't have been a life in being, thus so the interest in the third part
would necessarily vest outside the perpetuities period. But s.4 says wait and see
and s. 9 says the unborn wife was deemed alive.
III. Concurrent Ownership
1. TYPES OF CO-OWNERSHIP AND THEIR CREATION
1.1. Introduction
We know, it's possible to have two estates concurrently vested in interest, say a legal and
an equitable one, a bailment, a leasehold, or a life estate, a contingent remainder and a right of
possession, all vested in interest. It is also possible to have two estates both vested in possession.
Mossman Joint Tenancy and Tenancy in Common, 651-54, 656-63
Concurrent Interests
It's about the idea that more than one person can have a property interest in the same object at the same
time (of course, this is an important challenge to the dominant concept of individual ownership and
"private" property). It flows from the feudal possibility of "joint tenants" which enabled the grantor to
achieve the objective of transferring beneficial ownership to the grantee. Usually, the co-owners will be
spouses or cohabitees, sometimes other family members and, even, unrelated people.
Four types of co-ownership exist but only the joint tenancy and the tenancy in common
are important for our purposes.
Mossman, Tenancy by Entireties and Co-Parcenary, 663-64
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Rare. They both involve concurrent interests arising out of particular kinds of familiar relationships. At
common law, where two people who otherwise would have been joint tenants, are husband and wife, they
take as tenants by entireties, and such tenancy is unseverable (because the spouses are one person).
Was this repealed by statutes? Not sure.
Co-parcenary was the situation that occurred where there was no will or because the Statute of Wills, and
no male heir: all the female heirs, together, were deemed to be the heir and were together entitled as coparceners. There was no right of survivorship (all entitled to a distinct undivided share). That's also
obsolete because we have statutes when there are no wills, and statutes supersede the common law.
1. 2. Joint Tenancy
1.2.1. Prerequisites of Joint Tenancy
It's the rule of the four unities: should the first one fail, you have no co-ownership; should
the three last one fails, you have a tenancy in common:
 Unity of possession (this is not distinctive to joint tenancy)
 Unity of interest (if you said "to A 1/3 and to B 2/3", the specificity of separate shares
makes the joint tenancy fail –tenancy in common arises? –even if 50-50: it's equality
of shares but not unity; same problem with "To A for life and B in fee simple as joint
tenants" –since the interests are different in size, you can't have joint tenancy)
 Unity of title: the unity, the interest has to arise in the same instrument, the same will,
contract of sale.
 Unity of time: the interest has to arise at the same time82.
1.2.2. Consequences
The crucial feature of joint tenancy is the right of survivorship (jus accrescendi): when one
of the joint tenants dies, the survivor(s) get his part (either a sole survivor gets everything, either
the remaining survivors stay joint tenants for everything). This means you can't devise an estate
under joint tenancy because your right is extinguished upon your death. Conceptually, you can't
say the right has passed to the survivor, because they are both understood to own everything,
subject to the other's right [C. 656].
You can't devise but you CAN make an inter vivos gift. The alienation of your interest
will severe the tenancy (unity of title and time). Of course, A and B could alienate to A and C, in
which case there would be no problem. If you have three joint tenants, one tenant's alienation of land will
not affect the relationship of the two others: the newcomer (new instrument) will get a 1/3 interest, as a
tenant in common, while the two others will remain joint tenants of 2/3 undivided interest83. Both parties
should take a mortgage together (otherwise, there might be some sort of severance, so a
mortgage company would only get a mortgage on half the property).
1.2.3. Rationale for this mode of division of property
Historically, it was desirable to have as few owners as possible. Contemporarily, it makes
the devolution of property on death simpler (you don't have to devise property, make a will, etc.),
also, since there is no change in ownership, there are not probate or statutory fess, it's a sort of
tax-saving method. Also, certain situations, it's a lot more convenient when you have a personal
representative or trustees. DRK adds the psychological dimension: it's friendlier84.
82
There are exceptions, but we won't look at them.
Usually, you can alienate unilaterally, but in some situations, you need consent, and in others, notice (spouses, for
instance). And it doesn't seem there's a default rule of law right to pre-empt the sale.
84
What a nice pick-up line.
83
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1.3 Tenancy in common
The unity of possession is crucial; there is no unity of interest (there can be equality,
though), because the tenant in common is composed of separates shares, which, by nature,
cannot be united (you can grant and devise, and if you don't feel like making a will, it will be
transferred to your next of kin). Since tenancy in common are often created in the same
instrument and that the interest arises at the same time, the distinction between tenancy n
common and joint tenancy is not always clear.
2. CREATION.
The problem is that the law might change what seems clear on the face of the grant. Say
you have "To A in fee simple": seems A has the exclusive property right. But if A has paid 50%
of the purchase price of this, and so did B, then you might get a different result because of the
intervention of equity, and it will be presumed that A hold the property on trust for B for the
value paid. It's a presumption, it can thus be rebutted, but there's a possibility that equity construe
things differently. Presumption used to be that they took as joint tenants. Today, s. 13 of the
CPLA, 1834 [C. 662] says it's a presumption of tenancy in common except for executors and
trustees.
 "Unto and to the use of A and B in trust for C and D"
o A and B have legal fee simple as joint tenants, because they are trustees, so not
touched by the statute (default common law position).
o C and D have the equitable fee simple as tenants in common.
 "Unto and to the use of A and B in trust for A and B"
o A and B have legal fee simple as joint tenants and the equitable fee simple as
tenants in common (as beneficiaries, they are touched by the statute).
 Australia thinks that's cool.
 In England, the distinction between a joint tenants and tenants in common
is so shallow that the equitable merges into the legal title.
 Hasn't found jurisprudence on the subject in Canada.
McEwen v. Ewers and Ferguson (Ont. 1946) [C. 654-56]
Facts. Finlay McEwen gives property to his wife Helen for life then to daughters Bertha and Janet jointly, and if
they sell it, equal shares of proceeds. Bertha dies and in her will, gives her half to her brother. Janet claims that is
was a joint tenancy, so she has the right of survivorship and is now the holder of all the property.
Issue. Is there unity of interest?
Holding. No. It's a tenancy in common, because of wording.
Reasoning. " Test of intention: has the father's will created a joint tenancy ? "Jointly" is not enough to conclude on
joint tenancy. Wording "equal shares" means there is no unity in the interest, suggests apportionment. Also, there is
a question of possible division (words of severance). Also, where there is ambiguity, courts will tend to go for
tenancy in common and not joint tenancy (seems fairer) – that's the statutory presumption.
Ratio. "Anything which in the slightest degree indicates an intention to divide the property must be held to abrogate
the idea of a joint tenancy, and to create a tenancy in common.”
Comments. DRK says one might try to rebut the judge's reasoning by saying that the will says "equal shares of
proceeds" and not "equal shares in the property" itself. But wouldn't this imposition on something already given be
repugnant?
3. SEVERANCE OF A JOINT TENANCY
3.0 Introduction
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Severance is about the conversion of one type of co-ownership into the other, more
precisely, the transformation of a joint tenancy in a tenancy in common (in an abstract way, the
physical division of the land is partition). This, of course, has to be done before the death, since
at that moment it's too late. There are two broad categories: the acts of the parties and severance
imposed by law (sometimes imposed after the acts of the parties, but not act dealing with coownership85).
The acts of the parties as severing a joint tenancy is well-accepted, three principles come
from Williams v. Hensman (quoted in Robichaud):
(1) Each one is at liberty to dispose of his own interest in such a manner as to sever it
from the joint fund. Specific act (unilateral) which actually disrupts one of the unity in relation to
creating a share (you can do what you want with your property, even if it severs your property,
but you'll lose your right of survivorship). Examples of this usually deal with alienation. [except
in Saskatchewan where limits have be imposed: notice is required, at common law, there might
be notice for husband and wife].
(2) By mutual agreement (the question is: what is a mutual agreement?)
(3) By any course of dealing sufficient to intimate that the interests of all were mutually
treated as constituting a tenancy in common (Robichaud v. Watson), how do the parties see their
own situation, matter of shaping and construing what the parties did, how they feel about it, factspecific.
3.1. Alienation by one of the tenants of this person's share86
Selling the interest is a way of getting the money back, but it's problematic when no
agreement can be reached (so action has to be unilateral but one doesn't want to discard his
interest).
You can't sell land to yourself (some legislatures have changed that, Ontario and NB), but
you can achieve the same result (break the unities of time and instrument are broken, create a
tenancy in common and be able to devise the property to your heirs) by creating a grant to uses
("to X to the use of me" + Statute of Uses) which your give you legal title.
Knowlton v. Bartlett (NB, 1984) [C. 670]
Facts. Bartlett's parents gave him sole title in their will. Getting married, he conveyed property to his couple as joint
tenants. They separated and in a "decree absolute", he agreed to give her 3000 against all her interest. She refused.
Terminally ill, she executed a deed to herself (in 1981, but not in the form of a conveyance to uses) and died (1982).
Knowlton, her brother, argues severance occurred (in which case he would get half). Bartlett says you can't execute
a deed to yourself, so it was wrong and the right of survivorship makes everything his, which would be fair since it
was his at the beginning.
Issue. Was there severance of the property by way of the deed, which means her interest was passed on to her
brother?
Holding. Yes, the joint tenancy was severed and the brother and the ex-husband are now tenants in common.
Reasoning. NB legislation (s. 23(3) of the NB Property Act [C. 672]) allows for a deed to yourself (she could have
done it also with the Statute of Uses). However, the husband claims s. 23(3) doesn't stand alone, as s. 23(1) and (2)
talk about conveyance made jointly and insists on the fact that property can be conveyed to one's self as it can be
conveyed to others but it was left out in 23(3), which means 23(3) is simply a recognition of the common law +
Statute of Uses position [no like manner, so it doesn't mean the stranger gets it conveyed the same way] – wording is
different + presumption that a statutes doesn't change the common law unless it does it explicitly = limited right.[C.
673]: the judge doesn't buy it (actually, he might not even address the question).
85
If husband murders wife, there is creation of an equitable tenancy in common, so the right of survivorship is off.
The murder was not a contemplation of severance. Same for bankruptcy of one of the tenants.
86
Of course, it only becomes a share while the alienation has occurred.
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Ratio. In Ontario and by judicial decision in NB, you CAN, as a joint tenant, convey to yourself. In doing so, the
joint tenancy is severed in tenancy in common?
Comments. Isn't it unfair?
3.2. Mutuality of Acts and Mutual Agreements
The question, as always, is: what kind of agreement is required, since there are no formal
requirement (Burgess v. Rawnsley, partly a Denning LJ judgement87) –it certainly has something
to do with the fact that law favours tenancy in common. What is a mutual agreement?
Robichaud v. Watson (HCOnt. 1983) [R. 20]
Facts. Robichaud and June Watson, who had met in a hospital in Niagara Falls, bought an Ontarian house as joint
tenants in 1971, paid 50-50. However, until 1974, she probably provided more because she had the job, though he
was helping manually. In 1974, they separate (he becomes abusive to her and her children from a previous marriage
and brings unsavoury characters in the house), and she moves to England with her. He frequently asks her to come
back to "settle the house". Between 1974 and 1979, he moves back to the house (sole occupation), and he makes all
the mortgage payments (after having extended mortgage). Watson wants to sell Robichaud her share, they both get
lawyers in 1975 (make equity give me my share!), there's an offer she refuses, the negotiation fail (they break off,
and Robichaud can't pay his lawyer after say 1976). Robichaud is later murdered (in 1979). How will the proceeds
of sale, which follow the ownership of the house, go? Robichaud claims that no severance was effected, and that
consequently, she is entitled to exercise her right of survivorship. Watson's mother claims that severance was
effected, acts were sufficient.
Issue. Has severance occurred?
Holding. Yes, this joint tenancy was severed by the course of dealings. Mom (estate) gets the money.
Reasoning. Clearly, there was no agreement, not even an informal one. But, was the course of dealing sufficient for
severance? When? Is it enough that the relationship (the reason) that gave rise to the joint tenancy has broken down?
No courts disagree. Is the pitching it of the two lawyers a clear indication? She asked the lawyer to "get her equity"
(she's thinking in terms of separate shares), did he show the same intention? Yes, he also hired a lawyer: negotiation
between two tenants in common who didn't wish to have anything to do with one another. There was an agreement
with respect to separation of share, of identifying them and finding a money equivalent of hers. Agreed price would
have been better, but still, there was an element of mutuality. There was severance because "the negotiations carried
on between the parties […] clearly indicated each regarded themselves as tenants in common that their interests had
been severed and what was at issue in the negotiations was the value only of their respective interests.”
Ratio. Meeting of the minds with respect of treating the shares as separate, even if no agreed price. What a
"sufficient course of dealings revealing a common intention of the parties to sever the joint tenancy" is fact-specific.
Clues include: emotional estrangement – abusive conduct – physical departure – hiring a lawyer – abortive unilateral
action – other joint hiring lawyer (mutuality) – negotiations --- agreement (to sever/actual terms of severance)., but
there must always be mutuality.
Comments.
 Griffiths then goes on to perform the accounting:
a. Robichaud must be charged an allowance for use and occupation, since his estate is claiming for the mortgage payments
and improvements he made.
b. Watson made most of the mortgage payments b/w 1971 and 1974. These must be taken into account. Note she does not have
to pay any allowance for use and occupation, since she was not occupying his undivided half of the property.
c. She also made most of the maintenance payments until that time. This also must be taken into account. Note that this is the
case only b/c during that time he was living there, and therefore enjoying these benefits. If he had not been living there
at the time, she would have had to pay an allowance for use and occupation.
Klinck:
87
Wife orally agreed on price for husband to buy her share. Consulted lawyer and changed her mind. Husband dies.
Daughter claims (for her half, since it wasn't actually bought from wife). Wife says it's still a joint tenancy and that
she has a right of survivorship. COURT says: it's a tenancy in common, if they agreement on a transaction, on the
price, it suggests that in their minds it had changed. This was argued under (2), but it could perhaps go under (3),
course of dealing.
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

Griffiths’ argument is unconvincing. He doesn’t give you much beyond the fact that he is of the opinion that from the way
the parties conducted themselves, it is evident that they regarded themselves as tenants in common.
Griffiths suggests that Robichaud’s undertaking to make all of the mortgage payments, and Watson’s failure to visit the
house for some yrs, are helpful in determining whether there is a sufficient reciprocal intention to sever the joint tenancy. He
is wrong. Neither of these things should really affect the nature of the parties’ interests.
4. PARTITION OR SALE
Stricto sensu, partition refers to the dividing of the area into two parts and each co-owner
becomes exclusive owner over one of the parts. The sale is about dividing the money proceeds.
In order to apply for partition or sale, need an immediately vesting right – need a possessory
interest in the land.
4.1. The benefit analysis of severance
Osachuk v. Osachuk (1971) [R. 15]
Facts. House A is bought in 1955 in joint tenancy. They live together in the basement until 1960, and rent the top
until 1964. In 1960, they also buy house B, also as joint tenants. In 1962, they divorce. House B is subsequently sold
and accounting is no issue. Husband goes back to live in the bottom of house A (the top is still rented, till 1964, as
we said). While Mr. O was there, he paid all expenses related to property.
Issue. (1) Can the wife claim a rent for the moment where Mr. O. was the sole occupant (even if it's only half)? (2)
Can the wife claim half of the rent of the person living in the top of the house? (3) Can the wife get any sort of
income for the moment where the property was left vacant? (4) Is the interest part of the disbursements? (5) What
about detriments or disbursements?
Holding. (1) No. (2) Yes (3) No. (4) No.
Reasoning. (1) The wife was not ousted (either for good or constructively), there was no agreement (ordinary
contract): she simply failed to exercise occupation, and has no right of rent. The only way the occupier has to pay
the rent is if he asks the non-occupier for current expenses. The wife could have lived in the top apartment: Mr. O
wasn't prohibiting her from exercising her right [R. 17II].
(2) So what we have is the renter paying rent till January 1964. Where incomes comes solely from ownership (that
is, no work on property, no using the money to clean the house), as is the case with a rent, the Statute of Anne (1705)
states that if one of the parties is “receiving more than comes to his just share or proportion”, the other can sue for
accounting. If Mr. O. gave management services (cleaning man, for instance), it would be deducted from what his
has to pay (because it's not generated from the sole ownership).
(3) Then we also have the lessee occupying and not paying the rent. And then we have a vacant apartment. As long
as the wife can exercise her right to find a lessee, she is not entitled to a notional rent: she has the same right.
However, if Mr. O. had refused someone, she could have claimed she had been ousted. Unless, of course (there was
no evidence here and not even an implicit agreement argument), Mr. O. had undertaken the positive obligation of
being a bailiff in renting the property (if he then didn't do it, she can claim).
(4) Disbursements is the money paid to actually acquire the property (price of house, mortgage). Interest is
considered a current expense because it doesn't add to the capital, simply keeps the property owned: as a current
expense, it's entirely up to the occupier to make these payments (if you occupy, you have to pay these; if you let the
other person pay, he can then claim an occupational rent). The rest (principal), of course if the responsibility of both
parties (equity of redemption).
(5) If he built something, two elements are taken into account for the accounting: the cost and the appreciative value
(it might have cost a lot, but it could make your house look like a cup cake; or buy stuff extremely expensive to
make the other one go bankrupt). The general approach: the occupying co-owner cannot impose liability on the nonoccupier during the time of the co-ownership. At the time of the sale of the property, he can then ask for accounting.
Ratio. (1) In the absence of other circumstances, the mere voluntary failure in exercise of occupation doesn’t give
rise to right of rent. (2) Income from ownership (passive) has to be shared, as per the Statute of Anne. (3) As long as
she can exercise her right to find a leasee, she's not entitled to a notional rent. (4) While the principal of the payment
should be paid by both parties, the interests are considered current expenses, as such, they are only the occupier's
responsibility. (5) The market value will be apportioned according to the value with add-ons, but building of the
add-ons cannot be claimed as a co-ownership obligation.
Comments. (1) Constructive ouster, typically arising in abusive relationship, one of the parties cannot exercise his
right of ownership at his own risk, unbearable situation. (2) If the husband has donated the rent, without his (exLBC 160212 03.54-
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)wife's consent, she would have been entitled to half the normal rent. (4) If Mr. O. had made improvements to the
house, he could not have charged her during the time of their co-tenancy (force her into debt), but it should be taken
into account when the property is sold (wife could only get half of up to what she paid for improvements that
increases the value88) (5) "Wastes": limitations on what a life tenant can do with regard to property [R. 14].
4.2. The physical separation of land.
Severance, in a sense, is easy to conceptualise, because it's abstract. It becomes more
problematic when you try to disentangle the physical assets. Two possibilities: you separate it, or
you sell the land as money is readily divisible. The relevant provisions are reproduced in Cook v.
Johnston: COMMA after infant.
Two questions: (1) was is the relevance of partition or sale? How do you decide? (2)
Since the person who makes the application has a possessory right, are there any circumstances
in which the court can legitimately reject an application by a person to get his part of the land?
4.2.1. How do you decide? Which remedy do you apply?
If partition is not feasible or impractical, then you go to sale. Why should partition be
favoured? Because it's what the people had bought! But it's not always easy to do so. [C. 679].
The rationale is that you should try to maintain your interest, especially since historically lands
were more valuable than the money. Also seemed to created less interference with the owners'
rights.
Cook v. Johnston [1970] 2 OR 1 (HCJ) [C. 678]
Facts. Cook and Johnston owned jointly an island on which there was a cottage (time sharing 89). Upon their
separation, it was partitioned; Cook says it should have been sold because the character of the property was such that
two people could no enjoy it separately.
Issue. Should it?
Holding. No. Partition.
Reasoning. Yes, the character of the property is strange and partition would probably be nicer, but since there are no
similar island in the neighbourhood, partition is better (even if they can't stand each other, and even if the two halves
might be worth less than the whole island). Would a sale at the time cause hardship to one of the parties [C. 681].
Ratio. "Sale as an alternative for partition is quite appropriate when a partition cannot be made" (Morris v. Morris
(1917), 12 OWN 80) –but it must be proven that partition cannot be made and here, it can since it's truly unique.
When property is not of such character as to be reasonably partitioned, it should be sold, but it's not up to
the parties to decide what should be done.
Comments. Ça sonne jugement de Salomon.
4.2.2. What are the criterions?
When you have a possessory right in land, you have a fairly good right and the Court
must have compelling reasons to deprive you of it. In Knowlton, the property is 47 acres: how
can you not be able to partition it? It won't change its character. Sale would cause hardship to the
parties (but again, this is fact-specific, here Knowlton is old).
IV. Rights in the Land of Another
1. “NATURAL RIGHTS” (BRIEF CHARACTERIZATION ONLY)
88
If improvement of 10K increases capital by 10K then wife gets half of increase if she pays half of improvement; If
20K improvement but only 10K increase, then wife only has to pay back 5K
89
Multipropriété!
LBC 160212 03.54-
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There are situations were someone else's right might encroach yours:
 Co-ownership
 Adverse possession (the occupier's right might even supersede yours.
 Conditions, limits imposed upon what you can do.
 Natural rights of support, that is obligations that don't arise from acts of parties, but
from how the law views as property.
 Non possessory property interest: granted rights (sometimes imposed by states), they
amounts to less than possessory right. These incorporeal [less than possessory]
hereditaments, such as profits à prendre, easements and restricted covenants, though
sharing certain characteristics with rights of occupation in a licence or lease and
conditional fee simples (i.e. they "limit" the rights of landowner to use their land), are
treated as conceptually different because they never include rights to possession.
[Mossmann 543-44]. Incorporeal hereditaments are attached to the land and become
a feature of it, and they can thus be passed on.
2. GRANTED RIGHTS: INCORPOREAL HEREDITAMENTS: THE SPECIFIC CASE OF EASEMENTS
a. Basic Characteristics
Mossmann 548-67
Definition (Gypsum Carrier, per Collier J.): "A right annexed to land to utilise other land of different
ownership in a particular manner (not involving the taking of any part of the natural produce of that land or
of any part of its soil) or to prevent the owner of the other land from utilising his land in a particular
manner." Here also, the numerus closus is a problem (principle of real property that hesitates to admit
new forms of proprietary interest).
There are four requirements for creating an easement, stated by Ziff as follows:
(1) There must be two tenements, the dominant one (the one enjoying the benefit of the
easement) and the servient one (burdened one).
However, legislation can create an easement with no dominant tenement (related to
public utility), see In re Ellenborough Park, also not a requirement in the US.
(2) The easement must accommodate the dominant tenement.
This is the question in Ellenborough. DRK: in order to use a land, it has to be
accessible, so a right of way accommodates the land.
(3) Both tenements cannot be both occupied by the same person;
Say the parcels used to be owned by two different people, but end up being owned by
the same one. If that person sells one of the lots to a third party, what happens with the
easement? See Wheeldon v. Burrows infra p. 54
(4) The easement must be capable of forming the subject matter of a grant.
As a non possessory interest, it be created by transfer of possession, only by grant
(which, necessarily, has to be valid). Prescription renders this requirement fictious but
grants are useful because:
(a) you need a grant to know what you are given (vague grants will fail);
(b) it cannot be inconsistent with the possessory interest of the owner of the property
(if it's more than an easement, it might be more, some sort of estate in land, like a
leasehold or a freehold) [Shelf Holding];
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(c) it cannot be a mere right of enjoyment without utility, it has to "be serious"
(pleasure is not enough), goal-oriented right of way (no meandering) [Phipps v.
Pears]. There are cultural norms with respect to the directness and the enjoyment.
In re Ellenborough however created two options with regard to the "meandering"
issue90:
(i) radical: unless it's only useful it's wrong.
(ii) less radical: unless it's just fun, it's ok. Right to wander was recognised by
law in Duncan/Dukark v. Louch91 [p. 26, obiter?], that ius spantiandi is ok.
(5) Perhaps there is more. DRK is suspicious of closed lists.
In Gypsum Carrier, Collier J. almost also adds the "intention of the parties". Phips
also talks about the difference between positive (which give something to the dominant
tenement's owner) and negative easements (which restrict the servient tenant's right y
forbidding him to do something), according to Lord Denning, the law will be reluctant
to create new negative easements.
In re Ellenborough Park (England, 1956) [C. 552]
Theory – the covenants. Purchaser undertakes to build a house, specifically in the same style as the other houses
(positive convenants). Negative covenants: no modification, no business. Point is: uniformity, keep the character of
the neighbourhood. On of the categories of restrictive covenant is the right to do something on someone else's land:
that's an easement. It thus restricts what one can do on his own land. This is the intersection of contract and
property: obligations undertaken by the parties become attached to the land.
Facts. Def.'s house is part of a set of houses placed in a U around a garden, owned by the pf. The original owner
sold the property by grant, with a "right to enjoyment of the garden", subject to money paid to keep the garden in
good condition. Right to use the road, the drains and the footpaths is not at question (right of property with respect to
this right that I own: it's not a licence, which could have been revoked).
Issue. Was the easement validly created? Can there be an easement with regard to the right to enjoy a park?
Holding. Yes.
Reasoning. The four requisites were satisfied: the lands were owned by different persons and the use of the servient
garden accommodated the dominant house (normal use + value goes up) and it's not vague or wide (there are limits
to the grant), or inconsistent or repugnant (doesn't unduly limit the right of the owner), or a jus spatiandi (right of
recreation): it has a purpose related to the normal enjoyment of land, so it's a good grant. [553]: the land is a land
upon which there are dwelling houses, and usually, you have some sort of green space, some kind of garden
attached: normal enjoyment. It's not a zoological garden, and it's close. Another principle is the principle of
supplying (a deficiency): if the property already had green space, an extra garden would be superfluous. DRK
admits this is somewhat subjective and can be problematic.
Ratio. About the fourth requirement, no easement can be valid where (1) the rights claimed are too vague (2)
amount to a claim to joint occupation, or would substantially deprive the owner of proprietorship/legal possession
(3) or amounted to mere amusement (no utility or benefit).
Comments. Distinguishing with Hill v. Tupper where the use of the canal was deemed abnormal.
Shelf Holdings v. Husky Oil Operations Ltd (1989) Alberta [C. 558]
Facts. SH, owner of the surface, granted HO the right to install a pipeline underground (and to repair whatever). Or,
gauges and valves sometimes extend above the surface: there's a right of way for that, and a right of access to
service92 the pipelines. HO says it has the title of land. Whether the pipeline is an easement or a personal license
90
The one chose in Ellenborough: "on the highest authority [Bible] a garden is the purest of pleasures" [R. 25]
Was the easement simply a right to go from A to B? No. The SCC said that you can wander on the beach and not
look for evidence or go around with a metal detector.
92
Service de vente, c'est la contrepèterie de servante de vice. Ça vient de me frapper.
91
LBC 160212 03.54-
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makes a difference for tax, also easements don't have to be registered in order to be valid and enforced, unlike
property rights (under the Registry).
Issue. Does the pipeline displace the owner?
Holding. No. It's a right of way in the form of an easement.
Reasoning. We are assuming there is a dominant tenement (probably the oil field). Question: possession with
respect to what? Where the pipe runs is exclusive possession by the owner of the dominant tenant and there, it
completely displaces the owner of the servient tenant: you have successfully divided the land [see comment on
Consumer Gas in the comment section, infra]. On the other hand, if you take all the farm land and compare it to the
mini space the underground pipeline takes up (esp. since all the farmer wants is the surface, so he's only potentially
bothered by a few valves and gauges).
The owner cannot access the underground because of the installations, but he can still access the surface. There is
nothing inconsistent with ownership: there is a impairment but no preclusion.
Ratio. The displacement is too minimal to truly exclude the owner. This test is one of degrees of exclusion.
Comments.
However, in Consumer Gas Co. of Toronto (Ontario, 1897) [C. 562], a less holistic approach was taken and the SCC
considered whether there was exclusion or not, with regard to each elements. It stated that "these pipes are not to be
considered chattels placed beneath the public streets and highways, in the exercise of a mere easement, but being
affixed to the land, as actual real property”.
Note that the displacement is actual a sort of grant in the land, for the "new" owner (the displacer) could erect
barriers and sue for trespass: if it's absolute, it's more than an easement (Ont.). Now Alb. says: if the portion of the
whole is unimportant. Fee simple v. seisin?
Phipps v. Pears (England, 1965) [C. 580]
Facts. House 14 et 16 are owned by X. House 16 is rebuilt in 1960, but it's so close to house 14 that it's impossible
to finish the wall properly. X dies. Charity gets house 14 but finds it unfit for human habitation and destroys it, thus
exposing Phipps (new owner of house 16) to the wrath of the elements. House 16 starts leaking and the owner wants
compensation. Claims he has an easement (because he can't do it in torts), a "right to protection from the weather".
Issue. Did he?
Holding. No such easement exists.
Reasoning. All the basic characteristics are met93, so why is there a problem? Denning says there are two kinds of
easement [R. 581], positive (where you give a right to do something on the other's land, e.g. right of way) and
negative (where you just don't stop your neighbour from doing something, e.g. right of light) easements. The
easement here is negative: in order to have the "right of protection" respected, the owner of house 14 can't destroy it.
Or, as Denning puts it: "Every man is entitled to pull down house if he likes" (!). [here, the easement sterilises the
right of property].
There is no indication that the owner of house 14 has granted a protection against the weather (there is no grant,
explicit or expressed). One must argue the equivalent exists, i.e. that there was an implied grant, that is, subject to
prescription94 (long exercise of the right). DRK thinks it's more how it arises (implicit) that bothers Denning LJ
(since the other person doesn't know, whereas in a positive easement, he prolly does). Note also that where it is
implicit, it might be more vague (social customs and conventions).
Ratio. The law is reluctant to create new negative easements because they restrict another's enjoyment of land. And
prescription doesn't apply because house 14 didn't know.
Comments. Denning LJ. says that they could have used covenant with compensation. Better off for protection of the
negative kind.
But, but, positive easements can also make it sterile on some aspects!
b. Creation of Easements
Finally, in addition to these characteristics, some circumstances have to arise for an
easement to be created.
93
(1) H16 is dominant, H14, servient (2) H16 claims H14 will protect it from the weather (benefit of H16) (3) two
owners (4) subject of a grant (a) in the circumstances, it is sufficiently precise (b) no interference with H14's
possession (c) utility, no recreation. All characterisations are met.
94
20 years in Ontario.
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


You can do it by an express grant (In re Ellenborough, Laurie v. Winch);
You can do it by implicit grant (there is an understanding that an interest has been
granted). There are subcategories, such as necessity (for enclaves).
You can do it by prescription (could be understood as an implicit acquisition of a
right, but it happens over time, so it's no exactly the same thing, though the law also
applies it). And we won't talk about it in class.
i) Express Grant
Mossman 567-68
In general, easements are created by grant or by reservation (when granting, the vendor retains a right).
In Hill v. NS (AG), it is said grants and easements must comply with the Statute of Frauds (written notice,
etc.) when explicit (implicit easements may be created by equity).
Laurie v. Winch [1953] 1 SCR 49 [R. 27]
Facts. Historically you had Lakeshore Rd., bordering Lake
Simcoe. You have 32 "rangs95" And parallel to Lakeshore Rd,
there is lot 33 (long and narrow, it borders all 32 lots). Adjacent
to lot 33, there is, well was, farm land. Previously, there was a
farm lane that went to the farm, to a gate on lot 33 and to a gate
on lot 17 (farm and lot 17 have the same owner). The area used
to be a farm, and there was a right of passage to lot 17. Farm
owner grants right of way to person on lot 33. Owner of lot 33
grants a perpetual right of way to farmer (for 1$, see R. 27left).
Farm is sold and becomes a bunch of houses. There a rule that
states that if a lot is subdivided, all the sublots will have the
same easements. Owner of lot 33 it afraid that the fact so many people can walk on his land will depreciate its value,
so he argues there was no easement.
Issue. It this an easement of a mere personal right (license)?
Holding. Easement by express grant.
Reasoning. Owner 33 argues that it's not an easement because (1) the dominant/servient tenements are not specified,
and, at best, it was a tenement in gross, that is a mere licence. In any case, the dominant tenement was not the farm
but lot 17. Judge stated that it doesn't have to be expressed when it arises from the circumstances (only the farm
could benefit from the right of way, lot 17 being walked on all the time, it could not be the source of living). (2) You
don't know where the easement is, it's too vague. Judge says there might lack precision in language but the factual
situation: there are gates and a path! (3) That it limited his right as an owner: should be treated as extinguished
because it changed to must. Judge says it doesn't limit the use of the owner of lot 33 and there is a rule stating that
the easement must then apply to each division (clear). SCC also says it was foreseeable the farm would be
subdivided.
Ratio. An expressed grant may be supplemented insofar as the Court is willing to look at the context.
ii) Implied Grant or Reservation96.
This is a situation where there is no express grant of easement, but the from the
circumstances, the court is prepared to imply that one exists.
95
96
They are not, but they look like it.
Notes based on Clara Pham's and Julien Morisette's.
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Grant only
Principle
Non-derogation – any
conveyance of land involved
the conveyance of easements
that benefits that land
Wheeldon [R. 29]
Grant/reservation
Necessity – to use your
land, you need an
easement.
s. 15 CPLA
“strict” (“any” use of
land) Hirtle [C. 569]
Mutuality – within the transaction, an implicit agreement
for the creation of an easement
can be inferred.
Common intention
Barton C. 578
Factual reciprocity
Pyer [R.31]
“relative” (understood use
of land) Wong [C. 572]
The non-derogation principle.
Wheeldon v. Burrows [R. 31]
Facts. A large parcel of land was owned by only one person. But use of one part of the land would have implied an
easement had ownership been separate (‘quasi-easement’). Subsequently, the ‘dominant’ land is sold.
Issue. Is an easement acquired without an express grant?
Holding. Yes.
Reasoning. Two rules.
1. All apparent (quasi-)easements which are necessary to reasonable enjoyment will pass to the grantee One
land. The vendor uses a path across one section to gain access to the other. If he sells one section to a buyer, he may
create an implied easement at the time of the transfer. The path was a quasi-easement "under the reign" of the
vendor. “the grant by the owner of a tenement as it is then used and enjoyed, there will pass to the grantee all the
those continuous and apparent easements, or, all those easements which are necessary to the reasonable enjoyment
of the property granted and which have been and are at the time of the grant used by the owners of the entirety for
the benefit of the part granted." (s.15 CPLA is the statutory confirmation of the first Wheeldon principle).
2. If the “servient” land is sold, an easement will not be recognized by law in favour of the seller. If the
grantor intends to reserve any right over the tenement granted, it is his duty to reserve it expressly in the grant
(doesn't work both ways, hence the "grant only" part of the chart). There are exceptions however for necessity (as it
knows no law), the classic situation being the enclave (landlock), see Hirtle and close reciprocity (Pyer).
NECESSITY
Strict necessity
Hirtle v. Herst [R. 31]
The law if fairly flexible, water-locking is worth land-locking. Hirtle applies for a
declaration of an existing easement due to necessity. There was caselaw to say that navigable
water made access possible if inconvenient, which did not justify necessity. But here, [C. 570],
inconvenience is not enough, but practical necessity (and not absolute) is sufficient. Water access
is not equivalent to land access, if it means that land cannot be reasonably be used for an ordinary
purpose (however, it seems the onus is on the defendant to prove it's suitable for transportation).
Relative necessity
Wong [referred to C. 572]
Facts. Wong wants to operate a restaurant, over which there's a bank. The public health authorities insist that Wong
have a ventilation duct for the restaurant. Landlord says no, it's ugly (Denning LJ will say it would be in an alley
that's already hideous). Wong argues he should have an easement of necessity, since the very lease specify he is to
operate a restaurant and the necessity arises from law (the law requires the duct) 97.
97
Easements can arise in leases situations.
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Ratio. Relative necessity (or strict necessity with relation to a purpose). it's not necessary for any economic use of
the land, but it's necessary for the use the parties planned to make of the property.
MUTUALITY98
Common intention
Barton v. Rains [C. 574]
Facts. There are two lots with garages at the end. The lots are too narrow for two driveways, so there is a common
one, overlapping both lots. Originally, the owners were father and son (and father only before that). But the son sold
his property to a third party, and another son got the father’s part. A dispute arises and the ‘third party’ builds a
fence on the land, making use of the driveway impossible. Grants do not include any easement granted or reserved.
Issue. Can the plaintiff obtain an implied easement and so the fence be taken down?
Holding. Yes.
Reasoning. On the basis of Wheeldon v. Burrow, you could say it's a normal use of the property. However, it's hard
to figure out which is the dominant tenement (because of the quasi-easement). Necessity can help. No strict
necessity. And no relative necessity because it's unlikely the property was sold for the use of the garage. The Court
does find however, that there was a common intention: that was the way the land was used. Even where there isn't
necessity, there is sufficient clues here to let the arties understand that this would be the way the driveway was used:
both parties understood that. [C. 574]. (DRK doesn't necessarily agree).
Factual Reciprocity or the Reciprocity Exception
Pyer v. Carter [C. 574]
Facts. Two houses are close and owned by one person. The owner sells one of them to a third party. Before the sale,
there was a waterspout draining water from the sold house to the retained land, to a drain on the retained land, with a
pipe under the sold land to evacuate it. The owner of the sold house dams the pipe and water floods the retained
house.
Issue. Is there an implied easement of the retained land?
Holding. Yes.
Reasoning. Wheeldon said the buyer acquires an easement (the buyer has the dominant tenement with respect to the
waterspout). Wheeldon also said the servient land didn't retain an easement, unless it was done explicitly. However,
where there is an intimate connection between both easements, there will be an exception to the second rule in
Wheedlon and both tenements will have an easement.
_________________
98
May overlap necessity, esp. with Wong-like cases.
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APPENDIX – EXTRA READINGS.
I. What can be owned?
Intl New Services v. American Press (1918) 248 US 215 (referred to in Victoria Park [C. 23]
Facts. During WWI, some LA news distribution agencies were excluded from certain European sources. NY was
not. And by way of phone, LA got the fil de presse fast enough so it could be used.
Issue. There is no physical theft and resale of newspapers, there is simply an exchange of information from someone
who has bought the medium to someone who hasn't for commercial purposes (copy right doesn't apply, the very
words were not copied down, just the information passed on): what is the subject of property?
Holding. It's not property. AP won on the basis of unfair competition and trade (US doctrine), though some judges
talk about a quasi-property right.
Reasoning. Is there property in news? Pitney J. Working hard and investing money make you merit property: “The
underlying principle is much the same as that which lies at the base of the equitable theory of consideration, he who
has fairly paid the price should have the same beneficial use of the property.”
Dissent (Brandeis J.). Before something can be made property, it has to be exclusive: if it is available to everybody,
it cannot be proper property. "After communications to other, [knowledge] becomes free as the air": it's all about the
legal right to exclude.
Ratio. After voluntary sending to others, if you cannot exclude them, you do not have property rights.
Comments. Should such non-exclusive be made property? What about rights to pollute the air (which remains free
to breathe)? And would that mean that there is truly no such thing as inherent inaptness, that it was simply created
by the law? This being said, the exclusion/exclusivity rule is a good basis.
Caratun v. Caratun (1992) 42 RFL (3d) 113 (Ont CA) [C. 694-698]
Facts. Doctor Caratun's primary objective in marrying Mrs. Caratun was immigration to North America, where he
now practises dentistry. Two years after his arrival from Israel, he rejected Mrs. Caratun, "at a time when family
assets were next to non-existent but his future income-earning ability was substantial".
Issue. In the case of a divorce, is a dentist's license part of the family property?
Holding. In order for something to be property, you have to be able to negotiate/transfer it: no.
Reasoning. It is a very valuable thing: over a lifetime, it will be of use to him, and his income, his being able to have
an income, depends on it. But he can't sell it to anyone else: it is of use only to him. So the wife could only claim
half of what he makes off it, but could not claim half of the actual licence.
Ratio. In order for something to be property, you have to be able to negotiate/transfer it:
Comments.
Victoria Park and Recreation Ground v. Taylor (1937), 58 CLR 479 [C. 6]
Facts. Next to a hippodrome, a guy built a stand so he could see and hear what was going on and report it to the
Australian Broadcasting Corporation. With the result that people stop going to the race and simply listen to the
radio.
Issue. (1) Is the broadcast trespassing (in the sense of making an incursion in his property) [nuisance argument]? (2)
Without trespassing, is there some sort of "theft" of property [the spectacle is the property and the performance is
being used without consent: can there be property rights to a spectacle that's offered to public view]? (3) Finally, is
there misuse of own property [unnatural user]?
** Note that for (1) and (3), there is no question as to whether or not there is a property right, simply, is the situation
enough to amount to nuisance or unnatural use?
Holding. (2) No. Though luck, build a higher fencer, there is no right of property in spectacle.
Reasoning. One of the judges says: he has all the rights to make his fence higher: his property is already exclusive.
The line could be drawn at "extraordinary effort" (the guy built a tower), but that's contrecarré-ed by the fact that
had it been a balcony, there would be no problem. CJ says: “I find difficulty in attaching any meaning to the phrase
'property in a spectacle'. A 'spectacle' cannot be owned in the ordinary sense of the word.”
Ratio.
Comments. OK, for the view, but for the broadcasting?
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Moore v. Regents of the University of California [C. 65-73]
Facts. Leukemia-affected John Moore had his spleen removed. His physician later used a tissue sample which
helped him in his research, to a point where he got patents on a number of products derived from Moore's cell line.
Issue. Did Moore have proprietary interest in his physician's patent? Was there conversion (the tort equivalent of the
crime of theft in common law)?
Holding. Nope.
Reasoning. The SCC of California said one had no property on your cell and your body (you can sue on the basis of
fiduciary obligations or non consent but not property), but the scientists, for the effort they put and what they did to
modify it, have property.
Ratio.
Comments. What about workforce? And image?
3. ISSUES OF IDENTITY: WHICH CATEGORY?
Biss v. Saskatchewan Government Insurance Office (1981), 6 Saks R. 438 (Dist. Ct) [hdA p.1]
Facts. Biss's tarpaulin was destroyed by snow. The insurance refuses to pay for the replacement, alleging that the
tarpaulin is part of the pool (which is only insured against seasonal perils).
Issue. Is the tarpaulin a fixture or a chattel?
Holding. Chattel.
References. Holland v. Hodgson (1872) [para 5]; Stack v. T. Eaton Co. et al. (1902)
Test. [para. 6] See below.
Application of the test. 1. There is a presumption that the tarpaulin is attached (at the moment of the incident). You
could argue that it is not truly attached, but rather hooked for commodity purposes (or that it's not in the summer),
but let's not play with the words. The insurance could argue that it has no utility if it's not attached, but one judge
says it doesn't have to be attached (it could cover something else). The insurance could say: the tarp is there to
protect the pool so that it can later be used. Biss could argue that it was meant as temporary: you can't use the pool is
the tarp is there. It's that final argument that the judges buy.
Reasoning. Even if, at the time of the incident, the tarpaulin was in fact attached to the pool (tarpaulin has S-shape
hooks attached to rings on the pool), it is obvious that this junction was only temporary (you have to remove the tarp
to use the pool). Per Blackburn J. in Holland v. Hodgson (1872) "Articles not otherwise attached to land other than
by their own weight are not considered real property unless there is clear intention otherwise (and vice versa for
personal property). It must be an objective intention.
Ratio. You cannot fix in a contract the nature of something; you must look at the facts to find out the intention, and
the concrete reality of the nature.
Comments. Why the 50$ difference?
Royal Bank of Canada v. Beyak et al. (1981), 119 DLR (3d) 505 (Sask. QB) [hdA p.2]
Facts. Land and mobile home are owned by the Beyaks. Moho is resting on beams going into concrete blocks.
There's a deck, a septic tank, a power pole, landscape, porch, patio block, and a painted skirted board (plywood to
hide the concrete blocks)99.
RBC has a mortgage on the land (mortgage of 12,500$ on a land worth 23,200$). But they also have a chattel
mortgage (12,500$). The mobile burnt has burnt down but the insurance goes up to 16,000$. It is in the RBC's
interest to have the mobile home declared a chattel, that way, it will recover both mortgages. Otherwise, they will
only have 12,500$ and not 25,000$. Now, the Graveside Memorial Co. has lent 25,000$ as a second mortgage and
would be, like the Beyaks, far better off it the moho was considered a fixture.
References. Trevis-Barker and Imperial Canadian Trust Co. v. Reed et al. [¡! don't mix the facts of both cases:
there's a chimney, the moho's not resting on the ground, the ground would have to be disturbed, there was more
dismantlement involved].
Issue. Is this mobile home a fixture or a chattel?
Holding. Chattel.
Reasoning. There are a few attachments (the pole, the septic tank –but one could argue it's simply hook-up of
services), but the rest is mostly resting: the degree is slight. Now, the object: one could argue that the moho has the
99
Comme quoi on peut posséder un trailer et être coquet.
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features of a permanent residence (landscape, deck, patio): the Beyaks testified they had always thought of this as
their house, on their land. The judge decides that no.
Ratio. The owner's own intention (subjective) should be taken into account, possibly to an extent where it outweighs
the circumstances and conditions.
Comments. Now what about a sale? Would anyone seeing the land with the house expect to buy both of them?
Chelsea Yatch & Boat Co. Ltd. v. Pope [2001] 2 All ER 409 (CA) [hdA p. 4]
Setting. There's a wall and the Thames on one side, with pontoons and hooks on that side, on which a boat is hooked
(it also has an anchor down). At half-tide, the boat rests on the bed of the river.
Facts. Mr. Pope rented a boat. Owner of the boat changes (is now Chelsea boat), the wall is London Port Authority's
property and the rest of the bed of the river is probably the Crown's.
Now, this matters because there is a statute that protects real estate tenants. Personal property tenants don't. Pope
wants it to be a fixture (otherwise, he'll be evicted).
Issue. Can a house-boat become a dwelling-house, and thus, a tenancy, by annexation on land?
Holding. It's a chattel: it's not subject to the Housing Act.
Reasoning. If this is a fixture, it's either to the wall or the Port ground and Chelsea Yatch will lost property. What
would an agreement to the contrary change? Nothing [para. 22]: the agreement cannot change what is objectively
not a fixture into a fixture.
Plus, given that it is not necessary to annex a boat to a land to make it a houseboat, and given that the boat could
easily be removed (6 hours a tide it was aground, 6 hours afloat) even if it had been there for quite a time. "A boat,
albeit one used as a home, is not of the same genus as real property".
Ratio. Degree of non permanence and removal without damage to the land are two elements of a chattel. + Original
parties can treat anything as they want, but third parties can only be expected to treat it objectively [Ziff].Of course,
there's a problem when the originals parties are in litigation [Chelsea Yatch = UK and North York = Ontario,
whichever's more authoritative in the country will win]
Questions. Can one's property be attached to someone else's?
II. Personal Property
1. CONCEPTS OF OWNERSHIP AND POSSESSION
1.1. Elements of Possession
a. Physical Control
Re Tubantia (1924) High Court of England [R. 1-2]
Facts. Ship has been sunk and is on the bottom of the North Sea since 1916. The plaintiffs marked the boat to
indicate their possession, explored the wreck a bit but were forced to stop until spring. They now seek an injunction
for trespass (i.e. based on possession and not ownership rights) to make sure defendant won't interfere.
Issue. Does the plaintiff have possession of this bonna vacantia (the true owner of the ship has no importance
whatsoever) ship?
Holding. Yes.
Reasoning. The aninums possidendi is not really an issue here because it is clear that both of them want it. The
problem is one of physical control. Because of the weather, they didn't have physical control all the time [As per
Popov v. Hayashi: "It is impossible to wrap one's arms around a whale, a fleeing fox or a sunken ship"]. Do we have
to modify the definition or physical control or must these be considered as inappropriable for this reason. Therefore,
the control is not absolute, but relative: the kind of control to which that kind of object is realistically susceptible
Ratio. The animus possidendi is not at question here. The problem is one of physical control and the plaintiffs have
subjected the ship to the maximum degree of control which was possible given its nature and location. Possession is
relative to the sort of thing sought to be possessed (none of the parties here could claim absolute ownership of the
ship).
Comments. It's not an issue here but we could have a discussion about the nature of the property: is it a fixture or a
chattel? Question: is it attached or simply resting by his own weight. It is unlikely that someone wanted to attach it
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to the seafloor (not what we usually use boats for, doesn't make the ocean floor "better" –unless it's considered a
monument100).
Popov v. Hayashi (2002) WL 31833731 (Calif.SC) [hdC]
Facts. This is about Barry Bond's 73rd homerun ball. Popov catches the ball. Stampede! Melee! The ball rolls away.
Hayashi sees it, puts it in his pocket and walks away. He's suing in conversion. But first, he has to show he has the
right to do so: no problem about animus possidendi, but what about physical control?
Issue. Did Popov have enough physical control to claim possession? Has "enough" happened?
Holding. Kinda. Both of them have equal rights; therefore, the ball will be sold and the money divided (equity
solution).
Reasoning. Before the ball is caught, what is the status of the ball? Prof. Bernhardt (for Popov): "Physical control,
intent to control, exclude others from it, blurred question of law and fact. Intent to take control of the ball manifested
by stopping the forward momentum of the ball whether or not complete control is achieved."; Prof. Gray (for
Hayashi): a ball is caught if person has achieved complete control of the ball, at the time where momentum has
ceased.. However, Gray talks about incidental contact. And the contact which made Popov lose the ball was far from
incidental. So the judge comes down to this rule: "Where an actor undertakes significant but incomplete steps to
achive possession of a piece of abandoned personal property and the effort is interrupted by the unlawful acts of
others, the actor has a legally recognisable pre-possessory interest in the property [which] constitutes a qualified
right to possession which can support a cause of action for conversion [p.3 of the hd.]". So here we have possession
and pre-possessory interest.
Ratio. There was a pre-possessory right on part of Popov, who lost it because of an unlawful act (reward for labour
and energy), but it is Hayashi who had the unequivocal control by his clear act (Pierson v. Post).
Comments. The owner of the ball was the Major League Baseball, but it was abandoned as it was hit.
DISCUSSION: if in order to do what is fair should you change the law? Apply this pre-possession to Pierson v.
Post.
Bailment
Heffron v. Imperial Parking (1974), 46 DLR (3d) 642 (Ont. CA) [C. 366-74]
Facts. Heffron left his car and keys in the parking lot. Came back after midnight when parking was closed, so he
had to get his keys from the garage across the street (standard procedure). Problem is, they didn't have the keys, and
the car was gone. The car was found later, damaged, and personal items were missing.
Issue. (1) Is this bailment or a licence [def – permission to enter land/property for a reason that justified what would
otherwise be a trespass]? (2) And to what extend are the parking lot owners responsible for the content of the car?
Holding. This is a relationship of bailment and the parking is responsible for the content of the car as well as the car
itself.
Why the question? Of course, a bailor's obligations are better than the licensee's. If it's a licence, can't sue for
trespass because that's the whole point of having granted a licence. Secondly, there's an ordinary tort obligation
(negligence). Now, if it's a bailment, I have a positive obligation to safeguard and, procedural point: all the plaintiff
has to do is prove the existence of the bailment and the loss of the damage of the thing. And then, it's up to the bailor
to show he exercised reasonable care.
Reasoning.
Bailment and possession.
Are there enough facts in combination to show that the parking lot owner was actually in possession? Careful: you
can call things as you like it as long as it doesn't attack their substance. Here, the keys had to be given, there was a
parking ticket. There was also an attendant, they had a procedure for dealing with cars after-hours. Does all this
reasonable lead to the inference that the parking lot was assuming a degree of control consistent with a change of
possession?
Argument in favour of car owner
Argument in favour of parking owner.
 It's bailment! Transfer property to someone so they  You can argue that there was a change in nature of
100
What about sea weed?
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
can work on it. Where there is bailment and failure
of redelivery, there is a presumption that the bailee
is at fault.
The owner recognises a change of situation, but
sees it as a new bailment. There's an extended
notion of mutual benefit101.

bailment (a condition of bailment was changed by
bailor) – the standard of care can have changed
(bailment for reward to gratuitous bailment, even if
the garage remains in possession).
Or that there was a change in the nature of the
relationship102 (from bailment we moved to licence
to leave onto our parking lot, otherwise, it would be
a trespass – and then the onus is on the licensor).
There are six arguments in favour of the bailment (and thus, of Heffron): he delivered the keys (control); there was a
ticket with a serial number (necessary for recollection of car); attendant on scene; signs implied it would be safe to
leave it passed midnight; notice of closing hour means they stop doing something (active); there was an aftermidnight practice. Ziff adds that whether fees are charged, past dealings, layout of premises, assigned place (lease)
make a different: there was no mutual intention of a mere parking (not simply a license to occupy a square of
parking).
Personal items.
Per any sock case (say Cashman), the bailee responsible for the things in the container as well as the content. Did
the parking take possession of the content of the car when they took possession of the car? Either (a) intent re
particular things (you know, you have seen) or (b) they inquired what was inside (this would be enough even if they
get no answer, they simply notice there is something) or (c) if the content goes without saying in the container.
Ratio. (1) Bailment arises when control and possession (keys, control, attendant, hours) of the chattel is effectively
transferred from bailor to bailee: there was change in possession. (2) Anything you might reasonably expect to
found in the container you will be responsible for to the extent you are responsible for the container 103.
Also, as a matter of general law: Upon non-delivery, the onus is on the bailee to prove either he's not at fault for the
loss or that such fault was excused by an exculpatory clause.
Comments. Read only for bailment. There is a big element of exculpatory clauses (contract law) in this case.
[C. 374] Things that one can reasonably expected to be regularly contained should be the rule, says Estey. Does it
seem fair to fix the bailee constructive possession of anything found in the car? There is a difference between
normal content and reasonably expectable content (it also depends on the container, f.ex. wallet against car).
Fairley & Stevens v. Goldsworthy (1966) NS [R. 4-7]
Facts. Goldworthy and his car dealer had an agreement: he would drive the car to his wife and buy it if she agreed.
He did pick up his wife, but went far and drove in the storm. He had an accident in the Ford Fairlane,
Issue. Is Goldsworthy liable and on what basis?
Holding. He is, on the basis of bailment.
Reasoning. The bailment was a gratuitous one for the sole benefit of the bailee: slight negligence is sufficient to
give rise to liability (and in any case, facts seem to show gross negligence: (1) wintry condition (2) distance (the
longer, the more negligence?) (3) unnecessary drive (4) nature of the driver (speed, but here the evidence is
inconclusive) (5) overall post-accident irresponsibility (can we go back to what happened given what happened?).).
Comments. Which standard of negligence are we to apply today?
Asher v. Whitlock [1865] LR 1 (QB) [C. 143-145]
Facts. In 1842, Williamson fences part of the land of a waste land (manor), thus acquiring it and adds some parts.
He dies in 1860. His will says his widow has estate for life or until she remarries (remainder of fee simple [largest
interest in terms of land] will then go to daughter). Wife remarries in 1861, but all the family stays on the land. The
daughter (an infant, that is, under the age of 21) dies just before the mom, in 1863.
101
Would be DRK's argument.
DRK thinks this is prolly the best argument.
103
We'll see in Minichiello v. Devinshire Hote [C. 380] that this also covers unexpected things that one was aware of
(the lady told the clerk that there were valuable jewels in the car).
102
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Issue. Who of the new husband (who has been in possession from 1861 to 1865) and the daughter's heir (who has
never been on the land) has the better right?
Holding. Daughter's heir.
Reasoning. It's derivative rights against possessory rights. Since the wife remarried, it is the daughter's estate. She
has all rights over it, including a right of ejectment which she didn't exercise towards new husband (who can claim
best possession transmitted from wife all he wants, it's pointless). Her heir is thus the possessor of this estate through
derivative title (situation of adverse position). Yes, the daughter lost possession but she didn't lose her right to
ejectment.
Ratio. How many times will we say it: possession is good against all except the title owner/possessory rights
deriving rights from a prior possessor 104! Here, the title was clearly established by will as being the daughter's and,
thus, the daughters' heir-in-law's.
Comments.
Qualified estates
Re Essex County Roman Catholic Separate School Board and Antaya (1977) 17 OR (2d) 307 [C. 250]
Facts. Testator made will in 1925, saying “The property was to be used for school purposes only. The said grantor
reserves to himself and his heirs the preference to buy the said property at the current price should the same cease to
be used for the purpose intended”.
Issue. Is the devise a determinable estate (interest vested in the grantor from the time it is made, so no perpetuities
problem105) or a condition subsequent (in which came the right of re-entry is subjected to the rule against
perpetuities)?
Holding. It's a condition subsequent and an invalid one so the rules against perpetuities changes it into a fee simple
absolute.
Reasoning. As per Re Tilbury West Public School Board v. Hastie where it was deemed that "For long as it is used
for school purposes” meant a determinable estate, it is set that the essential distinction appears to be that the
determining event in a determinable fee itself sets the limit for the estate first granted. A condition subsequent, on
the other hand, is an independent clause added to a complete fee simple absolute which operates so as to defeat it.
The language doesn’t give more than right to buy; at best, you have the creation of an option to purchase; however,
the heir's obligation to pay for the property should the presumed condition be met doesn't defeat the idea that it's a
condition subsequent.
It is a “superadded condition upon a grant of fee simple rather than an integral part of the very limitation of the
estate creates in the School Board”.
So, bottom line: it's a condition subsequent because it's superadded. But as it was not defeated within the time
period, it fails.
Ratio. The difference between determinable estate and condition subsequent lies in this test: is the condition
superadded (condition subsequent) or it is an integral part of the limitation (determinable estate) [C. 252]?
Comments. Also, if you want to create an effective qualification, you might want to make it determinable because
more events could work than with condition subsequent
________________
104
Williamson's fencing made him a possession and his daughter's heir-at-law's possession is more direct that is
widow's new husband.
105
However, not that as of Sept. 6, 1966, this rule was changed: if the clause if void, the gift fails.
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