1
Property
LAW 108b Y01
Professor Hamar Foster
by
Brian Eberdt
THE NATURE OF PROPERTY ...................................................................................... 3
Defining Property in the Common Law ....................................................................................................................4
The Case for Private Property ....................................................................................................................................5
The Functions of Modern Property Law ...................................................................................................................6
PROPERTY IN PERSPECTIVE ...................................................................................... 7
The Sources of Canadian Property Law ....................................................................................................................7
THE PHYSICAL DIMENSIONS OF OWNERSHIP ......................................................... 9
Cujus est Solum ejs est Usque ad Coelum et ad Inferos ...........................................................................................9
Lateral Boundaries .................................................................................................................................................... 10
Fixtures ....................................................................................................................................................................... 12
POSSESSION ............................................................................................................... 12
Introduction ............................................................................................................................................................... 12
The Law of Adverse Possession ................................................................................................................................ 13
The Law of Finders.................................................................................................................................................... 14
Gifts............................................................................................................................................................................. 15
THE DOCTRINE OF ESTATES .................................................................................... 16
The Estate in Fee Simple ........................................................................................................................................... 16
The Fee Tail................................................................................................................................................................ 17
The Life Estate and Estate Pur Autre Vie ............................................................................................................... 17
Life Estates Arising by Operation of the Law ......................................................................................................... 18
Personalty and the Doctrine of Estates .................................................................................................................... 18
3
The Nature of Property
Differing Approaches to the Conception of Property
Aboriginal Perspective
 Michael Polsun’s, “Suddenly Agate” conveys the reaction to the stark
transition of land management to being one of European norms of
property holdings
 Calder v. The Attorney General (1973)
o in 1927, it was declared a federal offence for natives to raise aboriginal
title issues
o this decision significantly increased the actionability of aboriginal title
o forced the judges to consider whether the government of BC had been
acting illegally
Seymour – “Animals and the Law”
 has us look at animals as straddling the categories of things that can own
and things that can be owned
Cheryl Harris – “Whiteness as Property”
 flips the idea of African Americans being held as property by virtue of
their race
 notes the analogous characteristics: alienability and exclusivity
4
Defining Property in the Common Law
Felix Cohen – “A Dialogue on Private Property”
 Private Property and Communism
o private property exists in capitalism as well as communism, the only
question is that of who holds the title
 Does Private Property Exist?
o considers how property is more akin to a right than an object
 Property as Social Relations
o property is based on the relations between people
o reinforces the idea of property as abundle of rights
 Property and Wealth
o notes a connection between property and scarcity
o suggests (questionably) that property is the opposite of wealth
 Ownership Use and Sale
o being able to charge for something does not imply ownership
 Exclusion and Exclusiveness
o exclusion is a characteristic of property, but does not define it on its
own
 Property and Law
o the two are inseparable, otherwise, it would be natural law
 Cohen is seen to be a single variable essentialist
International News Service v. The Associated Press (1918)
 AP won an injunction against INS forcing them to stop using their stories
o wouldn’t have been so contentious had they merely won damages
 had the effect of the court recognizing a property right for printed news
o decision was based on the fact that the news itself had value
 coined the term quasi-property signifying an uncertainty as to whether
the object in question should be deemed to be a property per se
 was a contentious decision, reversing years of precedence
o dissented by Brandeis J. : news is not copyrightable
Victoria Park Racing v. Taylor (1937)
 Taylor was broadcasting the results of horse races as he viewed them
from his land
 cause of action was nuisance (i.e. interfering with an occupier’s land use
or enjoyment of their land)
 Latham found no precedent for the claim
 Rich (dissenting) said that precedent wasn’t necessary
o “the categories of nuisance are never closed”
5
The Case for Private Property
The Theories
Law and Economics
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Utilitarianism
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Property as a
Necessary Condition
for Freedom
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Property as a
Necessary Condition
of Personhood
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Property as a Product
of Labour and Reward
for it
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Property as First
Occupancy
Pluralism
free market is the best market
should be protected as such
there must be exclusivity and transferability of ownership
tragedy of the commons – cost of overgrazing born by all
levant and couchant works better (cattle sleep on private land)
tragedy of the anticommons – if everything was private property,
nothing would get done
society should adhere to whatever system produces the greatest
number of goods
in the puritan sense, this would be regardless of the consequences
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human personality can not fully grow into itself unless the person is
free
used by Waldron to highlight psychological dimension of
homelessness
Hegel’s idea that we become humans by investing our personal will
into objects
as seen in claims for Aboriginal Title, property is essential to our
identity
John Locke argued that, at a state of nature, we have property, but in
a weak manner
we earn property by investing labour into obtaining it
we earn our ‘desert’ to property
the argument used in settlement of land
has been the source of many conflicts between nations
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the case for private property need not exclude other theories
it’s possible to argue for combinations of the theories outlined above
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Jeremy Waldron – “Homelessness and the Issue of Freedom”
 suggests that our concern over the private/public only arises when a
space develops a sense of desirability
 the government’s increasing regulation of public property is virtually
robbing homeless people of any spaces in which they can exist
6
Carol Rose – “Whither Commodification”
 the ‘double-bind’ dilemma (Radin)
o “a poor person is in danger of holding a commodified view of her own
body if she sells, say, a kidney, but because of her poverty she is in
trouble too if she is forbidden to sell it.”
 explores our cultural aversions for the commodification of sex, organs,
children, etc.
 sex trade example
o first-best scenario – sex is only exchanged based on love
o second-best scenario – sex for money is not entirely illegal
 commodity vs. meaning
o discussion of potlachs as having cultural meaning although there is a
significant exchange of goods
o we often consider culture to diminish in meaning when it is
commodified
The Functions of Modern Property Law
Ziff on The Functions of Modern Property Law
 private property must be justified as such
 there is a difference between private property and collective property
 the assessment of novel claims for property involves the evaluation of
prior categories of property
o law degree example – it is property in the US, but not Canada
 courts may abide by the functional or attribute approach
 there are numerous active debates surrounding cultural appropriation
o can a culture/society own tradition stories or songs?
 generally, the courts are wary to allow new types of property
Moore v. The Regents of the University of California (1990)
 background for the case is in Nelkin and Andrews’, “Homo Economicus:
Commercialization of Body Tissue in the Age of Biotechnology” (1998)
 considers whether or note someone’s cell line can be construed as
property
 we considered only two causes of action (of a total of 13)
o breach of fiduciary duty
o conversion – dealing with an owner’s goods in a manner inconsistent
with their rights (he won on this)
7
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considers Carol Rose’s argument
o if his body parts become commodified, he should at least profit
Monsanto Canada Inc. v. Schmeiser (2004)
 distinguished from “The Harvard Mouse Case” where the SCC said that
mice containing cancer causing gene could not be patented, with a 5:4
split
 here, the court split 5:4 in favour of Monsanto
o patents on plants are invalid, but they had a patent on the gene and
cell, so it was deemed to be okay because that gene is required for the
desired reproduction
Property in Perspective
The Sources of Canadian Property Law
The Feudal System
 technically, the Crown is the true owner of all land in Canada, but they
can not easily go about expropriation without good reason (usually
criminal) and/or appropriate compensation
 in feudal times, neither the tenant nor the lord owned the land
o tenant had seise of the land and could grant their land to others
o Lord was seised of the tenants services
 seise is somewhere between possession and ownership
 a pyramid was created as tenants began seise there own tenants’
services
 quiaemprtores was instituted to put a stop to this subinfeudiation
 Upon death
o a tenant declares fealty to his lord, disabling him from willing or selling
his land, however the lord would generally seise the tenant’s heir,
decided upon through primogeniture (no will was involved)
o personal property was dealt with by the church
 distributed by the church, who took 1/3 for themselves
o not until 1540 that a land-holder could legally make a will
 Tenures
o Tenure Abolition Act abolished all tenures except for free and common
socage, giving us escheat and forfeiture
o today, property owners hold their land in fee simple under common
sockage under the Crown
 because of the historical significance of land, the process of its
commodification took over 300 years
Section 2 of The Law and Equity Act
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allows for the application of English law in its form as of 1858
o provided that there are no more modern statutes which are applicable
Aboriginal Title and the Declaration of Sovereignty
 in property law, Aboriginal title is considered sui generis (in a class of its
own)
 unlike other property that we deal with, it’s communally owned
 in most cases, England would declare itself sovereign over new territories,
with little consideration of the occupants of that time and their respective
legal systems
 the Crown’s claiming sovereignty is seen to “slip under” the land rights of
the aboriginals who were already there, instead of revoking them
Divisions of Real Property
 realty (land) is immutable and of fixed quantity
o in Okanogan Indian Band v. Bonneau (2003) we see how real and
personal property are distributed upon death
 elements of realty
o corporeal – capable of being possessed
o incorporeal – incapable of being possessed (e.g. right of way)
Divisions of Personal Property
 the merging of real and personal property lead to the Chattels Real Act in
Newfoundland, similarly, the Law of Property Act in Alberta
o a chattel reel is a lease, signed outside of the tenurial system
 allowed poorer people to obtain land
o formally reduce the distinction between realty and personalty
 chattels personal are things that you own, divided as follows
o choses in possession
o choses in action – are not possessed, but are legally defendable
Death
 Common Law stipulates that, upon intestacy, the heir gets the fee simple
 if there’s no will (intestate succession)
o realty and personalty is distributed by your representatives
(administrators)
o governed by the Estate Administration Act
 if there is a will (testate succession)
o real and personal property is distributed by the executors
o Law vs. Equity
 the executor has legal title to the property
 the individuals named in the will have equitable title
9
Andrew Bell’s Functional Analysis
The Right
Analysis
Beneficial Rights
 entitle the holder to all profit that flows from the
land
Security Rights
 possessed by the bank in a mortgage
Managerial Rights  possessed by a trustee who manages land or
property
Remedial Rights
 where someone receives a property remedy
Expropriation
 remember that property is not Constitutionally protected in Canada
o it is recognized in the Canadian Bill of Rights, but that only applies to
federal cases, and property is of provincial jurisdiction
 in the The Castle it was, enabling the Kerrigans to challenge expropriation
by showing their rights under the Constitution
 US refers to their expropriation right as the power of eminent domain
o cases against expropriation are more likely to succeed
 Mariner Real Estate v. Nova Scotia (Attorney General) (1999)
o a distinction was made between a de facto and de jure expropriation
o notes how there are only three cases that resemble ‘regulatory taking’
(de facto expropriation), none of which succeeded
The Physical Dimensions of Ownership
Cujus est Solum ejs est Usque ad Coelum et ad Inferos
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translated:
o “Whoever owns the soil also owns up to the heavens and down to the
flames.”
taken from Civil Law, this maxim essentially sets the rule
Ad Coelum
 was absurdly defended in Bernstein of Leigh (Baron) v. Skyviews (1978)
o interestingly, it was found that the Civil Aviation Act, by making an
exception for aircraft, might have given Bernstein some right
o in the interest of precedent, the courts decided that everyone owns
the airspace
Ad Inferos
 in Edwards v. Sims, the court barred a property owner from charging
admission to a cave that lay under another owner’s land (from which the
cave was inaccessible)
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o as expressed in this dissent, the ruling is somewhat absurd
for us s. 50 of the BC Land Act clarifies the issue to a certain degree
o to a significant degree, it exempts the title holder from ownership of
mineral deposits or natural resources found underneath their land
Lateral Boundaries
Land Bounded by Land
 REVIEW ZIFF PP 91-96 ON THIS
Land
 in
o
 in
o
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Bounded by Water
England
the respective land rights are determined by whether the water is tidal
Canada
the rights are determined by whether the water is navigable
 non-navigable – the owner owns the land up to the center of the
body of water (ad medium filum aquae)
 navigable – up to the high water mark
o s. 55 of the BC Land Act
in Nikal v. The Queen (1996), important additions to the Canadian
position were made
o the ad filum aquae rule did not apply because the land in question was
a federally granted reserve
o non-navigable sections of the river do not make an entire river nonnavigable
o because the river was deemed to be navigable, the Crown held that
they owned the fish that were in the water above the river bed
Riparian Rights
 riparian owners have unique rights that other land owners do not
 Steadman v. Erickson Gold Mining Corp (1989) deals with one of these;
the right to use stream water
o Steadman alleged that Erickson tainted their shared water supply
o neither had a license (subject to the BC Water Act)
o noted that no one has a right to ground water
o additionally, an owner can use as much water as they wish (and divert
its flow) as long as it’s for domestic purposes
o because of these rights to the water, Steadman could continue to use
it
 District of North Saanich v. Murray (1975) found that construction on
unowned foreshore amounts to trespass
o the case set out that he would have to reach an agreement with the
owner of the foreshore (Saanich)
o in actuality, this is what they did (the wharf still stands)
11
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Water Use Exception
o in response to the apparent inability of riparian rights to work for
water use, the BC Water Act (s. 2) allows appropriation rights for
water use
o thus, whoever got their first has the right to use the water
Accretion
 the rule for accretion is bizarre
o in order for the landowner to benefit from accretion, it must occur
gradually and imperceptibly
 leading BC case for the issue is Re Monashee Enterprises Ltd. and
Minister of Recreation and Conservation for British Columbia (1981)
o Crown granted the land to a party in 1911
 since then, 5.87 acres had accreted at the foreshore boundary
o Monashee acquired the land in 1964
o s. 85 of the Land Act stipulated that the Crown may reserve one chainwidth of land measured from the high-water mark
 thus, as the land accreted, the Crown acquired all the new land
o thus, Monashee was not actually a riparian owner
o to rule otherwise would be to interpret the Crown to have an
‘ambulatory strip’ which would be absurd
 the judge in Monashee pointed out how the cases might be resolved in
Australian courts with use of a ‘reservation’
o in BC, s. 50 of the Land Act is an analogous to this
 allows the Crown to resume 5% of anyone’s property if they wish
 this is how they were able to build railways that go through Indian
Reserves
Lateral Support
 property owners have an incidental right to have their landed supported
laterally by the neighbouring lands
 technically, this right does not extend to buildings that are on an owner’s
land – but this is alright as long as you can prove that the land would
have subsided in absence of the buildings in question
 it is possible to apply for an easement
o signed agreement stipulating that your neighbour is required to
support your building laterally
 up until 1976, you could acquire prescription rights
o these serve the same purpose
o they’re non-possessory rights, accrued upon the lack of any structural
modification over a 20 year period
o because of the difficulty in proving this, they were abolished by s. 24
of the Land Title Act
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in Rytter et al. v. Schmitz (1974), Ruttan J. decided that the plaintiff had
accrued prescription rights
o even without such rights, the plaintiff had a good case for damages as
the defendant had trespassed, causing damage to the plaintiff’s
property
o in absence of prescription rights, the plaintiff had a right to lateral and
vertical support
Vertical Support
 generally arises in cases involving mining licenses
 they will usually be settled in tort (nuisance or trespass) because they are
difficult to resolve in support rights on their own
Fixtures
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this describes the phenomenon by which personal property becomes real
property (literally, by becoming ‘fixed’ to it)
classified as security interests (remember bankrupt hotel carpets)
derived from the law of successions, from early common law
o classification of property had determined whether it was dealt with by
the church or the state
the definition of fixtures has changed over time (e.g. the bathtub)
the test
o whether an objective person would assume that the object in question
would accompany the sale of property
given the non-specificity of the test, courts have a lot of trouble actually
reconciling these cases
Heathron Developments v. Kemp Concrete Products (1998) is one of the
most oft cited fixtures cases
o sets out the test by saying that the articles were intended to be part of
the land, articles affixed ‘even slightly’ are assumed to be realty
o the purpose of the article must be plainly seen
o intention will be evaluated in light of the degree of annexation
Possession
Introduction
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two components of possession
o intention to possess (animus possidendi)
o physical control (factum)
Popov v. Hayashi (2002) is a modern case highlighting the complexities
that the course are faced with
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o between two individuals claiming they had possession of a valuable
baseball, ‘caught’ at the game
o introduced concept of pre-possessory interest
 both parties had an intention to possess the ball
 Popov could not obtain control because of the mob around it
 Hayashi was found to have benefited from the mob
 thus, they were each awarded equal value
a lot of the relevant precedent descends from cases involving possession
of wild animals
o like water and air, nobody owned them
o pivotal question became: at what point does the person pursuing an
animal get possession of it
o when you catch an animal and it escapes, you lose possession
constructive possession
o if you have an animal that is in the habit of returning, when it is out of
your physical possession, it remains in your constructive possession
due to the jus tertii defense, third parties with better claims to property
are ignored, disputes are between the litigants only (remember the
soldier finding the broach during the war)
Three Key Concepts in Possession
o license – granting permission, but neither possession nor title
o sale – granting title and possession
o bailment – granting possession, but not title
Carol Rose
o points out the essence of property being to make a “clear statement to
the rest of the community”
o “possession is yelling loudly enough to all those who are interested,
and continuing to yell.”
o notes that it was very difficult for Aboriginals to assert their claims of
possession to Europeans, the methods of doing so were incompatible
The Law of Adverse Possession
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title through adverse possession is good against anybody except he who
possesses a better title
s. 23 (2) of the Land Title Act asserts that the paper title is the best title
Asher and Wife v. Whitlock (1865)
o neither plaintiff nor defendant was the paper title holder
 the Lord was the rightful owner, but didn’t assert title
o plaintiff’s donor (relation unknown) was making a will of land to which
he had no title
 he was an adverse possessor, thus it’s legal
o issue: Does someone who is in possession of land who neither has the
title nor has long enough interest for adverse possession get the land?
 yes
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Re: Canadian Pacific Railway Co. (2002)
o the CPR didn’t know if they actually owned a half mile of their line
o they couldn’t tell who the owner was
o they decided to wait out the 20 years required to gain possessory
rights (totalling 60 years of adverse possession ) – the tactic resulted
in success
o tells us that you may legally assert your adverse title upon the first
issuance of a paper title (but not thereafter)
o a necessary requirement for CPR’s claim was that they never had
permission to use the land – which they proved
The Law of Finders
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the issue is centred around who has the best right to the property
Ziff, pp 134
o “A finder acquires good title against the world except for those with a
continuing antecedent claim.”
Bird v. The Town of Fort Frances (1949)
o child finds money under a house, subsequently confiscated by a police
constable
o the individual with the best claim (occupier) wasn’t involved
o the executor of the owner’s estate has a managerial interest, but was
a third party (jus tertii)
o McRuer J. pointed out that the money was not lost, it was stashed with
the intention of being found
o in spite of the fact that Bird was trespassing, McRuer ruled that he had
the right to the property
o this ruling questions the limit of ex turpi causa
 generally, the court will not act on a claim when the plaintiff can be
shown to have been involved in a wrongdoing
Parker v. British Airways Board (1982)
o Parker found a gold bracelet in the lounge of Heathrow Airport, asked
to keep it if it was left unclaimed, airport did not comply
o Donaldson J. resultantly develops the ‘finders code’
Rights of the Finder
Rights of the Occupier
property must be lost or abandoned, and taken occupier has superior rights to the finder
under control of finder
when chattels are attached to the building
rights are limited if it’s dishonestly taken
occupier’s rights to unattached chattels are
under control, or by trespassing
superior only if he has expressed intention
to control
if conditions satisfied, finder has claim
for such ‘found’ chattels, the occupier has
against all but true owner
an obligation to find the true owner
if finder finds in the course of his
occupier of a chattel (eg ship) has
employment, employer has rights to chattel
equivalent rights to occupier of a building
measures to find true owner must be taken
15
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treasure trove – most legislation allows for finders to get a cut of the
property they find
Gifts
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three kinds of gifts: testamentary, inter vivos, donationes mortis causae
Ziff points out that, generally, the common law is wary of gifts
o the general rule is that bargain (consideration?) is shown
o as contracts require consideration, gifts require delivery
exceptions to the delivery rule
o deed
 a promise under seal will make the gift binding
 essentially it becomes a contract
o declaration of trust
 lending your car to someone constitutes delivery, but here there is
no intent, thus there’s no gift
o rule from Strong and Bird
 if you make the donee your executor, it completes the gift
o a stoppel (detrimental reliance)
 if someone’s actions or requests incur a detriment upon you, this
may be considered reliance, thus completing the gift
o constructive delivery
 when the donor delivers something that stops them from taking the
gift back (ie integral part of the gift itself)
Donationes Mortis Causa – “gifts made in contemplation of death”
o similar to both testamentary gifts and inter vivos gifts
o requires delivery
o become absolute upon the death of the owner
o revocable by the owner at any point up until their death
o strong intent can cause courts to be lenient with gift requirements
Schoppel v. Beaumont Estate (1970)
o Schoppel was informally given the title to Discovery Island before
Beaumont’s death
o considered whether $1 was sufficient consideration for such a grant
 this was not determinant of the outcome
o he sought specific performance for the agreement of sale
o land contract required: agreement of sale AND conveyance
o three elements of a gift
 intention to give – this was present
 acceptance by the donee – this was present
 physical delivery – this was inadequate
o would have been valid with a deed, vesting himself of his ability to
take the land back
16
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o was not valid as a will, because it was a holograph will (it was
written)
o Wilson J. gave Schoppel costs in return for his honesty
Thomas v. The Times Book Co. (1966)
o Dylan Thomas’ wife challenged his giving Times Book his manuscript
as a gift
o burden of proof lies on Thomas Book
o delivery was qualified by Thomas’ allowing Times Book’s
representative permission to keep the manuscript if he found it
 thus, the gift was perfected
o court indicates that delivery may occur before, simultaneously, or after
the expression of intent
o highlights an intersection between gifts and contracts  consideration
o was not a donatione mortis causa because he did not know that he
was going to die
MacLeod v. Montgomery’s Estate (1979)
o there was an apparent intention to make a gift
o in order for delivery to have occurred, it was required that the bank
have the duplicate certificate of title (to avoid someone else
bringing forward title to the land)
o delivery of land requires registration (stipulated in s. 20 of the Land
Title Act)
o Haddie MacLeod was a volunteer – she had not paid or done any
work for the land
 had this been otherwise, she would likely have been granted the
land
The Doctrine of Estates
The Estate in Fee Simple
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must be granted by the specific wording: “To A and his heirs”
o A gets the land for life, then it is passed to A’s heirs
o this requirement is a rule of law
fee – refers to the legal enforceability of the heirs’ rights
simple – refers to the ability of the title to be conveyed to any heir
failure to use the specific wording only conveys a life interest
s. 19(1) of the Property Law Act stipulates that the specific wording is no
longer required
it is now presumed that a fee simple is meant to be granted, unless
indicated otherwise
o this is a rule of construction
Thomas v. Murphy (1990)
17
o plaintiffs were suing with the claim that the test for simple had not
been passed
o judge ruled that it had been passed because a successor is different
than an heir
The Fee Tail
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lasts as long as there are direct lineal descendants of the holder
concept arose from the granting of marriage gifts where a father wished
to endow daughter and son-in-law with land
was a conditional gift, dependant on the couple producing children
became less popular with alienability and waning popularity of the
dynasty – it no longer made sense
s. 10 of the Property Law Act abolishes the fee tail
court action of common recovery could convert a fee ail into fee simple
The Life Estate and Estate Pur Autre Vie
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life estate can be granted to someone for the duration of their life (pur sa
vie) or the duration of another person’s life (pur autre vie)
it is an uncommon artefact of property law
does not require the use of specific language for its construction
The Repugnancy Issue
o what happens with wills when no lawyer is involved
o some wills will present an ambiguity of what is to happen to a gift of
land upon the donee’s death
o this may result in the granting of the land to the donee as a life estate,
then to heirs in fee simple
The Concept of Waste
o what a life tenant is allowed to do to a property while holding it
o incorporates balance of interest between person with life interest and
person who is granted the remainder
o four types of waste
 ameliorating – enhance value of the land, while forcing
subsequent occupier to incur greater costs of upkeep (grantor can
exempt the occupier from this by including the clause “…without
impeachment for waste”)
 permissive – result of failure to preserve the property
 voluntary – conduct that diminishes land value
 equitable – severe and malicious destruction (s. 11 of the Law and
Equity Act states that no one escapes liability from this unless there
is a specific clause dealing with equitable waste)
Vain v. Lord Barnard (1716)
o Barnard wanted to keep the estate in the family, but only gave his son
a life estate, taking away his ability to sell
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o Barnard significantly devalued the property, for which Vain would have
had to have paid
o Vain sought an injunction, giving rise to equitable waste
Life Estates Arising by Operation of the Law
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Dower
o after the wife’s personalty merging with the husband’s ond the death
of the husband, widow became entitled to one third of the life estate,
under common law
o not to be confused with dowery
Curtesy
o widower had right to all of the wife’s land upon her death
o common law roots: husband became a tenant to his wife’s lord when
she died, so courts of England thought this should extend to the tenant
for his life
both of these concepts are outdated
modern day analogue of theses is the homestead legislation outlined in
s. 96 of the Estates Administration Act and in the Land Spouse Protection
Act
o states that, upon intestacy, all land goes to the spouse
o if there’s a child, half goes to him or her
o spouse gets a life estate in the matrimonial home
Personalty and the Doctrine of Estates
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doctrine of estates is inapplicable to personalty
common law qualifications
o bailment – a temporary interest is possible
o equity – time limited gifts of personalty may be contained in a trust
o division – a will can divide title to personalty (eg to A for life, then to B
absolutely)
Re Troup (1945)
o evidence that the doctrine of estates does not apply to personalty
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More Questions
 what did the judge want to get out of his reference to the Australian
cases in Monashee
 what exactly was the ratio in Re: CPR
 in MacLeod v. Montgomery, was the failure to registure ONLY because the
inability to show a duplicate certificate of title