Property Law – Midterm Study Guide
Exam – Basic four-step guide to Fact Set questions:
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1. What is the issue?
2. What is the law?
3. Apply the law to the facts.
4. Persuade the examiner. Argue both sides, and show why yours is more compelling.
Conceptions of Property
MacPherson’s Analysis of Property
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1. Our idea of property changes over time.
2. Property is a right and not a thing. (A “right good against the whole world.”)
3. Types of property: common property, private property and state property.
o Private property: can be owned by an individual or a group. Good against the whole word.
o Common property: property in which citizens have a right not be excluded. The state can impose
conditions (e.g. ‘no drinking in the park’), but in general everyone has a right to use.
o State property: Owned by the state and not declared to be common property. State often chooses
to exclude everyone except for certain designated individuals.
4. “Property” in ordinary language: we tend to think of property as a ‘thing’ now in part because of mass
commoditisation.
5. The need for justificatory theories: helps keep the state from getting out of step with the values of the
populace. (Such as prohibition.)
Merril’s ‘Concepts of Property’:
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1. Single variable essentialism: The one essential component of property is the right to exclude.
2. Multiple variable essentialism: Property has a core ‘bundle of rights’, but it’s more than just the right to
exclude.
3. Nominalsim: Property is whatever we say it is.
Two Approaches to Property:
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1. Attributes approach: an essentialist approach, which asks what the core aspects of our notion of property
are. This approach gives more certainty, but runs the risk of introducing a ‘core’ concept that later turns
out not to have been a good idea.
2. Functional approach: more flexible, but less certain. Recognizes the openly political nature of the
process of determining what property is.
Cases
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Calder v. British Columbia (AG) (1973) (SCC): This case went to the SCC, but due to disagreement there,
the binding decision for property rights is the BCCA decision, which held that Nisga’a had never had
property rights to the land. This decision was based on an analysis of Nisga’a property concepts. The
judge held that there were five key concepts in property: boundaries, exclusive possession, freely alienable
by sale or will, right to destroy, and inheritance. (Multiple Variable Essentialism.) The Nisga’a lacked the
third concept. Part of the problem is that Niksa tended to view their right in land as usufructory rather than
ownership. Justice Hall of the SCC indicated that it was inappropriate for the BCCA to have applied the
test they did.
Yanner v. Eaton (Aust. HC): Australian high court case regarding aboriginal right to hunt crown game.
The crown argued that aboriginal hunting rights had been extinguished by 1974 fauna laws requiring a
hunting license. The case turned on whether the crown had ‘absolute’ property in the fauna or a lesser,
more formal sense of ownership. The majority decided that it was more of a ‘guardianship for the public
benefit’ than absolute full ownership. (Nominalism.)
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Hunter v. Carswell (SCC): Four years previously, SCC had decided in Peters that a shopping market owner
could kick out someone they didn’t want to be there. The dissent in this case try to get around it by saying
that this case involved an employee picketing in a legal strike, so there is more than freedom of expression
at stake. Trespass laws are really about privacy, which isn’t as big an issue in a commercial enterprise.
However, the majority feels that allowing socioeconomic considerations to influence the courts to ‘try’ to
reach a conclusion is intruding on legislative function.
Novel Claims in Property:
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I.N.S. v. Associated Press (USSC): A US case. INS was reading east coast AP bulletin-boards, then wiring
the news to their west coast associates and running it in their papers concurrently with the AP papers. AP
claimed they had a property right in the news, and requested an injunction. INS said there was no property
right in news, and if there was, it became ‘public property’ as soon as it was published. SCOTUS says
there is a ‘quasi-property’ right in news, not good against the world, but good against other news agencies.
Victoria Park Racing and Recreation Grounds Ltd. v. Taylor (Aust. HC): An Australian case, similar to
INS but decided oppositely. The person owning the property beside Victoria Park racetrack built a
structure and allowed a radio commentator to stand on it to see into the racetrack, and broadcast
commentary on what he saw there. Court says that a view is not property and a spectacle is not property.
Dissent takes a more functionalist approach, and says that this may constitute nuisance, voicing concerns
about the ramifications of the advent of television.
Moore v. The Regents of the University of California (Cal. SC): A US case. Moore’s doctors cultured his
liver cells, which had been surgically excised. They then patented a new and potentially lucrative cell line
created from those cells. Moore sued for conversion. Majority held that your property rights in tissue are
lost once it is excised. Factors included lack of judicial precedent, statutory laws which mandate what is to
be done with excised tissue, and the fact that the cell line is distinct from Moore’s cells. Majority says that
after all this, there are so few rights left over to constitute ‘property’ that it really doesn’t exist. The court is
also wary of dissuading researchers, and concerned about the potential dangers of rashly extending property
concepts.
Sources of Property Law
Aboriginal Sources
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Courts have started to recognize these more in recent years with respect to establishing aboriginal title.
For example, the ‘naming feast’ ceremony is similar to notarizing a deed. The feast is analogous to a
‘payment’ made to ‘witnesses’ of a transfer of property.
Aboriginal justice systems emphasize ‘causation’ rather than ‘guilt’. (It doesn’t matter if you ‘meant’ to do
it.) They also emphasize ‘compensation’ over ‘punishment.’
French Civil Law
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Has little to no influence on property law in modern common law provinces.
Feudalism and the Common Law Tradition
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Originally, tenants held their land in ‘tenure’ from a lord in exchange for various services. The lord was
essentially purchasing your services and paying for it with land.
Shortly after the Norman conquest, the King (the ‘allodial’ or ‘true’ owner) granted parcels of land to his
‘tenants in chief’, and they ‘subinfeudated’ the land to lesser lords, and so on and so on until you got to the
level of the person who lived on and worked the land.
Free vs. Unfree Tenures:
o Free Tenure: the services owed to the lord are clearly defined, and the lord does not have the right
to ask for anything else.
o Unfree Tenure: the services are not specified, and the lord may demand anything of you.
Over time, the actual services were replaced with ‘scutage’ payments, which quickly became merely token
amounts because of inflation. The ‘incidents of tenure’ then became more important:
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Homage
The Oath of Fealty
Aids: the tenant was obliged to assist the lord financially on certain occasions, such as to ransom
him.
o Incidents concerning what happened when you died. If you died without legal heir, the land
‘escheated’ back to the lord.
o Others
The feudal pyramid began to collapse after 1290, when land was made freely alienable during one’s
lifetime (you didn’t need the lord’s permission anymore, which put an end to subinfeudation.) In 1340 it
became possible to direct via will what would happen to your land after your death.
In 1660, the statute of Quia Emptores abolished all forms of tenure except ‘free and common socage’ (the
lowest level of tenureship) and all incidents of tenure except ‘escheat’ and ‘forfeiture’.
Reception of British Law in Colonies
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In the British tradition, colonies claimed through settlement were subject to British law, because the British
settlers were ‘importing’ their law to the area. But colonies ceded through treaty or conquest, the preexisting law in those areas remained in effect until and unless the king decided to alter them.
In BC, we passed Reception Statutes indicating that British law applies in BC as of a certain date, but any
subsequent British laws will not apply here.
Classifications of Property
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1. Real property: land (aka ‘realty’)
o Corporeal: A right giving you possession of the land
o Incorporeal: A right to land that does not include possession, such as easements.
2. Personal Property
o Chattels personal:
 Choses in possession: tangible objects that you can physically possess.
 Choses in action: personal property that you cannot physically possess, such as shares in
a company.
o Chattels real: refers to leases.
3. Unique Interests
o For example, aboriginal title is considered ‘sui generis’.
At common law, property is distinguished according to whether you would initiate a ‘personal action’ or a
‘real action’:
o Real action: If you win, you get the property back.
o Personal action: If you win, you get paid compensation.
Another way of distinguishing types of property is based on what happens to it when you die:
o Real property: descends immediately to your heirs.
o Personal property: Distributed by your agents according to your will. (Originally: distributed by
the church, according to church law.)
‘Legal’ vs. ‘Equitable’ property rights
o For example, when setting up an ‘express trust’, the trustee has legal title to the land, while the
beneficiaries have equitable title in it. This equitable title was not originally acknowledged by
common law but has become enforced through custom.
o There is one caveat: if the legal titleholder sells the land to a ‘bona fide purchaser’ who knows
nothing of the equitable interest in it, that purchaser gets to keep the land and the beneficiaries lose
their equitable title.
Protections for Property
Constitutional and Non-Constitutional Protections
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By common law, a crown grant is irrevocable unless it contains an express provision for revocation.
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There is also a common law presumption that there can be no expropriation without compensation. In
Canada, however, this compensation is not constitutionally protected (though it is protected by the
Expropriations Act.)
In the US, regulating land to the point where it is no longer economically useful can be considered
expropriation, but this is much harder to establish in Canada.
Mariner Real Estate Ltd. v. Nova Scotia (AG) (NSCA): Beachfront property where the owner planned to
build condos was redesignated as a protected natural area. Owner claimed this was a de facto
expropriation. Court says “we cannot know if a regulation goes too far unless we know how far it goes.”
o Judge notes that ‘injurious affectation’ can already compensate indirect economic loss, e.g. if
gov’t expropriated ¼ of land, then dumped radioactive waste, reducing value of surrounding land.
CPR v. City of Vancouver (SCC): CPR was not allowed to sell a corridor of land. They claimed de facto
expropriation. The court established two requirements for de facto expropriation: 1. An acquisition of the
value of the property by the government, and 2. The extinguishing of all economic value for the owner.
Since the gov’t here didn’t get the value itself, it wasn’t a taking.
NAFTA
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US property protections have been imported into NAFTA article 110.
“No party shall directly or indirectly nationalize or expropriate or take a measure tantamount to [etc]
without [due process, compensation, etc]”
This clause has been used, but is typically interpreted with a fair degree of restraint.
Metalclad Corp. v. United Mexican States (2000) (NAFTA Arbitration Tribunal): The only successful
takings case so far under NAFTA. An American firm was trying to establish a waste treatment plant in
Mexico. They had federal and state authorization, and were assured that the local government would not
pose an obstacle, so they started working. But the local government issued a stop work order and later
denied the building permit, and then declared the area an environmental preserve. Metalclad successfully
sued under NAFTA.
Boundaries
Aerial Boundaries
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There are two types of cases: those involving permanent structures or projections, and ‘transient invasions’,
such as airplanes.
Permanent structures or projections: these have been held to be trespass where they encroach on the
airspace of another property.
Transient invasions: Your property rights in the airspace above your land are limited to those necessary for
the proper enjoyment of your land.
o Note: Even where a plane is too high above your land to count as trespass, you may still be able to
sue separately for nuisance, for example, if there is a lot of noise.
Bernstein of Leigh (Baron) v. Skyviews & General Ltd (1975) (Queen’s Bench Division – British case):
Plane was taking photos of Lord Bernstein Lee’s house. Court found that the plane entering the airspace
did not constitute trespass.
Subsurface Boundaries
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Limitations on subsurface rights:
o 1. Prerogative rights of the crown: by common law, a crown grant gives you all mineral rights,
except gold and silver, and various wildlife. No longer particularly relevant.
o 2. Terms and limitations in the original Crown grant
o 3. Statutory limitations: The Land Act states that any crown disposition of land automatically
excepts certain things, including petroleum, coal, gas, minerals, etc. It also excepts the rights to
disturb your land as necessary to access those resources (while paying reasonable compensation.)
Edwards v. Sims (1929) (Kentucky CA): Two neighbours were arguing over who owned the caves that
ran beneath their land. The majority adhered to the old common law rule that your property extends to
the center of the earth.
Land Bounded By Land
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Lateral Support: by common law, you are entitled to lateral support for your land by your neighbours.
However, this does not extend to support for extra strain put on the land by, for example, structures.
o Easement of Support: an arrangement you can make with your neighbour wherein you acquire
a property right to lateral support for your building.
o Prescriptive Rights: if you have enjoyed an advantage for 20 years, such as lateral support, it
‘ripens’ into an enforceable right. However, prescriptive rights have been abolished by
statute.
Vertical Support: By common law, you still have a right to vertical support.
Rytter v. Schmidt (1974) (BCCA): Defendant’s contractors were digging along the boundary, and part
of the plaintiff’s house collapsed. There was a prescriptive easement of lateral support, as well as
vertical support. There were also issues of trespass.
Adverse possession:
o Tends to be invoked only where encroachment has been going on for a long time (20+ years)
and no suit has been taken.
o S. 36 of the Land Act deals with fences and buildings which encroach on neighbouring
property.
o Where, on a survey of land, it turns out that a fence or building encroaches on adjoining land,
the courts have three options:
 1. Give the encroacher an easement in exchange for compensation.
 2. Transfer title to the encroached land to the encroacher, in exchange for
compensation.
 3. Order the encroaching building or fence removed to the extent that it encroaches.
Land Bounded By Water
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Riparian Rights: ‘riparian owner’ is one whose land is bounded by water.
o Right to ‘use and flow’ of the water
o Right to accretion: as you can lose land due to erosion, you can also gain it due to accretion.
o Right to access the water.
Ad Medium Filum Aquae: riparian owner owns a streambed ‘to the middle thread’
o In Canada, navigable waters belong to the crown. AMFA applies to non-navigable waters. (But
the entire river must be non-navigable, not just part of it.)
o In BC, AMFA does not normally apply because the Land Act expressly states that no crown grant
includes the bed or shore of any body of water unless it specifically indicates otherwise. However,
aboriginal reserves are federal land, so the BC statue does not apply.
o R. v. Nikal (1996) (SCC): aboriginals claimed that their portion of the river was non-navigable, so
AMFA should apply, but the court said the river as a whole was navigable, and in any case,
fisheries are severable from the riverbed and it does not appear that the crown intended to grant
the fishery.
Accretion/Erosion:
o ‘Accretion’ is a slow and imperceptible accumulation of land along a riparian boundary.
‘Avulsion’ is a sudden and dramatic increase. A riparian owner has a right to land gained by
accretion, but not to avulsion.
o Re Monashee Enterprises (1981) (BCCA): Crown owned the foreshore and a strip of land ‘one
chain’s length’ from the shore. Crown later wanted to expropriate land to form a park, but the
Monashee wanted to claim the accreted land as extra acreage they were owed for. However, as
the crown owned the foreshore they were the riparian owner, so only they could gain land by
accretion.
Right of Access:
o North Saanich v. Murray (1975) (BCCA): The Murrays built a dock on the foreshore,
disregarding bylaws and the fact that the crown owns the foreshore. (It had been leased to North
Saanich.) Held that the right of access to the water does not include the right to disturb the
foreshore or interfere with navigation.
Use of water:
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S. 2 of the Water Act vests all right to use and flow of the water in any stream in BC in the crown,
unless you have a license for its use.
It is an offence to ‘construct, maintain or operate works without authority’ in order to divert
stream water that you don’t have a license to, or to use stream water when not entitled to do so.
The crown also owns ground water, but it is not subjected to any licensing scheme. It becomes
yours as soon as you take possession of it.
However, even where you don’t have a property right in water, you still have the right not to have
others pollute it.
Under s. 42 of the Water Act, you can divert ‘unrecorded’ water without a licence for a domestic
purpose. (But this is a ‘fragile’ right, as it disappears the moment someone else obtains a license
to the water.)
Steadman v. Erickson Gold Mining Corp (1989) (BCCA): Steadman was diverting water to his
home. Nearby roadworks silted up the pipes. It was not clear whether the water was groundwater
or stream water, but the judge held that even if it was stream water, it fell under the ‘unrecorded
water’ exception.
Fixtures
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Interim agreements for real estate sales generally include a list of specific items which are included or
excluded.
Problems can arise, however, where this is not done, or where an investor has a security interest in goods
affixed to property which someone else owns, or where multiple security interest holders are arguing over
who has priority.
Four principles in determining whether something is a fixture:
o 1. There is a rebuttable presumption that things attached to the land by nothing but their own
weight are not part of it, unless circumstances suggest that they were intended to be.
o 2. Articles affixed to the land even slightly are presumed to be part of it, unless circumstances
suggest that they were meant to be considered chattels.
o 3. The relevant circumstances to rebutting one of the above presumptions must be ‘patent for all to
see’.
o 4. The intentions of the affixer are deemed to be what the reasonable observer would infer from
the degree of annexation. The actual intentions of the affixer, if different, are disregarded.
Another way of looking at it is whether the goods were intended to be enjoyed as goods, or were for the
better enjoyment of the property to which they were affixed.
La sale Recreations Ltd v. Canadian Camdex Investments Ltd (1969) (BCCA): La Salle had a property
interest in the carpets of the Villa Motel via a conditional sale, but they had not registered their title with
the land registry office. So whether they or the mortgage-holders had priority to it depended whether it was
a ‘chattel’ or a ‘fixture’. Court said that it was a fixture and the mortgage-holder got priority.
Tenant fixtures: if a tenant affixes something to the property, they have the right to sever it and make it a
chattel again so long as doing so would not cause serious damage to the property.
Tangible and Intangible Resources
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Include, for example, copyrights, trademarks and patents.
Artists are considered to have a ‘moral’ right in their works, which cannot be severed (unlike their
economic rights.)
o Theberge v. Galerie d’Art du Petit Champlain (2002) (SCC): Artist obtained a pre-judgment
seizure of works that the defendant was transferring to a canvas medium. Judge said that a moral
right is not sufficient to ground a pre-judgment seizure; there must be an economic right being
claimed as well.
Harvard Mouse: Cannot patent higher life forms.
Monsanto Canada Inc v. Schmeiser (2004) (SCC): Schmeiser argued that Monsanto only had a patent on
the gene, not the organism. But the court says that the patent extends to the organism containing the gene,
which potentially opens the door for indirect patenting of higher life forms.
Possession
What Counts as Possession?
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Peirson v. Post: Hunter doesn’t catch or wound fox, but chases him all day, then another hunter scoops
him. Court rules that ‘all but reducing to possession is not possession’. (Intention to take possession is not
enough by itself.)
Popov v. Hayashi (2002) (Cal. SC): To take possession of an object, you need both physical control and an
intention to take possession. The first person to take possession of ‘intentionally abandoned property’
becomes it s owner. If you fail to take control due to ‘incidental contract’, you don’t have possession. But
where your failure to take control is due to the unlawful act of another, you obtain a ‘pre-possessory
interest’ which will be weighed against anyone’s subsequent possessory right. The court ends up deciding
to equitably divide the value of the baseball between the two parties.
Acquisition of Land by Possession
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Adverse possession: A possessor of land has a right against everyone in the world except the paper title
holder. However, after 20 years (60 for Crown Land), if the paper title holder has not turned you out, you
can become the owner of the land by adverse possession.
Common law requirements for adverse possession:
o 1. Open and notorious : you cannot gain possession by stealth.
o 2. Adverse: if you got permission, you have implicitly conceded title.
o 3. Exclusive
o 4. Peaceful
o 5. Actual: in general, you must actually (rather than just constructively) occupy the land.
o 6. Continuous: you can’t just show up once in a while.
Adverse possession has been rendered more or less obsolete in BC due to the Land Title Act.
o S. 23(3): After an indefeasible title is registered, you cannot gain title by any length of possession.
o S. 23(4): There is one exception. You can gain adverse possession if you were in possession of
the land at the time that the first title was registered, and continue to be in possession of it.
o The Land Act s. 8: After 1975, you cannot gain Crown land by adverse possession no matter what.
(Unless you had completed adverse possession before 1975.)
CPR (2002) (BCSC): Railway realized they didn’t have paper title to a stretch of track until 1880, but it
didn’t come up on court until 2002. Because they had completed adverse possession before 1975, it was
said that they got title to the land. Sets out the requirements for adverse possession.
Asher & Wife v. Whitlock (1865) (Queen’s Bench Division): An inheritance claim based on imperfect
adverse possession trumps mere possession.
The Law of Finders
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Some principles of ‘finders law’:
o 1. The finder of a chattel gains no rights over it unless it has been abandoned or lost, and he takes
it into his care or control.
o 2. The finder of a chattel gains very limited rights to it if he finds it through dishonest intent or
while trespassing.
o 3. Subject to other conditions, a finder of a chattel acquires a right to keep it against all but the true
owner (or one who can claim through the true owner), or one who can assert a prior right to keep
the chattel which existed at the time the current finder took it into his control. (That is, a previous
finder.)
o 4. Unless otherwise agreed, any servant or agent who finds a chattel in the course of their
employment takes possession of it on behalf of their employer, and the employer gets the
possessory right.
o 5. The finder must take reasonable measures to inform the true owner that it was found, and give it
back to them. (Generally you must hold onto it for at least six years.)
o 6. The occupier of the land has superior rights to anything in or attached to the land or a building
on the land, even over the finder. (Constructive possession.)
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7. The occupier has superior rights to the finder even to things that are upon the land, if the owner
has clearly indicated their intention to take possession of all things upon the land. (Thus must be
done actively by demonstration, not simply declared.)
o 8. The occupier of a boat, car or other chattel is considered to be an ‘occupier’ for the above
purposes.
Parker v. British Airways (1982) (CA): Lays out the eight principles above. Finder of the gold bracelet is
awarded superior rights to the occupier because the airway had not sufficiently indicated their intent to take
possession of found chattels.
Baird v. BC (1992) (CA): Thief claimed found money he had stolen. Court declines to give it back because
thief gained possession through felony, and thus his rights were too limited. “People shouldn’t profit from
their felonious activity.”
Millas v. BC (1999) (BC Prov. Ct.): Cop finds lots of money in a trash can. Cop is cautioned to hang onto
the money for at least six years in case the true owner shows up.
Bird v. Fort Frances(1949) (HC): Kid finds money under house while trespassing. Turns it in to cop, who
then refuses to give it back. Court finds there wasn’t really sufficient evidence of wrongdoing to withhold
the money, so the kid still had a better right to the money than the cops.
Charrier v. Bell (1986) (La. SC): Abandonment requires an intention to totally relinquish private goods,
which is a question of fact. Burial artifacts don’t fall under this, so plaintiff who dug up native artifacts
didn’t possession against the descendants of that native tribe.
Transfer of Title Through Gifts
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Three types of gifts:
o 1. Inter Vivos: Gifts made among living persons.
o 2. Donatio Mortis Causa (DMC): Deathbed gifts
 Cannot make a DMC of Land.
 Revocable up to the point of death.
 Need not comply with the Wills Act.
o 3. Testamentary gifts: gifts made via a will.
 Must comply with the Wills Act.
 Revocable up to the point of death.
Three steps are required to legally complete a gift. If even one is missing, the gift is not complete and thus
not enforceable; “equity will not complete an incomplete gift.”
o 1. Intention to give.
o 2. Acceptance
o 3. Delivery
There are a few ways to make a gift without delivery:
o By deed (i.e. placing it under your seal)
o Holding in trust: If you declare that as of this moment, you are holding something in trust for
someone, it may be enforced by the courts. (Doesn’t work for gifts with special rules, such as
land.)
o Constructive delivery: if you have done everything in your power to remove your ability to revoke
the gift, it is enforceable. (Such as by giving someone the key to the safety deposit box.)
o Symbolic gifts: may or may not be upheld depending on the circumstances. Clear evidence is
needed. (This refers to, for example, giving someone one thing as a symbol that you are actually
giving them another thing.)
Schoppel v. Beaumont Estate (1970) (BCSC): Cpt. Beaumont ‘sold’ his island to Schoppel in exchange for
$1.00, effective on his death. The court held that this was not a sale because there wasn’t really any
‘consideration’ (hence not a contract), and was thus a gift. And the gift was incomplete because there was
no delivery; the formal rules for delivery of a gift of land (requiring a deed) were not complied with.
(Alternately, if it was a testamentary gift, it needed to comply with the Wills act, including the requirement
for witnesses.)
Thomas v. The Times Book Co (1966) (Chancery Division): Dylan Thomas lost his manuscript. Editor
gave him a copy; Dylan said if editor found the original he could have it. Then Dylan died, and wife
claimed manuscript as part of estate. Court considered Delivery to be an issue, but found that delivery
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doesn’t have to happen at the same time as declaration of intent. Intent was the larger issue; court looked at
various circumstantial evidence to conclude there was intent.
MacLeod v. Montgomery’s Estate (1979) (Alberta CA): Grandmother tried to make a gift of her land to her
granddaughter. But she never got the duplicate certificate of title to her. So, the court held the gift
incomplete, because the grandmother had not done everything in her power to remove her ability to revoke
the gift. Land Title Act s. 20(1) says “Except against the person making it, an instrument to transfer...
land... does not operate to pass an estate or interest.” So granddaughter couldn’t get title until she officially
registered the land (which required the DCT), but the gift would have been complete had she gotten it, even
before registering.
Estates
Types of Estates
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An ‘estate’ can be thought of as ‘time in the land’ – i.e., what you own is not the land itself, but the time
you get to use it. (True ownership of land is ‘allodial’, and only the crown owns land in this way.)
1. Freehold Estates: estates that can last your entire life.
o A. Fee Simple: can be inherited by any legal heir.
o B. Fee Tail: Can only be inherited by blood descendants. Could also be further restricted by
gender or by lineage from a particular wife.
o C. Life Estate: Non-heritable use of the land throughout your lifetime, or throughout someone
else’s lifetime (pur autre vie).
2. Leasehold Estates: Estates of limited duration
3. Copyhold Estates: No longer exist under modern land systems
Fee Simple
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The words “To A and his heirs” are used to transfer a fee simple estate. Note that this does not actually
grant anything to the heirs. “To A” are words of purchase, but “and his heirs” are words of limitation
describing the kind of interest A gets (fee simple).
Under the Property Law Act, s. 19(1) establishes that the words ‘fee simple’ can be used in place of ‘and
his heirs’. S. 19(2) establishes that in the absence of a clear indication otherwise, a transfer of land is
always assumed to transfer fee simple, or else as much interest as could legally be transferred.
Thomas v. Murphy (1990) (NB): Defendants were worried that because the will used neither the terms ‘fee
simple’ nor ‘and his heirs’, they hadn’t actually gotten fee simple. This is protected against by BC
legislation, but was less clear in Maritime legislation.
Fee Tail
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A now-defunct system of keeping land within a family line. It allowed a family to found a ‘cadet branch’
and give it some of the family land, but if the line died out, the land went back to the main branch.
This created numerous legal problems, so methods were quickly established (and supported by sympathetic
courts) for converting Fee Tails into Fee Simples.
One such method was ‘strict settlement’: Father would give Fee Tail to his son and a life estate to himself.
When son was about to marry, Father would induce son to exchange his own fee tail for a life tenancy in
exchange for an allowance, transferring the Fee Tail to his own son. This meant that the son could never
sell the land, but his heirs could still inherit.
Life Estates
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Per Autre Vie: Occurred where the life estate was tied to the life of someone other than the person getting the
estate. When the estate-holder died before the person to whose life the estate was tied, the courts usually ruled
that the estate went to the first possessor.
Life estates are usually tied to the life of the person who will be using it.
Problems usually arise where it is not clear whether a will has created a life estate or transferred fee simple.
There are three common options used by the courts:
o
o
o
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The will transferred fee simple.
The will created a life estate.
The will created a life estate with ‘power of encroachment’, meaning the life estate holder can make
use of the funds of the estate to maintain themselves as necessary, possibly even to the point of
depleting the estate altogether.
Gift-overs: when a will distributes something to one person, then dictates what will subsequently happen to it
upon their death. This is fine in the case of life-estates, but is repugnant in the case of gifts where title is
transferred.
Re Walker (1924) (Ont. CA): Will gave estate to wife with gift-over to children after death. Court decides that
the testator’s intention was to make an absolute gift, and thus the gift-over was repugnant.
Christensen v. Martini Estate (1999) (Alta. CA): Will gave his wife estate ‘as long as she needs it’, followed by
gift-over to neighbours. Court decided that this created a life estate with power of encroachment.
Waste
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A life tenant may have certain responsibilities to care for the estate on behalf of the ‘remainderman’, which
is the person who gets it after they die.
Three kinds of waste:
o 1. Permissive waste: ‘natural wear and tear’. Life tenant is not liable for this unless the grant
expressly says so.
o 2. Voluntary waste: a wilful action that affects the value of the land (better or worse). A life
tenant is impeachable for harmful voluntary waste unless the grant specifically says otherwise.
o 3. Equitable waste: Even where there grant specifically makes the life tenant unimpeachable for
voluntary waste, if the waste is sufficiently outrageous, a court of impeachment may still grant an
injunction and/or damages for equitable waste. (The grant can theoretically create a specific
exception for equitable waste, but this is not commonly done.)
Life Estates by Operation of Law
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There used to be two main life estates that could be created by operation of law. (They have now been
eliminated by statute.)
o Dower: A widow gained a life-estate in her husband’s property upon his death, if the marriage had
produced issue.
o Curtesy: A husband gained a life-estate in his wife’s property upon her death.
These estates caused a lot of complications in land transactions, particularly in the Torrens system, so they
have now been replaced by homestead legislation:
o Fetters a spouse’s ability to dispose of the family home without their partner’s consent. This is
achieved by the non-title-holding partner filing a lien against the property, for a small fee, so that
the title-holding partner cannot sell it without their consent.
o This lien also creates a life-estate for the non-owning partner upon the owning partner’s death,
even if they willed the property to someone else. (Land Spouse Protection Act, s. 4)
o This legislation only applies to married couples, and only to the matrimonial home.
o The Estate Administration Act deals with some similar issues:
 S. 95 abolishes dower and curtesy.
 S. 96(2) says, notwithstanding s. 95, a surviving spouse gets a life-estate in the
matrimonial home, and also gets all the furnishings.
Estates in Personalty
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There is no doctrine of estates in personalty. “A gift of a chattel for an hour is a gift for life.”
If you want to, for example, will a family heirloom to your heirs, and then to their heirs on their death, and
so on, you must do so indirectly via trusts. You will the item to a trustee, who holds it in trust for the
benefit of the other people to whom you have given its use.
In effect, you are creating ‘estates’, but in equity, not in law.