COMMON LAW PROPERTY
David Lametti – Hivers 2013
PART I: INTRODUCTION ......................................................................................................... 2
0. JUSTIFICATION OF PRIVATE PROPERTY .......................................................................................................2
A. Private Property is Controversial because of… ..........................................................................................2
B. Two Arguments That Justify Property ........................................................................................................2
1. THE IDEA OF PROPERTY .................................................................................................................................3
2. THE CULTURAL RELATIVITY OF “PROPERTY” ............................................................................................5
3. CLASSIFICATION/CHARACTERIZATION OF COMMON LAW PROPERTY......................................................6
A. Real vs Personal Property: The Traditional Categories ..............................................................................6
B. Issues of Identity: Which Category? ...........................................................................................................7
C. Boundary Issues: The Extent of the Object of Property ..............................................................................9
PART II: REAL PROPERTY
................................................................................................. 11
1. BASIC CONCEPTS OF LAND “OWNERSHIP” .................................................................................................11
A. Definition of Land.....................................................................................................................................11
B. Doctrine of Tenure ....................................................................................................................................11
C. Doctrine of Estates ....................................................................................................................................12
i. Concept of an Estate ............................................................................................................................................... 12
ii. Capacity to Hold an Estate .................................................................................................................................... 12
2. INTERESTS IN LAND ......................................................................................................................................12
A1 Absolute or Unqualified Estates: Estates of Inheritance ..........................................................................12
i. Fee Simple .............................................................................................................................................................. 13
ii. Fee Tail ................................................................................................................................................................. 13
iii. The Rule in Shelley’s Case .................................................................................................................................. 13
A2 Absolute or Unqualified Estates: The Life Estate ....................................................................................14
i. Creation by Act of Parties ...................................................................................................................................... 15
ii. Estate “Pur Autre Vie” .......................................................................................................................................... 15
B. Qualified Estates .......................................................................................................................................16
C1 Future Interests: Common Law Future Interests ......................................................................................19
i. Basic Concepts ....................................................................................................................................................... 19
ii. The Remainder Rules at Common Law ................................................................................................................ 20
C2 Future Interests: Equity ............................................................................................................................22
i. Pre-Statute of Uses Equity ..................................................................................................................................... 22
ii. Effect of the Statute of Uses 1535 ......................................................................................................................... 23
iii. The Modern Trust ................................................................................................................................................ 24
C3 Future Interests: Wills ..............................................................................................................................25
C4 Future Interests: The Rule Against Perpetuities .......................................................................................26
i. Common Law Rule ................................................................................................................................................ 26
ii. Statutory Reform ................................................................................................................................................... 28
3. CONCURRENT OWNERSHIP ..........................................................................................................................28
A. Types of Co-ownership And Their Creation.............................................................................................28
i. Joint Tenancy vs Tenancy in Common .................................................................................................................. 29
ii. Tenancy by Entireties and Co-Parcenary .............................................................................................................. 30
B. Rights and Obligations of Co-owners .......................................................................................................30
C. Severance of a Joint Tenancy ....................................................................................................................31
D. Partition or Sale.........................................................................................................................................32
4. RIGHTS IN THE LAND OF ANOTHER .............................................................................................................32
A. “Natural Rights”........................................................................................................................................32
B1 Granted Rights: Incorporeal Hereditaments (Easements) ........................................................................33
i. Basic Characteristics .............................................................................................................................................. 33
ii. Creation of Easements ........................................................................................................................................... 35
B2 Granted Rights: Incorporeal Hereditaments (Profits à prendre) ..............................................................37
C. Covenants Running With Freehold Land ..................................................................................................37
i. General Principles .................................................................................................................................................. 37
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ii. Enforcement at Law .............................................................................................................................................. 37
iii. Enforcement in Equity ......................................................................................................................................... 38
iv. Business Competition Covenants ......................................................................................................................... 39
v. Covenants and Discrimination............................................................................................................................... 40
PART III: PERSONAL PROPERTY........................................................................................ 40
1. CONCEPTS OF OWNERSHIP AND POSSESSION .............................................................................................40
A. Elements of Possession .............................................................................................................................42
i. Physical Control .................................................................................................................................................. 42
ii. Intent to Appropriate ............................................................................................................................................. 42
B. Possession in Relation to Ownership (“jus tertii”) ....................................................................................42
2. POSSESSION AND FINDING LOST PROPERTY ...............................................................................................43
3. BAILMENT: SEPARATION OF “TITLE” AND POSSESSION ............................................................................44
A. The Nature of Bailment: General Principles .............................................................................................45
B. Rights and Duties of Bailor and Bailee .....................................................................................................46
C. Rights of Bailee and Bailor Against Third Parties ....................................................................................47
PART IV: TITLE, POSSESSION AND LEASEHOLD INTERESTS IN LAND ................. 47
PART V: ACQUISITION OF PROPERTY INTERESTS ...................................................... 49
1. “ORIGINAL” ACQUISITION ...........................................................................................................................49
A. “Finding” Cases ........................................................................................................................................49
B. Possession in relation to land ....................................................................................................................49
C. Real Property: Adverse Possession ...........................................................................................................50
2. ASPECTS OF DERIVATIVE ACQUISITION: GIFTS OF PERSONAL PROPERTY .............................................52
A. Basic Requirements for Inter Vivos Gifts: Intention, Acceptance & Delivery .........................................53
B. Problems of Delivery ................................................................................................................................54
i. Choses in Possession .............................................................................................................................................. 54
ii. Choses in Action ................................................................................................................................................... 55
3. EXPROPRIATION ............................................................................................................................................55
PART VI : CONCLUSION ........................................................................................................ 56
PART I: INTRODUCTION
0. JUSTIFICATION OF PRIVATE PROPERTY
A. Private Property is Controversial because of…
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Its own definition, based on inequality and…
o Powers and duties;
o Have and have-nots;
The idea of exclusion intrinsically link with it.
Its contextual caracter.
The alternatives given to it. For example, one alternative is common property, exemplified by the public
domain in western society and by the lands in the aboriginal society.
B. Two Arguments That Justify Property
Ziff, Individual Argument: Natural Rights, (12-25)
 Qualities of individuals:
o Source: rights that result form distinctive attribute or characteristic possessed by someone. Base in
personhood and radin (e.g. of weeding rings with both a material and personal value).
o Hegel’s Elements of the Philosophy of Right (German romantic philosopher): We express our-self
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through our property (way of expression in the world, s. 41 and 46).
Charles Taylor: his views of self-expression propose a modern Hegelian theory of rights.
Aubry and Rau’s patrimony (civil law philosopher): property recognize by legal and objective
rights.
Meritory:
o Source: rights that result form action individual take (e.g. Leonard Cohen’s patrimony contain
songs).
o (American-economist) John Locke’s mixing: presumptive rights to resource by expanding our labour
on them (e.g. walking to the forest and consuming acorn makes them your own; putting a fence on a
territory; gathering; collecting; cutting turfs; farming). In the end, the idea is adding value or
improving the thing.
o Robert Nozick’s challenge of the argument: if a poor a can of tomato juice in the ocean, is it mine
then?
o Finite stock? Lockean provisos’ no spoil + ‘nuf and as good. But, then, there has an evolution to the
opposite with the American Dream and its “take it all”.
o John Stuart’s view: “creation without wrong”.
o Moral action: Protestant Locke, Catholic Locke (Professor Tully’s “it is good to produce and
therefor we give property right).
o
o

Ziff, Group Argument: Consequentialist or Teleological, (25-41)
 General theory (Bentham): if we want to create more wealth, we will use property right to protect and
encourage its creation.
 Economic utilitarian:
o Garrett Hardin: Its new redefinition in the US is efficiency as expressed by Garrett Hardin’s “The
Tragedy of the Commons” (e.g. if we all fish to get wealthier, we will spoil the resource, because
this consequence will be an externality not consider by us. Thus, by splitting the territory OR by
setting rules for all, we will internalize the externality).
o Ostrom: Ses travaux portent principalement sur la théorie de l'action collective et des biens publics
(matériels ou immatériels) et s'inscrivent dans le cadre de la « nouvelle économie institutionnelle ».
o Law and economy: better way to allocate resources.
 Moral utilitarian:
o Aristotle and Aquinas (Moral Locke): add moral utility to the cold efficiency argument.
o Carole Rose’s game-theory applied to gender: you always need a mom figure, meaning someone
who takes its needs as important, but that can also consider other (some degree of alterism).
o Limits inherent to private property: you can’t justify a private property without limits unless you are
willing to pitch justice out of consideration.
o Duties: stewardship to land, use your valuable property (but the concept of value if highly
influence by society), charity (“Progressive Property Manifesto”). E.g. statute and by-laws
controlling the use of land.
o *Virtue ethics (Aristotle): we need to strive to get to better place through a methodology (by
teaching and learning), but also give justice a substance and a finality.
Ziff, Conclusions on Private Property (43-46)
 Pluralistic justifications: contextual dependence of property.
 Comparison (civil law system): 947’s limits, 952’s expropriation and 976’s tort of nuisance sets limits. The
architecture put forward a view on property and limits. But, where should it lie (see arguments of the
system)?
 Who bears the argumentative burden (burden of proof in the court of law and in the society)? The individual
of the collective? The owner of the non-owner?
1. THE IDEA OF PROPERTY
M&F, Property as “Relationship” – not “Thing” (1-5)
 *Definition: the legal concept of property concerns “the network of legal relationship prevailing between
individuals in respect of things (…) ‘Property’ comprises bundles of mutual rights and obligations between
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‘subject’ in respect of certain ‘object’, and the study of the law of property becomes an inquiry into a
variety of socially defined relationships and morally conditioned obligations” (Grand and Symes, 8-9).
Political aspect: “(t)he definition of who can be the ‘subject of property interests has ‘an important political
significance precisely because the delineation of potential right-holders fundamentally affects both the
balance of power and the distribution of goods within a society” (M&F, 2-3).
Dynamic nature: “(s)tudents must understand traditional property law principles in order to work with
them effectively and, at the same time, they must assess traditional property law principles critically in the
modern context” (M&F, 3).
*An examination of cases reveal (M&F, 35):
1. A rule of law that clearly defines the partie’s respective rights (a “statement)”;
2. No rule of law directly on point (a “gap”);
3. A rule of law that does not answer the question (an “ambiguity”); or
4. Two or more rules of law that arguably govern the dispute (a “conflict”).
Hohfeld, “Fundamental Legal Conceptions”, 1911 (710-770)
 *Ratio: shows the distinction between “jus in rem” and “jus in personam”, but also the importance of the
categorisation and classification of concept through a precise language (abstract picture).
 Correlatives:
o Def.: relationship between two people.
o Scheme:
 Jural:
right – privilege – power – immunity
 Correlatives: duty – no-right – liability– disability
 Opposite:
o Def. what one’s has form another’s perspective
o Scheme:
 Jural:
right – privilege – power – immunity
 Opposites:
no-right – duty – disability – liability
 Interpretation of scheme:
o Horizontal: as between two
o Diagonal: what one person has
 Mains aspects of theory:
o The distinction between paucital and multital rights:
 A paucital right, or claim, (right in personal) is either a unique right residing in a person
(or group of persons) and availing against a single person (or single group of persons); or
else it is one of a few fundamentally similar, yet separate, rights availing respectively
against a few definite persons.'
 A multital right, or claim, (right in rem) is always one of a large class of fundamentally
similar yet separate rights, actual and potential,' residing in a single person (or single
group of persons) but availing respectively against persons constituting a very large and
indefinite class of people (718).
o Duties attached:
 Rights and Duties: as already intimated, the term “rights” tends to be used indiscriminately
to cover what in a given case may be a privilege, a power, or an immunity, rather than a
right in the strictest sense; and this looseness of usage is occasionally recognized by the
authorities. ...
 Correlative: recognizing, as we must, the very broad and indiscriminate use of the term,
“right,” what clue do we find, in ordinary legal discourse, toward limiting the word in
question to a definite and appropriate meaning. That clue lies in the correlative “duty,” for
it is certain that even those who use the word and the conception “right” in the broadest
possible way are accustomed to thinking of “duty” as the invariable correlative.
o This system is based on the individual
o Seeing a paucital rights as a multital rights makes it a jus is rem
 Critic of his thesis:
o Put to few emphases on the thing, on the object, and on the makers accession the ownership of the
object. However, the owner is irrelevant, because whoever he is, he has the same right over the
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thing.
The scheme shouldn’t be symmetrical at all price.
A.M. Honoré, Ownership, 1961 (Oxford Essays in Jurisprudence)
Honoré is a corrective of Hohfeld’s extremist view of ownership; ubiquitous
Therefore, tries to describe it in a contextual way. Has eleven incidents.
Common Law
1. Right to Possess: to claim, to remain in control
2. Right to Use: profit
3. Right to Manage: decide
4. Right to Income: fruits
5. Right to Capital: to waste, to destroy
6. Transmissibility: alienate
7. (11) Residuary: take it back
8. (6) Security: protection
9. (8) Absence of Term: posession
10. (9) Duty to Prevent Harm: encourage economic
growth
11. (10) Liability to Execution: property can be claim
if you don’t respect engagement.
institution, but quite malleable.
Civil law
Usus
Fructus
Abusus
Others
Lametti, The Concept of Property: Relations Through Objects of Social Wealth, 2003 (376-378)
 Context: the context and the language of the property law are important (377).
 Definition: a relationship among individuals through things (asymmetrical):
o Things at the core: the role of things – objects of social wealth, whether they be tangible or
intangible – is crucial to private property at a conceptual level.
o Embodies social values: these conclusions and constructs begin with the picture offered by the
practice of private property: a social institution fraught with rights and responsibilities and subject
to the morality of the particular society in which it is found” (376-7).
 Philosophy and values:
o Abolute and powerful right: the dominance of a rights-based view of property makes legal and lay
observers think about private property in a certain way, organizing our thoughts around the idea of
full-blooded ownership and setting it up as the paradigmatic way of relating to objects of social
wealth. We thus see private property as a set of relatively absolute rights. We see the ascendancy
of the idea that private property is primarily about ownership, while other parts of the spectrum are
something less than whole. Indeed, the only variable in the spectrum seems to be the quantity of
rights an owner has. I would argue that by taking into account objects of property we are forced to
confront squarely the teleological and deontological justifications and aspects of property. Here
one comes to see ownership not as the ultimate form of the private property relationship but as one
of a number of different forms, albeit the most powerful.
o Limits of ownership: in addition, private property is seen to be limited in a number of ways.
Moreover, all of this points to other aspects of property holding that cannot be conceived only in
terms of rights. This might allow for non-rights-based aspects of ownership to appear on the
spectrum or in the bundle, recognizing not only that the widest conceptualization of ownership is
less than absolute but that positive duties and obligations might be incumbent on the owner to use
or not use in a specified manner” (377-8).
The Coase theorem, (Wikipedia)
It describes the economic efficiency of an economic allocation or outcome in the presence of externalities. The
theorem states that if trade in an externality is possible and there are no transaction costs, bargaining will lead to
an efficient outcome regardless of the initial allocation of property rights. In practice, obstacles to bargaining or
poorly defined property rights can prevent Coasian bargaining.
2. THE CULTURAL RELATIVITY OF “PROPERTY”
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M&F, Aboriginal Concepts of Property (80-84)
 Occidental see property as a unit and as a linear concept.
 Natives people think in term of cyclicity.
o Conception of property: everybody, as a whole, owns the whole.
o Source of title: “whereas Rousseau’s and Locke social contract encompasses human beings only,
the Indian social contact embraces all other living things”.
o Title surrendered to European: they are minimal for three reason
 Not descendant of original grantee;
 Not a conception of fee simple ownership; and
 Not equal since Creator’s condition prohibit.
 We have not approach Native people with the difference which is essential for communication and
understanding to commence (Ross, Dancing with a Ghost).
Alexander, A Statement of Progressive Property (743-4)
 Traditional view: property as protection of individual control over valued resources. It focus on the right
to exclude others and sometimes on the free use of what one owns.
 Progressive view: because of the equal value of each human being, property law should promote the ability
of each person to obtain the material resources necessary full social and political participation.
3. CLASSIFICATION/CHARACTERIZATION OF COMMON LAW PROPERTY
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Language distinction: english only use the word the word “property” to describe:
o The object of property (i.e. thing);
o The possession (i.e. ownership).
Historical evolution of English property: link to writs.
A. Real vs Personal Property: The Traditional Categories
M&F, The Classification of Property Interest (90-91)
 Historical origin of the distinction: the basic qualification in property law was that relating to ‘real’
property and ‘personal’ property. This distinction derived from two different remedies available in
medieval legal procedures for the return of property…
o Real: in some cases, the P was entitled, by way of remedy, to the return of the object it-self or (in
latin) the ‘res’. In this case, the P’s action was called an action ‘in rem’ or a ‘real’ action, and
property that could be recovered in such action was called ‘real’ property. Land, which was
regarded as unique in the medieval period, was recoverable by P using an action ‘in rem’ so it
became classified as ‘real property.’
o Personal: by contrast with land, other forms of property were not recoverable ‘in specie.’ Instead,
the P was entitled to the value of the property, as damages for wrongful interference with it on the
part of the D. This action was ‘in personam’ – that is, it was an action against the D personally.
Property for which the P could recover damages alone became known as ‘personal property’.
 Enforceability: since land was ‘real property’, other form of property became ‘personal property’…
o Real: because action in rem permitted recovery of the proprietary object, such an action was
regarded as enforceable against the whole world.
o Personal: by contrast, since action in personam resulted in damages only, it was regarded as
enforceable against the whole world.
 Civil law: the distinction reflect, at least to some extent, the concepts of movable and imovable property
recognized in civil law systems. However, the common law focus on procedure as the basis of
classification, rather than on … like the civil law does.
 Contextual: as the language demonstrate, this classification of property interests reflects the historical
origins of the law of property.
o Object: Moreover, the classification system really focuses on the object of property interests, not
on property interest themselves, so that the classification may seem less useful to modern property
analyses which focus on relationship among subjects to propriety objects.
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Sui generis: In addition, earlier distinctions between real and personal propety sometimes have
been changed by statute, and courts also have declared ‘sui generis’ property interest, especially
(but not only) in relation to aboriginal property.
Ziff, The Basic Divisions in the Law of Property (74-78)
 Lease of land: fits somewhere between the two main types of property..
o Even to this day, the lease is described as a chattel real. The leasehold developed initially as a
contractual right and was used as a form of loan-security. The wrongly ousted tenant, at these
early stages of development, was left with a personal claim, and the real actions per se were never
made available to protect the tenant's interests. The functional transformation of the lease from a
security interest into a method of agrarian landholding had become increasingly common by the
fourteenth century.
o The tenant was now working the land. The grant of a term of years on this basis resembled the
normal arrangements of tenurial holding to such a degree that the modem words landlord and
tenant became an appropriate way of describing the parties to this relationship. More important,
the action of ejection developed as a means of restoring possession to an ousted leaseholder. While
not a real action in the strict sense, ejectment nevertheless adequately served the function of
giving the tenant legal protection against wrongful dispossession. So, while the lease remained
personalty, security of tenure was nevertheless recognized (74).
 Two groups: real property may be divided up, inter alia, into two groups
o The label corporeal hereditaments: it refers to those interests capable of being held in possession:
essentially freehold estates.
o The category or incorporeal hereditaments: includes a variety of interests which, among other
things, are non-possessory in nature. The main types are easements, profits à prendre, rentcharges,
and restrictive covenants.
 Two type of chattels personal:
o A chose in action: cannot be reduced into possession. It is an abstract entity, enforceable solely by
court action - hence the name. Initially, the term was applied only to a right to enforce a debt,
including rights under promissory notes or either negotiable instruments. Moreover, the right to
assign choses took a longtlime to mature. Eventually the scope of the category was extended to
include a wide range or other intangibles, including copyrights, trademarks, patents, bonds, and
corporate shares. Assignability is now the norm.
o A chose in possession: a tangible thing.
Ziff, Andrew Bell’s Theory (78)
 Four different type of rights:
o Beneficial rights: the holder of which has the embracing rights of use we normally associate with
ownership.
o Security rights: some principal obligation is performed.
o Managerial rights: holder has control but no general entitlement to exploit the object.
o Remedial rights: power to apply to the court for some form of relief.
 Public vs Private Property
 Legal vs Equitable: e.g. of trust - legal owner at common law versus beneficial equitable owner. Link with
the historical origin.
B. Issues of Identity: Which Category?
Ziff, On The Cusp of Land and Chattels: Fixtures and Conversions (114-120)
 Source if fixtures:
o Criteria for annextion – intention: the determination of whether a chattel has been transformed
into a fixture is a matter of intention objectively determined. That intention is ascertained by
examining the degree and object (the “purpose”) of the annexation. When a chattel is attached to
the land, however slightly, a rebutable presumption is raised that the item has become a fixture.
The extent of the attachment tends to affect the strength of that presumption. The presumption is
reversed if the chattel is resting on its own weight; here, it will be presumed to remain a chattel.
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Test for rebutal of presumption: the sole ground for the rebuttal of these two presumptions is the
object-purpose of annexation. The test is whether the purpose of the attachment was…
a. …to enhance the land (which leads to the conclusion that a fixture exists); or…
b. …for the better use of the chattel as a chattel (114).
o Effect of K: Wheter or not a chattel becomes a fixture cannot be conclusively controlled by
contract, but it can affect the rights of the contracting parties inter se.
Four considerations: the right of restoration is subject to four considerations.
1. Protected fixtures: at common law, the items must fall within a set of protected fixtures. That
group includes items attached for purposes of…
i.
Trade;
ii.
Ornamentation; or
iii.
Domestic convenience.
These are broad categories, but the common law does not regard agricultural fixtures as being for
trade, except apparently those used for market gardening.
2. Damage: removal may be precluded if it will cause very serious damage to the property. Incidental
damage caused by a proper removal must be remedied by the tenant.
3. Contract: The implied right of detachment may be abridged by contract. Such a waiver should, on
principle, be strictly construed against the landlord.
4. Timely removal: there must be timely removal. What counts as timeliness is not as straightforward
as might first appear. Without doubt, that requirement is met when the tenant acts before (117).
Clash of the security interests:
o Rule: under the common law the general rule is that when the chattel becomes affixed it falls under
the land security.
o Effect: therefore, the security holder of the chattel loses the right of repossession and is left only
with an action on the debt against the purchaser (118).
Equitable doctrine of conversion:
o Buyer’s right: A purchaser of real property becomes the equitable owner of title to the property at
the time he signs a contract binding him to purchase the land at a later date.
o Purchaser’s right: The seller retains legal title of the property prior to the date of conveyance, but
this land interest is considered personal property (a right to the payment of money, rather than a
right to the property).
o Effect: The risk of loss is then transferred to the buyer.
Biss v SGIC, 1981
Ratio: Pool tar. Fixture: something that initially is a chattel can become assimilated into real property.
Facts:
 Plaintiff claims replacement cost of tarp under insurance policy for damaged/destruction of personal
property. Melting snow damaged the tarp which covered the pool for part of the year.
 “No permanent fastening of tarp to any part of the pool. The tarp could also be used for covering any large
surface such as the top of a semi-trailer or manufactured material at a building site”.
Issue: Whether tarp insured as a chattel or whether it became part of the swimming pool-building seasonal
dwelling. (If it becomes a fixture, then the insurance doesn’t have to pay!)
Hold: Temporary attachment for temporary purpose—Tarp is covered by policy.
Test (as per Stack v Eaton Co):
1. That articles not otherwise attached to the land than by their own weight are not to be considered as part of
the land, unless circumstances are such as to show they were intended to be part of the land.
2. That articles affixed to the land even slightly are to be considered part of the land unless circumstances are
such to show that they were to continue as chattels.
3. That the circumstances necessary to be shown to alter the prima facie character of the articles are
circumstances which show the degree of annexation and object of such annexation which are all patent to
all to see.
4. That the intention of the person affixing the article to the soil is material insofar as it can be presumed from
the degree and object of the annexation.
Royal Bank v Beyak, 1981
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Ratio: Motorhome.
Facts:
 Creditors want to recoup as much as possible of what they loaned. If the chattel has become a fixture, then
Royal Bank’s security on the chattel has flown the coop. They’re out of luck with respect to the debt on the
mobile home.
 Graveside wants chattel to be a fixture b/c the chance of them getting the whole $25,000 back is greater
since there is $39,200 of assets available.
Issue: Is mobile home chattel or real property?
Holding: Mobile home is chattel and not fixture of real property and is therefore covered by mortgage.
Upholds rule established in Stack v Eaton and used in Biss v SGIC.
Reasoning : Chattel mortgages are not transferable to land.
 Judge contrasts mobile home with a brick house—mobile home simply resting on the base by means of its
own weight—in contrast to a brick house that sits below the ground on a foundation of concrete blocks set
into the ground at a depth of 10 in. (bricks of chimney in one solid line of brick, cement, and mortar.)
 “[mobile home] was in no way embedded or bolted to the land or to any permanent sub-structure”.
 Minimal physical annexation found.
 Additions seen as a method of making the chattel into a residence, but not into a permanent fixture on the
land.
Chelsea Yacht & Boat Co Ltd v Pope, 2001
Ratio: Established that a houseboat, even if permanently moored, does not form part of the land as the degree
of annexation is insufficient. All the attachment can be undone easily (anchor in the riverbed).
C. Boundary Issues: The Extent of the Object of Property
Ziff, Cujus Est Solum and Boundaries (92-102)
 General: the medieval law maxim cujus est solum ejus est usque ad coelum et ad inferos mean whoever
owns the soil, holds title all the way up to the heavens and down to the depths of the earth (simple and
create certainty).
 An economic perspective on airspace and ground:
o If one wishes to design a property system that can facilitate efficient allocations, that system
should seek to promote exclusivity, universality, and transferability. These are well served by the
majority rule:
1. Exclusivity: the surface owner has clear and legally protectable control inside the
boundary line;
2. Universality: by extending rights to the depths of the earth the greatest possible area of
land is made ownable; and
3. Transferability: the clearness of the rule reduces the transaction costs that might be
produced by the need to determine who has title to what lands. That kind of certainty
facilitates exchange.
o Three reasons why property rules remain critical:
1. Initial allocation: we need to know at the outset to whom a property righy has been
given so that the bargaining process can begin. Therefore, far from being irrelevant,
Coase reminds us that a legal regime concerning property is indispensable.
2. Simple bargaining process: in the promotion of deal-making, the law should strive to
facilitate the bargaining process; this it can do by reducing transaction costs. That term
encompasses the costs of gaining information (including the goveming laws), weighing
options, memorializing deals, and so forth. We might simply call these bargaining
glitches. Remember, Coase's theorem presumes a world of nil (or very low) transaction
costs. Once we factor in those costs we can see that bargains are far from inevitable.
The lesson, therefore, is that the lower the transaction costs the more likely it is that
trades will occur.
3. Market mimicker: when the market doesn't function as it should the law can be geared
to try to determine which initial ownership rule is optimal. Some say that the law's role
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here is to be a "market mimicker". That means that the law should establish rules of
ownership that reflect the likely outcome of market transactions if the market were able
to work efficiently. If we cannot count on the market to hammer out the best allocation
through the process of exchange, then the initial allocation under law becomes a fairly
significant malter.
Mines and minerals: at common law a grant of Blackacre by the Crown into private hands cames with it an
estate in all mines and minerais, except gold and silver.
Anchor Brewhouse v Berkely House, 1987
Facts: a owner erect cranes encroaching his neighbour property. The later had long-term plan to built a
building on his land.
Issue: what is the space one can use having ownership in the land?
Reasoning: An intrusion by a structure located on the defendants land necessarily contituted a trespass to the
plaintiff's airspace.
Edwards v Sims, 1929
Facts: A cave is majorly on the property of Edwards, but also a bit on Sims’ one.
Issue: Can Sims shut down the cave’s touristic business?
Reasoning: Sims has the rights under his property. He can stop exploitation if he wants.
Dissent: It would be ridiculous to prohibit the explotation of the caves. Court should encourage economic
efficiency.
Ziff, Lateral Boundaries and Permeability of Boundaries (102-114)
 Land: surveys…
o In the case of ambiguous legal descriptions, in the absence of better evidence, the following
elements are presumptively ranked (in order of importance):
1. Natural monuments: visible marks or indications left on natural or other objects indicating
the lines and boundaries of a survey. Any physical object on the ground that helps to
establish the location of a boundary line called for; natural one are trees, rivers, and other
land features.
2. Artificial monuments: lines actually run and corners actually marked at the time of the
grant;
3. Abutting established boundaries: if referred to in the grant;
4. Courses and distances;
5. Statements of area: may also be tated in the grant.
o To re-establish the boundary as it was originally laid out on the ground, the normal hierarchy of
evidential guides is as follows:
1. Natural boundaries;
2. Original monuments;
3. Fences or possession that appears to relate back to the original survey; and
4. Measurements stated in a plan or a meles and bounds description.
o Conventional line doctrine: agreement.
o Fenses should be paid by both.
 Water: Navigable? Rule in Common law…
o Yes Property to the mid-point
o Not State High water mark.
 Riparian:
o Rule: Right to water, unlimited for ordinary use.
o Extraordinary? Can’t disminish quality or quantity.
o An accretion to the land (alluvion), or a recession (dereliction) of the water, will work to the
benefit of a riparian owner if (…) the proces of transformation is gradual and imperceptible in
action (110).
 Exclusion:
o The line around a tract of land, which allocate the spot to a private owner, means he enjoys a
mesure of control to exclude others.
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o Reasonable expectation of privacy.
Support of land:
o Rights support in its natural state: if someone dig in its land want you property collapse, he is
liable.
o Both vertically and horizontally.
o Not simply contiguous.
o Link with negligence.
PART II: REAL PROPERTY
1. BASIC CONCEPTS OF LAND “OWNERSHIP”
A. Definition of Land
Real Property Limitations Act, RSO 1990, c L-15
(1) “land” includes messuages and all other hereditaments, whether corporeal or incorporeal, chattels and other
personal property transmissible to heirs, money to be laid out in the purchase of land, and any share of the
same hereditaments and properties or any of them, any estate of inheritance, or estate for any life or lives, or
other estate transmissible to heirs, any possibility, right or title of entry or action, and any other interest capable
of being inherited, whether the same estates, possibilities, rights, titles and interest or any of them, are in
possession, reversion, remainder or contingency;
B. Doctrine of Tenure
M&F, Tenure: History and Seizin (221-29)
 Historical origin of tenure:
o Supportors’ of William hold interest in the land from him, the Crown, because he retained
ownership of the land (feudal pyramid with the king at its apex) (221)
o Feudal services provided the Crown and the aristocracy with the ressources it needed to operate
(222). The evolution of property law was greatly influenced by the ongoing struggle between
landholders seeking to enforce these services and others seeking to evade them (223).
 Classification of tenures:
o Unfree: uncertain, could lose tenure, services undetermined.
o Free: mostly independent farmers. Needed to do “knight’s services” and “grand sergeanty”.
 Seisin: person against whom the feudal services could be enforced.
 Alineability of Interests in Land: subinfeudation and substitution.
Ziff, The Sources of Canadian Property Law (59-72)
 Feudal structures: tenures (structure of holding - subinfeudation) and estates (content - substitution)
o System: under the English system of tenures, land was held of a lord, not owned outright by a
subject. The recipients do not obtain absolute (i.e. allodial) ownership of land. The function of the
tenurial arrangement was to create an economic and social network: land devolved from the
Crown in return for allegiance, revenues, and other benefits (60).
o Contractual right:“Tenure created a bond of reciprocal obligations between tenant and lord; it
was more akin to a contraclual right than one of property” (60).
o Four basic needs: the matrix of service obligations as being designed to satisfy four basic needs…
1. Security;
2. Spirituality;
3. Splendeur; and
4. Sustenance (61).
o Free and common soccage: land held by a tenant who rendered certain honorable and nonservile
duties to his lord (i.e. mainly agrarian based).
o Escheat: land goes back to the lord if you die without heirs.
 Two statutes:
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Quia Emptores (1290): its operation, plus the plague, made almost everyone hold of the Crown
direclty, because it prohibit subinfeudation (but not substitution). Thus, over a couple of hundred
of years, everybody owns from the Crown. Today, it is the case in UK.
o Satute of Tenures (1660): reduce the available tenurial form and, later on…
 All new tenure to free and common socage.
 Some old tenures converted (crown and serjeanty) > incidents became monetized over
time.
The reception of English law:
o Quebec: the Quebec Act of 1774 made the Coutume de Paris applicable even if the land had been
conquered by England.
o Aboriginal people: supposely there were settlement giving the land to White people. See a
discussion by Chief Justice Marshall in Johnson v M'Intosh (1823).
o Reception doctrine: “While an Imperial stature may apply to the colonie by its own terms, the test
in the case of reception is the applicability of the laws extant on the reception date, including those
initially enacted only for domestic (i.e., non-colonial) purposes (69). The irony is that some reform
are made in the mother country, but do not always apply in the reception country.
Now, quite simple:
o All hold “of the Crown”.
o Allodial.
C. Doctrine of Estates
i. Concept of an Estate
Ziff, Definition of Estate and Walsingham’ Case (167)
 Def. general: “An estate confers a segment of ownership as mesured by time”. Thus, “there may be a series
of consecutive estate owners, all holding a legitimate right over the same tract of realty”.
 Def. in Walsingham’ Case (1573): (A)n estate is a time in the land, or land for a time, and there are
diversities of estates, which are no more than diversities of time, for he who has a fee-simple in land has a
time in the land without end, or the land for the time without end, and he who has land in tail has a time in
the land or the land for time as long as he has issues of his body, and he who has an estate in land for life
has no time in it longer than for his own life, and so of him who has an estate in land for the life of another,
or for years.
M&F, Freehold & Leasehold Estates (236, 240-41)
 Freehold estate: uncertain duration, because it is unknow when the death of the person will occur.
 Leasehold or non-freehold estate: maximum duration (1-99 years), fixed in time…
o Reversion: the landlord retains the right to possession of the property at the expiration of the lease.
He also has the “seisin”.
o Possessory interest: estate in possession for the duration of the leasehold estate.
ii. Capacity to Hold an Estate
M&F, Only “Legal Persons” Can Hold An Estate (239-40)
 Married women: historically discriminated, because there estate was given to their husband. These
restrictions were removed by statute.
 Minors: could have an estate, subject to restricted powers to dispose. Court can dispose on behalf of
minors.
 Mentally incompetent adult: a decision makers is substitute.
2. INTERESTS IN LAND
A1 Absolute or Unqualified Estates: Estates of Inheritance
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i. Fee Simple
M&F, Definition (238-39)
 Definition:
o Fee: inheritable with no end point.
o Simple: can descend to largest range of heirs (male, female, etc…no restriction).
 Caracteristic:
o Largest estate in cml.
o Free simple estate in free and common socage is the most common fee simple.
o Analogous to 947 ownership, allodial ownership.
 History:
o After Quia Emptores (1290), the interpretation of heirs is enlarge (siblings, uncles, nieces, etc.)
o Statutes of Will (1540): make testamentary dispositions of property to anyone.
 Limits:
o Statutory restraints regarding land use, environmental protection, and planning laws.
o Law of nuisance.
Ziff, Transfer (168-170)
 The historical phraseology: “To A and his heirs” OR “To A and his heirs, and assignees”.
 The meaning of it:
o “To A”: words of purchase – indicate to whom (receipt)
o “and his heirs”: words of limitation – define the size of estate (go to duration).
 Needed to get it right, or you would not create the proper interest (ritualism of common law). For example,
“to A in fee simple” or “to A forever” gives only life interest.
ii. Fee Tail
M&F, Definition (239)
 “To A and heirs male of his body” OR “To A and heirs female of his body”.
 Fallen out of use:
o 15th century: chould be barred.
o Never part of the landscape here in Canada; now abolished by statute.
o Any attempt to create ends us in fee simple.
Ziff, History (173-75)
 Historical origins: the fee tail was once the standard method by which the English aristocracy and landed
gentry kept land in the family, because it lasts as long as there are direct lineal descendants of the helder
(Statute De Donis Conditionalibus of 1285).
 Goals: because the owner could only grant a LE, the fee tail is thus able to operate effectively as a means
of passing the family house and grounds on to future generations along a course of devolution
established immutably by the original grantor.
 Methods of evading: By late 15th, processes had been developed through which a fee tail could be berred,
i.e. enlarged into a fee simple estate. It was accomplish by commencing litigation in which relevant parties
collusively participated in alleging and admitting fictious claims as to title.
 Remaining elements: creating a fee tail will make a fee simple + there is still a need to keep property in the
family and another concept is used to do that.
iii. The Rule in Shelley’s Case
M&F, Wolfe v Shelly, 1581 (283-85)
 Historical rationale of the rule:
o Only inheritance and not inter vivos transactions lead to tax.
o Heirs to estate disliked paying relief (estate tax) to the lord.
o Thus, lawyers invented: “X to A for life, remainder to the heirs of A in fee simple”.
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o Lord got tired of this loophole and created the rule that is written in Shelly.
Wolfe v Shelly (1581): “to A for life, remainder to A’s heirs” seems to be a life estate, but it is a fee simple,
because…
o “to the heirs” are the words of limitation, not purchase;
o “heirs” means all the heirs, a general class.
Other arguments in favor of fee simple:
o If A gets a life estate, B (A’s oldest son) gets it inter vivos, at the time of the devise, and will not
“inherit”, rather gets it as a gift;
o Avoids releif.
The rule:
o A “rule of law” and not a “rule of constuction”.
o Applies regardless of the manifest intention of the testator, but…more flexibility in wills…get at
intention (Re Rynard, Ontario).
Example: suppose Joe has a rich parent named "Grandpa" who considers Joe a feckless wastrel, but who
wishes to ensure that Joe's children are provided for. Grandpa might try to deed a house "to Joe for life,
and then to Joe's heirs", thus ensuring that Joe and his family could live in the house, but Joe could not sell
it to pay gambling debts. The "remaindermen" in this case are the grandchildren. The Rule in Shelley's
Case states that, this language notwithstanding, Joe is the absolute owner of the property.
The rule was abolished in the UK in 1925. Not directly or indirectly abolished, as Wilson JA points out in
Re Rynard. But, post-Re Rynard it is likely dead in Canada. Though, it could still be an argument for a
client.
Now: aside, Statute of wills allows the testator to name their inheitor.
M&F, Re Rynard, 1980 (285-86 & 294-295)
Facts: Constuction of a will - clause 4 state the farm is devised to K for life (subject to paying annuities) and
remainder to “the heirs of my son” of K.
Issue: Does the Rule in Shelley’s Case apply and Kennedy get a fee simple? NO, LE.
Reasoning (Wilson):
 It first has to be determined whether the rule is applicable and this involves preliminary question of
constuction:
o “but the question always remains, whether the language of the gift after the life estate properly
construed is such as to embrace the whole line of heirs or heirs of the body or issue, and that
question must be determined apart from the rule, according to the ordinary principles of
construction, including those which I have already referred to.”
o “If the Court is judicially satisfied that the words are so used, I conceive that the premises for the
application of the rule in Shelley's Case are wanting, and the rule is foreign to the case. But I
repeat, that in every case the words are to be interpreted in their legal sense as words of limitation,
unless it be made plain to the mind of the Court that they are not so used, and in what sense they
are used by the testator.”
 The Rule in Shelley’s Case “provides that where the ancestor by any gift or conveyance takes an estate of
freehold, and in the same gift or conveyance an estate is limited, either mediately or immediately, to his
heirs in fee or in tail, in such cases the word “to his heirs” are words of limitation of the estate and not
word of purchase.”
 Even if the rule in Shelley’s Case is a rule of law, it only apply after.
 Clause 5 shows that she wanted to give him a life estate.
Ziff, Specification of the Rule (170-72)
For the rule to be invoked, the use of “heirs” in the second half of the limitation must have been intended to
refer to the whole line of inheritable issue over generations.”
A2 Absolute or Unqualified Estates: The Life Estate
M&F, Two Type of Reverter (237-38)
 “X to A for life, then to B”:
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o
o
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A gets a life interest and is the life tenant.
B gets a remainder interest and is the remainder person.
Originally permitted by lords, provided relief was paid. Both A and B have present interest, or
estates.
“X to A for life”:
o No remainder specified.
o Property will revert back to X; retains the reverionary interest; reversionary or reversioner.
Ziff, Language to create LE (175-88)
 Origin: the king only gave land for life to lords.
 Conventional life estate:
o Pour Sa Vie
o Pour Autre Vie
 As originally created
 Transfer of life estate pour sa vie
 Language to create LE: a will might confer a "privilege" to live on the land, allow "free use", permit the
donee "use" the property, with a gift over "when she no longer needs" the premises, or to use property "as
long as he wishes". Three possible interpretation of an imprecise gift.
1. The first gift is seen as being absolute and the subsequent stipulation is discarded as being
repugnant.
2. The absolute gift is cut down to a life estate, with the remainder going to the donee(s) of the
second gift.
3. The first gift is a life estate to which a power of encroachment has been appended.
 Waste: the principles of waste possess certain characteristics that are all too typical of English land law they are elaborately embroidered and archaic. Much of the law was developed in the context of agrarian
English society, where it is though to have worked well to promote a land-use ethic that minimized
degradation (180).
 Maintaining property: the general rule is that a life tenant is liable for all current expenses, including
property taxes (in an amount up to the annual value of the land) and interest due on a mortgage debt (182).
 Settled estate legislation: “under a settlement the life tenant's ability to exploit the land was circumscribed
by the law of waste. Absent a power to encroach on the remainder, the life tenant's power to sell, mortgage
or lease was also limited: it extended only to the life interest itself” (184).
 Valuation: difficult because of uncertainty.
i. Creation by Act of Parties
M&F, Re Waters (269-70)
Fatcs:
 “I give the use of 48 Walker Avenue .. for as long as she lives”.
 “Taxes, insurance, repairs and other unkeep expenses shall be paid by Mrs. Jones”
Issue:
1. What did the testator give to Mrs Jones, a LE or a right to occupy? LE.
2. Who should pay for the repairs? MRS JONES.
Reasoning:
 Rule of constuction that the judge must place him-self in the posistion of the testator and try to ascertain
his intention, having regard to:
1. Language used;
2. Context language is used;
3. Circumstances in which the will was made.
 He says that clearly Miss Jones is the girlfriend of the testator and he wanted to give her a LE.
 Repairs means only small things. Improvement are to be done by the kids.
ii. Estate “Pur Autre Vie”
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M&F, Definition & Successive Interest (279-81)
 “Pur Autre Vie”:
o Two types of
 Pur sa vie: A life estate created to last for the life of the recicipent.
 Pur autre vie: A life estate created to last for the life of another person.
o Ex: “X to A for life and then to C - A to B”
 The person designated as the measuring life: “cesti qui vie” (here “A”).
 The holder of the estate: “B”.
 The remainderperson gets the land from B when A dies: “C”.
 Successive Interest:
o To some extent heritable
o Shared interest, shared problems
 Recall incentive problems with usufruct in civil law, which CcQ tries to correct
 Maintenance (K versus income) and improvments
o Waste: action of the thing by the person in possession. Four different type of conduct (in
desending order):
 Ameliorating (enhance the value): LT rarely liable, because increases the value of the
remainderperson or reversioner’s interest.
 Permissive (from failure to preserve or repair): LT not automatically liable; only if
expressly in devise/instruments
 Voluntary (conduct disminish value): LT liable here, unless exempt (for major repairs, no
overcutting, no new mines)
 Equitable (severe and malicious destruction): LT always liable.
In general, LT responsible for current expenses, interest on mortgage; remainderperson on principal.
o Normally, there are no problems of waste of the LE in the family circle. The issues comes when
the estates is with strangers…
 Problems: “Incentive problem” and “Settled estates” fell into disrepair (ex: Disputes over
who should pay what + Statutory reform).
 Solutions: To avoidance those, it is easier to use trust.
B. Qualified Estates
M&F, Determineable and Defeasible (245-50, 265-267)
 Introduction:
o Fee simple absolute: terminates only where someone dies without heirs.
o Fee simple qualified: condition can terminate ownership.
 “For as long as Liz is the Queen”;
 “Provided it is used for education”.
 Different conditions have different effects: if something is wrong in the condition, the transfer for X to A
might never happen or will cause problems later.
 Determineable fee simple:
o Ex: “X to A in fee simple until B marries”
 Will automatically determine on the occurrence of some specified event, which may never
occur;
 X retain a possibility of reverter.
o Two situation:
 Event happens: reversion to X is automatic (he doesn’t have to act to take back the estate).
 Event does not happen: A gets a fee absolute.
o Words that create a determinable fee simple
 “So long as”
 “During”
 “While”
 “Until”
o The determinable event sets the limits, the boundary of the estate (ex: “until be marries”).
 Fee simple subject to a condition subsequent (or defeasible on a condition)
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Ex: “X to A in fee simple on condition that A does not marry Y”
X retains a right of entry
 Not automatic
 Needs to be exercised by A on the breach of the condition
o Caracteristic
 Condition is added later; addition of a condition
 Purpose is to compel the condition
o Words that create a fee simple subject to a condition subsequent
 “on condition that”
 “provided that”
 “but if”
Remoteness:
o Reverter (det) versus right of entry (cond. sub.)
o Rule against Perpetuities only applies to cond. sub., because law doesn’t want the dead person to
control everything from its graveyard (See the personal argument from philosophical property
section in the beginning).
o Now amended by statute in Ontario and apply to both.
Void conditions:
o A condition may be “repugnant”, i.e. inconsistent with the freedom of enjoyment, disposition, and
management of the estate.
o Three types:
1. Severe restrictions on alienation: take away all the rights from the bundle (i.e. can’t get
mortgage)
2. Contrary to public policy (i.e. crimes)
3. Too uncertain (i.e. as long as he stays on the farm)
o Effect on determinable:
 Condition can’t be satisfied, and therefore the whole devise falls
 Might be saved by a “vesting construction”
o Effect on consdition subsequent:
 Normally, Rt of forfeiture/entry to grantor.
 Vesting constuction often encourages finding of voidness ; “conceptual uncertainty” used
to prevent forfeiture.
 Result: qualified estate becomes absolute.
o
o
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M&F, Re Essex County Roman Catholic, 1977 (250-54)
Facts: Deed in 1925:
 Property 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 purposes intended.”
Issue: Grant is determinable or cond. subs?
Holding (Krever JA): cond. Subs.
Reasoning:
 Because of the language used, it is clearly a cond. subs.
 The condition is not met.
 Vesting constuction find voidness, because of the rule against perpetuities.
 Now fee simple absolute.
M&F, Re McColgan, 1969 (271-79)
Facts:
 Two issues
a. She couldn’t live there all the time because of financial and health issues;
b. She needed a housekkeper to maintain the house in order.
 Para III of Mc’s will:
o “or untils she is not residing there personally”.
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“all taxes, insurance, repairs and any other charges necessary for the general unkeep of the
property shall be paid from a fund sufficient in the opinion of my trustee to cover the same”
Issue: Nature of interest to Mary K: determinable of defeasible?
Holding: First, it is LE. Second, defeasible on a cond. subs. Third, it is void.
Reasoning: interpreting will - what the written words the testator uses means in the context.
 LE: The interest granted to Miss Kovalchick was a life interest since the words “until her death” are merely
another way of expressing the intention of the estate created was to endure for the term of her natural life.
 Defeasible: The subsequent words in the will “or untils she is not residing there personally” are to my
mind “external to the limitation” – “a divised clause of the grant” thus creating an interest upon condition
and “they mark an event which, if it take place…will defeat an estate already granted”.
 Voidness:
o To defeat the first grant, the condition must be able to be seen “from the beginning, precisely, and
distinctly…”
o Miss K going to Sagamore and returning to Toronto later are sufficient in themselves to
demonstrate how uncertain and ambiguous the condition is. Thus, void for uncertainty.
Taxs: In the context of this will it is my opinion that he intended the enjoyment of the property as a home to be
in no way dependent on the beneficiaries’ own monetary ressources.
o
M&F, Re Down, 1968 (259-65)
Ratio: Court explores the judicial preference for a “vesting constuction”.
Facts:
 Two sons. Olderst gets the farm if he provided the necessities to his sister and younger brother.
 The younger son, at the age of 30, he will then get half of the farm and half of the reponsability provided
he stays on the farm.
Issue: Does the words “provided he stays on the farm” means cond. precedent or subsequent? Cond. sub!
Reasoning:
 Precatory (expressing a wish or request)? No, more than that. Vesting constuction!
 Condition subsequent: “The fact that the provision as to saying on the farm follow th eage prescription (as
well as being couched in the present tense) is an indication that it is suseptible of being a condition of
retention rather than another condition of acquisition”.
 Voidness:
o Reaches 30, stays on farm (or shortly thereafter comes to stay) OR must stay on farm thereafter.
o Void for uncertainty. Therefore, just has to get to 30.
Ziff, State Limitations on Private Owner: Public Policy (250-67)
 Two discrete categories of public policy (250): Ownership rights are always subject to the qualification
that a private act will not be treated as valid if it offends a countervailing state policy.
o The first related directly to the use of property (promotion of alienability - certainty in property
dealings).
o The second contains larger spectrum of policy considerations.
 The effects of invalidity: Ziff says at 271…
o I accept that a donor should not be able to side-step a public policy dictate just by framing a gift in
a certain way.
o However, I see no reason why a grantor should not be able to implement the alternative gift
(assuming that it is otherwise lawfull).
 Problems of public policy:
o The judicial intervention of judges gives them the possibility to inject their own perception of
beliefs and political ideologies (ex. allowing the prohibition of remarriage).
o PP create uncertainty, because the intent of the testator is fundamentally linked with the context.
Thus, in a world in which words are imprecise, and where uncertainty can lead to invalidity,
lawyers shouId play a preventive role by using crisp language.
 Source of PP: Inter alia, the Charter.
 Restraints on alienation:
o The rationale of the rule is to promote alienation of the land.
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Three type of restraints:
1. Forfeiture: right of re-entry or possibility of revenue may be invoked in the event of a
breach.
2. Promissory: purely contractual.
3. Disabling: removes a power of disposal.
Power of disposal may be abridged in three way:
1. Restricting the mode of alienation (e.g. the property may not be sold or mortgaged);
2. Prohibiting alienation to some class of recipients;
3. Precluding dealings for a specified.
*Test: does the condition takes away the whole power or alienation substantially?
C1 Future Interests: Common Law Future Interests
Successive interest or sequential ownership
i. Basic Concepts
M&F, Present and Future Interest, Vested and Contingent Remainders (296-302)
 Present and Future Interest:
o E.g.: X to A for life, remainder to B in fee simple…
 A gets a LE, a “particular estate” or “interest”
 B gets a future interest, vested in possession: gets the land in fee simple at A’s death. But
also a present interest, vested in interest: remainderperson that can prohibit waste of land.
o Guarantee: The enjoyment of future interest is not guatanteed (e.g. if B dies before A)
o Conditions: the grant of an estate subject to a cond. sub. or a determinable estate will also create
future interest…
 Purpose: “The purpose of the future interest is to enable the present holder of an estate to
determine when and upon what conditions the next generation may enjoy possession of the
land. For example, a testator may wish to provide his spouse and children after his death.”
 Limits: however, the Grantor is not completely free to encumber or direct estates for as
long as she might wish or in terms of how it is to devolve. Complex rules prohibit a
variety of future interests…
 Future Interest at common law:
o Common Law Remainder Rules: theses rules generally prohibit the creation of the future interest
that can give rise to abeyance of seisin such as the future interest in the above grant. SEISIN:
LEGAL POSSESSION FOR FEE SIMPLE AND FEE TAIL.
o Gap in seisin:
 E.g.: X to A when she turns 21 (she is 15) > “Abeyance of seisin”.
 Common law remainder rules prevent such gaps. If there is one, fails at the outset. Such
rules still in place in most places in Canada.
o Example of Time: X to A for life / and then the remainder to B in fee simple / when he turns 21(B
is 15 at time of the grant).
 Vested in possession: A
 Vested in interest: B condition precedent, has a contingent remainder turning 21.
o Example of Unknown person: X to A for life and then to A’s widow for life.
 Identity of the remainderperson is unknown: vested in interest at A’s death and vests in
possession at A’s death.
 Contingent remainder.
 Vested : three criteria…
1. Limited to a person in existence:
 X to A for life and then the remainder in fee simple to A’s first born child.
 Only vested if A has kid.
2. Limited to a person who is ascertained:
 Identity of the remainderperson known at time of grant.
 X to A for life and then to A’s widow for life.
 X to A for life and then the remainder in fee simple to A’s surviving children.
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3. Not subject to a condition precedent:
 X to A for life and the remainder to B in fee simple upon graduating from McGill Law
School; Or upon reaching the age of 21; Or when he gets married; Or if A has no childen;
Or multiple.
Example:
 X to A for life, then remainder to B in fee simple (GOOD)
 X to A for life, then remainder to B in fee simple when he turns 21 (B is 15 at grant) (NOT
GOOD).
Contingent:
o If fee simple subject to a condition subseqent.
o G’s right of entry? Contingent remainder…
o Reverter …
 Determinable condition;
 Owner gets rights of reverter;
 In Canada, it is considered vested (Re McKellar, 1972).
Import: the cml favoured vested remainders over contingent remainder, because with the first, there was
never any doubt who would become seised of the land immediately upon the determination of the prior
particular estate.
Ziff, Basic Concepts of Qualified Dispositions (241-49)
 Basic concepts:
o Reversion: goes back to the grantor after termination.
o Remainder: goes to a named party after termination.
 Defeasible and determinable interest
o Determinable: fense post that demarcates the durational extent of the entilement.
o Defeasible: dark cloud that hover over a tree.
 A rule of construction favoured vesting or early vesting when there was a choice.
ii. The Remainder Rules at Common Law
M&F, The Four Rule (302-06)
 APPLY ONLY TO CONVEYANCES (INTER VIVOS) AND NOT TO WILLS…see p323
 Four rule: enforceable at common law, in common law courts, but not in equity:
1. Reversion
2. Vested remainder
3. Possibly of reverter
4. Rights of entry for broken condition
5. (And finally after 15ht century), Contengent Remainder
 Rule 1: No Remainders After a Fee simple…
o Once a grantor has disposed of a fee simple, the grantor has disposed of all of his or her interest
and has nothing further to grant.
o A vested interest cannot be defeated in favour of anyone other than the grantor or G’s heirs.
Hence, possibility of reverter or right of entry for condition broken cannot be granted to a stranger.
o Four example:
 To A and his heirs (fee simple), remainder to B and his heirs (void).
 To A in fee simple (fee simple), remainder to B if A should dies without children (void).
 X to A in fee simple (fee simple) so long as the CN Tower stands, and if and when it falls
down (determinable), to B in fee simple (void).
 X to A in fee simple on condition that the use the land solely for residential purposes and
if he ceases to do so, to B in fee simple (Defeasible on condition subsequent, void, FS to
A).
 Rule 2: No Sriging Freeholds…
o Seisin must be transferred immediately: the reminder must be supported by the prior (estate that
comes before) particular (not a fee simple) estate of freehold created by the same instrument.
Freehold estate can’t “spring up”.
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 X to A for life and then the remainder to A’s first born child (A has none).
 Contingent remainder supported by the life estate: no abeyance in seisin.
o Three example:
 X to A’s first born child. (A has none)
 X to A upon A’s marriage. (A is not)
 X to A at the age of 21. (A is 15)
o LeaseholdsL
 Seisin remains with freeholder (landlord). Leasehold is a certain in terms of duration.
 X to A for two years and then to B and her heirs upon attaining 21. If B is 20, he will get
nothing (not a freehold). If B is 21, he will gets seisin, subject to 2 yrs to A.
o X to A for 10 years when he attains 21
o Remember, all this was prior to registry systems. Signalling function performed by seisin.
Rule 3: Timely Vesting…
o A contingent remainder must vest by the end of the prior particular period.
o No gaps in seisin: X to A for life and the remainder to B in fee simple upon attaining 21
 B’s interest must vest in A’s lifetime or else is of no effect.
 Usually “wait and see”
o Unless the gap is obvious:
 X to A for life and one year after A’s death, remainder to B in fee simple
 VOID ab initio
o Coterminous vesting?
 X to A and B for life, remainder in fee to the survivor.
 Contingent remainder will vest in possession and interest in survivor at death of first.
o Rule in Festing v Allen (1843):
 X to A for life, remainder to such of his children as attain the age of 21
 Class closing rule; Class of persons will vest at A’s death, i.e. termination of prior
particular estate; Saves the gift for those who have made it.
Rule 4: No Shifting Freeholds
o Void if it defeats the prior particular estate: X to A for life, but if A goes to bankrupt, then to B
immediately.
 LE subject to condition subsequent
 BUT: No right of entry to a stranger (B) for a condition broken (Rule 1)
 AND: operates to defeat the prior particular estate
 RESULT: LE to A, X reversion
o Not applicable to determinable limitations
 X to A for life or until Leafs win the Cup, and if the Leafs win the Cup, then the remainder
to B in fee simple
 Natural termination of A’s LE (on A’s death, other impossible!)
“Seisin-al” Summary:
o No springing - motivated by no gap in seisin:
 Not supported by prior particular estate (R 2)
 Do not vest during prior particular estate (R 3)
o No shifting - motivated by maintenaing the integrity of the fee simple…
 From holder of a determinable fee simple to a stranger on termination (R1)
 If remainder purports to defeat prior particular estate (R 4)
Worth noting NOW:
o These rules won’t apply to “equitable interests” and “legal executory interests” (with the exception
of Purefoy v Rogers).
o Equitable rules that evolved; not so concerned with seisin … more concerned with “conscience”.
Ziff, Rationale of the Rules (268-71)
 Create certainty, because there was no registery.
 The fourth legal remainder rule can reduce the number of recipients claiming under a class gift. For
example, the effect of the rule in Festing v Allen is to save the gift for those members of the class who vest
on time, while excluding the latecomers.
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C2 Future Interests: Equity
Ziff, Introduction (211-25)
 Because the corporation wouldn’t die and pay tax, they wouldn’t get title. To avoid this, creation of
Equitable title.
 But, the crown reacted and its Statute of Uses, 1535 gave the equitable owner the legal title too (“the
Statute applieswhere a person is seised to the use or trust of another person or corporation”). Thus, the
tax loophol was momently closed.
 Three incidental effects of the Statute of Uses, 1535:
1. Revolutionized conveyancing practices. The deed of land as a mode of transfer and the current law
of land regislration can both be traced to these developments.
2. Removed the power of landowner to maker testamentary transfers. Thus, lead to the Statute of
Wills, 1540.
3. In welding the legal and equitable tilles together, created a hybrid form of property, known as a
legal executory interest.
Ziff, Equitable Interest and Legal Executory Interest, Testamentary Gift (271-76)
 One of the advantages of creating equitable interests in land (before and after the Statute of Uses, 1535) is
that they are not subject to the legal remainder rules (the four rule).
 One exception - the rule in Purfoy v Roger: the impact of the rule #4 is felt only if an exutory interest is
capable of complying with the legal remainder rules. Wait and see applicable. Thus, if it can, it must.
 Purefoy seems to apply to will in regard to ReCrow, but it is unsure because only case on the matter and
the judge had other option be didn’t choose them.
i. Pre-Statute of Uses Equity
M&F, The Era of Flexibility (306-312)
 General: equity is much more flexible regarding remainder rules.
 Statutes of Mortmain: prevented corporations from holding estate. Hence, religious institutions developed
a mecanism to permit them to acquired fee simple: X to A (seisin and title owner) to the use of the
Francisans (uses and “Conveyance to uses”). Interest of the friar’s can’t be enforced in a common law
legal court; only in the realm of conscience.
 Prohibition: prohibited early on (1391) but persisted, because helped to avoid incidents of feudal tenure
(i.e. Relief, Wardship, Dowry) and allowed testamentary dispositions (prior to Statute of Wills, 1540).
 Method:
o Give it to a trusted friend (“feoffee” or “feoffee to uses”)…
o Who promises to hold for the benefit of the grantor (cestui que use)…
o And to whomever the grantor designated to take on his death!
o (Feoffee always seised; no incidents triggered).
 Effect: create equitable estates
 Ex: X to A and his heirs to the use of B and her heirs
o A = feoffee to uses = legal fee simple = seised
o B = cestui que use = equitable fee simple = not seised yet
 Enforcement: by end of 14th C, much of the land was held like this. Thus, when feoffee renegs, because
they had no recourse to common law, they went to Kings-Chancellor-Chancery.
 Equitable relief:
o Good faith & conscience
o Protects cestui que use
o Injunctions: equity acts in personam
o Contempt orders
 Chudleigh’s case (1595): “There were two inventors of uses, fear and fraud; fear, in times of troubles
and civil wars, to save … inheritances from being forfeited; and fraud, to defeat due debts, lawful actions,
wards, escheats, mortmains, etc.”
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Summary: with the introduction of equitable interest in land, it became possible for the first time to create
sprigning and shifting interest in property. Two advantages…
o Equitable interest in land made it possible to evade most incidents of tenure.
o Equitable estates could be conveyed without the incovenience and publicity of livery of seisin.
Constuctive notice: the courts of equity developed the doctrine of constuctive notice…“if the purchaser
failed to make all the usual and proper inquiries to determine if there were any outstanding equitable
obligation, the courts imposed this equitable obligation on equity the careless purchaser”.
ii. Effect of the Statute of Uses 1535
M&F, Avoiding the Limitation (312-15)
 History: King Henry VIII tries to close the loophole. Its rule is still part of the law of Canadian
jurisdictions
 Rule: where one person is seised to the use, confidence or trust of another person (including a body politic
or corporation), the legal interest of the person seised will be expropriated, and that interest will be given
to that other person, but in all respects that second person will hold by the same entitlements as that person
would have enjoyed under the use, confidence or trust as orignally granted.
 Examples:
o X to A and his heirs to the use of B and his heirs
 Pre 1535: A is seised of fee simple; B gets equitable interest.
 Post 1535: estate executed by the Statute; B, cestui qui use, gets a fee simple.
o X to A and his heirs to the use of B for life and then the remainder to the use of C and his heirs
 Legal LE – seisin!
o X to A and his heirs to the use of B and his heirs, but if A marries C, then to the use of D and his
heirs.
 Pre-1535: A gets legal fee; B gets equitable fee; D gets equitable executory interest.
 Post-1535: A gets squat; B gets legal fee; D gets legal executory interest (shifting)
contingent on marrying D.
 Ways around:
o Avoidance…
 Use a leasehold: X to A for 999 years to the use of B (for 999 years). Trust created for B.
 Use a corporation: X to A corporation to the use of B (or B corporation). Trust created for
B.
 Use yourself: X to A to the use of A.
 Use real duties: X to A to the use of B. If A has real obligations to perform, Statute does
not applied.
o Exhausting…
 Only applied to one use: X to A in fee simple to the use of B in fee simple to the use of C
in fee simple.
 Judicial interpretation: at first, the Tyrell’s Case (1557) said it is void, but later Sambach v
Dalston (1634) said “Use upon a use” is recognized.
 Equitable executory interest created in coveyance to uses become legal executory interest when
coveyance to uses is executed by statute of uses.
 The remainder rules do not apply to legal executory interest except in case when Purefoy applies.
M&F, Rule in Purefoy v Rogers, 1671 (315-16)
 Rule: If a legal executory interest can comply with the common law remainder rules, it must. Required the
contingent remainder to abide by the stricter rule.
 It is a stike back by the Common Law:
o Example 1:
 X 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 (B has no children).
 Two condition: ascertain 1st child & reach 21
o Example 2:
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X to A and his heirs to the use of B at 21 (B is 15)
Legal executory (springing) interest is created: void by Purefoy because could comply
with cml remaidner rule and hence it must comply.
 Legal executory interest would have to vest in the B’s lifetime (just as it would have had
to under the cml remaindr rule: vest during p.p.e.). Treated like a contingent remainder,
full stop.
Work around to avoid the condition (316)
o Example: X to A and his heirs to the use of B for life and then to the use of B’s first child to attain
21 years of age, either before or after B’s death…
o Might be a gap: exec springing interest contemplated in the grant itself. Would fail if it does not
vest in B’s life (if it does not, interest fails at common law. Deliberate ambiguity avoids
application of the Rule). And hence rule in P v R does not apply.
M&F, Testamentary Dispositions, Conveyancing, Exhausting, Wills (324-27)
 Testamentary Dispositions:
o Henry VIII agreed to the passage of the Statute of Wills (1540), giving landowners for the first
time the power to devise their lands at their “free will and pleasure”.
o “It is critical to distinguish a devise from a simple common law conveyance rule. A devise does
not need to comply with the common law remainder rules, so it is possible to create shifting and
spriging interest in a devise without employing a use. On the other hand, it is not possible to create
shifting interest or spriging interests in a simple common law conveyance that does not employ a
use.”
 Conveyancing: Statute of Uses altered conveyancing practice – from libery of seisin to “bargain and sale”.
 Exhausting:
o The simple addition of the phrase “unto and to the use of” had the effect of evading the Statute,
making it once again possible to create equitable interest in porperty much as had been the case
before the Statute.
o This critical development laid the ground for the modern trust.
o Reforms in UK (1925) made only possible two kinds of legal estates – the fee simple absolute in
possession and the lease.
o But, grantor need only employ a trust, thereby creating equitable future interests that are immune
from the ancient rules relating legal future interests.
 Future interest under wills:
o A devise “to B at 21” (B is 15) will take effect as a spriging devise for at leat two reasons.
1. The common law remainder rules do not apply to devises.
2. Pursuant to devolution of estates litigation, the personal representative holds estate in trust
for B, which likely has the effect of transforming B’s interest into an equitable executory
spriging interest.
o By contrast, a simple common law coveyance “to B at 21” (B is 15) is void and will never take
because it is a future interest that is not supported by a prior particular estate of freehold.”
iii. The Modern Trust
M&F, Type and Aboriginal issue (325-27)
 New terminology regarding the “fiduciary relationship”…
o “Feoffee to uses” = trustee.
o Cestui que use = beneficiary.
 Two type of trust:
o Resulting trust: “arises whenever the beneficial interest under a trust has not been fully disposed
of, in which case there will be a resulting trust in favour of the grantor or, if deceased à, the
grantor’s estate.
o Constructive trust: “may be imposed in equity where there is no intention to create an express trsut
and no presumption of a resulting trust because there has generally been no tranfer of property.
 Guerrin and the Aboriginal issue:
o The SCC aggreed that the federal crown was not a trustee of the aborignal reserve, finding that
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there was insufficient evidence of any intention to create an express trust.
But, the crown is under an equitable obligation to deal with the land for the benefit of the
aborigianl, arising from the crown fiduciary duty.
C3 Future Interests: Wills
M&F, Pells v Brown, Purefoy Apply? (319-20, 323)
 Historical evolution:
o Prior to Statute of Wills (1540), use a “conveyance to uses” to make your will and designate heir.
o Post, banned, therefore should make will.
o Cml courts took freedom to mean that cml remainder rule did not apply to wills (1620).
 Pells v Brown (1620): Devise created legal executory interests
o X to A at 21 (A is 15): Ok, X’s estate retains legal fee simple until legal executory interest springs
up at 21.
o X to A but if B marries then to B : A gets legal fee simple sub to legal executory (shifting) interest.
 Does Purefoy apply?
o See Re Robson, 1926
 Facts: Robson to Helen for life and then equally to her children who attain 21. Two child
made it and two did not.
 Issue: It should be void following Purfoy v Rogers? Or saved under Festing v Allen?
 Reasoning: Equitable contengent remainder. Court apply neither Purfoy v Rogers or
Festing v Allen and find that the four have property.
o Re Crow, 1984
 Facts: J & C only had kids after the the time it would vested.
 Issue: Does Purefoy apply?
 Krever: Goes through doctrine and cases. Oddly, does not cite Robson, where it seems the
rule in Purefoy is set aside. Rather, cites Chapman where the testator wanted to give to
every of his grandchildren. Does not feel that Crow’s intent was to give gift to
grandchildren upon all events.
 Ratio: not an important case.
o (Ontario) Estatte Admin Act, s 2: Pushing towards creating trust.
 Fiduciairy obligations:
o Definition: fiduciairy obligations are generally imposed in equity whenever one person reposes
confidence in another with the expectation that second person will act for the benefit of the first.
They are linked with the creation and evolution of trust.
o Application: imposed in a number of different situation (e.g. lawyer-client, trustee-beneficiary,
etc).
 Non-express trusts: two example…
o Constructive trust: a constructive trust is an equitable remedy resembling a trust imposed by a
court to benefit a party that has been wrongfully deprived of its rights due to either a person
obtaining or holding legal right to property which they should not possess due to unjust enrichment
or interference. E.g. imposed particularly in the case of family law where the unmarried guy profit
from the girl.
o Aboriginal land: Guerrin, 1984, where the state is the trustee.
Ziff, Does Legal Remainder Rules Apply To Wills? (273-76)
Whether the legal remainder rules apply to devises of land is not clear. History:
 Contradictions: it was never settled in England whether the Statute of Uses, 1540 affected interests created
under the Statute of Wills, 1535. The Statute of Uses does refer to interest created by will, and there is
Canadian authority in which the Statute was applied to a testamentary disposition.
 Surprising case law: after the Land Transfer Act, 1897, came the decision of Re Robson. If that holding is
good law, its effect is to render the legal remainder rules inapplicable to wills. In short, Purefoy would
never apply to testarnentary gifts.
 Opportunity to clarify: an opportunity to reconsider the case law, and, for that matter, to assess whether
there was a continuing need for the legal remainder rules, arose in the 1984 Ontario case of Re Crow.
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Sadly, that chance was squandered, for the Court did not evaluate fundamental doctrines in resolving the
dispute placed before it.
C4 Future Interests: The Rule Against Perpetuities
Ziff, Rule, Competing Values and Criteria (276-85)
 Rule: establishes a maximum period of time during which contingent property rights will be permitted to
remain unvested.
 Problem: contingencies considerably restrict the alienability of land and create uncertainty in the law.
 Competing values: strike a balance between the rights of a prior owner to control the destiny of her or his
property, and the autonomy of present owners to act without being controlled by the dead hand of the past.
The rule is connected to the goal of promoting economie efficiency, and it attempts to broker the liberty
interests of present and future owners.
 Component of the rule:
1. An Interest:
 Scope: the rule against perpetuities applies to almost all contingent interests in property,
real or personal, legal or equitable.
 Evolution: scope of the rule, moulded by centuries of jurisprudence, continues to change.
2. Must Vest:
 Precise: in addition to referring to interests that are not subject to a condition precedent,
vesting also includes a requirement that the exact size of the interest of the donee(s) be
known.
 Impatient: one does not normally “wait and see” whether or not vesting will occur.
Instead, to comply with the rule it must he known from the outset that a remote vesting of
the interest granted is impossible. If, looking at the matter from the date the disposition
took effect, it is possible, however unlikely, that the interest may vest outside the
perpetuity period, the gift is void.
3. If At All:
 Goal of rule: seeks to know merely whether or not a timely vesting will occur.
 Test: when will we know, one way or the other whether this contingent interest will vest?
If we know that this question will be resolved within the period, either way, that will
satisfy the rule.
4. Within the perpetuity period: “the perpetuity period is calculated according to a formula that
consists of the duration of all lives in being (person alive, including child en ventre) plus a period
of 21 years.
 Reforms measures: Alberta says “wait and see”. Manitoba abolished the rule.
i. Common Law Rule
M&F, Description and Definition (327-33)
 Def.: freeing devises from the dead hand of the testator - will to dispose of property vs the right of those
who come later.
 Justification: impossible to figure out what will be the most efficient and productive way to use the land in
the future (i.e. which is an important value of cml), because of the changing nature of society and of the
value of property.
 Iconic: it’s procedural and representativeness of the common law property regime makes it iconic status.
However, almost all property systems have these kinds of rule.
 RAP vs CLRR: in both the rule againt perpetuities vs common law remainder rule, the owner can’t project
“will” too far into the future. But, as we have seenwith legal executory interests, through the Statute of
Uses and the Statute of Wills, the clrr was not able to reach this goal.
 Problem:
o Some wills could theoretically last for long time.
o X to B for life and then to B’s grandchildren who marry before or after B’s death (more then 150
years here).
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Rule: (1) An interest is valid if it must vest, if it must vest, (2) if it is going to vest at all, (3) within the
perpetuity period. That peridod is calculated by tacking the lives in being at the date the instrument takes
effects, plus 21 years.
1. An interest must vest (vest in interest or vest in possession):
 Class gift: exact size of the interest of the donee(s) must be known. Hence, all members of
a class, and their respective shares, must be known.
 Applies to all contingent interest: applies equally to legal or equitable interest. If your
interest is vested, it is OK. Otherwise, contingent interests and executory interests subject
to rule.
 Remember: determinable interest were traditionally seen as vested, as opposed to
defeasible which were not vested, and hence subject to the RAP.
 Now: determinable interests were subject to the rule, but they are no more due to the
Perpetuities Act, s 15 in Ontario.
 Focus: contingent remainders. Arise in the future and are a « cloud » over other interests.
2. If at all:
 Def.: rule is concerned with what may happen, not what does. Originally, any possibility
of vesting outside of perpetuity period in an inter vivos grant or devise defeated the
contingent interest ab initio (from the outset).
 Harsh: no “wait and see” (CLRR #3). Even if true of the facts, the possibility of vesting
outside defeates the condition from the get go.
 Counter Virtue: certainty as time of grant, but does not recalibrate the harshness.
3. Within the Perpetuity Period:
 How to determine? Time! Lives in being + 21 years.
 Justification: historically, because it was common to have a gift for grandchildren vest at
21
 Who is a life in being: persons expressly or implicitly mention in the gift
 Expressed LIB: named in devise. Child en ventre are life in being. 3rd party or 3rd parties
are life in being (e.g. last lineal descendent for Queen Victoria; Queen of Spain; Royal
Lives clauses).
 Implied LiB: X devises to my grandchildren who attain 21. X’s children are the lives in
being, impliedly.
Do it vest within LIB + 21 years here?
o Example 1:
 Facts: X devises to my grandchildren who marry during the life of A or within 21 years of
A’s death. LiB is A.
 Issue: Vest? Yes!
 Reasoning: will only vest (or vest if at all), in the life of A plus 21. Even if a child born at
the end of A’s life, it will still vest with 25 years after “or within 21 years of A’s death”.
o Example 2:
 Facts: X devises to my grandchildren who attain 21.
 Issue: Vest? No!
 Reasoniong : LiB are X’s children, and hence the interest will necessarily vest before 21
years after the death of any of A’s kids.
Example - inter vivos: X to the use of my trustee in trust for my grandchildren who attain 21
o Executory intrest that srings up for grandchildren at 21
o Problems: X still alive, can have more kids, and therefore granndchildren could vest outside the
peridod. Thus, the gift falls.
o Even true if X was a widow or and an 80 year old fertile women.
Class closing rule: Andrew v Partington (1791)…
o If some can respect the rule, the class closes and it is at least saved for those.
o Ex : X to the use of my trustee in trust for my grandchildren who attain 21. If one grandchild has
made it, then the grant execuates, the class closes and any grandchild alive at the time (as their
own lives become lives in being) will necessarily vest.
Unborn widow: X devises to my son for life, then to his widow for life, and then to the remainder to their
surviving children.
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o
o
o
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The only LiB is the son (not the widow).
Children contingent interest is void.
If it would have been the widow, it would have been good, because will would have vested in
time.
Scurry Rainbow:
o Issue: are the two “top lease” for gaz or oil acceptable? Yes.
o Reasoning: Policy reason. Owner want to use land to be profitable and that is good for the system.
ii. Statutory Reform
M&F, Canadian Provinces (333-35)
 Manitoba: Rule Against Perpetuity (RAP) abolished.
 Some other provinces: 80 years from the time of the original devise. E.g. Quebec says substitution is 100
years.
 Ontario and AB:
o Is there a Perpetuity problems? If no problem at cml, then OK.
o Specific potential problem, see statute. Not void ab initio. REVERSES COMMON LAW.
o Wait and see: ss. 3, 4(1).
 Example:
o X devises to the first of A’s daughters to marry (A has no children when x dies).
o At cml, void! A is LiB. A may have kids after X‘s death and it may vest outside of the 21 years.
Perpetuities Act, ss. 2-9
 Rule against perpetuities to continue; saving 2. Except as provided by this Act, the rule of law known as
the rule against perpetuities continues to have full effect. R.S.O. 1990, c. P.9, s. 2.
 Possibility of vesting beyond period 3. No limitation creating a contingent interest in property shall be
treated as or declared to be invalid as violating the rule against perpetuities by reason only of the fact that
there is a possibility of such interest vesting beyond the perpetuity period. R.S.O. 1990, c. P.9, s. 3.
 Presumption of validity and “Wait and See” 4.(1) Every contingent interest in property that is capable of
vesting within or beyond the perpetuity period is presumptively valid until actual events establish,
(a) that the interest is incapable of vesting within the perpetuity period, in which case the interest, unless
validated by the application of section 8 or 9, shall be treated as void or declared to be void; or
(b) that the interest is incapable of vesting beyond the perpetuity period, in which case the interest shall
be treated as valid or declared to be valid.
 Presumptions and evidence as to future parenthood: 7.(1)Where, in any proceeding respecting the rule
against perpetuities, a question arises that turns on the ability of a person to have a child at some future time,
then,
(a) it shall be presumed,
(i) that a male is able to have a child at the age of fourteen years or over, but not under that age,
and
(ii) that a female is able to have a child at the age of twelve years or over, but not under that age
or over the age of fifty-five years; but
(b) in the case of a living person, evidence may be given to show that he or she will or will not be able to
have a child at the time in question.
Comment: What about adoption? It seems the easier solution is to set 80 years.
3. CONCURRENT OWNERSHIP
A. Types of Co-ownership And Their Creation
Ziff, Definition (335-342)
 Distinction 1:
o Successive devises: “X to A for life and then to her child”. VS…
o Co-ownership in future: “X to A for life and then to her children”. Many will have an interest.
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Distinction 2: Co-ownership must be distinguish from common property, commons, etc…
Four traditional interests:
1. Joint tenancy
2. Tenancy in common
3. Tenancy by entireties
4. Co-parceny
Benefits:
o JT: Mostly in family context, because it is an estate planing mechanism (don’t need to change the
title an no dependant on the will).
o TiC: good condominium, because freehold interest in suites are often involved.
Creation: need a sufficiently stated intention. Assuming that the unity of possession is present, a tenancy
in common can be created in a variety of ways:
1. by express creation;
2. pursuant to a statutory presumption;
3. as a result or a failed attempt to create a joint tenancy (such as where there is no unity of interest);
4. by operation of law.
Moreover, a validly created joint tenancy may later be transformed into a tenancy in common through acts
of severance.
i. Joint Tenancy vs Tenancy in Common
M&F, Right of Survivorship (651-54)
 JT vs Tic: big difference is what happens on death - JT has a right of survivorship or jus accrescendi.
 Def. right of survivorship: “In essence, joint tenants are engaged in a tontine pact. Once a joint tenant dies,
his or her interest is extinguished, increasing the holdings of the survivors. On the death of the penultimate
co-owner, the remaining tenant will hold the full interest.”
M&F, McEwen v Ewers and Ferguson (654-56)
Facts:
 McEwan died and left a lot of land to his two daughters "jointly, and should they decide to sell the said
property each of them is to have an equal share of the proceeds".
 One of the daughters died, and left her share to her brother in her will. If this was a joint tenancy, then the
sister had nothing to leave to her brother, as her share would have defaulted to her sister.
 The plaintiff is the brother who wants the estate to be deemed to have been a tenancy in common, so that
she could pass her share to him.
Issue: Is the common law presumption of joint tenancies still in effect? No, half to brother.
Reasoning:
 Barlow says that although there was an old common law presumption of joint tenancies, this has been
reversed by statute. In Ontario, the Conveyancing and Law of Property Act has made a presumption in
favour of tenancies in common, even when the word "jointly" is used, as it was here.
 In the result, the estate created for the daughters was a tenancy in common, and the daughter was fully
justified in leaving her half to her brother in her will as tenancy in common interests can be passed on to
other parties.
Ratio:
 The old common law presumption in favour of joint tenancies has been reversed by statute; there is now a
presumption of tenancies in common, even if the word "jointly" is used.
 Interests in tenancies in common can be passed on through wills.
M&F, Four Unities (656-63)
 Bias in favour of JT :
o There was a bias in favour of JT in early common law, because for three reasons:
 Easier to collect feudal dues
 Simpler on the register
 Usefull in family settings/marital relations
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o This preferance continues today, but language of creation need to be exact.
Changes in the law:
o Simultaneous death? Now demmed to have been TiC.
o With a corporation? Now possible.
JT need: four unities…
1. Unity of possession:
 Both JT and TiC have undivided right to the possession of the whole;
 BUT: TiC has a fractional share in the whole, while JT has a unified interest in the whole
(M&F 659).
2. Unity of interest – each tenant must be equal in nature, extent and duration, which does not
preclude them to hold different quantum of the title (e.g. A has 1/3 and B has 2/3);
3. Unity of title – each tenant must arise from the same act, title or document;
4. Unity of time – interest of the tenants must arise at the same time;
TiC need: only possession.
Language and context:
o Survivor versus successor
o Conveyancing and Law of Property Act: s 13, p 662
ii. Tenancy by Entireties and Co-Parcenary
M&F, Defining The Two Concepts (663-64)
 Modern relevance: the two concepts are (at the very least) functionally extinct in Canada, because they are
intrinsically sexist.
 Tenancy by Entireties:
o Based on traditional common law conception of husand and wife as one person: the doctrine of
marital unity.
o Unseverable right of survivorship.
o Now repealed, or fallen out of favour.
 Co-Parcenary:
o Intestate succession: no male heir, many females.
o All females deemed to be one heir, each took an undivided share.
B. Rights and Obligations of Co-owners
M&F, What Happens If A Co-Owner Is Out Of Possession? (676-77)
Obligations: common law principles provided that a co-owner was required to pay “occupation rent” to coowners out of possession in three situations:
1. Where the co-owner in possesion has excluded the other;
2. Where the co-owners have made an agreement respecting occupation and occupation rent; and
3. Where the circumstances require that the co-owner in possesion be regarded as agent of the other co-owner
4.* In addition, 1705 Statute of Anne tells that a co-owner was required to account for benefits received as coowner from 3rd parties, but not for benefits that a co-owner achieved through co-owner’s effort.
M&F, Osachuk v Osachuk, 1971 (Supp. Read.)
 The case noted that the common law did not provide for any accounts to be made for rents of co-owned
property unless one co-tenant "expressly undertook to act as bailiff for the other" or "if one joint tenant had
ousted the other."
 The court noted that this had been altered by the 1705 Statute of Anne which provided that co-tenants
account to each other "for receiving more than comes to his just share or proportion." In co-ownership
situations, such as between joint tenants or tenants-in-common, any rental income received by an
occupying co-tenant should be shared between all co-tenants if the occupying co-tenant makes a claim
for reimbursement of "current expense items."
 In this case, the occupying tenant had not claimed from the other joint tenant, reimbursement of the interest
portion of the mortgage payments nor for taxes, repairs or utilities paid, so there was no need to share the
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rental income received from a basement suite.
C. Severance of a Joint Tenancy
M&F, Principles (664-70)
 Williams v Hensman (M&F 665)
 Unities destroyed: created TiC through language like…
o Between
o “Among to between”
 Example: does the Life Estate in the following situation sever the JT?
o One tenant gives a LE with a reverter? Yes, not symetrical. But some case differ.
o One tenant gives hold in trust? Yes, not symetrical.
o Equitable interest? Yes.
o Will? No, as right of survivorship trumps will.
 Mortgage?
o Traditional cml mortage transferred title. To harsh, because if you miss payment at the end of your
mortage, you would loose the property.
o (Not in M&F, but imp). Nowadays, mortgage is a “charge” on the land, which should not sever
title, because he is the owner of the land and not the bank. The mortage are register in registery.
 Lease?
o If a leasehold JT is assigned, then severed.
o But, if freehold JT is leased by an owner, then the right of possession posponed, but…arguments
go both ways in regard to the severance (Ziff p344).
 Harshness of JT: is it still justified? The contract argument says you are departing from the baseline.
M&F, Application of Three Criteria in Robichaud (667-68)
 Act by one JT: act by one JT upon her own share may create a severance (and not merely an
“encumbrance”, such as an easement or leasehold). For example, conveyance of an estate.
o Here, clear unilateral severance by one tenant?
o Not yet, because it is difficult to prove (the tenant makes his statement in a family context, thus it
is difficult to prove if that what he really wanted).
 Mutual agreement: “equity estops the parties from exercising right of survivorship”
o Explicit agreement not necessary
o See Robichaud
 Course of conduct: obviously relation to the second rule– see Robichaud
o Facts: The husband was violent. The wife never came back from her trip to England. She want her
equity from the house. He gets murdured.
o Issue: Dealing fall short or an explicit agreement? JT or TiC?
o Holding:
 Wife arg: JT and she should get everything. They had been acting as it is a TiC since they
tried to settle to sell the house.
 Husband mother: TiC she should get half.
o Precedent cited in favour of severance and TiC (choised by judge):
 Neilson-Jones (1974 - ENG): Denning says this case is wrongly decided in another case.
 Re Waters (1977 - CAN): the husdand died before settlement. JT has occurred. Distinguish
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with Neilson-Jones.
 Ginn v Armstrong (1969- CAN): Ging in the same direction with this case.
Precedent cited in favour of JT:
 Rodrigue (1976): the intention was not clear in that case wheter they wanted to sever or
not. And judge says it is clear in Robichaud.
Other interesting cases:
 Morgan v Davis (1984) (M&F 667): Negotiating the divorce and severing the JT, but
couldn’t agree on it and let it to the future. No intention to sever. Thus, JT.
 Murdoch v Barry (1975) (M&F 668): Singular act? Devise to her sister of her share?
 Kissick (1999) (M&F 668): De facto splitting? No, needs some other actions.
 Now by Statute? Yes, CLPA, ss 40 & 41.
M&F, Knowlton v Bartlett, 1984 (670-74)
Facts:
 Mr. and Mrs Bartlett had a marital differences. A decree absolute was granted and stated that the exhusdand should give his ex-wife 3,000$ in exchange of the property. She refuses the money.
 Later, she executed a deed for herself and appointed her brother as her sole beneficiary.
Issue: Mr. and Mrs Bartlett hold the property as JT. But, did her deed severe it?
Reasoning:
 Law: In Murdoch v Barry, the execution of a deed constituted the termination of unity of title. Even if it
was not, the affidavit was sufficient to constitute an irrevocable act on the part of one tenant sufficient to
sever the JT, because it would preclude him to claim suvivorship.
 Application to facts: there is no documentation beyond the execution of the deed and this constituted
severance of unity of title. Thus, TiC.
D. Partition or Sale
Ziff, Resolving Concurrent Ownership Dispute (349-55)
 Termination:
o Def. of partition and sale: a partition in kind is a division of the property itself among the coowners. Partition by sale constitutes a forced sale of the land, followed by division of the profits
thus realized among the tenants.
o Way around: parties may which to contract out of the right to seek partition and sale. However,
Canadian courts should use their discretion in allowing contractual bar on partition and sale.
 Financial issue:
o Tragedy of the commons: if left unregulated, co-ownership would provide a setting for the
emergence of a classic tragedy of the commons problerm. Each co-owner is motivated to exploit
the property fully, even if that leaves the other owners less well off and inefficiently depletes the
property. Thus, there is need to set rules for each specific situation, with concern of fairness in
mind.
o Equal share: Under the Statute of Anne of 1705, a co-owner who appropriate more than his just
share of any rents or profits issuing out of the land must account to the other.
4. RIGHTS IN THE LAND OF ANOTHER
A. “Natural Rights”
Ziff, Permeability of Boundaries (112-14)
 Generally:
o Meaning and limits of boundaries: drawing a line out a region means the owner enjoy a mesure of
control to exclude others. But, one cannot do totally what he wants inside the line (e.g. public law
such as criminal law, covenant, tort of nuisance). Thus, rights are not absolute inside the
boundary line.
o External entitlement: voting right, obligation to pay property taxes, school taxes, etc.
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Support of land: excavation on Whitcacre that leads to subsidence on Blackacre is actionable and liability
is strict it does not matter that the work was undertaken with the utmost care.
B1 Granted Rights: Incorporeal Hereditaments (Easements)
M&F, Definition (543-44)
 Easements: classic case is a right of way.
 Two types:
o Positive: right to do something on someone else’s land.
o Negative: obligation to not do something on your own land.
 4 requirements:
o Dominant & servient tenement;
o Must accommodate dominant tenement;
o Owners of DT and ST can’t be the same;
o Easement must be capable of serving subject-matter of the grant.
*Thomas W. Merrill and Henry E. Smith, Optimal Standardization in the Law of Property: The Numerus
Clausus Principle
I.
Introduction:
a. Limited number of standard form: with respect to the legal dimensions of property, the law
generally insists on strict standardization. It appears to be a universal feature of all modern
property systems.
b. Civil law categorisation: in the civil law, which recognizes the doctrine explicitly, it is called the
numerus clausus
II.
The numerus clausus in the common law property: As befits a doctrine that has no name, the principle
that property rights must track a limited number of standard forms has received very little examination
in Anglo-American legal literature.
III.
Measurement costs, frustration costs, and the optimal standardization of property interest:
a. Rule: the doctrine of optimal standardization of property rights says its is unacceptable to
create high information costs to third parties.
b. Modern Effect: just as the rise of land registers allowed some loosening of the numerus
clauses, so too technology that lowers informationcosts can be expected to weaken the
numerus clauses further.
c. Summary: “we have argued that the numerus clauses makes sense from an economic perspective.
By permitting a significant number of different forms of property but forbidding courts to
recognize new ones, the numerus clauses strikes a balance between the proliferation of property
forms, on the one hand, and excessive rigidity on the other. Proliferation is a problem because
third parties must ascertain the legal dimensions of property rights in order to avoid
violating the rights of others and to assess whether to acquire the rights of others. Permitting
free customization of new forms of property would impose significant external costs on third
parties in the form of higher measurement costs. On the other hand, insisting on a "one size fits
all" system of property rights would frustrate those legitimate objectives that can be
achieved only by using different property rights that fall short of full ownership. Optimal
standardization is the solution, and the numerus clauses moves the legal system closer to the
optimum, although we do not claim it generates a perfect mix of forms.”
IV.
Potential objections: A. Libertarian; B. Antifragmentation; C. Irrelevance.
V.
The numerus clause and institutional changes: “legislated changes communicate information about the
legal dimensions of property more effectively than judicially mandated changes”. Thus, first should be
encouraged.
i. Basic Characteristics
M&F, Gypsum Carrier (548-55)
 Gypsum Carrier case (1968):
o Railway companies claiming damages based on right of way acquired by contract.
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o Easments? No, because no intention (M&F 548).
Numerus clauses: reluctance at common law for private parties to create new interests. What traditional
concept in cml justify this?
o Deontologist view: Property by definition gives power over people, gives right to exclude. Then, if
you allow creation of other interest, you give them huge power (Rousseau). Setting categories and
registry system give stability to the system: one knows which interest could be created against
him.
o Consequentialist view: Merrill & Smith ressucitate the theorical question on numerous cause. They
look at it from an economic perspective: what sign will show you property is owned by someone?
Fence (names, social norm, registry) and possession/proximity. Thus, information cost are low and
it if economicaly efficient to recognize those interest. What about K ? Information cost are higher
but will have less impact on other people (and few pwople too).
M&F, Four Requirements (557-67)
 First Requirement : dominant and servient tenements…
o Lands must be adjoigning to be an easment (can be a licence if far away)
o US : allows non-adjoinhing easments « in gross » (not tie in a property land)
o Ackroyd v Smith (1850) : classical right of way case. Is it a licence or easment ? Grant « to owner
and occupiers » and « to all persons having occasion » is too wide and would create an easment
« in gross ». That may be accepted in US, but not in Canada.
o We do not want those easment because ... (McLean in 551 M&F). But US use a registry system to
“signal” gross easment and it works. In Canada, we only accept easment in gross for utilities
created by legislation (Vannini).
o Example of kinds of easments
 Use of park as a garden
 Right to beach access
 Right to use lakeside property for recreational purposes
 Ditch for water run-off
o Ordinarily dominant tenement is a freehold or leasehol
 Vannini case: ownership of a waterworks system is “dominant tenement”
 Effectively another incorporeal heriditament
 *Second Requirement : must accomodate the DT
o Def. Confers a benefits on the DT and not merly some personal advantage upon the dominant
owner
o Some real benefits to the DT
o Philosophical foundation : productive use.
o Critique : gives too much place to the conception of the judge.
o The precedent: Ellenborough Park
 Facts: house which have an easment on a garden. Some immediately link with it, others a
bit further.
 Issue: enforceable for house further? Sufficient connexion?
 Reasonning: garden for the purpose of house who ajoinded it or who are in a close
proximity; for the normal use of the house.
o Counter example: ***Hill v Tupper (1863) (554 M&F)
 Exclusive right to have a boat marina to rent out boats.
 An easement can’t be created for an anormal or frequent use of the land (unconnected with
the right and enjoyment of the land). Why mills are normal but not marina?
o Normal, natural, usual, frequent…seems to mean “objective”!
o Kevin Gray says normal is heavily coloured by value judgements
o Jengle v Keetch (1992) (M&F 555)
 Facts - 3 properties: A’s property is liked to the road. B and C property are enclosed. Only
B has an easment. Thus, C rent a space to park his car on B’s.
 Issue: does C gets the right to use the easment of B on C’S land? NO.
 Reasoning: (see book).
o Depew v Wilkes (220) (M&F 565)
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Facts: W use “Willow beach Lane” to gets to his cottage. He also parked the cars on the
land of D.
 Issue: can he park his car too?
 Reasoning: right of way and the parking is an advantage confered to the dominant tenant.
 Critic: It is a classic case illustrating how it is personal uses that we are confering here.
o Shelf Holdings (1989)
 Facts: the farmer, R, grantor’s successor / Husky oil company, A, grantee.
 Issue: Is the underground grant too absolute? No.
 Reasoning: conveyant didn’t gave to husky the right to possess the land underneath, so
easment. Even if : they have to maintain pipeline + oil flows under the land all the time +
they own the pipeline. But, the farmer can do anything with the land, except mess with the
pipe.
o Statutory authorization cases:
 Metropolitain R Co (M&F 561-2): Railway tunnel is more than an easment.
 Consumer Gas v City: gaz pipes owned.
o Philips Pears (1965) (M&F 580)
 Facts: Two adjacent houses.
 Issue: Is there an easement of protection? NO.
 Reasoning (Denning): caution with negative easments. “The only way for an owner to
protect himself is by giving a convenant from his neighbour that he will not pull down his
house or cut down his tree. Such a covenant would be binding on him in K: and it would
be enforceable on any sucessor who took with notice of it. But it would not be biding on
one who took without notice”.
 Third Requirement : not same person
o DT and ST can’t be owned or occupied by the same person
o Usually a no-brainer
 Could be given to a tenant
 Land developers can establish them before sale
 Fourth Requirement :
o Easement must be capable of forming the subject matter of a grant
o Has to be « grantable »
o Ellenborough Park :
 Right too vague ? No, right to wander.
 Joint occupation ? No, not possessory, just right to cross the land.
 Utility and benefit of the DT ? Yes, not just mere enjoyment and amusement of the owner.
 Other requirements (Ziff): a capable grantor and grantee. Can’t require a servient owner to spend $$$
(unless a fence).
> Once granted, Servient Owner can’t alter the land so as to nullify the right for Dominant Tenant.
ii. Creation of Easements
M&F, Three Mode of Creation of Easement (567-80)
 Express Grants:
o Grant or reservation (opposite concept): depends who is selling and buying
 Grant: V sells part of parcel giving P a right of way. V is Servient tenant, P buys DT.
 Reservation: V sells part of parcel to P, reserving a right of way.
o Usually done at law, formally, but equity will enforce
 If no limitation, then context is important
 If no time, then as long at the interest in DT subsides
 You get what you need to make it work, but no more…
o Hill v AG (NS)
 Ratio: Equitable easement.
 Facts: Farmer has land, but the crown wants to put an highway.
 Reasoning: Got compensation de facto expropriation if the easement is recognize.
 Implied grant OR reservation (not implicit), but has prescription too…
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o

Def. necessity, common intention, and non-derogation
 Dobson - necessity: landlocked is a condition for creating an easement.
 Keetch?
 Hirtle v Ernst (1991): three factor of public policy – 3rd land is better than water (M&F
570)
o Philosophy:
 Productive use of the land
 Bradbrook: p 571.
o Wheeldon v Burrows (1872)
 Burrows principle: Vendors who hold land and uses a path may create an implied
easement on sale of a part.
 Ziff calls it quasi-easement: what appears to be being enjoyed at time of grant
 See modern application in Barton v Raine (1980): mutual reciprocal easement on the
driveway between the houses and passage of time shows that.
 Ziff’s says you can use estoppel to get it: Adams v Louhgman (1876) - representation made
to purchaser that an easement would be created. Purchased in good faith; used the lane,
and other estopped from preventing him from doing so.
o Common intention: Wong v Beaumont (1965)
 Facts: restaurant ventilation duct.
 Issue: Necessity? Yes.
 Reasoning: it was implicit in the grant and the landloard knew about it. There was
common intention. Thus, a derogation is recognize.
Prescription: three way to get it…
1. Length of user…
 Similar to adverse possession, though not identical. UK: proof of usage to time
immemorial. Impossible in CAN, exception of First Nations. Thus, CAN has “lost modern
grant”, where prescriptiuon is accomplished by possession during 20 years.
 Three element of prescription:
a. Nec vi – no violence
b. Nec clam – no secrecy
c. Nec precario – no permission
2. Acquiescence…
 Definition: somewhere between permission and objection. Prescription is possible. Owner
must somehow object or impede to show non-acquiescence (or give permission)
 Difference with adverse possession: easement by prescription does not extinguish the right
of the owner. Gives more limited interest to the other person: only recognizes a right to the
person… perfects a presumed right (not maintaining an initial wrong).
3. Statute
 Real Property Limitations Act ss 31-32: 20 years of prescription.
 M&F says it is ill-drafted, but Lametti doesn’t really care.
M&F, The Scope of Easement (376)
 Scope of Easement:
o Depends of the intention of the parties as defined by the physicial circumstances.
o Thus, you get what you need to make the right “work”, but not more (proove with extrinsic
evidence).
 Extension possible:
o Only if implied. In Laurie v Mich, an easement on farmland extended to a subdivision. Why?
Because the subdivision are implied in the easement.
o However, there is a prohibition on coulourable use.
 Def.: benefits must accrue to DT.
 Rule: in Harris v Flower, can’t disguise a benefit for a 3rd tenement. But some extension
for original DT will be allowed if usual.
 Three mode of extinction:
o By grant;
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By unit of DT and ST: ownership and occupation;
By abandonnement: need manifest intention - extinguish by estoppel possible.
B2 Granted Rights: Incorporeal Hereditaments (Profits à prendre)
M&F, Definition (544-47)
Right to take something that is part of the natural produce:
 Hunting, fishing and mining rights;
 Sometimes Aboriginal rights are seen as profits à prendre, but it is an individual right and Aboriginal
rights are collective one. Thus, it is not exactly right to say that.
C. Covenants Running With Freehold Land
i. General Principles
M&F, Link With Contrats and Examples (585-91)
 Convenant are contracts:
o Allowing people to place some negative restrictions on a piece of land
o Can “run” with the land: linked wit the property it-self.
o Are exceedingly common: most land is UK have some sort of convenants
o A kind of permitted “private planning” regime, private zoning
 Example of convenants:
o Mutual protection in the “exposed wall” case: could have been framed as a convenant.
o Safeway clause, which is the common law equivalent fo the Steinberg Servitude: selling off a store,
for example a grocery, form other property to make sure you don’t have competition.
o Nature (ex: quartier Bois-Franc) or quality of constuction (ex: house built in stone)
ii. Enforcement at Law
M&F, Three Basic Principles (592-603)
 Privity of contracts:
o Relationship: between lessor and lessee, between original parties in sale, etc.
o Effect: Can sue on the contract; can assign the right to sue on the right.
 Privity of estate:
o Relationship: based on tenure - rights and obligations as between or among state holder in a
property (ex. relation between lessor and lessee or their assignees; NOT sublessee and lessor
because there is no direct relation; NOT freehold).
o E.g. the fee simple holder suying life estate holder for equitable waste.
o Effect: can sue on matters that “touch and concern” the estate.
 Neither Privity:
o Two type of relationship: 3rd party, sublessee OR, if a freehold, vendor who retained adjoining or
near land.
o Effect: convenant is not enforceable. Two exceptions: (1) In Equity: the negative burdens runs.
 (2) In law, a positive benefit or a positive restrictive convenant that “touches or concerns”
the land can run, but not burden. Any benefits can be assigned in Equity or Law or statute
(see two paragraphs of M&F 590)*.
 Three requirements:
a. Convenantee of benefiting land must have a legal interest in the land;
b. Covenantee and assignee must have the same interest in the land;
c. Touches and concerns.
 “Touches and concerns”
- Comes form the rule in Spencer’s Case (1583). Issue: does it affect the
lessor as lessor and tenant as tenant? Does it go to the nature of the
property relationship? Reasoning: benefits of a convenant can pass in
defined circumstances, but not the burden.
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The standard case is V reserves a right a right on purchased land (benefit),
in favour of her land. According to Gray, “it must be shown that the
covenant was entered into for the benefit of the land owned” … “not
merely for personal benefit”.
- Smith & Snipes Hall Farm (1949) says “must either affect the land as
regards mode of occupation, or it must be such as per se, and not merely
collateral circumstances, affects the value of the land”: Covenant to
maintain river banks is OK.
Can be positive or negative:
- C’or might have to do something proactive, such as maintaining river
banks to prevent flooding; assignee sues to enforce; C’or did not own land.
Possible even where the benefit does not concern the C’or’s land.
- Pakenham’s Case (1368): Covenant to celebrate divine service. C’or did
not own land.
Burden of the convenant cannot pass: the leading case is Keppell v Bailey (1834).
- Facts: Ironworks Co, conventors, covenented for themselves and assigns to
transport limestone along to certain railways. Purported to assigned
interest to D, Bailey, who had an ajoining land.
- Ratio: P sues and fails (M&F 594).
New rule adopted in Canada
- The rationale for the rule is that conveyance would bring indeterminacy in
the law, since it is difficult to know if there is one or not. But this is not
true in Canada, because, at the moment the rule was adopted, there was a
new registry systemes.
- Also, sometimes, it can be economically efficient to convey conveyance.
Parkinson v Reid (1966, Ont.)
- Facts: Burden of staircase: built, repair and permit access to it. The
staircase was destructed.
- Holding: Conventors assignee not bound, because we don’t want it to be
unconvenient.
- Comment: See Amberwood (2002, M&F 595) and Austerberry’s toll road
(1885). Why is the common law so stirict about creating convenant with
burden?
M&F, Getting Around the Common Law Rule (592-603)
 Use a chain of personal covenants:
o Make everyone privy to contract
o But, it loses effectiveness over time (i.e. 2-3 subsequent buyer), because it requires a number of
people to sue each other.
 In UK, use a rentcharge - periodic payment on the land (has its origin form freudal systeme): gives a right
of re-entry and can have imposed positive charges. Also, a trick may be to put a nominal or symbolic
payment, just to get the right of re-entry or to pass on the burned. Not applied in Canada.
 Most important*: Halsall v Brizell (1957) (M&F 598)
o If be nefit is claimed under a deed, must fulfill the burdens. Thus, uses of private roads under a
deed encumbered by burden to maintain.
o Limited; only where benefit claimed and so on.
o Not easy to apply. Actually, it was not in Re Metro Toronto Condo (M&F 599), which shows that
a case with complex facts will make it difficult to apply the rule, because the traditional relectance
is still there. Also, it was applied in Tito v Waddel (1977) and rejected in Australia (windows
case). Finally, in Amberwood, the majority says at Ontario Court of Appeal says the Halsall apply
in Canada, while the minority says no.
iii. Enforcement in Equity
M&F, Tulk v Moxhay (603-13)
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Tulk v Moxhay (1848)
o Facts: Garden in Leicester Square. Restiction on bulding on the square and positive obligation to
maintain it for the benefits of the residents. The law doesn't apply because it was left out of the
assignment (even if he knew of the obligation). Thus, the law doesn’t help.
o Issue: Does the obligation or restrict pass? Yes, it does in equity, if there is NOTICE.
o Reasonning:. The opposite would be unfair, because the person who buy at a lesser price would
have a land of more value (since the very fact that he buy the land would cut short the obligation).
o Comment: Duke of Bedford’s case compete against it.
Equity: surprisingly is less flexible then the law:
o Burden must be negative only:
 Haywood: no burdens to bulit and repair, but rather restricting uses.
 In substance, negative: do nothing and/to comply.
 Regardless of phrasing: “to use for residential purposes only” is negative.
 Is this good policy? Ontario Law Reforms says no, because Canada has registry systems
(then buyers buys with notice) and sometimes thoses convenant adds values (M&F 608).
o C’ee must retain land benefits:
 Similar to easement in gross; c’ees needs it have land (Edmonton-Calgary Brewery case).
 Doesn’t have to be adjacent, but must be near.
 Problem: particularly difficult for municipal authorities (One Twenty-Five Varsity case).
o Benefiting Land must be clerly identified (Galbraith). Shouldn’t be to large.
RECAP POST TULK:
1. Notice on part of assignee
2. Negative/restrictive in substance
3. Land benefited is retained by c’ee
4. Touches and concerns
5. Intention to bind successor
On this last point:
o Assignee of benefit in equity must show the covenant was “annexed”
 Expressly in deed
 Proper descriptions
o Or assigned by K
o Or building scheme
Bulding schemes:
o Common vendors
o Mutual covenants on all purchasers for common benefit
o All know, all purchase, all expect equal application
iv. Business Competition Covenants
M&F, Canada Safeway Ltd. v Thompson, 1997 (613-25)
Facts:
 Safeway, which leased from Woolwort, is part of the mall.
 Covenant in the lease in 1971: “if Woolworth acquires the adjacent land, they will not lease it or develop it
in a way which competes with the business of safeway”
 Land sold to the City (3rd buyer), which wants to develop the land in a way that is not in line with the
covenant.
Issue: Does the covenant in the lease run with the land?
Holding: Burden is specific and not broad and thus interpreted to run with the land.
Reasoning:
 Law: For the creation of such negative easement certain qualifying condifitons must be present:
1. The Covenant or agreement must be negative in essence.
2. It must affect and, to have been intended by the original parties to affect, the land itself by
controlling its use.
3. Two plots of land must be concerned, one bearing the burden and one receiving the benefits, in a
sense a servient and a dominant tenement.
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Application: see the true constuction of the lease agreement…
o Negative? Yes, refrain from leasing.
o Touches and concern the land? Yes, “Provided the ‘exclusive rights’ clauses or ‘non-competition’
clauses are properly drafted and do not otherwise offend public policy as being ‘too restrictive’ or
‘too broad as distance or time’, they will be valid.
o Burden/benefit ? Yes.
v. Covenants and Discrimination
M&F, Drummond Wren, 1945 (625-632)
Ratio: decision regarding the validity of a racially motivated restrictive covenant.
Facts: Drummond Wren brought forward an action to have a restrictive covenant placed on a parcel of land he
owned to be declared invalid. The covenant prohibited the land to be sold to Jews or persons of objectionable
nationality.
Issue: valid? NO.
Reasonning (Ont High Court): MacKay J said the covenant is invalid as a violation of public policy. He rely
heavily on the Sanfransico Charter, to which Canada was a signatory, to come to this finding.
Comment: shortly after the case was considered, but not followed, by Justice Schroeder in Noble v Alley.
M&F, Noble and Wolf v Alley, 1951 (633-649)
Ratio: Court struck down a restrictive covenant that restricted ownership of a section of land to "persons of the
white or Caucasian race".
Facts: Noble wants to seel the property to Wolf, but can’t because the convenant prohib to sell to Jews. They
applied to the court to get the covenant nullified, but faced opposition from the "Pines" community.
Issue: is the convenant valid? NO.
Reasonning: SCC is reluctant to says it is against public policy. Instead, it takes a more technical view based
on property law. The “conveyance” wouldn’t run, because it is not linked with the land. They agreed with the
lower court's dismissal of Drummond Wren and instead looked at the law of restrictive covenants and held that
the language used in the restriction on alienation was too uncertain.
Other (PWP Lametti)
 Remedy for Breach: injunction
 Extinguishment
o Release by parties
o Agreement in document
o Apply to a court
 “Positive” Uses: For conservation, for example.
PART III: PERSONAL PROPERTY
1. CONCEPTS OF OWNERSHIP AND POSSESSION
M&F, Possession as the Origin of Ownership - Pierson v Post (95-105)
 Three matters concerning possession:
o Meaning: the everyday meaning of the word possession often differ from the legal meaning.
o Relativity: the concept of possession demonstrates the basic common law principle that property
interest are always relative and never absolute.
o Effect: A person’s possession of a chattel or land may, by itself, create a property interest.
 Three approach on how things can to be owned?
1. Labor theory: Locke argues that an original owner is one who mixes his or her labout with a thing
and, by commigling that labor. Two arguments against:
a. Without a prior thoery of ownership it is not self-evident that one owns even the labor that
mixed with something else.
b. The labour theory provides no guidance in determining the scope of right that one
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estalishes by mixing one’s labour eith something else.
2. Consent theory: the original owner got title through the consent of the rest of the humanity.
3. Common law theory: possession or occupancy is the origin of property. Two remaining questions:
a. What counts as possession? and
b. Why is it the basis for a claim to title?
The answer lie in the case below.
Pierson v Post, 1805:
o Facts: Post was hunting a fox one day on an abandonned beach and alsmost had the beast in his
gun sight whn an interloper appeared (Pierson), killed the fox, and ran off with the carcass. The
indignant Post pued the interloper for the value of the fox
o Issue: does his pursuit of the fox had established his property right to it? NO.
o Majority (Daniel Tompkins): Occupancy or possession goes to the one who killed the animal.
These acts brought the animal within the certain control that givs rise to possession and hence
claim to ownership.
o Dissent (Brockholst Livingston): should leave it to a panel of hunter, who would presumably rule
against the interloper.
o Two contradicting principles:
a. Notice to the world through a clear act
b. Reward to useful labor
o Two problem of “first possession”:
a. It rely of the tacit supposition that there is such thing as a “clear act”, unequivocally
proclaiming the universe one’s appropriation.
b. It is expensive to estanlish and maintain these elaborate structures of secondary symbols,
as indeed it may be expensive to establish a structure of primary symbols of possession.
Johnson v. McIntosh (1823): a landmark decision of the U.S. Supreme Court that held that private citizens
could not purchase lands from Native Americans (Chief Justice John Marshall).
Summary: “the common law gives preferance to those who convince the owrld that they have caught the
fish aand hold it fast. this may be a reward to useful labor, but it is more precisely the articulation of a
specific vocabulary within the structure of symbols approved and understoodby commercial people. It is
the commongly understood and shared set of symbols that gives significance and form to what seem the
quintessentially individualistic act: the claim that one has, by “possession”, separeted for oneself
propertyfrom the great commons of unowned things.”
Ziff, Definition of Possession (131-37)
 No definition: English law has never worked out a completely logical definition of ‘possession’.
 Two component:
1. Animums possidendi (an intention to possess): “an intention to possess may be found even without
the holder having that high degree or awareness cornposed of complete subjective knowledgeand
an absolute resolve to excrt exclusive control.”
2. Factum (physical control, sometimes referred to as corpus): “the degree of possession demanded
will depend on the function that the concept of possession is designed to serve. This purposive
element is the most dynamic component in the definition. Put another way, the juristic goal that
gives rise to questions of possession will inform the mandated requirements”.
 Constructive possession: a legal fiction to describe a situation where an individual has actual control over
chattels or real property without actually having physical control of the same assets. At law, a person with
constructive possession stands in the same legal position as a person with actual possession.
 Possession vs custody. ex: an employee holding goods belonging to the employer is generally regarded as
having custody only, with legal possession remaining in the employer.
 Wild animals: examplify many of the rules of common law property.
 Evolving principle: from Popov v Hayashi popped out a new concept pre-possessory rights – “to obtain
pre-possessory rights, one must undertake significant but incomplete steps to achieve possession of the
property, and those steps must have been disrupted by the unlawful acts of one or more intermeddlers”
 Rationale: “determining title based on possession is designed to set a clear standard. But qualifications are
bound to emerge in aid of fairness”.
 Abandonment: there must be an intention to renonce to title (animus reliquendi) and sufficient acts of
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divestment. It is interesting to note there is no concept of abandonment of real property.
N.B.: the law of finders show the relative nature of property rights. As the discussion proceeds it will become
apparent that possession is a flexible and chameleon-like concept, as well as a vital ingredient in the analysis
and determination of property rights.
A. Elements of Possession
i. Physical Control
M&F, the “Tubantia”, 1934 (Supp. Read)
Facts: Concerns a salvage dispute between two groups of salvors (one of which was led by Sippe). SS Tubantia
was an ocean liner that sank in 1916, along with a large amount of gold coins. In 1924, the wreck was located
and recovery was initiated. Sippe had marked the wreck with bouys, obtained limited access, and sent in divers –
but the divers could only stay down there briefly, and had not yet retrieved anything of real value.
Issue: What is required for a salvor to have sufficient possession of a sunken shipwreck? Sippe had sufficient
control and use of the wreck to support his intention to exclude (“possession”).
Ratio:
 Possession requires that a person have sufficient control over the object. Control does not necessarily mean
"complete dominion." Rather, control is subject to the particular context and type of property:
 Physically demarcating the area under which a wreck is found, accessing the wreck and sending in an
exploration team constitutes sufficient possession in the case of a sunken shipwreck
ii. Intent to Appropriate
M&F, Keron v Cashman, 1896 (124-25; 126-27)
Facts: Five boys happen upon a sock and start to play with it. Each of them have it at some point. Eventually,
sock breaks open and reveals money. No one had intended to take possession of the sock until the money was
revealed.
Issue: Who should have rights to the sock? Equitable division of the money between all five boys.
Ratio:
 Constructive possession in a Canadian context: intention and physical control must be concurrent to
establish possession.
 No one had both an intention to possess and physical control of the sock at the same time. No one intended
to possess it while they were holding it – didn’t develop interest until the money was revealed. Even the
last boy to hold it is missing absolute physical control.
B. Possession in Relation to Ownership (“jus tertii”)
Ziff, Jus Tertii Defense (154-55)
 Definition: plaintiff cannot bring an action against a defendant if there is a third-party which has better
rights to the property then him. Only that third-party can bring an action. But, jus tertii will not aid a
wrongdoer (i.e. a trespasser or a person who converts property cannot rely on jus tertii to bar a claim).
 Possession in relation to ownership:
o Question is relative rights; who had better rights
o Better claim in a third party (jus tertii) is generally of no matter
o Applies to finders, bailees, adverse possessors
 Is sometimes relevant:
o Where the defendant has a superior claim, or is acting on behalf of someone who does (jus tertii).
In a standard disruption of possession case.
o Or possibly if P is not relying on his own possession (Ziff, say he has sold the good prior to
launching the action). Now possible in English law, by statute, to avoid second claim.
 Wilson v Lombank: P, without knowing, was sold a car already owned. He brings it to repair. The garage
found the true owner and gave him back the car. Did the P have any sort of possession which would entitle
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him to sue D in trespass? Yes, the garage was a wrongdoer by taking the car, and the existence of a third
party with superior rights is irrelevant.
“Finding” cases:
o Possession and finding lost property
o Superior title - Especially as between possessor and the owner or controller of a space
Some terms:
o Detinue: possessory action. Form of action to get back personalty (plus damages) from one who
got it lawfully but retains without right.
o Trover: action for recovery of damages against someone who found goods of another and
converted to own use.
Now – conversion: gets damages, but also now the equitable remedies.
Relative nature of title: better title, which is antecedent to when the finder finds.
2. POSSESSION AND FINDING LOST PROPERTY
M&F, Cases on “Finders keepers” (106)
 Armory v Delamirie (1722): Chimney sweeper’s boy finds a jewel.
 Elwes v. Briggs Gas (1886): Sunken ship in the clay.
 Hibbert v. McKiernan (1948): Golf balls.
 In re Cohen v Katz. (1997): Money hidden in a house and forgotten.
 Moffat (1969, M&F 133): Intention and object that are lost or abandonned.
 South Staffordshire Water v. Sharman (1896): Attachment to land? Rings in the mud.
 Hannah v Peel (1945): Soldier find a brooch in the house, which is unknown to the owner (facts on p. 129)
 Bridges v Hawksworth (1851): see M&F 111.
 Appleyard: Money found in a safe, while demolishing.
 Grafstein: Locked box. Intention to control.
M&F, Parker v British Airways Board, 1982 (107-20)
Facts: gold bracelet found by a passenger (Parker) on the floor of the British Airways (BA) executive lounge at
Heathrow Airport. Parker brings it to BA in case the original owner comes looking for it. He wrote his phone
number on a paper, so that if no one came back to claim the bracelt, he could have it. br When no one comes
looking for it, BA sells the bracelet. Parker sues BA. BA claims that it owned the lounge and therefore had a
legal right to the bracelet.
Issue: Should the claim proceed in finders or recovery? Who gets the bracelet? Parker.
Ratio:
 In order for a person to assert a recovery claim, that person must demonstrate manifest control.
 The claim is finders (Parker), not recovery (BA). BA was not excluding everyone from the lounge, only
some people. For recovery to exist, there would need more control.
Reasoning:
1. Rights and Obligations of the Finder:
a. The finder of a chattel acquires no rights over it unless (A) it has been abandonned or lost and (b)
he takes it into his care and control.
b. The finder of a chattel acquires very limited rights over it if he takes into his cure and control with
dishonest intent or in the course of trespassing.
c. Subject to the foregoing and to the point D below, a finder of a chattel whilst not acquiring any
absolute property or ownership in the chattel, acquires a right to keep it against all but the true
owner or those in a posistion to claim through the true owner or one who can assert a prior right to
keep the chattel which was subsisting at the time when the finder took the chattel into care and
control.
d. Unless otherwise agreed, any servant or agent who finds a chattel in the course of his employment
or agency and not wholly incidentally or colleterally thereto and who takes it into his care and
control does so on behalf of his employer or principlal who acquires a finder’s right to the
exclusion of those on the actual finder.
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e. A person having a finder’s right has an obligation to take such mesure as in all the circumstances
are reasonable to acquaint the true owner of the finding and present where abouts of the chattel and
to care for it meanwhile.
2. Rights and Liabilities of an Occupier:
a. An occupier of land has rights superior to those of a finder over chattels in of attached to that land
and an occupier of a building has similar rights in respect of chattels attached to that building,
whether in either case the occupier is aware of the presence of the chattel.
b. An occupier of a bulding has rights superiro to those of a finder over chattels upon or in, bu
attahced to, that building if, but only if, before the chattel is dound, he has manifested an intention
to exercice control over the building and the things which may be upon it or in it.
c. An occupier who manifest an intention to exercice control over a building and the things which
may be upon or in it so as to acquire rights superior to those of a finder is under an obligation to
take such mesures as in all the circumstances are reasonable to ensure that lost chattels are found
and, upon their being found, wherther by him or by a third party, to acquiant the true owner of the
finding and to care fro the chattels meanwhile. The manifestation of intention may be express or
implied from the circumstances including, in particular, the circumstances that the occupier
manifestly acceptes or is obliedges by law to accept liability for chattels lost upon his “premises”,
e.g. en inkeeper or carrier’s liability.
d. An “occupier” of a chattel, e.g. a ship, motor car, caravan or aircraft, is to be treated as if he were
the occupier of the building for the purposes of the foregoind rules.
M&F, Kowal v Ellis, as quoted in Parker, 1977 (115-16)
Facts: Manitoba case where K drives by land of E, and sees what looks to be a brand-new, $450 pump. Alerts
E as to this fact; E consents to have K take a look - no trespassing issue here. K takes possession of the pump.
True owner never found (probably stolen goods).
Reasoning:
 Court holds that the only ways a landowner can have superior title to goods on their property is by…
o Abandonment by the true owner (making them the true owners); or
o Prior possession (had they become a bailee? must have knowledge of the thing’s existence; goes
back to no duty/no rights argument in Bridges v Hawkesworth).
 Priority of possession in time determines priority of title…
o If they had become the true owners through abandonment or were prior possessors (through
bailment or other means), their title would trump that of a finder. A landowner must prove that
he is a prior bailee of the chattel.
o In this case, E would not have known about the pump, had K not informed him of it. Now has
knowledge, but no exclusionary intent (as in Sharman case), thus the finder prevails.
M&F, Bird v Fort Frances & Dishonesty (128-32)
Facts: Boy is a trespasser. He finds money under a pooltank.
Reasoning:
 “The case is to be distinguished grom Bridges v Hawkesworth and Hannah v Peel on the ground that in
both cases the plaintiff made immediate disclosure on the one hand to the shopkeeper, and on the other
hand to the police, which disproved any animus furandi, while in the present case every case every effort
was made to conceal the fact that the plaintiff had taken possession on the money and removed it from the
place where it was found”.
 “Where A enters upon the land of B and takes possession of and removes chattels to which B asserts no
legal rights, and A is wrongfully dispossessed of those chattels, he may bring an action to recover the
same”.
Concurring reasons: Eveleigh LJ.
Comment: Here, we are not trying to find the absolute owner, but who has the better right. The context is
important: the kid were doing nothing wrong, just playing, and we should not condemn them.
3. BAILMENT: SEPARATION OF “TITLE” AND POSSESSION
M&F, Introduction: Bailment, Licences and Leases (363-364)
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Introduction: it is commonly assumed that property law concerns itself with exclusive and individual interst
in ressources of value (often referred to as “ownership”). However, much of property law also deals with
inclusive and collective interest, and the relationship between those who simultaneously or successively
share interests in the disputed ressource of value: bailment, licences and leases.
Examples of the three categories:
o Bailment: a bailment arise when the owner of a car lends his or her car to a friend. The owner of the
car is the bailor, and the borrower is the bailee. Although the owner retains title, he no longer has
possession of the car; instead the bailee is in lawful possession of the car.
o Licences: a licence arises when the owner of the real property, the licensor (for example, an owner
of a movie theatre) agrees to perit another, the licensee (the moviegoer) to enter onto the property.
o Leases: a leasehold estate arise when the owner of real property, the lessor (or landlord), agrees to
lease his property for a period of time to another, the lessee.
A. The Nature of Bailment: General Principles
M&F, Three Type of Agreement and Duties (364-66)
 Def.: division between ownership and possession
 Classic scenario: lend your car to a friend. You are the bailor and he is the bailee.
 Three type of agreement:
1. Consensual: for term (e.g. 1 year) or “at will” (e.g. when I come back from Australia);
2. Gratuitous: the bailee take volontarly the property of another (e.g. you sign the delivery of the T.V.
of your neighbour, along with the responability);
3. Implied by the facts: Ziff calls this quasi-bailee. Comes with certain obligations.
 Duties:
o Different obligation
 To retrum the item in its original forms
 OR altered form (if you have this obligations)
 OR returned to the third party (if you have this obligations)
o BUT, how much change is allowed?
 For example, grapes to make wine.
 Is Commingling accepted? Maybe, according to Lionel Smith…
o Duty to take care of the good
 E.g. Coat check
 E.g. Parking.
 Exculpatory Clauses: they are allowed, but there is a scepticism…
o Must be accepted by the bailor
o Actual or constructive notice (where is the sign placed? Is it visible? What size of point was used?)
o Contra preferentum rule
o Fundamentyal Breach: Hunter Engeneering, 1989 SCC (M&F 376)
 Can a clause exculpate from the very nature of the promise (Heffron?)
 Rule of law or rule of construction? If a rule of law, can’t ever be done. If a rule of
construction, then be done where equality of bargaining power exists; must be clear and
unmabiguois; and actual or constructive notice.
o Can be shut down by unconscionability or public reasons.
 Burden of proof:
o It shifts in bailment
o Presumption of negligence may arise on bailee, who is presumed to best know what happened.
o Bailee’s defense: there was a system in place.
M&F, Heffron v Imperial Parking, 1974 (366-74)
Ratio: read only for criteria for finding bailment, not for exclusionary clause and fundamental breach.
Facts: person parks his car in a parking lot. Disclaimer on the ticket. Standard procedure to bring the keys, when
the parking lot closes, at midnight to the other parking lot owned by the same guy, because it closes at 2 am. His
car and the property in it get stollen.
Issue: Is Imperial Parking responsible? Yes, for both car and propoerty in it.
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Reasoning:
 First element - a circumstance of significance mentioned in Palmer is the lack of a ticket system: the fact
that there was no system of giving card on parking ticket to person using parking lot has a vital significance
and should have suggested to the plaintiff the absence of any arrangement for supervision or control over the
cars left on the lot, since no person was required to surrender a ticket or produce any other form of
identification when removing his car.
 Second element - Ashby mentions a further circumstance which indicates the relationship which arises in
law between the parties to such a transaction: the first thing is to examine the nature of the relationship
between the partie, a matter upon which the character of the ground is, I think, not without importance, but
the most important is the document itself.
 Application to facts: the ticket system, the hours of operation, the operating habits of the appelant, including
the disposition of the keys at the close of business, and the stipulation hat keys be left in the car so as to
enable the appelant to place and move the car at tehir convenience anywhere with the appelents’ parking
facility, indicate a relationship quite different from that of a licence passively granted by the appleant as
licensor to the respondent. If someone broke in and damage the car, Imperial wouln’t be liable. However,
here the keys could not be found and, because they have a system in place for keys, they are responsible.
Comments:
 Bata v City Parking Canada Ltd: the P parked his car in a parking lot and left keys in the car on the request
of the attendant. He sue for damages but his claim gets rejected. The major distinction with Heffron appears
to be the express inclusion of the words “charges are for use of parcking space only” in the ticket in Bata.
 Minichiello: the owner pays 40 cents and says “there are valuables in the trunk”. When he came back, the
16,000$ of jewels were stollen. The plaintiff was able to recover by strucking down the exclusion clause,
because the employee accepted his statement about the jewels.
B. Rights and Duties of Bailor and Bailee
Coggs v Bernard, 1703, (Supp. Read.)
Fact: Coggs (D) moved, without consideration, casks of brandy owned by Bernard (P) from one place to another.
Through D’s negligence, some of the casks were broken, and a large amount of brandy was lost. P sued for
brandy lost.
Issue: if man undertakes to do an act, is he liable for any resulting damage, even if he had no official duty or
responsibility? YES.
Ratio: any man who undertakes to do an act is liable to an action if because of his neglect, damage occurs. Six
type of bailment.
Majority (Gould - Queen’s Bench): Sees only three category of bailement. Any man who undertakes to carry
goods is liable to an action, if through his neglect they are lost or come to any damage. The reason being, the
particular trust reposed in the defendant. In case of general bailment, the bailee is liable only for gross neglect
and in case of express undertaking, even for the ordinary neglect.
Comments: Look at the chart.
Fairley & Stevens v Goldsworthy, 1973 (Supp. Read.)
Facts: P is a dealer who in order to clinch a sale allows P to take care home to show wife. Deal was he’d return
the next day to complete the sale. Weather was bad—drove home after picking up his wife from work. Next day
drove out of his way on a slushy highway going between 45 and 60 mph. Got in an accident—P brings action for
damages.
Issue:
1. What is the nature of the bailment created? Benefit of the bailee
2. Can P recover the damages? Yes, gross negligence.
Reasoning: D took possession of the car to show it to his wife—when he did and she approved, his duty was to
have gone back the next day to the P’s office and complete the transaction. Instead he drove all the way out of
his way in bad weather conditions constituting great carelessness. Gross negligence is assessed—a “very marked
departure from the standards by which responsible and competent people in charge of motor vehicles habitually
govern themselves.”
Ziff, Post-modern (319-33)
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Today: Ziff’s says the “post-modern” view is simply negligence.
Application 1 - Change of locale: the bailor was held liable because he did not ask the bailee what should be
done since the roof of the building fall down.
Application 2 - Sub-bailment by bailee:
o Bailee can assign, but the term of the original agreement have to allow it. If a bailor has a right to
terminate at will, then he can sue the sub-bailee.
o E.g. Punch v Savoy Jewellers, 1986:
 Facts: A gives his ring to B (jewellers), who then sends it to repair to C. The ring get lostin
transit.
 Issue: can A sues B in K? can A sue C in tort?
 Reasoning: their was an exculpatory clauses between B and C. But it was no express or
implied consent to it by A. Then…
o E.g. Pionner Container case (1994 JCPC)
 If a bailor accepts or bailee accepts.
 However, if a new sub-bailee becomes a bailee voluntarilu, then you look to see if anything
limited the sub-bailment (if no limits, sub-bailee is directly liable to bailor).
C. Rights of Bailee and Bailor Against Third Parties
M&F, Introduction (380-81)
 Can bailor be liable to third party: the questions arise when a chattel is bailed and, though misuse or defect,
causes injury or damages to a party other than the bailee.
 Three cases: the owner of the chattel may be laible to a third party in at least three cases:
o Bailee is agent: if the bailee is acting simultaneoussly as the bailor’s agent, the bailor may be held
liable for the negligent act of the agent.
o Bailor personally negligent: the bailor may be guilty of some personal negligence. For example, if
the bailor provides careless instructions regarding the use of the chattel, leasing to injury to the third
party, the bailor may be liable in tort to him.
o Bailee operator may be negligent: the bailor may bail complicated machinery, along with an
operator, to the bailee, in which case the bailor will remain liable for the operator’s negligence.
 Principle: although a baille is merely in lawful possession of the bailor’s property, he may nonetheless
maintain a right of action against a third party who has damages or wrongfully deprived the bailee of the
bailed property: The Winkfield.
The “Winkfield”, 1902 (Supp. Read.)
Facts: there was a fog, the Winkfield collided with the Mexican, and the latter sank; all people and some
property were rescued.
Issue: can the bailee sue the third party for the lost of the letters? Yes, bailor has a right to be in possession of
property and can sue the person who prohibit him from doing so.
Rule: W have no standing to inquire about the nature or limitations of the rights of the people whose property
they destroyed.
Reasoning: if you take (in this case, destroy) someone else's property, you are a wrong-doer. Just showing that
the property was owned by a third party doesn't excuse you from liability.
M&F, Minichello v Devonshire, 1967 (380)
Facts: there were two rings in the suitcase that did not belong to Minichiello, but owned by clients.
Issue: can Minichello sue for the two rings stole? Yes, he only only need to show he had a right of possession at
the time they were stolen.
PART IV: TITLE, POSSESSION AND LEASEHOLD INTERESTS IN LAND
M&F, Leases and Licences (381-407)
 Concepts: difference between leases and licences, between property right and contract is important.
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Historical point on lease:
o Long ago: contract were primary…
 Way around the prohibition against usury;
 Way of getting payment to lenders;
 Money only, on the debt: hence not realty.
o Then: appex in personal property right in land. Person holding chattel real could not be ejected.
o Now, the right of contract come back in large measure.
o Thus: the leasehold estate (rather like bailment) is situated at the crossroad of property law and
contract law and is subjet to both bodies of law.
Definition:
o Lease: grant of exclusive possession giving rise to an estate in land.
o Licence: A contractul right to enter on the land of another for a specified purpose and constitutes
little more than a defense to an action in trespass.
Differences 1:
o Lease: creates an estate in land that, subject to the specific requirements of the relevant land
recordation acts, is generally binding on the world.
o Licence: a licence is merely a agreement between the contracting parties.
Differences 2:
o Lease: if a tenant is wrongfully evicted from the leasehold estate, he may bring an action to recover
the leasehold.
o Licence: if a licensor is in brach of the licence, the licence will generally be able to recover only
monetary damages.
Effect: the considerable disparity in remedies available to tenant as opposed to licensees lead to litigation.
o Problem: tenant added provision (i.e. tenant can enter at any time or can add licensee) to make the
leasehold look like a license.
o Solution: House of Lord resolved the question in favour of the occupant in Street v Mountford
(1985). Judges attemps to circumvent landloard-tenant legislation by framing as a licence: if the
occupant enjoys in fact exclusive possession, and was meant to do so, then tenancy will be found.
o Close call: In Re Brtitish American v DePass (1959 Ont Ca), D rent a service station to BA for one
month with automatic renewal and agreed to sell his product/put up his adds. Lease or licence?
Lease! The purposes for which D was to use the property could only be accomplished if he had
exclusive possession.
Metro Matic v Hulman:
o Facts: MM ha an agreement with the landlord of an apartment allowing it to place washing
machines in the basement of the apartment. H and the tenants of the apartment bought it from the
landlord, then brought in a new washing machine company and told MM to leave. The agreement
was called a lease of a room to MM, only allowed MM to use it for laundry purposes, renewed
automatically on a 5 year basis, contained a covenant for quiet enjoyment and contained a clause
that it would bind the heirs, assigns, successors, etc., of both parties.
o Issue: Is the agreement a lease or a license? Lease!
o Reasoning: Looking at the lease and all its elements, the judge highlighted the use of the terms lease
and demise, which are the words traditionally used to create an estate in land. He also notes the
presence of the covenant for quiet enjoyment. Together, and in the absence of clear intentions to the
contrary, these create a lease, not a license. Further, the restriction of the use of the premise to
washing machines is no more fatal to the document being a lease than a requirement that a leased
premise be used only as a personal dwelling and not a business. None of the other covenants
undermine MM’s exclusive possession.
Re Canadian Pacific Hotels Ltd. And Hodges:
o Facts: the Hodge family lived in two hotel rooms for well over 15 years. Even if they paid a little
less than normal customer, there was no agreement in regard to their occupancy. They were using
room service, sometimes maid, didn’t substantively decorate the room, were not cooking in it and
“check out” when leaving.
o Issue: Is the agreement a lease or a license? License!
o Reasoning: when party are silent, court must look into fact to find the intention of the party. Here,
the only factual fistinction between the Hodge and other customer was the length of their occupation.
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M&F, Summary of Definition (405)
The lease is a common arrangement in property law whereby the owner of real property (the landlord) grants the
right of exclusive possession of the land to another (the tenant) for a specific period of time, thereby creating a
leasehold estat. It is typical example of the division that can occur between title and lawful possession. As long
as the lease continues, the landlord will retain a reversionary interest and the landlord’s right to actual possession
of th land is suspended during the tenancy. A lease is a non-freehold estate interest because the period of the
lease is either certain or can be rendered certain by the landlord. On the other hand, a freehold interest in land –
for example a life estate of an estate in fee simple– is an estate of uncertain duration. Because a lease is nonfreehold, the landlord remains “seised” of the land for the duration of the lease.
PART V: ACQUISITION OF PROPERTY INTERESTS
1. “ORIGINAL” ACQUISITION
A. “Finding” Cases
Possession and Finding Lost Property (above)
B. Possession in relation to land
M&F, Possessory Title, Aboriginal Land and Statute of Limitation (142-162)
 Possession of land: can also have a huge impact on determination of ownership.
 Asher v Whitlock (1865):
o Ratio: possession is good against the whole world, except the person who can show better title.
o Cockburn CJ: takes the view that view, effectively the same as it was for personalty.
o Mellor: same result, but possession is prima facie evidence of seisin.
 Seisin:
o Lametti: gave you rights if dispossessed. Possession could give you the same rights (i.e. writ of
ejectment) and self-help is also possible
o History: the concept in early land law described the special nature of the possessory entitlement of
an “owner” to land or real property - i.e. in the presence of witnesses, the grantors ymbolically
delivered seisin to the grantee by hanging him a twig or handful of sod, while at the same time
expressing appropriate words of transfer.
o Modern Impact: “Gray and Syme have suggested that the concept of seisin has markedly influenced
the development of common law property principles, particularly the emphasis on rights flowing
from factual possession by contract with abstract title. In a similar way. Alice Tray has argued that
the concept of seisin has promoted idea about privacy and individudal freedom in the common law”
(M&F, 146).
 Perry v Clissold (1907): Jus tertii
o Issue: does the existence of a better claim by someone other than the plaintiff would defeat the
plaintiff’s claim against the defendant. NO!
o Law: similar position than with personalty - third party won’t matter, unless the third party is part of
the action.
 Aboriginal Title: common law principles of possession were not made applicable to lands occupied by
indigenous people, because the Crown, rightly or wrongly, asserted sovereignty.
 Statute of limitation:
o Definition: in ontario, the rights of the paper title holder to bring an action to recover possession
against someone claiming entitlement by possesion last for 10 years only.
o Issue: what justification can we bring to justify the barring of the rights of action of true owner?
o Purpose: for clearing of title to land or for quieting of men’s estates – a public registry of interest in
land may not always be exactly in accord with what has occurred “on the ground”. There may be
need for some legal means of “curring” titles so that registered description of parcels of land are
congruent with the location of boundary fences.
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Possession as the origin of property:
o Statute of limitation: Possession now begins to look even more like something that requires a kind of
communication, and the original claim to the property looks like a kind of speech, with the audience
composed of all the others who might be interested in claiming the objet in claiming the object in
question. Moreover, some venerable statutory law obligates the acquiring party to keep on speaking,
lest he lose his title by “adverse possession”.
o Ownership: “Possession as the basis of property ownership, then, seems to amount to something like
yelling loudly enough to all who may be interested. The frist to say “this is mine” in a way that the
public understand gets the prize and the law will help him keep it againt someone elso who says “no,
it mine”. But if the original communicator dallies tool long and allows the public to believe the
interloper, he will find the interloper has stepped into his shoes and has become the owner.
o Law ans economy: Why then is it so important that property owner make and keep their
communications clear? Economists have an answer: clear titles facilitates trade and minimize
resource-wasting conflict. If I am careless about who comes on to a corner of my property, I invite
other to make mistakes and to waste their labor on improvements to what I have allowed them to
think is theirs. I thus invite a free-for-all over my ambiguously held claims, and I encourage
contention, insecurity and litigation – all of which waste everyone’s time and energy and may result
in overuse or underuse of resources. But if I kep property claim clear, others will know that they
should deal with me directly if they want to use my property. We can bargain rather than fight;
through trade, all items will come to rest in the hands of those who value them most. If propetty
lines are clear, then, anyone who can make better use of my property than I can will buy or rent it
from me and turn the property to his better use. In short, we will all be richer when property claims
are unequivocal, because that unequivocal status enables property to be traded and used at its highest
values.
C. Real Property: Adverse Possession
M&F, Acte of Possession, Intention and Mistake (162-218)
 Definition:
o Process by which premises can change ownership. By adverse possession, title to another's real
property can be acquired without compensation, by holding the property in a manner that conflicts
with the true owner's rights for a specified period. For example, squatter's rights are a specific
form of adverse possession.
o The circumstances in which adverse possession arises determine the type of title acquired by the
disseisor (the one who obtains the title from the original owner), which may be fee simple title,
mineral rights, or another interest in real property. Adverse possession's origins are based both in
statutory actions and in common law precepts, so the details concerning adverse possession actions
vary by jurisdiction. The required period of uninterrupted possession is governed by the statute of
limitations. Other elements of adverse possession are judicial constructs.
o Chattel property may also be adversely possessed, but owing to the vast differences between real
and chattel property, the rules respecting such attempt are rather more stringent, favoring the
original owner rather than the adverse possessor/disseisor; such rules find particular application
respecting works of art.
 Issues:
o When the limitation period starts to run (the commencement of the limitation period)?
o What quality of possession is required for the running of the limitation period?
o What is the relevance of intention on the part of the possessor and also on the part of the paper title
hodler?
 Limitation period & Quality of possession:
o St Clair Beach Estates…
 Facts: for a long period of years, the MacDonald lived near a farm and use a land for
number of purposes, the most symbolic being for their waste (i.e. septic bed). The appelant
allowed them to and never complaint. Then, M sold to a 3rd party.
 Issue: was the land acquired by adverse possession? No, intention of M to exclude owner
was not strong enough.
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Law: test in Pflug and Pflug v Collins (M&F 167)
1. Actual possession for the statutory peridod by themselves and those though whom
they claim;
2. That such possession was with the intention of excluding from possession the owners
or persons entitled to possession; and
3. Discontinuance of possession for the statutory period by the owners and all others, if
any, entitled to possession.
 Application: the owners were still cherry picking, they refuse to sell the land, they went
there sometimes. No animus possidendi by the MacDonald: the husband said “I would not
steal from him”.
o Family context: two kinds of case where a number of family arrangement may lead to claim…
 Where a number of persons are jointly entitled to property bu only a few of them have
actual possession, those in possession may claim that the running of the limitation period
has extinguished the rights of those out of possession to recevoer possession.
 Family arrangement to occupy land or premises with permission of the paper title holder 
o MacLean v Reid…
 Facts: parent dies and gives the property to older brother. He says “you can stay there as
long as you want” and then goes to Ireland. For 30 years, he lived there. Finally, the older
brother sells the property to a 3rd party.
 Issue: is there adverse possession? Yes, there is tenancy at will and clock started to run 1
year after he had possession
 Reasoning: he had animus possidendi for 30 years. He had to the knowledge of the
appelant, actual, exclusive, continuous, open, visible and notorious possession of lands in
question.
o Leaseholds:
 St-Marlybone Property (UK - Denning): against whom does the adverse possesion run, the
lessee or the lessor?
 Giouroukos (resto parking lot): lessor grants successives leases. Adverse possession tries
to claim as against lessor. But, OCA says that because the tenant had remained in actual
possession, more than a mere theorical entitlement to possession was required to show the
commencement of the limitation period.
Intention: how much “adversity”?
o Piper v Stevenson (1911):
 Facts: a women put a fense on eight lots when she, in fact, only bought six. She farm on
land for a long time. When she wants to sell, someone finds the mistake.
 Issue: is there adverse possession? Yes…
o *Keefer v Arillota (1976): most high profile and controversial canadian case on the subject
 Ratio: owner subjective intention is important to determine adverse possession.
 Facts: Cloys has a store and repondent in the case is Keefer. Between their land, there is a
garage, a grassy area and a stone driveway.
 Issue: is there transfer of land in the middle from Cloys to Keefer?
 Reasoning: Wilson J says the claimant of title must do more than just preclude the owner
from making the use of the property that he wanted to make of it, but act relied on as
dispossessing the true owner must be inconsistent with the form of enjoyment of the
property intented by the true owner.
 Application: on one occacion C left his car in the driveway overnight so that Keefer
couldn’t get his car. K therefore pushed C’s car out onto the road and X made no
objection. This evidence assertion of possessory title by the K, since the C gave them the
right of ingress/egress and had no right to block.
 Critic: Lametti says it is difficult to comply with the test. If applied cohenrently, it will
never happen. Also, in Beaudoin it was a mistake and it was not clerly “adverse”.
Moreover, she rely on Leigh v Jack which is no more follow in England according to JA
Pye (Oxford) Ltd v Graham.
o Beaudoin v Aubin (1981):
 Facts: two houses and a landway. The Beaudoin thought that the landway was farter than
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it was in fact. They did not change the land, but had intention to possession.
 Issue: is there adverse possession? Yes, sufficient intention to exclude form the claimer.
Masidon v Ham (1984):
 Facts: owner use the whole thing as his airport, when he his in fact only entitled to half.
The owner finds out about this really later on.
 Issue: is there adverse possession? No…
Wood v Gateway of Uxbridge Properties Inc. (1990) – Moldaver (now SCC judge)…
 Facts: survey show there was mistake about the boundaries of two lands. Applicant were
thus using shed and barns that was not their land. They were also maintaining it.
 Issue 1 : does the need of “adversity” get softened by mistake in such case? Yes, the test
for inconsistency should be relaxed when a person used to land under an honest mistake.
 Issue 2: Should we follow the inconsistency test? No, even if it was used to prevent unjust
enrichment of wanton trespassers.
 Law – three part test: appleant must show that (1) for an uninterrupted period of ten years,
they were in actual possession of the land; (2) that they intented to exclude the true owner
from possession; (3) and that the ture owner were in fact excluded from possession.
HERE, the three are found.
Conclusion: the important questions for exam are…
 State of the law: does the “inconsistency test” of Wilson applies today in Canada? It
seems the answer is no after Wood for mistake, but yes for trespasser
 Jusfitication: it makes no sense to apply the test for inconsistency use when both the paper
title holder and the claimant are mistaken about their respective rights. The application of
the test would defeat adverse possession claims in cases of mutual mistake, yet permit
such claims to succeed in cases of knowing trespass. Thus applied, the test would reward
the deliberate squatter and punish the innocent tresspasser. Policy considerations support a
contrary conclusion. The law should protect good faith reliance on bundary errors or at
least the settles expectations of innocent adverse possessors who have acted on the
assumption that their occupation will not be disburtbed.
2. ASPECTS OF DERIVATIVE ACQUISITION: GIFTS OF PERSONAL PROPERTY
Ziff, Delivery (156-66)
 History: “In early common law, land was transferred through a ceremony known as livery of seisin
(delivery of possession), which was designed to give notoriety to the transaction.
 Three elements of perfectly constituted gift: (i) an intention to donate (the donor must have the mental
capacity to appreciate the nature of the transaction); (ii) an acceptance (presumption of acceptance by the
donee, but he may rebut the presumption by rejecting the interest); and (iii) a sufficient act of delivery
(words of gift are not per se required).
 Contract: Delivery is normally required for a gilt, but is not an indispensable part of a binding contract,
because the function of delevery are assumed by consideration.
 Function of delivery:
1. Evidentiary : shows concret evidence, tangible proof, of the gift.
2. Cautionary (reflective): force people to think before giving blindly their property and allows
donors to change their minds without facing legal consequences.
3. Protective: there is more likely to be some element of detrimental reliance form the donee after
the gift is given than beforehand.
 Ambivalence about gift:
o On the one hand, gifts are inefficient because the price paid for a gift by a donor is often higher
than the economie value that the donee places upon it. In addition, a donee might not he willing to
reinsert the gift into the market and allow it to be bought by some rational wealth maximizer, out
of a sense of fïdelity to the donor. It is regarded as impolite to turn around and sell a gitft.
o On the other hand, law want to enrourage generosity (e.g. tax relief for gift to charity), freedom
should give owner the power to decide what they want to do with their property and delivey is
over protective.
 Type of gift: Perfect delivery of a gift involves a physical transfer of possession of the chattel from donor
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to donee. As a general matter, the donor must have done everything that can he done to perfect the gifl.
However, one finds copious exarnples of sorne lesser form of transfer sufficing, the courts straining to find
a sufficient delivery when the evidence of a desire to make a gift is irrerutable. Taking a broad view, there
are two kinds of exception:
1. When some from of alternative mode of transfer has been recognized; and
 A declaration by the donor that the property will henceforth be held on trust for the donee
will be binding.
 The promise of a gift, when relicd on to the detriment of the putative donee, may support a
right arising by virtue of estoppel.
2. Where a factual concession seems warranted:
 The transfer of possession docs not need to be contemporaneous with the expression of tbe
intention to donate.
 The courts have acknowledged that constructive delivery will sometimes be enough: i) the
donor has retained the means of control; and (ii) all that can be done has been done to
divest titte in favour of the donee.
Deed:
o Physical delivery can be replaced with a transfer by deed. That is a sensible qualification since a
deed will normally serve the probative and reflective functions performed by a transfer of
possession, perhaps even more effectively than merely delivering the object.
o However, a document amounting to somethingless than a deed may not suffice to complete a gift.
o When a chose in action is represented by its own specific form of paper title, such as bonds or
stocks, a gift by deed may not be sufficient
Cheque: does not suffice, because it is only a direction to the drawer's bank.
Symbolic gift: it is sometimes suggested that symbolic delivery will do, for example, when the goods are
heavy or unwieldy and hence virtually incapable of being transferred manually. You have to give means of
control.
Donationes mortis causa (gifts made in contemplation of death):
o Resemble both to an inter vivos donation and to a testamentary bequest.
o It must be made in contemplation, but not necessarily with the expectation, of impending death.
o Several features of the law governing D.M.C. are subject to divides authority (e.g. substantial, in
extremis, dies of the cause, etc.).
o Delivery of property under a D.M.C. will be suflicient as long as the evidence of title has been
handed over, if that evidence would allow the donee to prove ownership and gain control.
A. Basic Requirements for Inter Vivos Gifts: Intention, Acceptance & Delivery
M&F, Basic Requirements for Inter Vivos Gifts: Delivery & Donative Intent (441-42)
 Deed of gift:
o Def.: A document in writing that is signed by the donor, sealed and delivered.
o Ex: when an oncle makes a deed of gift to his nephew, the property would clearly chanhe hands.
o Neg: not offen used.
 Absence of deed: That situation happens more often. Three further element needed:
1. Intention to make a gift on the part of the donor
2. Acceptance of the gift by the donee
3. Delivery: the act provides tangible proof of a gift and helps to demonstrate the necessary intention
to make a gift. Since there is no consideration, we want to give time to donor to change their mind
through reflexion.
Once they are in place, the gift is as irrevocable as if the reipient had obtained title by contract.
M&F, Cochrane v Moore, 1890 (442-48)
Ratio: How to define deivery in the context of a donor who wishes to make a gift of a part interest in a horse.
Facts: B gives to M a quarter of a horse. Then B sells asset to C, including which the horse in question.
Issue: Does M has interest in the horse? Yes. Is there sufficient delivery? Not really, but C is the trustee of M
for one quarter, because he knew about his interest in the horse when he bought (fraudulent misrepresentation).
Reasoning: The court always required that there should be have been an actual delivery: the giving and
Jonathan Brosseau-Rioux
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tacking are two contemporaneous reciprocal acts which constitute a “gift”.
M&F, Requirement of Delivery and Trust (448-52)
 Historical development:
o Before: A transfer of any interest in land historically required “livery of seisin”, the hanging over
of a clump of earth to the transferee. This requirement illustrate the emphasis on possession as
evidence of title in the early development of the law.
o Now: Moore argue that reliance on the obsolete doctrine of seisin in unsatisfactory and that words
of gift should be sufficient.
 Express trust:
o Rule: equity will not perfect an imperfect gift (Strong v Bird).
o Exception: for an express trust, three matters must be certain – (1) the intention to create a trust,
(2) the subject matter of the trust, and (3) the object of the trust. However, there is no need for nay
physical delivery of trust property, and it is possible, although somewhat unusual, to create an
express trust of personal peroperty by means of an oral delcaration as appears to have happen .
o Cochrane: what took place between B and M, before he executed the bill of sale to C, made C a
trustee for M for one quarter of the horse.
 Resulting and constructive trusts:
o Resulting trusts: arises when there is a transfer of property (i.e. delivery) without an intention to
create a gift.
o Constructive trusts: ensure a just result in cases where a person whitout title to property has made
a significant contribution to acquiring or maintaning it, thus preventing unjust enrichment of the
title holder.
B. Problems of Delivery
i. Choses in Possession
M&F, In re Cole, 1964 (452-61)
Ratio: delivery of a gift in the family context.
Fact:
 Cole was rich and bought a big house with expensive furniture. He said to his wife about the furniture:
“Honey, it is all yours”. She touch everything and was realy happy.
 Eventually, the husband was in trouble and the bank wanted to seised the furniture.
 The wife says the bank can’t seise, because the furniture was given to her. Her lawyer says that a perfect
gift of chattels is constituted by showing them to the donee and speaking words of gifts.
Issue: Is there delivery? No!
Reasoning:
 Law: Bashall v Bashall shows that delivery is necessary to perfect a gift between spouses: “It was clear
law that in order to pass property in chattels by way of gift mere words were not sufficient, but there must
be a delivery. And this requirement was as essential in a case of husband and wife as in a case of two
strangers. But a difficulty arose when they came to consider how a husband was it deliver a chattel to his
wife as to pass the property in it. The difficulty arose, not from the legal relation between them, but
from the fact of their living together. When a husband wished to give a horse of carriage, delivery is
difficult. In such case it was true the husband might wish to make an absolute gift to his wife, but, on the
other hand, he might wish to keep the horse or carriage as his own property and merely to let his wife have
the use of it. In an action by the wife it was necessary for her to show that the husbandhad done that which
amounted to a delivery.
 Application: I cannot find that there was any charge of possession here. It is argued that a wife living with
her husband’s house, and therefore having control to some extent of the furniture in it, is in possession of
it, but this, I think, does not follow. In the ordinary case where a wife lives with her husband in a house
owned and furnished by him, she has the use of the furniture by virture of her position as wife, but that
gives her no more possession of it than a servant has who uses the furniture. It is true that it may be
doubful who is in possession of the furniture and that you must look to the title, but in absence of delivery
there is no title to her (Hislop v Hislop).
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Comment: Lametti says more publicity (i.e. registry, article in a journal, etc.) or insurance to her name would
have shown the gift.
Dylan Thomas
“If you can find it, it is yours”.
ii. Choses in Action
In re Rose, 1952 (Supp. Read.)
Ratio: it established that if a donor has done everything that can be expected of him to transfer legal title, but the
transfer is delayed by the routine operation of the law then the gift is still effective.
Facts: Rose made a gift of shares to his wife and signed a transfer form in March 1943. The transfer was not
registered by the company until June 1943. This was problematic because with a set of tax changes, the gift was
not subject to duties if it was effective by April 1943.
Issue: delivered by donor, but not registered by the donee. What happen? The gift was not assessable.
Reasoning (English Court of Appeal - Lord Evershed): First, the gift was enforceable in equity from March
1943. The transferor, by that time, had done all that he could do, prior to the company’s completion of legal
formalities. Second, Mr Rose was a (constructive) trustee for wife between signing the form in March and
registration of the transfer in June.
Conveyancing and Law of Property Act, s. 53(1) (Supp. Read.)
For chose in action, the gift passes with notice.
3. EXPROPRIATION
Balance des intérêts opposés (PWP Lametti)
 Introduction – tension in cml: owners wanting to be dominant (full right over ressources) vs society who
want to restraint their power (limited right over ressources).
o Imposing requirement
o Chanelling requirement
o Public policy
o Rule against perpetuity
o AND expropriation, which is the summer of this tension…
 Issue: under what ground can you loose your ownership right?
 Claim: “injurious affectation” – the work had a very negative impact on his entreprise and on his property.
 The two step test now: when can one make a claim of private nuisance (i.e. something on the property of
another person that has an impact on you property)?
1. Interferance is substantial?
2. Reasonable?
 Court of appeal: says we should go back to the old test - “is this particular party being ask to bear cost of the
public utility, which is unreasonnable on him? Is he being ask to bear an unreasonnable share?”
o Problem: in all of the case, there is a public benefit. In all of the case, the public benefit is going to
justify the expropriation of private property or nuisance of private property. Thus, is the test
reasonnable?
o Reasoning: the nature of the test limits only serious claim and only when the burden place on an
individual by public utility is too much.
 Comment:
o Problem: it is not a direct tacking. Hence, the test is complicated. The plaintiff has the burden to
proove the two part of the test, when normally it is to the governement.
o U.S. case: government autority delegate to private actor his rights. The burden is on the
governement to show it can expropriate.
Antrim Truck Centre Ltd. v Ontario, 2013 SCC 13
Faits:
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
Antrim doit fermer son relais routier, car l’autoroute construite par le gouvernement n’y donne plus
directement accès.
 Il fait une demande d’indemnité pour effet préjudiciable sous le régime de la Loi sur l’expropriation et s’est
vue accorder 58 000 $ pour perte commerciale et 335 000 $ pour perte de la valeur marchande du
bien‑ fonds.
Question de droit: La question principale est de savoir comment décider si une atteinte à l’utilisation et à la
jouissance privées d’un bien‑ fonds est déraisonnable lorsqu’elle découle d’une construction qui répond à un
objectif public important.
Décision (Cromwell): La nuisance consiste en une atteinte à la fois substantielle et déraisonnable à l’occupation
ou à la jouissance, par le demandeur, de son bien‑ fonds. Le caractère raisonnable de l’atteinte doit être
déterminé par la mise en balance des intérêts opposés. Le juste équilibre est brisé si le demandeur a assumé une
plus lourde part du fardeau de la construction que ce qu’un individu pourrait raisonnablement s’attendre à
supporter sans indemnité. En l’espèce, l’entrave au bien‑ fonds de l’appelante causée par la construction de la
nouvelle autoroute lui a fait subir une perte importante et permanente.
PART VI : CONCLUSION
H. Smith, “Exclusion versus Governance: Two Strategies for Delineating Property Rights” (website)
Deux stratégies peuvent être utilisée pour délimiter les droits de propriété. Celles-ci reflètent la relativité
culturelle du droit de la propritété.
 Exclusion:
o Effet: en mettant l’étiquette de droit privé (“property of…”), on donne le signale au monde entier
que la chose appartient a quelqu’un et qu’il il ne faut pas la toucher.
o Doctrine: plusieurs doctrines permettent d’illustrer cette exclusion:
 La possession: indicateur exact pour dire qui est le propriétaire. Très efficace et ne coûte pas
très cher, car on sait en regardant une chose qu’elle appartient à celui qui en a la possession.
 Registre: plus cher, car il demande de la vérification par les tiers partie, mais très stable
étant donné sa précision et son exactitude.
 Governance:
o Situation: on le retrouve plus souvant dans un système de partage de ressources (i.e. Amérindiens).
o Doctrine: ce système demande plus d’engagement et d’investissement de la part des participants,
puisqu’il est moins clair à qui appartient l’objet.