Property CAN (ZIFF)
Table of Contents
Nature of Property ................................................................................................................... 6
Why we have Private Property ...................................................................................................... 6
Economic Efficiency ......................................................................................................................................6
Posner’s Three Touchstones ................................................................................................................................... 6
Tragedy of the Commons ......................................................................................................................................... 6
Sources and Protection of Property in Canada .............................................................. 7
Sources of Property Law .................................................................................................................. 7
History of Property Law ..............................................................................................................................7
Feudalism ........................................................................................................................................................................ 7
Doctrine of Estates ...................................................................................................................................................... 7
Taxonomy of Property Interests ................................................................................................... 8
Categories of Property ...................................................................................................................... 9
Public Property ...............................................................................................................................................9
Common Property..........................................................................................................................................9
Private Property .............................................................................................................................................9
Yanner v Eaton .............................................................................................................................................................. 9
Novel Claims .................................................................................................................................................. 10
International News Service v Associated Press ........................................................................................... 10
Victoria Park Racing and Recreation Grounds Ltd. v Taylor .................................................................. 10
Moore v The Regents of the University of California – Cell Line Case ................................................ 10
Numerus Clausus – Keppel v Bailey ....................................................................................................... 11
Class and Property .......................................................................................................................... 11
Victoria (City) v Adams – Property and Section 7 .......................................................................... 11
Statutory Protection of Property .......................................................................................................... 12
Protection of Property from State Confiscation ................................................................... 12
Expropriation Acts ...................................................................................................................................... 12
Common Law ................................................................................................................................................ 12
Manitoba Fisheries v R ............................................................................................................................................ 12
International Protection – NAFTA Article 11 .................................................................................. 12
American: Penn Central / Kaiser Aetna – Regulatory Takings / Constructive Taking .... 13
Canadian Jurisprudence ........................................................................................................................... 13
Mariner Real Estate v Nova Scotia ..................................................................................................................... 13
Canada-Peru FIPA, 2008 ......................................................................................................................................... 13
Boundaries ............................................................................................................................... 14
Land: Airspace and Subsurface Rights ..................................................................................... 14
Cuius est solum eius est usque ad coelum et ad inferos.................................................................. 14
Above Surface ............................................................................................................................................... 14
Didow v Alberta Power Ltd. .................................................................................................................................. 14
Authorson v Canada.................................................................................................................................................. 14
Below Surface ............................................................................................................................................... 14
Edwards v Sims – Great Onyx Cave.................................................................................................................... 14
Coasian Economic Perspective on Airspace Rights ............................................................. 15
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Mines and Minerals .................................................................................................................................... 15
Lateral Boundaries.......................................................................................................................... 16
Bounded by Land ........................................................................................................................................ 16
Torrens System ........................................................................................................................................................... 16
Bounded by Water ...................................................................................................................................... 17
Accretion........................................................................................................................................................................ 17
Fixtures ............................................................................................................................................... 18
Fixtures Test (objective intention to affix) ....................................................................................... 18
Tenants Fixture – special rule ................................................................................................................ 18
Security Interests ........................................................................................................................................ 19
La Salle Recreation Ltd. v Canadian Camdex Investments Ltd .............................................................. 19
Stack v Eaton – Perfected Test ............................................................................................................................. 19
Haggart v Brampton (Town) ................................................................................................................................ 19
Diamond Neon Manufacturing v Toronto Dominion Realty Co. ........................................................... 19
Transformation of Chattel Ownership ..................................................................................... 20
Glencore International v Metro Trading – Commingling / Intermixture of Fungibles ............... 20
McKeown v Cavalier Yachts – Combination of Chattels ........................................................................... 20
Gidney v Shank – Restitution as a remedy for unjust enrichment ....................................................... 22
Concept of Possession .......................................................................................................... 22
Relevance of Possession ................................................................................................................ 22
Elements of Possession.................................................................................................................. 22
Animus (mental element of control).................................................................................................... 22
Factum (corpus / physical element of control) .............................................................................. 22
Popov v Hayashi............................................................................................................................................ 22
Wild Animals ................................................................................................................................................. 23
Pierson v Post .............................................................................................................................................................. 23
Newfoundland Seal Hunt ......................................................................................................................... 23
Clift v Kane – Right to Salvage .............................................................................................................................. 23
Doyle v Bartlett – potentia recuperandi .......................................................................................................... 24
Potential Tragedy of the Commons ................................................................................................................... 24
Law of Finding ................................................................................................................................... 24
Possession as Title ...................................................................................................................................... 24
Olinek v Trachuk - General Principles .............................................................................................................. 24
Bird v Fort Francis - Relevance of Wrongdoing ........................................................................................... 25
Parker v British Airways – Manifestation of Intention ............................................................................. 25
Adverse Possession......................................................................................................................... 25
Rationales for Adverse Possession ...................................................................................................... 25
Rules for Adverse Possession................................................................................................................. 26
Keefer v Arillota ............................................................................................................................................ 26
Teis v Ancaster (Town) .............................................................................................................................. 26
Adverse Possession of Chattels ............................................................................................................. 27
O’Keefe v Snyder ........................................................................................................................................................ 27
Gifts ....................................................................................................................................................... 27
Elements ......................................................................................................................................................... 27
Types of Gifts................................................................................................................................................. 27
Delivery ........................................................................................................................................................... 27
Re Bayoff Estate .......................................................................................................................................................... 27
Nolan v Nolan & Anor .............................................................................................................................................. 28
Doctrine of Estates ................................................................................................................ 28
Freehold Estates............................................................................................................................... 29
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Creation and Transfer of Fee Simple ........................................................................................ 29
Modern Setting of Transfers ........................................................................................................ 29
Language of Creating Life Estates .............................................................................................. 30
Re Walker ........................................................................................................................................................ 30
Re Taylor ......................................................................................................................................................... 31
Christensen v Martini.................................................................................................................................. 31
Fee Tail ................................................................................................................................................ 31
Waste – Life Estates and Remainders ....................................................................................... 31
Power v Powers Estate ............................................................................................................................... 33
Personalty and Dower ................................................................................................................... 33
Homestead Legislation ............................................................................................................................. 33
English Dower Inheritance .................................................................................................................................... 33
Alberta Homestead Legislation Dower Act ....................................................................................... 34
Dower Act and Consent ........................................................................................................................................... 34
Estates in Personalty ................................................................................................................................. 34
Aho v Kelly – Court Ordered Sale........................................................................................................................ 35
Aboriginal Property Rights ................................................................................................ 35
Delgamuukw ...................................................................................................................................... 35
Aboriginal Title ................................................................................................................................ 36
Doctrinal Elements and Aboriginal Title ........................................................................................... 36
Charter and Aboriginal Title ................................................................................................................... 36
Origins and Nature of Equitable Interests .................................................................... 37
Use and Statute of Uses .................................................................................................................. 37
Exhausting the Statute .............................................................................................................................. 38
Resulting Trusts ............................................................................................................................... 38
Presumptions of Advancement and Resulting Trusts.................................................................. 38
Pecore v Pecore – Rulea Concerning Gift to Children.................................................................... 39
Constructive Trusts......................................................................................................................... 39
Murdoch v Murdoch .................................................................................................................................... 40
Unjust Enrichment .......................................................................................................................... 40
Constructive Trusts and Unjust Enrichment ................................................................................... 40
Joint Family Ventures ................................................................................................................................ 41
Cultural Appropriation .................................................................................................................. 41
Bulun v Bulun ................................................................................................................................................ 41
Conditional Dispositions ..................................................................................................... 42
Three Basic Modes of “Dead Hand” Control ........................................................................... 42
Reversions and Remainders ................................................................................................................... 42
Defeasible and Determinable Interests.............................................................................................. 42
Vested vs Contingent Interests and Conditions Precedent ........................................................ 43
Phipps v Ackers – Early Vesting Rule................................................................................................................ 43
Precatory Words and In Terrorem Conditions ............................................................................... 44
Invalidity and Uncertainty....................................................................................................................... 44
Invalidity ........................................................................................................................................................................ 44
Unger v Gosser ............................................................................................................................................................ 44
Invalid Condition Precedent for Personalty – Feeney Rule .................................................................... 45
Uncertainty ................................................................................................................................................................... 45
Sifton v Sifton............................................................................................................................................................... 45
Kotsar v Shattock ....................................................................................................................................................... 45
Legal Remainder Rules ............................................................................................................................. 46
4
Rule Against Perpetuities ............................................................................................................. 46
Perpetuities Examples .............................................................................................................................. 47
Scurry Rainbow Oil v Taylor .................................................................................................................... 48
Perpetuities Act – If Non-Compliant with ComLaw Rule – Applies 1973 Onwards ......... 48
McKeen v McKeen Estate ........................................................................................................................... 49
Restraints on Alienation ............................................................................................................... 49
Trinity College Schools v Lyons ............................................................................................................... 50
Leases, Licenses and Bailments ........................................................................................ 50
Leases................................................................................................................................................... 50
Essential and Formal Elements ............................................................................................................. 50
Assignments and Subleases .................................................................................................................... 51
Merger Restaurants v DME Foods ...................................................................................................................... 52
Sundance Investment Corp v Richfield ............................................................................................................ 52
Termination and Remedies ..................................................................................................................... 53
Highway Properties Ltd. v Kelly Douglas Co. ................................................................................................ 54
Residential Tenancy Relationship ........................................................................................................ 54
Licenses ............................................................................................................................................... 55
Bailments ............................................................................................................................................ 55
Pioneer Container ........................................................................................................................................ 56
Punch v Savoy’s Jewelers – Assignment and Sub-Bailment ......................................................... 57
Assignment and Sub-Bailment Rule of Liability ........................................................................................... 57
Co-Ownership ......................................................................................................................... 57
Joint Tenancies ................................................................................................................................. 57
Marriage breakdown and Co-Ownership – Matrimonial Property Act.................................. 58
Tenancy-in-Common – PRESUMED BY STATUTE IN AB ..................................................... 58
Methods of Creation ........................................................................................................................ 58
Severance of Joint Tenancies....................................................................................................... 59
Sorenson v Sorenson – Severance of Joint Tenancies .................................................................... 60
Resolving Concurrent Ownership Disputes ........................................................................... 61
Shared Ownership of Personalty ............................................................................................... 61
Joint Bank Accounts ................................................................................................................................... 62
Jones v Maynard – Acquiring Property from a Joint Bank Account..................................................... 62
Free / Open Source Software ................................................................................................................. 62
Shared Ownership and Marital Property Law....................................................................... 63
AB Matrimonial Property Act .................................................................................................................. 63
Condos and Co-Operatives ........................................................................................................... 63
Condo Regulations ...................................................................................................................................... 63
Servitudes Over Property ................................................................................................... 64
Easements .......................................................................................................................................... 64
Creation and Transfer of Easements ................................................................................................... 64
Transfer After Creation............................................................................................................................. 66
Scope, Location and Termination ......................................................................................................... 67
Laurie v Winch ............................................................................................................................................................ 67
Malden Farms v Nicholson – Grantors are presumed to retain some use of easements ........... 68
Harris v Flower ........................................................................................................................................................... 68
Termination................................................................................................................................................... 68
Nelson - Shalom Park and Rabbit Hill ................................................................................................. 68
Profits a Prendre.............................................................................................................................. 69
Restrictive Covenants .................................................................................................................... 69
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Tulk v Moxhay ............................................................................................................................................... 70
Running of the Burden in Equity .......................................................................................................... 70
Retail Properties and Covenants .......................................................................................................... 70
Benefits in Equity ........................................................................................................................................ 70
Swan Properties v Irving Oil..................................................................................................................... 71
AB 880682 v Molson Breweries............................................................................................................... 71
Benefit / Touching and Concerning – Restraint of Trade Doctrine........................................ 71
Development / Building Schemes ........................................................................................................ 71
Positive Covenants ..................................................................................................................................... 72
Amberwood v Durham Condo Corp 123 ......................................................................................................... 72
Bypass Mechanisms for Positive Covenants .................................................................................................. 72
6
Nature of Property
Why we have Private Property
Utopian societies tend not to include conceptions of private property. Standard
techniques involve looking at classical thinkers and working through their
reasoning. Perhaps more useful is simply looking at things with a mind towards the
common sense.
View property as a manifestation of liberty and freedom along with the
development of responsibility within an individual. Elements of maximization of
productivity and rewards for labour also play into things.
Utilitariansim  utility of private property - very difficult to measure
Optimizing Freedom  distribution of wealth is closely correlated with social
stratification at the micro and macro levels. Property = power and economic and
social differences are reinforced by overt and covert use of power
Personhood / Moral Development  does property produce virtue? There are
just as many claims that property results in avarice
Labour / Desert / Consent  entitlement to the fruits of one’s labour… John Locke
and natural rights, labour alone cannot justify ownership. This theory requires
consent / Hobbesian social contract.
Economic Efficiency
If property is related to economic efficiency then shouldn’t a system of private
property not embody efficiency?
Posner’s Three Touchstones
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Exclusivity  proper protection for individual owner
Universality  as many things as possible should be “ownable” – to a certain
extent
Transferrability  things should be tradeable, the law should not impose
impediments to trade… rather it should facilitate
Tragedy of the Commons
Commons is ruined through self-interest, if the cost of using the land is borne
collectively then there’s no incentive to use the land responsibly. Privatization leads
to responsible use. On the other hand, the tragedy of the anti-commons can result
where too much private property leading to fragmentation of the land leading to
inefficiency.
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Sources and Protection of Property in Canada
Sources of Property Law
History of Property Law
Feudalism
English law received into Canada when sovereignty asserted. Historical
development began with the Norman invasion 1066
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Feudalism established
Bare bones structure forms basis for Canadian property law
Radical title is held in the Crown – land devolved from there, traditionally in
return for service / fealty
o Services of tenure
 Military service
 Spiritual service
 Ceremonial service
 Subsistence based service (@ bottom of the rung)
o Incidents of tenure
 Statutes evolved in order to replace these
 Incidents of tenure as revenue creating mechanism made
obsolete – escheat remained
Services of tenure = free and common socage – still exists today
Lords directly below the King  tenants in capite given large tracts of land…
land devolved further through serving the lords
Mesne lords were vassals to tenants in capite and could devolve land down
further for working land etc.
Process is called subinfeudation – abolished by Quia emptores in 1290
Today however, when you sell, you’re substituted into the shoes of the
previous owner
Doctrine of Estates
After feudalism was wiped out, replaced by Doctrine of Estates – an estate referred
to a period of time the grant was good for
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Land was granted in free and common socage for life
Fee tail – duration based on formula (doesn’t exist in AB)
o Stripped down version of fee simple
o Inheritance limited to immediate offspring
o Attempt to ensure that manor houses remained in the families
 Antithetical to free market economics – no longer accepted in
many jurisdictions
Today, estates are granted in fee simple
o Largest and longest of the estates
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o Absolute ownership
o If owner in fee simple dies w/o heirs, escheat comes into play and
land goes back to Crown
Taxonomy of Property Interests
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Real Property rights:
o Corporeal
 Estates – fee simple etc. – are corporeal rights of real property
o Incorporeal hereditaments
 Non-possessory interest in land
 Rights in relation to land that are hereditary, for instane an
easement or right of way across a piece of land you don’t own
 Profit a prendre
 Right to take a natural resource from the land
 Might involve an ancient right to gather berries… or
extract oil
 Gives you the right to go in and take – doesn’t give you
possessory rights to land though
Personal Property
o Choses in action
 Personal property equivalent to non-possessory rights – eg.,
right to collect a debt
 You can assign a right to collect a debt to someone else
 IP rights  you don’t have a right to the thing, rather a right to
making / reproducing the thing
o Choses in possession
 Things you own or that can be rendered into possessions
Chattels real
o Began life as a personal property right – the right to enforce a contract
o Connected to the land “a lease runs with the land”
 If you buy Blackacre in fee simple and you discover a leased
portion then that lease binds you as it did the previous owner
Aboriginal rights
o Unique / sui generis
o Property rights were precisely delineated, often according to natural
landscape
o IP rights, or something similar, to your totem
o A group w/o territory didn’t really exist in the world (nationhood was
inseparable from land interest
o Delgamuukw  theme of reconciliation / recognition of aboriginal
rights today through common law
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Categories of Property
Public Property
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Owned by the state – is this really that different from private property then?
o Not really… the state can still exclude, but there are restrictions found
in the Constitution / Charter
Common Property
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Different that public property in that you have the right not to be excluded…
everyone / no one has ownership. Historically some grazing lands, presently
the High Seas.
Public domain within context of IP – works of fiction/ music etc. where
copyrights expire after some time
Aboriginal lands are considered to be held communally, perhaps still just
widely held private property
Private Property
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Sometimes a collection / bundle of rights. Is there an irreducible core?
o Single variable essentialism
 The right to exclude is the only requirement
o Multiple variable essentialism
 Besides the right to exclude there are other variables… right to
exclude is helpful, but not determinative
o Nominalism
 Functionalist approach – something becomes property when it
becomes useful to someone
Yanner v Eaton
Aboriginal Australian charged with “taking fauna” (a crocodile) one statute provides
that no one, unless with statutory authority, can take such things as they are
property of the Crown. Other statutes however provide aboriginal rights to fauna.
Court interprets the term property narrowly because otherwise the provision would
extinguish aboriginal property rights.
Single variable essentialism: “Whatever else property may mean in a particular
context, it describes a relationship between owner and object by reference to the
power of the owner to deal with the object to the exclusion of all others, except a
joint owner.”
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Novel Claims
International News Service v Associated Press
AP paid money to get its news, INS was freeriding. News cannot be copyrighted –
has to be held to be common property, but the USSC applies the term quasi-property
in that between the two parties, the news has to be considered property,
“irrespective of the rights of either as against the public.”
There are two forms of property rights:
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in rem – rights against the world
in personam rights against just the other party
The court provides AP with the exclusive right to the commercial exploitation of the
news gathered for x hours… Creates a property right in order to effect an efficient
business relationship.
Brandeis’ Dissent  agrees there needs to be a remedy, but hints that maybe
adjusting copyright laws was the way to go?
Victoria Park Racing and Recreation Grounds Ltd. v Taylor
Racetrack’s neighbour constructed a platform to view and report on the races over
the radio. Is there property in the spectacle? Distinguish from INS v AP in that Taylor
was reformulating the story rather than simply copying it.
Ziff Says: the real difference between the two cases is to what extent the courts are
prepared to extend property law vis a vis unfair competition practices.
Moore v The Regents of the University of California – Cell Line Case
Moore files two causes of actions, one based in in personam rights and the other in in
rem rights. The court upholds a demur on the in rem action for Conversion, but
allows the in personam claim against the doctors for a fiduciary breach – precludes
any downstream researchers.
In dismissing the in rem action, the court denies the existence of property rights to
the cells. Conversion requires there to have been a chattel converted in the first
instance. Policy factors weighed against extending property rights – research ion
general would be severely impaired.
Dissent  Mosk J argues that this is a novel claim; the cell line is distinct form of
property and is unique in that it came from Moore alone. That said, dissent agrees
with policy considerations as stumbling blocks – but there should be no freeriding,
Moore needs to be dealt with accordingly.
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Numerus Clausus – Keppel v Bailey
Limits on the ability to ake law re land rights. Turns property rights into an almost
closed set of rights – novel rights can only be interpreted into law by the courts, not
by statute. Reduced number of rights leads to increased efficiency / reduced costs
for all involved. Too many rights leads to dysfunctional fragmentation (anticommons). Additionally, once you create a new right it becomes entrenched.
Class and Property
Rationales for private property – do some perpetuate inequalities?
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Freedom  those w/o private property are excluded and therefore left to
make do with public spaces – the things we do in our homes have to be done
in public
Personhood rationales  independent of everything but the rights of an
individual as a person
Efficiency rationales  indifferent to inequalities, bargaining required some
to win and some to lose
Labour theory  property goes to those who satisfy the labour criteria
A lawyer dedicated to poverty issues involves themselves in
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Access to justice issues
Constitutional issues – basic rights and Charter cases
Landlord / tenant relationships
Victoria (City) v Adams – Property and Section 7
Bylaw invokes a ban on taking up temporary abode in public spaces. Section 7
allows for protection of life, liberty and security of person – right not to be deprived
except in accordance with principles of fundamental justice.
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A Charter case requires you show at least one of these is infringed
State must show a violation is saved by section 1 of the Charter which
permits an appropriate infringement
Homeless proved every count of their claim
Is this a property rights case? Court says it’s not, but can it be understood as one?
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Section 7 doesn’t protect property rights
There’s an antipathy to enshrining property rights
While the Court was not creating a property right the State felt that it had a
right to exclude from public spaces that was more broad than that which the
court upheld
Public property, therefore any state actions in regulating its use invokes
Charter protection.
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In precedential decisions, Court has decided that the state cannot act as a
private owner would in terms of right to exclude
Homeless end up gaining a right to set up temporary abode, a license perhaps
to set up such an abode
A huge part of the case was the simple fact that there was not sufficient space
in the shelters, city can apply to have the judgment altered if the situation vis
a vis the shelters is remedied
Statutory Protection of Property
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Constitution Act, 1867  division of powers give both fed and prov the power
to legislate on property
Constitution Act, 1982  s. 35, protection of aboriginal property rights…
that’s where it stops
Canadian Bill of Rights  s. 1(a) protects life, liberty and security of the
person and the right not to be deprived thereof… problem is this only applies
federally
Alberta Bill of Rights  same language, but toothless
Alberta Personal Property Bill of Rights  explicit protection, but very easy
to legislate around
Charter of Rights and Freedoms no explicit protection, although some are
property adjacent
Protection of Property from State Confiscation
Expropriation Acts
Both federal and provincial governments have expropriation capabilities, but
they’re not in the business of expropriating w/o compensation.
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Surfacce Rights Act is comparable, allows for mineral rights. Government can
grant those rights and the right to access the land in order to extract.
Common Law
Manitoba Fisheries v R
Adopting rule of statutory construction that states unless the words of a statute
clearly demand it, a statute is not to be construed as taking away property w/o
compensation.
International Protection – NAFTA Article 11
Art. 11 protects private investors against expropriation of their property by foreign
state. Canadian statutes cannot override this treaty obligation – perhaps quasiConstitutional?
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Federal government is signatory, it’s liable for all NAFTA obligations
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Unlike many other international agreements a private company can indeed
sue under NAFTA provisions
Provincial breaches result in federal liability – Fed could invoke Power of
Disallowance s. 10 BNA Act or just dock transfer payments?
American: Penn Central / Kaiser Aetna – Regulatory Takings / Constructive Taking
American jurisprudence is more complete in this area, Constitutional protection
apples to federal and state governments. Two levels of analysis when constructive
takings issues arise
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Ad hoc  case by case basis
o Penn Central / Kaiser Aetna – Penn Central Test
 Economic impact of regulation
 Interference with reasonable investment backed expectations
 Character of the government action
o Courts have had difficulty applying such tests
Per se  categorical takings
o Any direct / physical occupation or invasion, even if minimal is seen
as a categorical, per se taking
o Where a regulation drains the property of any economic benefit, this
can be said to be a regulatory taking – Scalia J  problem here is that
100% economic wipeout is a tough standard to meet
o Government police power, if goal is to deal with a noxious use, there is
no taking – a noxious / unnatural use of the land is not in the bundle
of rights
o If a taking is in accordance with background principles of property
law and nuisance then the taking is not compensable. Also not
compensable if consistent with traditional limitations on property
rights
Canadian Jurisprudence
Mariner Real Estate v Nova Scotia
Harder to establish a regulatory taking in Canada – test is different
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Must be an acquisition by the state
It’s not a matter of property’s economic value, but of denying reasonable use
American ad hoc test results in a sub-set under Canadian rules once there’s an actual
acquisition by the State
Canada-Peru FIPA, 2008
FIPA = Foreign Investment Promotion Agreement – Article 13(7) deals with
expropriation
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Neither party can nationalize or expropriate a foreign investment either
directly or indirectly through measures that amount to a regulatory taking
Codification of Penn Central test  maintains the ability of government to engage in
legislation that does not amount to an indirect expropriation
Boundaries
Land: Airspace and Subsurface Rights
Cuius est solum eius est usque ad coelum et ad inferos
Starting point is the maxim  “up to the heavens, down to the fires of hell,” however
the maxim cannot be taken literally, certainly not with airspace rights
Above Surface
Not to the heavens, but maybe close? Up to the point that you can actually or
potentially make use of the possessory right.
Didow v Alberta Power Ltd.
“a landowner is entitled to freedom from permanent structures which in any way
impinge on the actual or potential use and enjoyment of land.” Land based
intrusions into the airspace will be considered trespasses
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Rationale  balancing of competing interests
Ownership zone includes possessory right of the airspace above one’s land
In Didow the plaintiff requested a declaration that he owned the airspace. He could
also have sought damages or an injunction. If damages had been awarded, basically
would’ve amounted to an expropriation. Case goes all the way to the SCC, AB Power
loses but the AB gov’t passes legislation overriding the common law anyway.
There’s insufficient Charter support for protection thereof.
Authorson v Canada
Further evidence of the impotence of Federal Bill of Rights. Veterans sued
government under Bill of Rights. Government said sorry… we’ll do better next time,
passed a statute overriding availability of civil remedies.
Below Surface
Edwards v Sims – Great Onyx Cave
The cave extended from Edwards’ property through a third party’s and then on to
Sims’. Court rules that all the parties involved own rights to the soil beneath their
property.
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Dissent is more concerned with the fact that the plaintiff is being shady, only reason
he’s suing now is because of the planned Mammoth National Park – hoping to cash
in. Mr. Edwards had put all the work into improving the value of the cave. Mills
Logan was heavily involved in the Mammoth Cave project – didn’t like what plaintiff
was pulling. Held that only those who have an entrance to a cave such as this should
have possessory interest therein.
Coasian Economic Perspective on Airspace Rights
As long as two parties are free to bargain, the use of the airspace will be determined
by relative values – the determined use = most efficient. Markets cannot function
w/o a clear demarcation of property rights, if we want to put resources to use you
have to identify the person to negotiate with (owner).
Transaction costs, if prohibitive, defeat market mechanisms, when the number of
parties involved increases the costs rise exponentially. Additionally, noncooperative / strategic behaviour can impede market mechanisms. How do you
assess damages? Basically in the Didow case, damages would be a license to
intrude… who gets to decide how much the intrusion is worth?
As a general rule, the Didow case is a good precedent. It seems likely that the person
who owns the land will value the airspace rights most – this assumption doesn’t
hold for higher altitudes though, there’s no reason to assume that the surface rights
holder values 35,000 feet ore than an airline company does.
Mines and Minerals
Right to mines and minerals are those that were explicitly or implicitly intended to
be included in the land grant.
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Section 56(1) of Law of Property Act  lists all kinds of minerals, inexclusive
list though. Perhaps these are the intended mines and minerals?
Section 57 includes clay and marl and section 58 sand and gravel
o For the most part these things are considered to be minerals
o If you own Blackacre w/o mineral estate, you can still remove clay,
marl, sand and gravel – these things can be exhausted through surface
operations
Section 1(1) Mines and Minerals Act defines minerals
o Means all naturally occurring minerals – means is an exhaustive term
o This definition is only good for the purposes of the act itself however.
16
Mediating competing rights, if you own Blackacre and sell the mines and minerals
while retaining surface rights there is an implied inclusion of an easement under
common law. The mines and minerals are fairly useless w/o any way to access them
/ exploit them. This common law implication is difficult to apply, how much access
is implied?
As a result, legislation has been introduced – Surface Rights Act deals with questions
of access. Once again, includes a definition that is good for the purposes of the Act.
There are two ways you can gain access to the minerals, either by consent of the
owner or by a declaration from the Surface Right Board, which will invariably
include compensation for the easement granted.


“Unless the grant, conveyance, lease, license or other instrument provides a
specific separate sum in consideration for the right of entry of the surface.”
Rights of entry / access have to be set out in a specific separate sum in any
land grant. If the grant lacks that specific separation, there’s no good consent.
Emphasizes the awareness of the access rights so companies can’t pull one
over.
Lateral Boundaries
Bounded by Land
Generally governed by land titles – Western Canada was surveyed and divided in
one big shot… Dominion Land Survey established meridians and range lines.





Meridians run north / south
Ranges divide meridians
Intersected with township lines creating little boxes called townships
36 Sections within a township
Further divided into legal subdivisions, 4 per quarter section
o Numbered started at SE corner and snaking up to 16 in the NE
Dominion Land Survey has been overlain with a more complex system of division –
Alberta Township System (ATS), Land Title System interplays with ATS creating
Torrens system
Torrens System


Torrens system allows for dealing with multiple interests in land through
liens, leases etc.
Prior to Land Title System (LTS) - whoever owns the property owns it, if sold
to a bonafide purchaser who truly believes he’s dealing with the owner and
takes possession through a forged deed, there’s no guarantee that he will
retain title.
o If a rogue tenders the forged deed and the innocent BFP acquires it by
paying good $$$, the original owner is still entitled to the land.
17



o The duped BFP can go after the rogue for his $$, but not the true
owner. At common law, the risk of a bad deal is on the purchaser
o Must show chain of title going back 40 years- even if the paper trail is
there, the purchaser still loses if the true owner comes out the
woodwork
System of registering land regulates the process. You have to register your
interest in the land, first gen of LTS didn’t fix the problems, Torrens System is
the second generation
o If you acquire property relying on a Land Title Certificate the
government certifies the validity of title.
o If there’s a mistake or a fraud, the Torrens system switches risk back
onto the true owner – protects BFPs
Torrens system has three cardinal principles
o Mirror Principle
 Document should be a mirror of all interests on title
 Register your interest or risk losing it
o Curtain Principle
 Once the Certificate of Title is issued, a curtain falls on past
transactions – you only need to worry about top title
o Net Principle
 If a loss is suffered by the operation of these principles the
party harmed is entitled to a claim against the fund
There’re a number of exceptions, one of which being for leases less than
three years
Bounded by Water
Examples of Letters Patent


All that portion between this meridian and that range not covered by water
o Title excludes the beds by expressed language in the grant
Where the letter patent is silent
o Section 3 of the Public Lands Act  presumed title of beds and shores
lies in the Crown unless there’s a specific conveyance
Accretion
Assume a lake recedes, the bed did lie with the Crown originally, but accretion
principles apply




If the accretion is slow / gradual, then it belongs to the owner
If evulsive / sudden then title remains with the original owner – generally
the Crown
Cannot be by your own agency – you can’t slowly accrete your own property,
if someone’s damming upstream, that’s a different story
Rapid loss of property due to rising water levels  once you have a definable
shoreline, it belongs to the Crown
18

Chain of property gains are broken by evulsive changes
o Accretion over time, then a sudden evulsive change severs the
accretion to the owner’s land further accretion goes to the Crown
What if the grant contains a statement along the lines of “containing 150 acres, more
or less”

Define the 150 acres in relation to a shoreline – presume a natural marker
can be taken to be more meaningful than any other marker
Fixtures
What comes with a property when you buy it?



Rights above and below
Specify in contracts whether certain things do or do not come with the
property
Chattels aren’t automatically contained with the property unless they’ve
become fixtures
Fixtures Test (objective intention to affix)


Involves degree of annexation
o If attached, then presumptively a fixture
 Slight  easier to rebut the presumption
 Firm  harder to rebut the presumption
o Unattached then presumptively not a fixture
Object of Annexation
o Better use as a Chattel  affixed for the purpose of making better use
o Improvement of the realty  affixed for purpose of improving realty
Tenants Fixture – special rule



Book case fixed to the wall – for the better use of the chattel rather than
improvement of the realty
Renting a space for a business – if the tenant affixes something that becomes
a fixture you lose your title to it
o No rational tenant would wish to do such a thing – so you make an
agreement that you can detach fixtures upon termination of the lease
Tenant’s fixtures may become part of the property subject to the tenant’s
right to restore the fixture to its chattel status
o Qualified right however
 Inability if it would cause substantial damage
 Doesn’t apply to all fixtures
 Requirement of timely removal
19
Security Interests




Bank will generally take an interest in the land when issuing a mortgage
Bank is the lender and mortgagee
Homeowner is borrower and mortgagor
o Mortgagor gives land interest to mortgagee in return for the loan
There can be equivalent security interests against chattels as well
o Personal Property Security Act
La Salle Recreation Ltd. v Canadian Camdex Investments Ltd
Dispute over a security interest in carpets – had they become affixed so as to kill the
security interest as a chattel? While the ruling here held it was affixed, has since
been changed as the ruling woul always hurt the provider of securitized chattels.
The carpets were registered as a chattel security, but not in the Land Titles Office –
you have to register in LTO in order to protect your claim to a securitized chattel.
The court ruled that the carpets were only slightly affixed, but affixed nonetheless –
five factors:





Plywood floor was unsuitable for use in a hotel
Not proper use of the carpet if unattached
Required for completion of floors
Carpeting is generally replaced periodically – points to less than firm fixture
Used carpet can be re-sold though
Stack v Eaton – Perfected Test




Articles no attached otherwise that by their own weight retain their
designation as a chattel.
Articles affixed even slightly become fixtures unless explicitly intended
otherwise.
To demonstrate the prima facie nature of the chattel becoming a fixture
revolves around the degree of annexation and purpose thereof
Intention of the person affixing the chattel is relevant only inasmuch as it can
be presumed from object and degree of annexation
Haggart v Brampton (Town)
If the object of annexation is to improve the usability / value of the premises and the
chattels are affixed even slightly in such a manner as to show intention that it be
fixed permanently then it may be assumed the chattels have become fixtures.
Diamond Neon Manufacturing v Toronto Dominion Realty Co.
Clause in the agreement to lease the sign: “Display shall remain the property of the
owner and shall not by reason of attachment to any realty be deemed a fixture. Upon
termination of this lease, the Owner may remove this display.”
20
Can parties prevent an item from becoming a fixture by contract?




No they cannot
It’s a question of objective intention based on factors set out in three cases
above
There’s no problem in agreeing that the sign could be removed, but the
plaintiff lost its right to removal when it didn’t remove it in a timely fashion
when the party with whom it contracted terminated its lease
Sign company had a relationship with the tenant and only the tenant for
removal of the sign. They didn’t remove it in a timely fashion after the expiry
of the lease and therefore lost their rights to the sign.
Transformation of Chattel Ownership
Either by intermixture, combination, commingling or through a combination of
chattel and labour. Three general scenarios:

Transformation of a chattel through labour
Glencore International v Metro Trading – Commingling / Intermixture of Fungibles

Intermixture / confusion of fungibles
o How intermixed must the things be, does it have to get to the point
that you can’t tell whose is whose?
 Problem here is one of practicality – tolerance for
disaggregation may be different depending on the chattel
involved
Liquids flowing together, in this case oil of difference qualities stored in a single
facility – given the wrongful intermixing, how do you allocate the resulting product?
In early common law cases, the victim gets everything, punitive in effect…


Indian Oil  intermixture of oil of similar quality
o Even wrong-doer is entitled to some recovery, allocate as close as
possible to the portions put in – any allowances or discrepancies
should go against the wrong-doer
Glencore v MTI  problem is there was a massive shortfall in what was
supposed to be in the facility and what was actually there
o Oils were of different quality also, so how do you allocate to someone
whose oil was of lower quality than the resulting product?
o Court used the value of the oil put in and the value of what was left
and allocated accordingly.
McKeown v Cavalier Yachts – Combination of Chattels
How combined is too combined? A problem of title arises only when things are too
connected to resolve otherwise than giving the combined chattel to one party or the
other.
21


Principal chattel is the one that receives accession, but how do you
determine the principal chattel?
o Based on value?
o In McKeown value is proposed as the basis, but another idea might be
the function of the chattels – which is primary and which is auxiliary?
 Putting expensive gold on a guitar – the gold might be worth
more, but the guitar remains the principal chattel
Rules come from Thomas v Robinson
o Injurious removal  where the chattels can’t be separated w/o
causing injury to one, the other or both…
o Separate existence  complete incorporation of a chattel into the
whole so as to extinguish the nature of the ancillary chattel (brick in a
wall)
o Destruction of utility  even if removal can be effected w/o damage
to principal, would removal destroy its usefulness as such
o Degree and purpose of annexation  flexible / empirical approach so
that articles intended to remain permanent parts of another pass on
accession test – others might remain accessories
Who should get the yacht? Ordinary rule is that the owner of the principal chattel
acquires accession, provided that the owner is not willful – that is, the owner is not a
wrong-doer who added someone else’s things to their own.


Principal chattel – the hull – is worth $1700 bare, but with the materials and
labour added by the builder it’s worth $24,000. If things are just based on
value, then the builder should get the yacht.
o Accessions were added gradually to the principal chattel
o At the end o the day, time and $ has gone into improving the principal
chattel – the yacht goes back to the owner though
o Plaintiff is ordered to pay $$ to get the yacht back – try and make
things square, rules of equity
Concepts of restitution  in this kind of situation the plaintiff can be asked to
make restitution in two situations
o Where the work was done and freely accepted
 If someone does something that you didn’t ask for but freely
accepted then you have to pay for it… acquiescence as with
contract law
o Where there’s an incontrovertible benefit
 Judge says there was an incontrovertible benefit to the owner
of the yacht. The owner wanted the improvements made as
they benefit the value of the yacht
 Despite the fact the work was done by mistake, there has to be
some kind of restitution to the builder for the added value
22
Gidney v Shank – Restitution as a remedy for unjust enrichment
Claim for restitution due to unjust enrichment – canoe stolen from someone and
sold on to a third party who made massive improvements to it. The canoe was
retrieved and given back to the original owner – improver sued for restitution under
unjust enrichment (related rule to equity).



Doctirne fails… there was no free acceptance. Canoe goes to owner, no
compensation
The benefit to the original owner was not incontrovertible
Accession wasn’t argued before the court
If it had been, perhaps the same analysis as in Cavalier Yachts
Concept of Possession
Relevance of Possession
Possession has always been important, historically at common law there would be a
ceremonial transfer of a clump of dirt (or something similar) signifying possession
(sometimes called a feoffment). Even against a wrong-doer, possession is title. You
could have stolen the thing, but if it’s then stolen from you your right is better.
Elements of Possession
Animus (mental element of control)



Has to be an intention to possess something to the exclusion of all others
For criminal law, there’s a higher standard of animus to determine
possession
Flexible idea of animus – depends entirely on circumstances
Factum (corpus / physical element of control)


Capacity to control is important – even if someone takes your jacket you have
rights if control (you can ask for it back)
Some element of time required within control
o Popov had the ball for just enough time to assert a competing right of
possession
Popov v Hayashi


Intention for MLB to abandon balls hit into the stands
o Subjective indifference to the fate of such balls from both the League
and the teams involved
The ruling is completely novel, despite what the judge would want us to
think
23
o Popov took significant, but incomplete steps to obtain possession.
Therefore assigned a pre-possessory right which entitles him to
conversion claim
o Full possession is interrupted by a third party – Hayashi is the first to
obtain full possession
o Splitting in half acknowledges the competing interests – Hayashi is
not regarded as a wrong-doer
Wild Animals
Possession in context  wild animals were the subject of limited property rights. At
common law there could be no “absolute property” only “qualified property” in fire,
light, air, water and wild animals.


An action for trespass or conversion would lie against a person for taking a
wild animal that had been tamed
o Someone couldn’t take young animals that weren’t old enough to
escape. Additionally, no one had right to hunt on your land.
Animus revertendi  animals with a tendency to return, wild or not, could fall
within a property right
Pierson v Post
Post was hunting a fox, Pierson was a saucy intruder who captured it while Post was
in pursuit. The court held in favour of the saucy intruder



Hot pursuit of a wild animal does not entitle one to possession
Pierson was actually able to take possession – “manucaption”
Could something less than manucaption have counted?
o Mortal wounding
o Setting a trap
Newfoundland Seal Hunt
Practice emerged of finding seals, killing them and leaving them on an iceberg –
moving on to the next ‘berg… process would continue and the hunters would make
their way back collecting as many corpses as they could and leaving the rest.
Disputes tended to arise when other boats took dead seals of someone else’s pan.
Clift v Kane – Right to Salvage
Majority  if seals were captured and killed by ship #1, ship #2 has a right to
salvage so long as there’s an objective likelihood that the pan / seals would be lost
Dissent  not a right to salvage, but and unqualified right
24
Doyle v Bartlett – potentia recuperandi
So long as the killer of the seal has the animus revertendi (punny) coupled with the
potentia recuperandi no one has a legal right to interfere. The moment then killer
abandons pursuit of the dead animals either from inability to reach them or store
them, then they become common stock and can be retrieved by anyone.

This rule is more economically efficient – rule of deemed abandonment
o If there’s no subjective intention to abandon – the seals can be
deemed abandoned so long as the killer loses potentia recuperandi
o If the second boat doesn’t have any right to recoup dead seals free
from compensation, then the first pan would go to waste and ship
would go on to collecting its own
Potential Tragedy of the Commons

Under rule #1  ship #1 has no incentive to be prudent about how many
seals they kill, they can kill more than they can hold and leave the rest for a
second ship and still get paid a portion thereof
Law of Finding


Basic rule  finder has rights good against all but the true owner, first finder
has rights against subsequent
Rationale  if there was no such rule, it would allow for a free-for-all
situation where people could take things with impunity
Possession as Title

Two key ideas
o As against wrong-doers possession is title
o In Canadian property law, title is a relevant term. Who has the better
right between the parties before the court, this is so even if there’s
someone out there with a better right (true owner) that’s not before
the court.
Olinek v Trachuk - General Principles
If you assume all parties asserted a claim, then you rank their possessory rights
according to principles of finding:



First finder has rights against all but true owner
Is there de facto possession through occupation of the land / easements,
leases etc.
If you find something the in course of employment then you find it for the
employer  brings in another question about who counts as an employee…
independent contractors?
25
Bird v Fort Francis - Relevance of Wrongdoing
Trespasser found money, turned it into the Police, sued successfully for recovery. If
the true owner had come forward, that right would trump others.
Parker v British Airways – Manifestation of Intention
Found a gold bracelet in the BA lounge. BA manifested no intention to control such
things – the finder won. Even w/o manifested inteiton to control, occupier will
prevail over trespasser – public policy avoidance of free-for-all.
Adverse Possession
If you’re in occupation of someone else’s land for long enough you can become
completely immune from suit for wrongful occupation. AP extinguishes true owner’s
title. Source of AP is the Limitations Act:


Teis v Ancaster (Town)  ON Act: right and title of a person who could have
sued and did not is extinguished when the limitations period expires.
AB Limitations Act s. 3(1) is less clear
o (a) Two years from the time you found out or objectively should have
known (the facts were discoverable) (b) up to a ten year statutory bar
o Section 3(4)  1(a) doesn’t apply where a claimant seeks a remedial
order for land – land has a flat ten year limitation period
o There’s no extinguishment provision in the revised limitations act, we
know you can’t sue for a remedial order after ten years but what
happens to the title?
o Section 3(6)  added to the Act, the reentry of a claimant to reassert
title is effective only prior to the expiry of the ten year period
Rationales for Adverse Possession
Just because you’re not using the land the way someone might want doesn’t mean
you’re not using it at all – leaving something vacant in order to cash in later on?



Common law of conveyancing, the risk is on the purchaser – Torrens shifts
that – AP is a remedy to the risk borne by the purchaser, statute bar on any
titles floating around out there
In Torrens system, the purchaser can rely on the top title. Many Torrens
systems have done away with AP, but in AB Torrens is not a guarantee as to
boundaries. AP remedies potential errors in the system
For limitations in general – doesn’t seem reasonable for claims to be floating
around indefinitely, over time memories get blurry, evidence gets lost…
26
Rules for Adverse Possession



Clock restarts every time the property is sold – that is, if the TO sells while
being squatted on, purchaser can rely on torrens system – this occurs by
operation of the torrens system
Squatter can file a caveat which will notify the true owner they’re being
squatted on, but until ten years passes their rights are inferior
Section 3(8) of AB Limitations Act  if you receive the land as a gift, you
assume the position of the original owner in relation to the ten year period
o Implication is that if the land is sold, the clock does restart – implied
exclusion
Keefer v Arillota
Neighbours arguing over a driveway between two properties: Keefers argued that
they’d gained adverse possession by parking their vehicles on it and shoveling /
maintaining it. They had an easement, but they argued that their use exceeded the
non-possessory right they had in this easement – but court ruled that this isn’t
enough.



ON Court uses test of inconsistent use
o The squatter’s use of the land has to be inconsistent with the intended
use of the true owner
o TO’s use of the land can be in any manner they wish – AP cannot occur
where the adverse use is not inconsistent
o AP must also have the animus / intention to exclude or deprve the TO
of the uses they wish to make of the land
The court held that the garage the Keefers built was inconsistent, but that
there was no AP of the rest of the property
If they had placed the garage on land that they thought was their own, you’re
entitled to a lien on the land to the extent that you’ve increased the value OR
the land can be transferred for payment (or not) if that seems to be the more
just resolution
Teis v Ancaster (Town)
Municipality acquired a piece of land, used it as a ballpark. Both Teis and the town
felt that they owned the land, the City wanted to appropriate it. They’d been farming
a portion, but the City felt that there was no inconsistent use because the city didn’t
really want the land up ‘til now. While AP was open and notorious how can there be
inconsistent use if there was no knowledge by either party that they were adversely
possessing the land…
Generally must be actual possession by the squatter, but there’s an exception
27

Where a squatter enters upon the land under colour of title then actual
possession of part of the property will allow them to be in constructive
possession of the rest as described in the faulty title.
o If there was a fence enclosing the area the Teis’ had been farming,
then they’d be in AP of that portion alone
o However, you used the land thinking it was yours because of a faulty
title then you can be given constructive title of all the land
Adverse Possession of Chattels
O’Keefe v Snyder
Georgia O’Keefe wanted her painting back after quite a long time. When were the
actionable events discoverable?


Limitations begins when the first wrongdoing occurs, even if there are
different subsequent wrong-doers  allows for tacking
Old Act didn’t allow for tacking, clock restarted every time the chattel
changed hands.
Gifts
Equity will not perfect an imperfect gift – must have all three elements.
Elements
Three elements of gifts:



Delivery = transfer of possession
Acceptance can be assumed
Physical manifestation of transfer of possession must occur in some manner
Types of Gifts


Inter vivos  gift between two living people
Donatio mortis causus  halfway btw IV gift and a testamentary one. A gift
made in contemplation of death, if the person doesn’t die then the gift is
erased
Delivery
Re Bayoff Estate
Giver of a DMC can revoke up to the time the giver dies. In this case, the gift was
found not to be a valid DMC.


Gift doesn’t take place until death – if he doesn’t die then it goes back
In this case, there was an intention for the gift to be immediate and certain,
not conditional on death – therefore, intended to be an IV gift
28

Giver of an IV gift must have
o Intention to donate
o Acceptance of the gift
o Along with delivery  delivery is at issue here
Delivery can be symbolic or constructive (as well as actual)



Does the key to the safety deposit box count as symbolic?
Giving the key and doing the paperwork was held not to suffice as delivery
Constructive delivery can suffice, symbolic is FAR less likely
o Symbolic is something like a photo of the thing
 A deed is symbolic and is valid because it’s under seal
o Constructive is means of control (like a car key?)
In this case, there was sufficient delivery for a DMC, but the court had already held
that it was an IV gift, not a DMC. Generally situations involving DMCs are difficult
ones so the courts usually apply a relaxed standard. The gift was eventually
perfected as Miss Simard became executrix of the Estate and therefore had control
of the deposit box.
Nolan v Nolan & Anor


Sidney Nolan  famous painter
Jinx Nolan  his daughter, claimed that her father had gifted some paintings
to her mother that hadn’t been delivered prior to her death
o Had to be shown that the paintings were part of her mother’s estate
upon her death.
o Was there an IV gift from mother to daughter?  court rule there
wasn’t, because the paintings were not delivered and there were no
words / evidence of intent
o Was there an IV gift from Sidney to Cynthia (mother)  the paintings
were never in their house… no transfer of possession.
High Court in Austrialia rules there’s a statute bar anyways
Doctrine of Estates
An estate refers to a period of time  an important element of English feudal land
law, now adopted into CDN. Doctrine of Estates governs the nature of land-holding,
determines the duration of land-holding. At common law there are three main
categories:



Freehold
Leasehold
Copyhold
29
Freehold Estates



Fee Simple  most important
Fee Tail  effectively non-existent
Life Estate  some continuing utility
Why confer indefinite ownership?



Advantageous in that it’s a device that induces a mortal landowner to
conserve natural resources for future generations
Fee simple harnesses selfishness in favour of altruism toward future
generations
Inherent efficiencies of perpetually private rights have led to their
spontaneous appearance across the globe
Creation and Transfer of Fee Simple



“To A and his heirs…”  classic expression of the magic words
o “To A…”  words of purchase
 Same language applies to gifts – functionally such words are
words of receipt
o “… and his heirs.”  words of limitation
 Reference to the heirs means that the estate continues until
there’re no heirs left to receive it
 Heirs can be designated in a will or under Intestate Succession
Act – applies when you die w/o a will. If no will and no heirs as
per the Act then escheat comes into play
Rights of the Heirs
o If A sells to B then the estate is transferred to B and his heirs
o If A is still on the land, wants to sell and heirs say no… what happens
 Heirs have no rights to prevent the sale of the land
 The heirs measure the duration of the estate – at most they
have a hope of succeeding to the property (space
successionis)
 When someone’s alive there are no heirs, technically – there
can be heirs apparent…
Grant (inter vivos) vs Devise (transfer by will)
o “I grant Blackacre to A”  words of purchase but no words of
limitation – common law requires the magical words
 Grant to A w/o words of limitation confers a life estate
 Doesn’t matter at all if there’s a contrary intention
Modern Setting of Transfers
The modern setting is governed by legislation  Law of Property Act section 7
30



“No words of limitation are necessary in a transfer or conveyance of land in
order to transfer any and all title unless contrary intention is expressed….
Wills and Succession Act  same rule applies in regards to will and
testaments – “… unless the court in interpreting the will has a contrary
intention…”
Presume the largest estate possible  reading will yield to a demonstrated
contrary intention – Rule of Construction not a Rule of Law
Language of Creating Life Estates





Gift to A…
o At common law – life estate
o Now – fee simple
To A for life…
o Construct a life estate
o Other word formulae are possible
To A for the life of B…
o Potential trust situation
o B is the measuring life
o B has no interest – just the clock on the wall
To A for life…
o Assume A transfers a life estate to B
o What does B get?
 Life estate for A’s life
 B dies, A’s life estate can be devised by will
Repugnancy  you can’t give two conflicting / inconsistent gifts and expect
the court to give effect to both
o Three options in those instances
 Give effect to the first and reject the second as repugnant
 Life estate to the first and interpret intention for remainder
 Life estate coupled with an added power to deal with the
remainder SHORT of ACTUAL ownership
Re Walker
“I give and devise unto my said wife all my real and personal property and, should
any portion of my estate still remain in the hands of my said wife at the time of her
decease undisposed of by her, such remainder shall be divided as follows…”



Wife received a fee simple, remainder was treated as void
Court upheld what they called the DOMINANT INTENTION
When dealing with wills and such there’re normally two questions to ask
o What did buddy mean (testator’s intention)
 Rules of construction or law might give us defaults or a push in
the right direction
o Can you give effect to said intention
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No necessarily what the testator says goes… sometimes the
court can’t or won’t give effect to unclear or wrongful intention
o Seemed as if he was trying to give the same thing away twice here…

Re Taylor
“I give, devise and bequeath all my real and personal property… any estate of which
she may be possessed at the time of her death is to be divided equally between my
daughters…”


Obvs intended a life interest to the widow coupled with an ability to
encroach
Doctrine of precedent is not always all that helpful when interpreting wills –
the testator’s intention might not be exactly the same
Christensen v Martini
“I give to my wife… for her use… when she no longer needs said property it should
be given to the Christensens…”

Wife got a life estate w/o power of encroachment
Fee Tail
Historically, the trick was to keep these massive family estates in the hands of the
family… could only be inherited by children, not uncles or whatnot. You could define
the fee tail along gender lines, you could sell the fee tail interest for your own life,
but once you died the land ended up passing down to your children. Eventually
courts started to transform fee tails into fee simples through barring the “end tail”


“To B and the heirs of his body..." would create a fee tail
o The end tail would go back to the last owner and their heirs if you
died w/o any other possible heirs
Statutory Bar  section 9 of the Law of Property Act
o By statute anything that would otherwise create a fee tail would
instead create a fee simple – or a life estate depending on language
Achieving a fee tail today given they’ve been statutorily barred…


There are rules against constraining alienation though, so you’d eventually
run into trouble
You can however restrict alienation of a fee simple, but only to an
insignificant point…
Waste – Life Estates and Remainders
Tensions and questions tend to arise in these situations – what if the life tenant
wanted to change the nature of the property? For example, testator leaves a pile of
money to A for life, with the remainder to the kids.
32


A might have an incentive to spend the shit out of the $$
Presumptive interpretation though would ensure that there’s something left
to the remainder
o Capital must be left to the remainderers with the life tenant acting as
INCOME BENEFICIARY
o A cannot dip into the capital, but any income generated from
investments can be provided to the life tenant
Physical transformation of the property is governed by the Law of Waste




Ameliorating Waste  action that improves the land is still waste – why
does this make sense?
o Improvement can be subjective
o Courts are generally pretty flexible on this sort of waste
o Improving the property can increase the tax burden
Permissive Waste  failure to act in up-keeping the property
o The life tenant only has a responsibility when imposed in the grant
Voluntary Waste  Changes that decrease the value…
Equitable Waste  Serious malicious / improper destruction of property
o Law is very concerned with equitable waste – you have to expressly
absolve the life tenant
o Section 71 of the Law of Property Act
 An estate w/o impeachment for waste does not confer a right
to commit equitable waste unless such intention is expressly
found in the grant
Responsibility for maintenance (taxes and such shit) – what counts as income and
what counts as capital



Create a trust – to minimize the issues
Legal title is in the trustee – A and B have equitable title, but managerial
rights are given to another party who has been told exactly how to split
expenses and repairs
Mortgage Payments and Trustees
o Typically payments are a set amount based on a portion of principal
and a portion of interst
o A the outset, mostly you’re paying interest… over time you end up
paying more capital
o Property is devised to a life tenant and a single remainderer – there’s
a mortgage on the land
 In law, life tenant is responsible for the interest alone –
maintenance costs
 Principal payments are the responsibility of the remainderer
 Bank gets paid by trustee and the payments are divvied
according to the requirements set out in the trust
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Power v Powers Estate
Court uses the income / capital dichotomy to determine who pays for what


Lawn care / heating  tenant, that one’s easy
Insurance  gave the court some trouble
o General rule for allocation of insurance is to pay from income
o Use of the property can affect insurance – as can the type of insurance
o If insurance is for replacement of a furnace then it seems as if the
benefit goes to the remainderer and should be paid by them. If
however, the furnace insurance pays for maintenance and repair then
the benefit is to the tenant and is borne by them
Personalty and Dower
Homestead Legislation
Two types of life estates may arise out of operation of law regardless of landowner’s
intention. Under regime on inheritance, known as primogeniture. Not a full
inheritance by marriage, if wife dies husband inherits life estate known as curtesy –
if husband dies, wife gets dower.
English Dower Inheritance
Existed historically – Magna Carta styles – Ontario’s Dower Act was similar, but
repealed in 1978. “Could tarry in husband’s house for 40 days until dower was
assigned to her…” resulted in a 1/3 life interest.
Common law Dower was abolished in England in 1833 – received short time later in
Canada. Before this, however:



Surviving wife got dower – 1/3 life interest of husband’s estate owned at
ANY time during the marriage
Surviving husband got curtest – life interest in all lands owned by wife not
disposed of inter vivos or to children by will
Land sold by the husband during his lifetime remained subject to his wife’s
dower interest unless the wife barred her rights or, before marriage, the
husband conveyed his lands to certain “uses to bar dower”
Changed in Canada because it restricted free transfer of land and created interests
that weren’t shown on title. Such things hurt women and farm families.
Homesteaders could appropriate lands in the west simply by living on them for
three years – head of the family became the sole registered owner. Eventually
husbands began selling land off and keeping the $$ - women in ruin pushed for
change and got Homestead Legislation in four western provs.
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Alberta Homestead Legislation Dower Act
Controls disposition of FAMILY HOMES – can apply for court orders dispensing with
consent. What you need to get a court order dispensing with marital consent is dealt
with under s. 10(1) and (5) of the Dower Act.




S. 10(1)  cannot obtain consent for a number of reasons, can apply for
dispensing with… doesn’t have to be reasonable, the circumstances simply
have to exist to get you into court.
o Grounds to get you into court – show reasonableness and the two
sections have to be read together
S. 10(5)  Court can dispense with consent if it’s fair and reasonable to do so
S .7  affidavit releasing from dower right (more powerful instrument)
S. 9  involves a contractual situation where compensation / consideration
is required
o S. 9 is covered in s. 10(1)(e)
o Sign the s. 9 agreement, then s. 10(1) gets you into court where you
have to show it’s reasonable
o What then is the point of s. 9 – parties waive their rights to dower and
agree to execute a release under s. 7 which de-registers the land as a
homestead
Dower gives a freehold life estate – what about the personalty? Fixtures for sure,
and a life estate in the personalty.
There can be more than one homestead as well – if spouse dies with more than one
homestead the surviving spouse must elect / choose btw the two.
Dower Act and Consent
Assuming consent is required, in a sale of land there’s a two-step process:


Signing an agreement to purchase on the standard form - Certain number of
days down the road the property is formally transferred
Consent is required at the agreement for sale / purchase
The Act also seems to require acknowledgement – signed by a commissioner of
oaths. Although the Act seems to state acknowledgement as mandatory, as long as
the other elements are all in order, there’s no probs.
Forged or otherwise falsified consent – if you can clearly show that the consent was
fraudulent then there’s no consent. No transfer of land up to the point the transfer is
registered with the LTO.
Estates in Personalty
At common law – Doctrine of Estates is inapplicable to realty – chattels can be
owned outright. However
35




You can grant temporary interest in a chattel
Equity will recognize time-limited gifts of personalty contained in a trust
(stocks and bonds may be held by trustees for the benefit of successive heirs)
Dividing up of the legal title of personalty under a will is valid
o "Bequeath to A for life then to B absolutely…” raises three problems
 Title vests immediately in B with a usufructuary right A for life
 A becomes absolute owner with an executor gift over to B
 A takes property subject to trust in favour of B with either
executor or life tenant as trustees
Sometimes life estates in personalty are created by statute
o Life estate to Dower wife
 Despite qualifications – estates cannot be created over
consumable items that don’t form part of a stock in trade
 If owner dies w/o heirs or valid will, property becomes vested
in the Crown as bona vacantia or ownerless goods
 Similar to escheat and applies to realty and personalty
Aho v Kelly – Court Ordered Sale
How do you value a life estate? Property in the case is estimated at $295,000 –
Baumann J clearly there was a life estate with value, at common law it is alienable
but upon transfer becomes estate per autre vie with the grantee being the clock on
the wall.



Actuarial estimate of the owner’s life expectancy was 18.7 years
Present value of CDN savings bonds over that duration is a 5.75% yield
Deduct these findings from the reaminder interest and you end up with
$103,700 with the life estate being worth $191,300
Aboriginal Property Rights
Right to aboriginal title summed up in the Van der Peet case – “pre-soveriegnty
exclusive occupation.” Must be clear and plain intention to extinguish title – courts
will infer a very high standard. Title can be surrendered by treaty, most title cases
come out of BC where there’re fewer treaties dealing with title.
Delgamuukw
Aboriginal title differs from fee simple


It is alienable only to the Crown
Any use that is irreconcilable with the specific nature of aboriginal title
o That is, the purpose of title is to ensure the preservation of aboriginal
culture and such therefore use that is inconsistent with a traditional
manner is irreconcilable and is not allowed
36

o Similar to common law of equitable waste – but equitable waste is a
bit more severe… has to be malicious
Land is necessarily held communally
Aboriginal Title
Communal and inalienable except to the Crown, Parliament can alter things subject
to constitutional limitations. Should this change? It’s paternalistic for us to manage
and control Indian lands the way we do. May have made sense in a Victorian style
ethic, but today not so much. Problem is that to do anything about it would require a
Constitutional amendment.
Hernand Desoto argues that 3rd world countries where there are a large number of
ppl squatting on land – give them title to unlock the capital. The whole reason we
have private property seems to be predicated on involvement in the community and
personhood development.
Doctrinal Elements and Aboriginal Title
Pre-sov exclusive possession, how do you define exclusive occupation however?
Maybe try and examine it within the context of adverse possession?



Bernard tried this approach  what kind of occupation counts, especially
with nomadic groups that didn’t necessarily have any sort of exclusive
occupation
Generally don’t ask aboriginal groups to contest their title except as against
other aborigia=nal groups
Applying AP suggests the groups are wrongdoers…
How do you deal with hunter gatherer societies? Other rights for site specific
hunting and such are potentially available – time of contact rather than sovereignty
and the right has to be integral to distinctive culture. For title you have to
demonstrate sufficient possession in a relative or contextual manner.
Aboriginal conceptions of possession and exclusivity don’t seem to play into things
very much despite the fact that notions of territory / boundaries / trespass etc.
seemed to have been very much present in aboriginal cultures.
Charter and Aboriginal Title
Things changed pretty dramatically in 1982 – section 35 gave constitutional
protection to abo rights. Outside the Charter so no section 1, however restrictions
on rights can be made possible through the concept of justifiable infringement as
per Sparrow. Extinguishment is no longer possible, but infringement is… what
about a series of infringements that end up resulting in something of a de facto
taking? It’s tough to draw the line where infringement becomes extinguishment.
37
Origins and Nature of Equitable Interests
Principles of equity are just as enforceable as legal principles – equity moderates the
sometimes harsh results of the common law. Early courts of equity varied with the
length of the judge’s foot… however when the courts of chancery were merged with
those of equity stare decisis ended up taking a larger role.
Section 15 of the Judicature Act  “In all matters in which there is any conflict or
variance between he rules of equity and common law with reference to the same
matter, the rules of equity prevail.”
Language in moder trust law


Grantor = settlor
Calling something a trust doesn’t necessarily make it one
Use and Statute of Uses
The “use” was a feudal term under which legal title was held by one party for the use
of another. It developed into a way to avoid taxes so in came the Statute. Courts of
equity saw the legal interest as managerial.


To X in fee simple to the use of Y
o Before statute – X holds legal, Y equitable
o After statute - X is executed out,
To X in fee simple to the use of Y for life then the use of Z in fee simple
o Before the statute – X holds legal, Y has equitable life and Z has
equitable fee simple
o After statute – X is executed out, Y holds legal and equitable life estate,
Z holds legal and equitable fee simple
Fundamental purpose is to consolidate legal and equitable estate and thereby close
off the mechanisms allowing for the avoidance of various taxes. At common law
there was only one way to convey legal interest – through livery of seisin – similar to
law of gifts so some symbolic piece of land actually had to be delivered to the
purchaser.
How do we get to the current law of trusts from the Statute of Uses? Seems as if it
makes them impossible – modern trust law developed as a way to avoid the statute.


Statute only applies when someone’s seized of land – a 999 year lease avoids
the statute
A true trust situation is outside the scope of the statute, the point of it was to
get rid of mere shells… but when someone sets out a trust that includes a
provision for management and paying rents and profits, falls outside
o If trustee actually has duties, statute is not triggered
38
Exhausting the Statute



Example: To the use of X in fee simple to the use of Y in fee simple to the use
of Z in fee simple
o Statute is triggered, X is executed out, legal title to Y – equitable to Z
o Statute will only execute on full fee simple
To the use of X in fee simple to the use of X in fee simple to the use of Y…
o Works just as well as example 1
Unto and to the use of X in fee simple to the use of Y in fee simple
o Again, just as good as X is executed
Resulting Trusts
Two ways at common law to create these


#1 - Incomplete Disposal of Equitable Entitlements
o “To Acme trust in trust for the life of A”
 Remainder on termination becomes a resulting trust –
remainder goes back to the settlor
#2 – Gratuitous Transfers
o A purchases property and directs title be taken in the name of B
 Legal title to B
 Equity prefers bargains – not gifts… equity will presume no gift
was intended
 Presumed state of title – resulting equitable trust back to the
grantor
o You have to rebut the presumption
Presumptions of Advancement and Resulting Trusts



Husband purchases property in the name of Wife
o Presumption of an advancement
 That is, legal title is in W and equitable is also conferred
 This presumption has not necessarily been overruled by the
courts, but it’s unlikely that a court would apply these rules
inequitably
Wife purchases property in the name of Husband
o Presumption of a resulting trust – no presumption of a gift from
wife to husband
 Wife retains equitable interest unless the presumption is
rebutted
Section 36 of the Matrimonial Property Act
o Presumption of advancement does not apply to a transaction btw
spouses in respect of property – therefore presume resulting trust
o So – husband buys property in the name of Wife in 2013
 MPA only applies when making a decision under the scope of
the Act
39

Still presume an advancement unless the Act comes into play
Pecore v Pecore – Rulea Concerning Gift to Children
Common situation – father puts bulk of his assets into a joint account with his
daughter, writes the bank saying that the assets in those accounts were not being
gifted… simply there so she has access to to take care of him.
In his will he provides specific bequests for al the children and Paula’s husband with
whatever’s left over given to Paula and her husband. Things that aren’t listed in the
will, or are listed in an invalid will, go to the heirs of the intestacy – convention says
that you add a clause at the end holding that everything not properly disposed of
goes to… (known as a residuary clause).
Daughter and her husband divorce – dad dies. Son-in-law asserts a claim, arguing
that assets in the joint account were specifically not gifted over and should therefore
go back into the estate giving the son-in-law a claim to half of them.
Daughter asserts that survivorship on the bank account should take precedence
over the will. The joint account was set up the way it was in order to avoid taxes.
Legal title in the bank account was joint, equitable presumed advancement –
presumption of a resulting trust is appropriate, daughter can rebut the presumption
by showing the gift was intended.
Rule for gifts to children after Pecore


To minor child  presumption is advancement
To adult child  presumption is resulting trust (even if child is dependent)
In Pecore court used a pragmatic analysis – elderly parents often give their children
access to funds simply for convenience sake. Court ruled that the funds were not
gifted, but that the right to survivorship was so long as daughter can rebut equitable
presumption.
Constructive Trusts
Equity’s darling – advanced the interests of women… common law treated husband
and wife as a single entity – the man. Wife had some rights, but certainly not equal
ones. Women could have property conferred upon her in a trust.
Constructive trusts have expanded – you can file a caveat of notice on the title so
long as you actually have an interest in the land. Noone coming to title afterwards
can be a BFP without notice. Often used when buying property with a closing date oi
the future. So long as the title hasn’t been transferred:


The person filing the caveat has an equitable interest up to closing at which
point it becomes a legal interest, basically a constructive trust
Vendor is the constructive trustee – purchasers are the beneficiaries holding
equitable interest
40


Vendor can use the property and is entitled to rents etc. in other words they
can benefit form the land prior to closing
Purchaser has the equitable interest provided that equity will enforce the
sale with specific performance
Murdoch v Murdoch
Wife worked with her husband in various business ventures, wife worked the ranch
while the husband was away. Mr Murdoch was a bastard… eventually they got
divorced, in the course of the breakdown Mrs. Murdoch sought a interest in the
ranch based on a number of things including the $$ she put into it. Appealed all the
way to the SCC asking for the interest in land notwithstanding the lack of a resulting
trust. Equity should have provided her with one, but SCC dismissed the appeal. A
dissenting judgment wanted to recognize an interest through a constructive trust
that would respond to the unjust enrichment of the husband.
Unjust Enrichment
Claimant must show an enrichment of the defendant by the plaintiff – conferral of
said enrichment must have been to the detriment of the plaintiff and there’s an
absence of a juristic reason for the deprivation – that is, there are no grounds, in law
or equity, for the defendant to retain the benefit conferred by the plaintiff and takes
into consideration the legit expectations of both parties – proving a negative is
difficult to do.
Two step analysis:


Step 1  no relationship in an established category
Step 2  up to the defendant to show there’s a new juristic reason to
legitimize unjust enrichment
Applies in all relationships in Canada – failure in Murdoch to a gradual acceptance
of the concept in Pecktus v Becker. Both of these cases deal with unmarried or
divorced ppl is applies equally to all relationships (strangers or not)
Constructive Trusts and Unjust Enrichment
Remedial constructive trust stems from unjust enrichment cases as a REMEDY.
How do you determine the appropriate remedy and how much $$ is appropriate.



Value Received  easier to compute
o In the context of these cases, how much was the work worth on the
open market – how much would it’ve cost to have hired someone
Value Survived  lets take that value and treat it as an investment – the
whole has been improved (house is worth more)
Which one makes sense and when?
41
Monetary award should be considered first, but if it’s not appropriate then a
proprietary interest can be considered.
Joint Family Ventures
If you can show a JFV then establish a value received approach – more equitable.
Determining if a JFV exists:




Couple made mutual efforts, working collaboratively towards common goals
The extent to which their financial efforts were integrated
Actual intention to share (or not to share)
Priority they gave to the family in their decisions
What if the property value drops such that value received is greater than value
survived


Equity is flexible, the remedy chosen will be the more fair option – to both
parties, plaintiff and defendant.
Allowing plaintiff to claim value received when times are bad and value
survived when times are good is INEQUITABLE
Cultural Appropriation
Often comes up with respect to aboriginal discussions, not restricted to this
however. Important cultural elements appropriated into CDN society (museums and
such). Intangibles however like songs…
Nature of private property allows for personhood / group identification – these are
infringed when cultural elements are appropriated.
Bulun v Bulun
Aboriginal artist, got permission from his group to put something in a book – fabric
company reproduced it in fabric. He sued them, but they folded. Chief argued that
they had an equitable interest. We know that Bulun owns the legal right, but
equitable title could rest somewhere else.



Equitable interest could be held in trust for the group as a whole, this was not
the case however
Bulun had a fiduciary relationship to his abo group found in the group’s
customary law. Receives recognition as plugged into customary law.
o Duty not to exploit the art in a manner contrary to the group AND to
sue ppl that were doing wrong with the group’s stuff
Constructive Trust in the copyright creating an in rem right to the copyright.
42
Conditional Dispositions
Possibility to convey gifts, land and personalty with strings attached – tension btw
the rights of the present holder with the freedoms of disposition and the rights of
future holders. Basically, the right to attach strings comes into tension with holding
property that has strings attached.
Three Basic Modes of “Dead Hand” Control



Condition Subsequent – Cuts Estate Short
o “Grant to A in fee simple, but should the land be used for residential
purposes, then estate may reenter”
 It’s a condition subsequent because A gets the land right away,
but the estate has a right to reentry
 “Condition sub hovers like a dark cloud”
Determinable Interest – Marks the (Natural) End of the Estate
o “Grant to A in fee simple until the land is used for residential
purposes.”
 A has a determinable interest, estate retains a possibility of
reverter
 Determining events are like fence posts – theoretically the
fence post maps the extent / duration of the estate
 If the determining event occurs, no reentry is needed and the
estate automatically shifts back
Condition Precedent – Once Condition is Satisfied Title Springs Forward
o “Grant to A if and only if A gets an environment studies degree…”
 A has a fee simple subject to a condition precedent, doesn’t get
anything until they get the degree
 Acts like a bridge that has to be crossed
Reversions and Remainders


Reversion  to A for life
o Life estate is a particular estate – the interest is a particle of the fee
simple
o Grantor retains a right to reversion – that is when A dies the property
reverts back
Remainder  To A for life… then to B
o B holds the remainder
Both seen as present rights to future enjoyment – both are vested in interest
Defeasible and Determinable Interests

Defeasible interests  those that can be brought to a premature end on the
occurrence of a specified event. Grants a fee simple subject to a condition
43


subsequent.... grantor retains a right of re-entry as the event cuts short the
estate.
Determinable Interests  to A until A doesn’t need it anymore… a
determinable limitation brings about the natural end of the estate. The
grantor or his estate retains a possibility of reverter.
Difficult to determine btw the two  depends on the intention of the grantor
/ issue of construction.
o Sometimes it’s clear words of temporal limitation for a determinable
interest and condition words for defeasible ones.
Vested vs Contingent Interests and Conditions Precedent
Vested in interest  present right to future enjoyment
Vested in possession  presently entitled to enjoyment


Vested Interests are those without conditions or limitations
o The natural end of a prior estate is not considered a condition
therefore determinable interests are treated as having vested
Contingent Interests are conditional on the occurrence of a condition
precedent, the happening of which is NOT INEVITABLE
o Courts are loathe to imply conditions – adherence to promotion
of early vesting
o Strings tend to inhibit the free disposition of land… a basic principle of
property law
Interests that are vested in possession are fully alienable as are reversions and
vested remainders. Contingent interests are less clear, but can be transferred by will
or conveyed through an inter vivos gift. At common law a right of re-entry cannot be
created to benefit a stranger, although there’s no policy to prevent this happening
today. As a vested interest, reverter should be fully transferrable.
Phipps v Ackers – Early Vesting Rule
Gift over to A once they reach a certain age.

Rule says they get the land immediately and are divested if they die before
reaching the age specified. Age is treated as a condition subsequent, not a
condition precedent.
o Rule is attracted by “to children when they turn 21. If no child turns
21 then on to B.”
 The age restriction results in a gift to a class based on a
contingency
o Rule is NOT attracted by “to all the children of A who attain 21, but if
no child does attain 21 then to B.”
 Age rule is considered too integral to the gift, a gift to a
contingent class
44
Rule of construction  gifts to a class based on a contingency will attract the rule,
but a gift to a contingent class will not.
Precatory Words and In Terrorem Conditions
Conditions are purely precatory if they fall short of establishing conditions or
binding obligations (toothless tigers) – expressing wishes or hopes. Precatory trusts
are couched in polite language, but are binding nonetheless.
In Terrorem conditions are testamentary conditions on personalty that are not
intended to divest anyone of an interest. For a gift to be treated as an idle threat, it is
generally said that there must be a gift over of the property triggered by a breach of
the relevant condition or some other manifestation that the testator is serious.
Invalidity and Uncertainty
Ability to attach strings to gifts of property is an exercise of private power, but
rights are always subject to the qualification that a private act is not valid if it’s
against public policy



Promotion of alienability
Certainty in property dealings
Social policy also contains considerations
o Only incidentally property related
Invalidity





If an invalid condition subsequent is eliminated, the gift is rendered absolute
If a determinable interest is eliminated the entire gift fails – w/o the sign
post, the estate’s temporal limits the gift becomes uncertain
Conditions that contravene public policy are not enforced – generally only
invoked when the harm is “substantially incontestable”
o For instance, Leonard Foundation Trust
Invalid conditions precedent dealing with personalty are ignored and the gift
upheld
If both tests are potentially applicable, the tougher standard will determine
uncertainty
Unger v Gosser
Will was written in 1980, gave share of her estate to three nephews living in East
Germany contingent on them being resident in Canada. Intention was to avoid her
estate from falling into East German / Soviet hands. She had dementia prior to her
death in 1994 and couldn’t incontestably change her will.
Final disposition was delayed for fifteen years, each of the beneficiaries agreed ot
deal with the estate in a certain way including the one and only person who could
potentially get the entire estate.
45
Court rendered the will invalid due to impossible compliance with the conditions –
impossible conditions are obviously invalid.
Invalid Condition Precedent for Personalty – Feeney Rule
In land the entire gift fails if a condition precedent is invalid. In personalty the
invalid or impossible condition – that was known to be impossible – is to be ignored
and the gift upheld. If the condition was not known to be impossible, or has since
become impossible then the condition and the legacy are wiped out and the gift fails.
Uncertainty


Imprecision may result in voidness, language is flexible and interpretation
depends entirely on context and setting.
o First inquiry is naturally what the testator had in mind
o Language must meet a practical level of clarity – common sensical
Test for uncertainty
o Conditions Subsequent (and probably determinable interests)
 Donee must be able to see distinctly and precisely from the
outset those actions that will lead to divestment
o Conditions Precedent (lower threshold)
Comprehensive mapping out is unnecessary. The donee may enjoy the gift so long as
it can be shown that he or she reasonably fits within the meaning of the terms used
Sifton v Sifton
Gift to the daughter of a certain amount of $$ every year, the payments would be
made so long as she remained in Canada. JCPC held that this was a condition
subsequent and that it was void for uncertainty – wanted to save the gift so found a
way to void the condition.
Kotsar v Shattock
To pay the remainder of the residuary estate to X if and when she attains 21 years
provided that at that point she is a resident of one of the Commonwealth countries.
In the event of the failure of the trust in X’s favour, the residuary goes to charities
determined by trustees – but with preference for relieving hardship of elderly.
Two Step Analysis:


What was the intention
o Court held a condition subsequent by applying the Phipps rule for
early vesting.
 Appears to be a condition precedent, but Phipps rule causes
early vestment subject to divestment if X doesn’t reach the
specified age
Does the law tolerate that intention
46
o Law prefers early vesting, even if there’s a possibility of divestment –
Miss Kotsar gets vested the legal interest subject to potentially losing
it later if she doesn’t fulfill the conditions
Legal Remainder Rules
Four rules restricting the manner in which you can create a future legal interest




1. Remainder after a fee is void
o Give A fee simple, with remainder to B  remainder is void
o Also applies to possibility of reverter and right to re-entry
2. An estate of freehold is void if designed to take effect in the future,
unless it’s supported by a prior particular estate
o Deed given to A on day 1 designed to take effect on day 2 is invalid
o Common law will not tolerate any gaps btw the act of conveyance and
actual delivery of possession – creates a vacuum.
3. Remainder is void if it is to take effect by cutting short a prior
particular estate
o Only the grantor can enjoy a right of re-entry through conditions
subsequent
o Life estate to A unless they remarry oin which case it goes on to B –
only the grantor’s estate can re-enter, but can then convey on to B
4. Legal contingent remainder is void unless it vests at or before the
termination of the prior particular estate.
o Vacuums are repugnant
o Gift to A for life, remainder to B if B remarries after A’s death
 Marriage requirement creates a vacuum (absence of seisin)
interest is contingent and cannot vest until after the condition
is fulfilled. Noone is vested after A dies and before B remarries
o Purefoy rule actually protects future interests against destruction at
the hands of rule 4… compels early vesting.
Creating equitable interests is beneficial because they’re not subject to the legal
remainder rules. Rather than using strict rules, equity creates trusts etc. Statute of
Uses however engages to coat equitable interests in a veneer of legal title.
Legal remainder rules apply to executor interests in “wait and see” situations,
impact of the fourth rule is felt only if it’s capable of complying with the rules – IF A
REMAINDER CAN COMPLY THEN IT MUST.
Rule Against Perpetuities
The Rule  An interest is valid if it must vest, if it is going to vest at all, within the
perpetuity period. That period is calculated by taking the lives in being at the date the
instrument takes effect plus 21 years.
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



An Interest  rule applies to almost all contingent interests in real or
personal property either legal or equitable
o In Canada, “possibility of reverter” is excluded as it’s technically seen
as a vested interest
Must Vest  rule is not concerned with indefinite interests, a fee simple is
indefinite and is not objectionable on that ground. Doctrine is concerned with
contingent property interests, contingent interests must vest within the
period.
o Slightly more elaborate meaning to vesting in this context – includes
requiring that interests are not subject to conditions precedent as well
as requiring that the exact size of the estate is known
If at all  refers to the requirement to know that a timely vesting will indeed
occur. That is, when will we know, one way or another, whether the
contigent interest will vest. The question has be resolved within the period.
o Basically you have to be able to determine whether something is going
to vest at all within the period
Within the Perpetuity Period  all the lives in being plus 21 years – lives
in being introduces some complexity.
o Only individuals directly or indirectly connected with the gifts are
helpful in determining the perpetuity period.
 The donor, potential recipients etc.
Perpetuities Examples


Example 1: Grant in 1972 to Acme trust to hold in trust for Al for life,
remainder in trust for all of my grandkids who reach 18
o At the time of the grant, the testator has 3 kids and 2 grandkids
o Legal remainder based on a contingent interest in this case – does not
comply with the rule of perpetuities
 Lives in being: grantor, his kids and grnadkids
 Born after 1972  not a life in being, but a potential benny
 Say a son is born in 1973 to the grantor
 Grantor and all other potential bennies besides the youngest
son die in 1975 – lives in being at that time plus 21 years
 Who’s to know he’ll ever have a kid, but if he did that
kid would hit 18 outside of the period and therefore
violate the Rule
Example 2: Will that takes effect in 1972 “… in trust to Ada for life,
remainder in trust for all of my grandchildren who turn 21.”
o Testator has two kids but no grandkids
 Gift is valid
 There are no grandkids, and may never be – the rule
doesn’t care wither or not there is actually a vesting, but
whether we will know one way or the other within the
perpetuities period
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


There is possibility of vesting, lives in being are the two
kids – they could potentially have children who would
turn 21 within the period therefore a valid remainder
Example 3: Will in 1972 to all my children who reach 25
o Lives in being plus 21 years – so long as one of those kids / lives in
being will reach the age the gift is valid
Example 4: Will in 1972 to Alex for life, remainder to Alex’s widow for life,
remainder to the oldest son then living in fee simple
o First of all, Alex is vested with a fee simple
 Gift to the widow is a contingent interest
 There’s no chance that a widow would vest more than 21 years
after Alex’s death
 Additionally, as soon as the widow dies, you know who the
oldest son is therefore no late vesting there either
Scurry Rainbow Oil v Taylor
Disposition of properties seems as if it might engage the rule – involve a top-lease
from the owner of the mineral rights to a company to extract all the oil and gas
(determinable interest).
First oil company signed a lease for a minimum of ten years – longer if the claim was
profitable. Scurry came along later and signed a lease that put them next in line. The
top-lease was vested as the original was determinable.
No production, and in 1959 the Imperial Oil lease expired – seemingly triggering the
top-lease, but the top lease was invalid in the first place because of the Rule.




Top lease was contingent as it was only triggered if the first lease ended
within 42 years
Possible that it vested outside of 21 and inside of 42
No life in being that’s helpful / sufficiently connected to the gift to be a life in
being for the purposes of the Rule, so just assume it has to vest within 21
years
As it happens, the top-lease did vest in only 9 years, but when signed it was
invalid due to the Rule Against Perpetuities
Perpetuities Act – If Non-Compliant with ComLaw Rule – Applies 1973 Onwards
Generally, if you have a gift that falls within the Act that would comply with the
common law Rule, you don’t need to look at the Statute. If your gift has the
possibility to vest late, that doesn’t make it void – you have to wait and see. If your
gift would not comply with the common law rule then the Statute kicks in

Gifts are presumed valid until events establish
o The interest is incapable of vesting within the period in which case the
gift is void subject to ss 6, 7 and 8
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



o The interest is incapable of vesting beyond the period
Section 6 (age reduction)  gift that would vest outside the period because
the age specified pushes it out you can reduce the age as low as 21 years to
save it
Section 7 (class splitting)  at common law, if there’s a possibility that just
one of the children or grandchildren might vest late… rather than kill the
entire thing you split the class into those that can and those that can’t vest
Section 8 (cy-pres provision)  court can reform a gift as much as is
reasonable to give effect within the period
Section 19 (possibility of reverter in determinable fee simple)  vested
at common law, therefore no subject to perpetuities at common law… the
statute however changes that. Has to vest on a wait and see basis within 40
years.
o If a possibility of reverter vests too late, it’s void – at common law the
whole gift would’ve been destroyed, but Statute makes gift absolute.
McKeen v McKeen Estate
Gift to wife and then on to sisters when the wife dies, becomes a problem because
both sisters died before the wife did. Will was silent on what should happen in this
instance, most will contain a “basket clause” where the remainder will go to
someone in particular if this shit happens.
Condition precedent that the sisters survive the wife, Court turned into a condition
subsequent and vested (future enjoyment) the sisters immediately. If one should die
before the wife then that sister is divested. If both die then then neither is divested
and the sisters’ estates share the gift.
Restraints on Alienation
Inherent in fee simple is the right to freely dispose of it. There are rules prohibiting
excessive restraints on alienation – some are ok… but not too much. There are three
possible types of restraints



Forfeiture  a right of reverter or re-entry may be invoked in the event of a
breach
Promissory purely contractual
Disabling  simply removes power of disposal
When assessing the validity of a restraint, the extent of the restriction is at issue. In
general powers of disposal may be abridged in three ways:



Restricting the mode of alienation
o Can’t sell, but can lease / mortgage etc.
Prohibiting alienation to some class
o Can be sold within the family, but not without
Precluding dealings for a specific time
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Whether a condition unacceptably restrains alienation is a question of substance,
not form. Given the three manners of abridgment courts will examine the extent of
the abridgment. For instance if it abridges alienability for too long it becomes
repugnant.
Trinity College Schools v Lyons
The Bennetts owned some land that bordered the School, entered into two
agreements.


The right of first refusal to TCS if they should choose to sell in their lifetime.
When they die school has a post-mortem option a t a VERY good price
Bennetts die and gift the property to their kids, they argue that the option was never
triggered because before they died they’d given the property away – condition
precedent to exercising the option never happened.


Court reads in a term that will not preclude the operation of the option
o However, the price was set so low as to be a restraint on alienation
Such restrictions are held to be repugnant to the idea of freehold estate
o Fettering the fee with a repugnant restraint invokes the rules against
restraining alienation
Leases, Licenses and Bailments
Leases
Five types of lease





Fixed term  start date must be certain, termination date as well although
express / implied extensions are not precluded
Lease for life  not governed by the requirement that the max length be
known. Interests are treated as life estates
Periodic tenancy  enjoyed for a recurring amount of time, can arise from
inference (when a fixed term expires) and the tenant remains in possession
and landlord accepts rent
Tenancy at sufferance  non-consensual and in fact doesn’t produce a
landlord / tenant relationship
Perpetual lease  no fixed term or stated period, no right of termination on
notice and can accordingly last forever. While this is not tenable at common
law, it has been used by the Crown to confer estates
Essential and Formal Elements

Unimpeachable lease should contain a demise of exclusive possession plus
the identification of the parties, the property, the term, the date of
commencement and the rent, if any, to be paid.
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


Periodic tenancy is presumed if the tenant enters into a lease that’s void if
they pay rent. Covenants in the void lease will be implied as part of the
arrangement
When equitable terms in an agreement for lease are enforceable, but are
contrary to common law the equitable rights and obligations will prevail
While the right to exclusive possession is key, one can enjoy exclusive
possession w/o being a tenant
Assignments and Subleases



Assignment  occurs when tenant’s full interest in the lease is conveyed
o Assignee acquires the estate initially held by the original tenant. That
tenant remains liable to the head landlord on the basis of privity of
contract. Privity of estate exists btw the landlord and assignee.
Privity of estate affects the relationship, rights and obligations btw the
landlord and assignee
o Not all the terms of the head lease pass on to the assignee
 Underlying notion is that covenants of a personal nature
entered into btw the original tenant and landlord do not apply
to the new relationship. However, real covenants are those
that “touch and concern” the land.
 Real covenants lose their usefulness if they’re no longer
connected to the land. If the value of a contractual term would
evaporate if severed from the property, that promise is likely
to be viewed as a real covenant.
 “Touching and concerning” requirement is troublesome and
has been suggested that it is done away with
Sublease  any transfer shorter than the original tenant’s period created a
sublease
o Considerably fewer complications – original landlord and subtenant
have NO direct relationship under either privity of contract or estate.
Sublessor retains a leasehold interest, having only carved out a
portion thereof through granting the lease
o Sublease is dependent on the continued existence of the main / head
lease and therefore generally in the subletter’s interests not to breach
the conditions of that lease.
Limits on tenant’s right to alienate
o Number of potential forms
 Absolute prohibition
 Right to transfer conditional on consent of LL
 Right of transfer conditional on qualified consent of LL
o Landlords are entitled to restrict the right of tenants to sell or lease,
those rights are construed strictly. Prohibition on assigning and
subletting does not prevent the granting of a mere license or of
sharing the property
52
Reasonable though erroneous assessments don’t vitiate the
legitimacy of a refusal, a tenant’s right to alienate is balanced
against LL’s interest in regulating transfers
 A refusal must relate to the relationship of the landlord and
tenant and to the subject matter of the lease, a decision to
refuse based on some collateral goal is invalid
o Generally, the landlord is entitled to consider his or her own interests
exclusively and not those of the tenant
 Arguably however, when the benefit to the tenant far
outweighs the potential detriment to LL
 Similarly, if LL wants a surrender of the term so as to capture
the benefits of a risking rental market, this is unreasonable

Merger Restaurants v DME Foods
Two restaurants share a commercial space, MR wants to expand. LL says that they
can use some of DME’s parking lot, but DME is unhappy with this. Merger is an
assignee of the original tenant, the LL has also changed since (the two parties have
privity of estate). Have to determine the real covenants – was parking a term of
assignment? Court found parking to be a real covenant.
Sundance Investment Corp v Richfield
All else being equal, tenant has the right to assign or sublet – imagine a 20 year lease
is silent on the right to assign or sublet, can the tenant assign or sublet?



“Tenant cannot assign or sublet…”
o LL is well within their rights to restrain tenant’s rights to disposition
“Tenant can assign or sublet with LL’s consent…”
o LL can arbitrarily / unreasonably refuse
“Tenant can assign or sublet with LL’s consent, such consent cannot be
withheld arbitrarily / unreasonably.”
o LL can make a call, but can’t be unreasonable about it
o Very common in commercial relationships – makes sense for landlord
to retain control over who gets to be a tenant on their land
Swiss Chalet had, in their sublet arrangement, a term whereby their door would be
on the south end of the mall closest to Beaver lumber. This would cause trouble for
Beaver because of parking lot congestion. Lease provided that the tenant could
sublet or assign and that consent would not be unreasonably withheld – an
objection from one or the other anchor tenant however could be grounds for refusal.
Court held that it was perfectly reasonable that Beaver lumber had a right to refuse.
The LL made more $$ so long as Beaver was doing well.
53
Termination and Remedies




At common law, a fixed term lease expires naturally, if the tenant remains in
possession, the acceptance of rent may be taken to mean that a renewal has
been agreed to, though the circumstances may dictate that only a periodic
term or a tenancy at will has been created.
A breach may lead to forfeiture, but does not necessarily
o LL can choose not to exercise right to forfeiture, instead may sue on
breach for compensation
o Ability also to levy distress for non-payment of rent
Impact of forfeiture is tempered in several ways
o Long standing juridical antipathy towards application of forfeiture in
leaseholds
o Even if the lease states that the breaches render tenancy void, the LL
is not compelled to enter and may waive the breaches that have
triggered the forfeiture
o Where no waiver is found, a court may decide to grant relief from
forfeiture to a supplicating tenant – equity is willing to provide that
order so long as compensation to the LL is possible
Abandonment
o LL may pursue one of four options
 1. Refuse to bring about a surrender and patiently stand by and
sue for rent as it falls due plus whatever damage might occur
 2. LL may choose to accept surrender and terminate the
tenant’s interest all the while retaining a right to sue for past
breaches
 3. LL may advise the tenant that the premises are going to be
re-let, with the LL acting as agent for the tenant while still
retaining right to sue for losses occasioned by the tenant’s
breaches
 4. Often most practical – Highway Properties Ltd. v Kelly,
Douglas & Co.
 Held that the LL may
o Accept surrender
o Serve notice on the tenant that an action may be
brought to recover for prospective losses caused
by the tenant’s repudiation of the unexpired
portion of the term
 Basically, SCC decided it was no longer sensible to
preclude the LL from enjoying the range of remedies
afforded in contracts
 Imported also then the contractual principle of
mitigation – although mitigation is NOT required under
option #1
54
Highway Properties Ltd. v Kelly Douglas Co.
Anchor tenant abandoned their property – other tenants followed suit.


Nov. 22nd 1963  LL sent a letter saying that the lease has been repudiated,
the LL is going to take possession and sue for damages
Termination of a lease for breach is based on a distinction btw covenant and
condition
o Covenant is a contractual promise
o Conditions subsequent / precedent etc.
o Prior to Highway Properties
 If there was a breach of a covenant the remedy is not a right to
terminate the lease. Could sue in damages, or seize tenants’
goods
 If the term in the lease is a condition the estate granted thee
tenant is conditional on the term in question. Then, on breach
the landlord has a right of re-entry that will terminate the
leasehold
 Court has held that the LL can’t sue for future losses at
this point, once they’ve exercised right of re-entry
 Tenant’s rights under this structure
 Damages, specific performance, but no right to
terminate
 Still have to pay rent, could sue for whatever breach the
LL perpetrated
 In theory, if the LL is in breach a tenant could terminate
for fundamental / substantial breach –
contractualization of LL / tenant relations has given
both parties additional remedies
Residential Tenancy Relationship
In the 60s the hot topic in legal reform was to improve the law regarding LL and
tenant relationships. Tension btw the values of landlords and the sometimes
conflicting values of tenants. Tenants in a residential setting are very concerned
about things like security of tenure. Landlords are generally concerned with
economic efficiency, wealth maximization, occasionally conflicting with the tenant’s
side of the equation.
AB RTA takes common law and attempts to resolve the tension. Licenses are
generally within the scope, sections 1 and 2 outline the ways in which they are.
Security of Tenure
Termination and Notice – restriction on LL’s right to terminate absent relevant
breach and Periodic Tenancies are dealt with in Part 1
55
Section 6 prescribed and acceptable reasons – a termination is of no effect unless it
falls within one of the prescribed reasons, or something in ss. 11 or 12. Prescribed
reasons are found in regulations.
Sections 7-10 deal with required notice, section 14 with right to raise the rent (only
once a year and have to serve due notice of the increase).
Remedies found in


Landlord
o S. 26  grounds for applying to the court
o S. 27  Highway Properties type rules codified
o S. 29  Substantial breach – LL can remove tenant as early as 14 days
after breach
Tenant remedies are found in s. 37
Licenses
Just because a license is a contractual obligation doesn’t necessarily mean it’s
irrevocable. Hockey tickets for instance  early common law would allow Rexall to
give you your money back and make you leave. Today however, Rexall grants a
license that’s irrevocable with some qualifications.
A license in generally not an interest in land – there have been some instances
where courts have allowed licenses to grow into interests in land. A license is
revocable at first, but once money is spent in the execution it becomes irrevocable
and therefore an interest in land.



Problem is that a license can be irrevocable w/o it being an interest in land
What they ewre driving at was proprietary estoppel – protect the right
because of reliance
There are times when a constructive trust will protect a license as
irrevocable / an interest in land WHEN EQUITY DEMANDS
o Page 659 “The court will not impose a constructive trust in such
circumstances unless it is satisfied that the conscience of the estate
owner is affected so that it would be inequitable to allow him to deny
the claimant an interest in the property.”
Bailments
Bailment relationship is inherently consensual involving the control of a chattel that
belongs to another. Under a garden variety bailment, the bailed goods are to be
redelivered in their original and unaltered form. A bailment exists even if the subject
goods are drastically transformed (grapes  wine). Generally involve some sort of
fixed term (long term leases) or at will (gifts).
If a good can be substituted for another in return for the original then
characterization as a barter or sale is more appropriate – same is true of fungibles.
56
Obligations of the Bailee



A licensor who allows someone to leave a chattel on their property assumes
no liability – they’re liable for theft (Trespass) or for converting the goods
(Detinue) or in Negligence if their acts were positive
A bailee however has to be FAR more conscientious. Forms of bailments can
be placed into three headings
o Sole benefit of the bailee  bailee is liable for slight negligence and
therefore owes a duty of great diligence
o Sole benefit of the bailor  only slight diligence is required. Bailee
assumes a low duty of care and is only liable in gross negligence
o Mutual benefit  ordinary diligence applies
Despite the categorization, the specific circumstances will always be
determinative as the level of care required
Onus of Proof



Triggering Facts  facts must be proven by the bailor
Short-cut to Proof  facts are presumed against the bailee
Escape Route  matters that the bailee must prove in order to overcome
the shift in onus
Rationale is that the bailee is in a position to know exactly what transpired. In order
to pass through the escape route, the bailee must prove that it negligence
(depending on the standard of care involved) caused the injury.
Defendant does NOT have to fully explain, but show that


The system in place for the care and safekeeping was up to the required
standard
Any failings in that regard were not connected to the loss
Avoiding Liability
Generally a contract is construed according to contra proferentum. Narrow readings
of seemingly broad exceptions:


First as a matter of construction the courts will not readily construe an
exculpatory clause as having sweeping effects of absolving a party from
liability for fundamental breach
Second, a court might decide the arrangement was unconscionable at the
time of formation
Pioneer Container
“Bailment is founded exclusively on one person’s voluntary possession of goods that
belong to another.” Seems somewhat torty… a lot of contract law as well especially
57
concerning exclusion clauses. At the same time borrows from leases as the bailee is
given a grant of exclusive possession.
Punch v Savoy’s Jewelers – Assignment and Sub-Bailment
Ring was in Miss Punch’s family for years, needed fixing so she took it to Savoy’s
Jewelers in Sault St. Marie. They didn’t have what it took to fix the ring so they sent
it on to Walker Co. Walker Co. sent the ring back normally would’ve done by mail,
but instead hired RapidEx, but their employee stole that shit.
Miss Punch sues everyone – each party points their finger at the other, and she can
only recover once.
Analyze the series of bailments



Bailment to Savoy
Sub-bailment to Walker – but Savoy retained a possessory interest agsint all
but Miss Punch.
Walker sub-bailed further to the delivery company
Somewhat similar to a sub-lease  Miss Punch expects the ring back from Savoy
who expects it back from Walker. Is Savoy liable? Indeed they are, failed to take due
care under bailment rules. The default rule is unbelievably generous to bailees, had
they shown that they tried their best they’d have escaped liability. Normally it’s no
defence to say that you tried your best…
Liability was found against Walker as well. Delivery company had an exclusion of
liability clause in their contract, but the court read it against them and found them
liable anyways.
Court held that the exclusionary clause was aimed at negligence, this was theft and
under VL the delivery company can be held liable.
Assignment and Sub-Bailment Rule of Liability
Bailment is sui generis, if you frame Punch as a lease / sublet relationship, you’d
need privity btw the LL (Punch) and subtenants – not the case in bailments. A headbailor can indeed sue a sub-bailee.
Co-Ownership
Joint Tenancies
Requires Four Unities



Interest
Title
Time
58

o A few exceptions have come up
 In a devise to A for life, remainder to children as joint tenants
creates a joint tenancy for those children who vest if they do so
at different times.
Possession
Most important elements is a right of survivorship – that is, if one party dies the
other inherits their portion.
By placing legal title in the hands of sever trustees as joint tenants the transmission
of the title on death was postponed indefinitely, since on the death of the trustee the
legal estate did not devolve to heirs, but was subsumed by the surviving trustees.
Marriage breakdown and Co-Ownership – Matrimonial Property Act
If a wife buys realty and places it in the name of H and W as joint tenants, there’s a
presumed resulting trust, rather than an advancement. Tenancy-in-common is
presumed where there are no words of co-ownership. If the realty was intended to
be a gift then you can rebut the presumed resulting trust.
When the marriage breaks down section 36(2) of the Matrimonial Property Act is
arguably engaged.
Tenancy-in-Common – PRESUMED BY STATUTE IN AB
Only requires unity of possession though all four unities can be present – parties can
hold different sized portions because unity of possession is not required. Tenancyin-common devolves upon the death of a tenant.
Methods of Creation
Assuming the four unities are present, determining btw joint and tenants in
common is determined by the intentions of the grantor.





Rule of construction in presumed joint tenancy absent any contrary intention
Equity presumes tenancy-in-common
o For partnership assets
o Where money is advanced and secured under a mortgage
o When money to purchase property is provided in unequal shares
Common law presumption for joint tenancy can be negated through the use
of some particular language
o “Equally amongst them… equally… in equal moieties… share and
share alike… respectively… between…”
It is possible to hold legal title in one form and equitable in another
Additionally, acts of severance can transform a joint tenancy into a tenancy in
common – however some acts of severance are only functional in equity, not
in common law
59
Severance of Joint Tenancies
Forms of Severance
Basics stem from Williams v Hensman



Unilateral
o If one party sells their shares the co-ownership is severed
o Partial alienation (granting a life estate to an heir) should produce a
severance as it leaves the grantor only with right of reversion
therefore destroying unity
o Attempted severance by will is ineffective
 Just accresendi results in survivorship trumping the will
 There’s no effective severance
o Assignment or sub-lease = severance
Mutual agreement
o To hold the shares in common rather than jointly (equitable only)
Course of dealing
o “Sufficient to intimate that the interests of all were mutually treated
as constituting a tenancy-in-common.”
o Equity will intervene, if necessary, to estop the parties from asserting
a right of survivorship
 A sale of lease jointly arranged is not incompatible as the
unities are not severed
 HOWEVER if there’s an agreement to sell and divide then the
joint tenancy is severed
 Severance could happen in the event of mutual or joint wills
 For instance, to survivor for life with remainder to
children
o Failed negotiations over jointly held assets can lead to finding that the
owners regarded the joint tenancy as severed
 Often btw spouses on marriage breakdown
 When the parties resolutely treat their interests as shares, they
no longer buy into the unity required by the joint tenancy
thereby severing and creating a tenancy-in-common
o Mutual or Joint wills
 H and W create will providing that everything goes to the
survivor for life, remainder to kids.
 Is jointly held property included? Usually covered by
survivorship anyway so no need for a will
 If governed by survivorship the survivor gets a fee simple, if
through wills the survivor gets life estate
Severance by Other Means

Judicial sale / seizing of the property (but not merely filing a writ of
execution)
60


There’s an obvious right to contract not to sever unilaterally – joint tenants
occasionally may wish to contract out of the default rule.
Murder – cannot profit from an illegal act – equity imposes a constructive
trust upon the criminal survivor for half the estate
Sorenson v Sorenson – Severance of Joint Tenancies
The couple separates and she is paying rent on the property. She develops cancer
and makes efforts to settle her estate to the benefit of her disabled son. The
Matrimonial Property Act did not exist. She started the proceedings for partition
and sale of the property, but she died before it was concluded. As soon as she died,
he tried to declare himself as the sole survivor on title.
Decision: The gift to the son by declaration of the trust of the wife is valid. He
received beneficial interest in the title
Event/document
Does it sever?
Separation
Agreement
NO – Unless the parties intended a severance.
Lease
NO – Lease does not interfere with the right of survivorship.
(However, a lease for life is a freehold life estate - ZIFF: the
court got this wrong.)
Husband not living
there
NO - The H had no right of possession, but unity of
possession only means that you are talking about the same
parcel. (Without unity of possession, you cannot have a
tenancy in common either.)
Mortgage (or other
charge on the
property)
NO – In the Land Titles Act s.103 - mortgage as security on a
loan does not operate as a transfer of land. (Attaches to the
land as a super-added claim.)
Will
DEPENDS – mutual or joint wills may give some indication of
intention.
Action for partition
YES – Deemed severance under Law of Property Act s. 19.
Unilateral statement
of intention
NO – Must be accepted.
Inter vivos common
law gift
NO – Unless there was delivery.
DMC
NO – Does not apply to a land transfer in Canada.
Declaration of trust
YES!! – If trust documents are executed, in law and/or
61
equity, it creates a severance.
Resolving Concurrent Ownership Disputes
Termination



Common law provides no remedies of partition and sale to joint tenants or
tenants-in-common. Left to their own devices to resolve irreconcilable
differences
o Courts can order
 Physical division
 Sale and distribution of proceeds
 Sale among co-owners
o Even though an owner has a prima facie right to partition or sale,
some courts have asserted they can refuse such an order in the
interests of equity
Parties can contract out of the right to seek partition or sale
o Normally, a contractual bar btw the parties will lead a CDN court to
exercise discretion not to order partition or sale.
Non-capital expenses, whoever pays the utility bills etc. can be entitled to
more than their share when terminating
Financial Issues




Court has discretion to make any and all fair and just allowances – all else
being equal each party is liable for capital expenditures and current expenses
in accordance with his or her ownership share
All co-tenants are entitled to possession of the entirety of the property no
matter the size of their shares… no one co-tenant can oust another
o If one party is ousted, the remaining owner can be charged occupation
rent. Occupation rent amounts are sometimes based on an estimation
of the property value, the cost of current expenses or of alternative
accommodations.
o Departing spouses can initiate claims for occupation rents even if
there was no ouster
Liability for waste  even when the co-owner is holding a fee simple, they
can be liable for waste where there’s an unreasonable use of the land
Principles governing voluntary and equitable waste roughly define the basis
of liability btw co-owners
Shared Ownership of Personalty
Much of the jurisprudence applies to personalty as equally as it does to land though
there’re some significant differences. Common law presumption applies as to joint
tenancy unless overcome by words of severance.
62
Joint Bank Accounts
Issues revolve around rights to capital / interest etc. When money is deposited by
only one party, a resulting trust or an advancement is presumed.


This presumed advancement can be rebutted by showing that the
arrangement was one of convenience designed to give one party access to the
other’s funds.
Potentially seen as an inter vivos gift
On opening a joint bank account, rights are generally set out by the bank forms that
you sign, but these don’t cover the rights of the parties inter se although they may
prove helpful.



Joint bank account doesn’t necessarily imply a joint tenancy for the purposes
of survivorship
Documents signed are not determinative, but may be helpful as to the rights
between the parties
Statutory reversal of common law presumption of joint tenancy does NOT
apply to personalty – however Frichs v Dadd suggests bank accounts are
held in common
Jones v Maynard – Acquiring Property from a Joint Bank Account
Court held that since the money came out of a common account to buy shares they
were owned commonly despite the fact it was wholly the husband who’d purchased
them.
Free / Open Source Software
Creative Commons



You can use something for free… you can even sell it as your own and claim
copyright, but if you do claim a copyright you have to claim it along the same
lines as the original which allows for free use/
If you try to claim anything more than that you’re outside the permission and
you’re liable for breach of the original copyright
Open sourcing seems to defeat the entire idea of private property and
ownership, but there is a way to make $$
o The Register – “Red Hat”
 Created a free version of Linux – take free software and fix /
change / modify it to the needs of their clients.
 Can sell the service of rejigging the software, but can’t actually
sell the software
63
Shared Ownership and Marital Property Law
Murdoch v Murdoch  Unjust solution resulted in statutory changes to the way
marital property is dealt with. Either party now has the right to alienate personalty
but consent is required to transfer realty. Marital property statutes typically
regulate rights to transfer or occup the marital home / homestead.
AB Matrimonial Property Act



Value of all property acquired during marriage is subject to the norm of equal
distribution on marriage breakdown
Value of property acquired before marriage is exempt, as is money acquired
by gift or inheritance or as damages / insurance proceeds paid in relation to
injuries to one spouse
It is obviously logical to determine whether joint tenancy or tenants-incommon before you can determine the rights each party has
Condos and Co-Operatives
Generally governed by statute, but the common law is capable of creating condo like
arrangements. However, common law is not very flexible.




Nature of airspace rights
Land recording / registering laws may not be able to manage registering of
boundaries involved in vertical type situations
Workable network of reciprocal duties is required
Additionally, what rights would survive destruction of the property
Condo Regulations
Legislation provides for the creation, registration, regulation and termination of
condos. Condos basically become like mini-municipalities, can enact and enforce a
form of local law so long as the rules conform to the general law and the enabling
condo statute.
In AB, main documents are by-laws and condo plans describing the property.
Condominium Act contains a set of standard by-laws including provisions
concerning the duties of the owners, the creation of the corporation, the constitution
of the board and the officers of the corporation. Meetings, notice and voting also
covered in the Act but they may be altered through the democratic process of the
corporation.
Participation in a condo project involves a degree of surrender of proprietary
independence – an owner has to obey the rules enacted.
The right to alienate CANNOT be abridged… otherwise there’re fewer restriction on
what can be in the by-laws.
64
Servitudes Over Property
Easements
Classified as incorporeal hereditaments and are based on four doctrinal elements




Dominant tenement and servient tenement
o Dominant tenement enjoys the benefit of the easement and the
servient is burdened
o That is, the servient tenement is the freehold or leasehold upon which
the easement is placed
Easement must accommodate the dominant land
o Some real benefit must accrue to the dominant tenement, that is there
must be a natural connection btw the two
o Hill v Tupper  the exclusive right to place boats on a lake did not
accommodate the dominant tenement because such a monopoly was
unconnected with normal use and enjoyment of the land
 Ruling is inconsistent with other authorities, perhaps even
wrong – dominant land was used in connection with the
boating and the monopoly obviously made the enterprise more
viable
Dominant and servient tenements cannot both be in the hands of the
same party
o Can’t have an easement over your own land
o However, an easement may be granted to a tenant by a landlord
The easement must be capable of forming the subject matter of a grant
o As an incorporeal hereditament possession cannot be transferred – a
grant is required to pass ownership
o Grant cannot require the servient owner to spend money except
perhaps to fence an easement off
Creation and Transfer of Easements


Express Grant
o Owner of the servient may grant an easement
 On the sale of the dominant lands
 Conveyed as a stand-alone by the servient owner to someone
with land capable of being benefited
o When no words of limitation are used the duration is determined with
regard to the surrounding circumstances
o The dominant tenement need not be described expressly so long as it
can be determined through extrinsic evidence
Implied Grant
o Can be implied as a necessary element of a transfer of property
 For example  strict necessity of access where land is
landlocked
65




An easement will be implied where the only access to a
road is to cross another’s land
 The implication of an easement is presumed as a rule of
construction and can therefore be overturned by contrary
intention
o Intended Easements  sub-group
 Arise by implication to give effect to the common intention of
the parties having regard to the purposes for which the land
has been granted.
 Wong v Beaumont  restaurant lease needed a vent in order
to comply with statute – intended easement was found
o Wheeldon v Burrows principle – easement may be implied
 Party had been using a part of their land such that it appears to
be an easement, but there’s nothing on title
 Looks like an easement, quasi-easement anyways, only
missing the different owners part
 If DT is sold it is possible that it blossoms into a full
easement
 Test: Unity of title and possession  there’s a quasi easement
on the land, not a real on as the land belongs to the same
person, but it MAY blossom into a full easement if the land is
transferred
 At the time of transfer must have been
 In use PLUS
 Continuous and apparent AND
 Reasonably necessary
 Allows the purchaser of a piece of land to take advantage of the
amenities that a particular piece of land appears to enjoy
Reservation
o Refers to an interest retained by a grantor on a transfer of land to
some other person
 On sale or lease of land an owner may wish to retain an
easement for the benefit of an adjacent tract of land
Estoppel
o Adams v Loughman  representations were made that a lane would
be included in the sale of a piece of land. The purchaser bought the
land largely on this premise, grantor is estopped from preventing the
grantee from using the lane.
Prescription – s. 69(3) of the LPA outlaws it in AB
o Long uninterrupted use can result in a judicially prescribed easement
 That is, an easement is assumed to have been granted some
time in the past when someone’s been using the easement for
an uninterrupted period of time
66
The finding of a prescriptive right tends to impose a burden on
servient land and can sometimes punish neighborly
cooperation
 Concern that this rule impedes development has resulted in
ststutory changes  ON says that there can be no prescriptive
right to air or light for the benefit of a house, workshop or
other building
o Common law devised two methods of prescriptive acquisition, statute
added a third
 1. After 20 years, a presumption arises that the grant was
ancient – rebuttable upon proof that the usage does no extend
back to 1189
 2. Un-interrupted use usually just for 20 years
o Prescriptive acquisition requires the easement has been enjoyed
without: violence, secrecy, permission
Statute
o Special rights can be conferred by statute including easements of or
against public or private entities


Transfer After Creation
Examples


A owns Blackacre and an easement over Whiteacre which is owned by B
o Easement not noted on title
o A sells Blackacre to C
o Section 7 of the LPA
 Easement passes with the land – when you transfer land, all of
the rights / things attached to the land pass from original DT
owner to new owner
 Could potentially reserve it out
Same as above, but B sells to D
o ST sold  basic principles would say that w/o mention of the
easement BFP w/o notice doesn’t have to abide
o Section 61.1(f) of the LTA
 Critical part of the Act  there are some things that are
exceptions to the basic principles… one of which is an
easement – held to be an overriding interest that need not be
registered
 However, interpretation of the statute has caused some trouble
 What exactly is included within the provision’s
protection
 Shagannappi ABCA  held that this was a huge
exception to the basic principles that title should mirror
the circumstances
67

o “Any right acquired under any act…” was
meant to protect implied easements, not
express grants.
If an express easement is granted but not registered
then couldn’t the gas station argue that they have an
easement of necessity?
o NO  where bargained for but not registered
you lose your shot to have an easement so the
gas stn has to open the wallet
Scope, Location and Termination
Prime consideration in construing the breadth of an easement is the purpose for
which it was granted.




Physical circumstances may be relevant to constrict or otherwise seemingly
broad rights a grant suggests
Circumstances relating to the dominant land may also be relevant
Grantee is not entitled to increase burden on the servient lands beyond the
rights initially conveyed, but it may have been contemplated that the
easement’s use might change over time
Implied easements obviously use extrinsic evidence to show breadth,
however the initial basis for the implication is DOMINANT factor
Laurie v Winch
Subdivision of farmland – claims made in regard to a 1925 grant of a perpetual right
of way easement. Over time the slender easement was divided among other
properties and widened. Debate over whether it was a personal license or an
easement – look to the intention of the parties despite having all the elements of an
easement.
Language used might help



Perpetual might point towards an easement
No DT named, pointing to a license
o However the SCC says that you don’t need to explicitly state the DT –
the grant contained provision “over lot 33” which was held to enough
Issue of scope is a matter of intention at the time of the grant
o Can the sort of traffic / scope of the easement change over time?
 While the lands were originally agricultural, purposes at the
time of the grant were to support a future subdivision
 SCC cannot agree that it was contemplated the farm would
always remain a farm – therefore there should be no
interpretation of the grant that limits the scope
68
Malden Farms v Nicholson – Grantors are presumed to retain some use of easements
Servient was primarily marshland – there was an easement across the land to a
beach. Was a “free and uninterrupted right-of-way 20 feet wide.” At some point, the
easement shifted up the road a ways, but the original one was never released.
Owner of the easement decided to open their beach property up to the public
resulting in a massive increase in traffic – exceeding the scope of the original.
Holding  the old easement is eliminated and the originally intended use applied to
the new right of way.
Owners of the dominant land cite Laurie v Winch arguing that the scope of the
easement can be expanded / changed over time. Discrepancy btw the cases results
from the fact that the easement here was of use to the owner of the ST (duck
hunting) whereas in Laurie v Winch, the farmer had no real use of the slender piece
of land.
Harris v Flower
If an easement is granted for the benefit of lot 1 the grantee – if she owns or
acquires lot 2 – cannot substantively use the easement as a means of getting from lot
1 to 2. Crux is that the easement has to be for use of the dominant land, not a
colourable attempt to benefit another property. The substance of the easement
ignores ancillary use thereof.
Termination




Easements can simply expire if they’ve run their course.
They also expire upon unity of title and possession of both tenements.
Can be release impliedly or expressly AND if the land in intentionally
abandoned
Just as an easement can arise in estoppel – it can die that way as well
Nelson - Shalom Park and Rabbit Hill
Dedication  in effect something becomes a public road for all time so long as the
doctrine is satisfied



Three elements required for a dedication
o Intention to dedicate
o Manifestation of that intention
o Acceptance by the public
ABCA says there’s no dedication here – no intention despite the fact that t ppl
had been using it for some time
o Subjective intention to dedicate is required
Dedications are not easements  previous owners retain no equity interest…
al proprietary interest is given up
69
Easement  Court of Appeal ruled two to one against an easement




Easement of necessity arising from the fact that Nelson was landlocked
Question is when an easement of necessity arises – the relevant time period
being the time of the grant of the dominant tenement
o Doesn’t matter if something happened subsequently, but what was
intended when the DT was last transferred
o Argument here that the ST is not landlocked – the river’s right there
o Does public access by way of water negate an easement of necessity?
It could… depends whether the body of watetr is capable of
supporting the kind of year-round access intended in the transfer of
the dominant tenement
 In the winter the river would not be suitable
All three parcels here were originally Crown land
o Nelson’s was the last parcel sold
o The NW property is sold first, NE second cutting off Nelson – the
easement would have to go upon the land that actually landlocked
ABCA differs on whether they’re willing to hear evidence regarding the
timing of the sales
Profits a Prendre
Title to the objects covered in a grant of a profit a prendre involves the right to take
from the land… not a right to the things themselves. Profits can be in gross or they
can be tied to a dominant tenement.
Restrictive Covenants
Covenants over land can be used to create rights enforceable by one owner on
another, even in the absence of privity of contract / estate. Policy argument against
them revolves around the infringement on self-determination and free alienability.
Basically a restrictive covenant is a promise under seal although requirement of a
seal has been done away with – it’s basically a binding contractual obligation.
Concepts and Terms






Covenant
Covenantor
o Person who maes the promise
Covenantee
o Person who demands the promise / benefits from it
Burden (and burdened or servient land)
o Burdened by a restriction
Benefit (and benefited or dominant land)
o Benefits from the retriction
Annexation
70



o Does the person who acquires a burden have to comply with a
restriction? Sometimes…
o The law says no, but equity says yes according to the whole BFP w
notice principle
o If the requirements of modern CDN law are met, the person who buys
burdened land can be bound by the restrictive covenant
Express (contractual assignment)
Assignee of the covenantor (or’)
Assignee of the covenantee (ee’)
Tulk v Moxhay

Courts of equity have enforced the running of covenants with land since Tulk
v Moxhay:
o BFP with notice cannot assert they didn’t know of the covenant
therefore can be bound by it in equity – but only if the covenant fulfills
four requirements
 1. Negative / restrictive (Tulk v Moxhay)
 2. Covenant must have been intended to run with the land
 3. Covenant must be taken for the benefit of the dominant
lands AND
 Those lands must be sufficiently identified in the
document (Galbraith v Madawaska)
 Covenants must touch and concern the lands in
question (Spencer’s Case)
 4. All equitable remedies apply
Running of the Burden in Equity




1. Covenant must be negative / restrictive in substance
2. Must have been intended to run with the land
3. All general principles of equity apply including notice rule
4. It must have been made for, and must benefit, land retained by the
covenantee
o That is, it must touch and concern the land
o The land must be easily ascertainable from the granting document
(more strict than principle in easements)
Retail Properties and Covenants
Safeway and the Highlands store – scorched earth. Apparently these kinds of
covenants are common, they last forever and can pile up… as retail tenants come
and go each inserting a covenant you might end up eventually with land that no one
can lease.
Benefits in Equity

Equity recognizes that covenants can be annexed to the land
71



Extent of annexation can be limited to a duration
Galbraith  implied annexation is not supported in CDN law – follows the
logica that the land itself has to be IDed sufficiently and the BFP with notice
requirement
Contractual benefits (choses in action) can be assigned. Covenants can be
assigned so long as three elements are fulfilled
o Covenant touches and concerns
o Assignment occurs contemporaneously with transfer of land
o Land is ascertainable (at the least by extrinsic evidence)
Swan Properties v Irving Oil
Covenant restricting use for restaurant taken for the benefit of the Big Stop
restaurant owned by Irving Oil. Someone wanted to use a servient plot of land as a
restaurant – there was a sufficient benefit to the DT in that the limited clientele in
the town meant that competition would’ve been harmful to the Big Stop.
AB 880682 v Molson Breweries
Covenant prohibiting use of a parcel of land in CGY for a brewery – said to be of
benefit to its Edmonton operation 300 kms away. Argued the two properties would
be competing for the same clients – competition radius as held in Swan. However
the court held the two properties were too far apart – if you accept Molson’s
argument then you could use a dominant land basically anywhere to operate as DT
for any other plot of land.
Benefit / Touching and Concerning – Restraint of Trade Doctrine
Well established contractual doctrine, if you’ve tied yourself in such a way that
restrains trade, you can get out of the contract. The contract or relevant term
thereof that restrains trade becomes unenforceable in the interests of the parties
involved and the public at large.
Alleged in Swan  court held that the restraint here was not unreasonable and
therefore did NOT invoke the doctrine.
In England Esso v Harper limits the scope of the Doctrine. In most cases, the
Doctrine will not apply in the case of restrictive covenants over land. When you buy
land, you’re acquiring property that, up until then, you had no right to use at all so
you’re not being forced to give something u that you already had.
Stevens v Gulf Oil  ON case that bought into the House of Lord’s reasoning
Development / Building Schemes



Common for master developers to attach covenants en masse
Once building schemes are perfected, each individual owner can enforce the
covenants against the rest no matter when the properties were purchased
Four prerequisites
72
o 1. Titles in issue are from common vendor
o 2. Vendor must have lain out relevant parcels subject to restrictions
consistent with a general development scheme
o 3. Restrictions must be intended to be for the benefit of all the parcels
within the scheme – element of mutuality
o 4. Affected parcels must have purchased on the understanding that
the restriction would endure to the benefit of all the parcels
collectively
Positive Covenants
Positive covenants generally don’t run in equity – Tulk v Moxhay rule says that the
burned has to be restrictive in order for it to run with the land. Affirmed in
Austerbury.
Amberwood v Durham Condo Corp 123
Tradition rule from Austerbury that positive covenants don’t run with the land was
affirmed. Two condo towers going up, planned to share recreational facilities.
Agreement btw condo corp 1 and developers that the costs will be shared until the
point that a buyer is found for tower 2.
Through a series of foreclosures Amberwood ends up with the second (as yet
uncompleted) tower. Amberwood paid for a while, but ended up stopping.



They had no positive obligation – no contractual obligation because there
was no estoppel
Numerus clausus (as per Keppel v Bailey) means that the court was reluctant
to add any sticks to the bundle
If we’re going to add positive covenants, Parliament should be the one to do
the thing
Positive covenants make you give up something that you wouldn’t otherwise have
had to. Negative ones consist of restrictions attached to land – basically something is
held back that you never had a right to in the first place.
Bypass Mechanisms for Positive Covenants
Leases aren’t mentioned in Amberwood, - if you’re a valid assignee of a leased
premises and you know the real covenants will pass to you as per Spencer’s Case.


Obligation to repair would be a positive covenant – still runs with the land
Landlord’s reversion is another example of a positive covenant
AB Land Stewardship Act allows for conservationist easements and covenants.
Why do we need a statute to do what they did in Tulk v Moxhay? General rules in
the case didn’t work so well – statutory refinements were created.

Only “Qualified Institutions” can hold the benefit of the covenant
73

S. 34(1)  conservation easement registered – runs with the land and may
be enforced if positive or negative… runs with the land and may be enforced
if positive or negative. Regardless of whether the person seeking to enforce
actually has a legit interest in the land.
Chain of covenants  impose a covenant at the time of sale, buyer can only sell the
house if they ensure that the same covenant(s) is/are passed down.
Rentcharges  periodic obligation imposed on freehold land basically not in use
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Austerbury  if the parties that intended to charge the land forever with the
burden of repairing roads all you need to do is throw down a rentcharge
Positive covenants do not run with the burdened land – rentcharges do
Doctrine of Halsall v Brizell – disapproved of in Amberwood
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If you use a right / benefit you should have to bear the burdens of the
obligations
If you’re in a position to not exercise the benefit then you don’t have to bear
the burden
Rhone  the doctrine is used in Britain – if you benefit from a covenant then
you should bear the burden of related positive obligation
Conditional Grant – Imported into CDN law in Amberwood
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Pg. 834 Reader Paraphrasing Halsbury’s: “If the facts establish that the
granting of a benefit or easement was condition on assuming the positive
obligation then the obligation is binding. Where the obligation is framed so as
to constitute a continuing obligation upon with the grant of the easement
was conditional, the obligation can be imposed as an incident of the easement
itself and not merely a liability purporting to run with the land.”
Actual Halsbury’s: “the obligation may be framed or construed so as to
constitute a continuing condition and to render the easement itself
conditional on the dominant owner for the time being complying with an
obligation to repair or contribute to repair, and so be determinable or
defeasible on non-compliance.”
A conditional grant can be made effective if you frame the positive
covenant as a defeasible or determinative condition. You can end
someone’s right to the land, but you can’t sue them for damages – build
in a right to end the grant entirely rather than have an obligation for
the grantee to pay out of pocket