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PROPERTY CHARACTERISTICS:..........................................................................................6 GENERAL PRINCIPLE: PROPERTY CAN HELD BY THOSE WITH LEGAL PERSONALITY.............................................6 TYPES OF RIGHTS:..................................................................................................................................6 TERMINOLOGY AND RELATIONSHIPS:........................................................................................................7 CONCEPTS IN PROPERTY LAW............................................................................................9 VICTORIA PARK RACING AND RECREATION GROUNDS CO. LTD. V. TAYLOR (6)...........................................9 NOTES ON VICTORIA PARK:....................................................................................................................9 INTERNATIONAL NEWS SERVICE V. ASSOCIATED PRESS (23).....................................................................10 RIGHT TO EXCLUDE OTHERS...............................................................................................................11 HARRISON V. CARSWELL (26)..............................................................................................................11 NOTES ON HARRISON:......................................................................................................................11 RIGHT TO EXCLUDE CONSTITUTIONAL GUARANTEES...........................................................................12 COMMITTEE FOR THE COMMONWEALTH OF CANADA V. CANADA................................................................12 NOTES ON CCC..............................................................................................................................13 PROPERTY AND BODY PARTS...............................................................................................................14 MOORE V. REAGENTS OF THE UNIVERSITY OF CALIFORNIA (65)................................................................14 JOAN GILMOUR, OUR BODIES: PROPERTY RIGHTS IN HUMAN TISSUE (67)...........................................14 NOTES:...........................................................................................................................................14 THE CONCEPT OF POSSESSION..........................................................................................16 ROSE, POSSESSION AS THE ORIGIN OF PROPERTY:.............................................................................16 PIERSON V. POST (97):........................................................................................................................16 NOTES ON PIERSON:.........................................................................................................................16 PERRY V. GREGORY (103):..................................................................................................................16 POSSESSION AND THE FINDERS OF LOST OBJECTS..............................................................................17 ARMORY V. DELAMIRIE (106)..............................................................................................................17 PARKER V. BRITISH AIRWAYS BOARD (107)..........................................................................................17 SOUTH STAFFORDSHIRE WATER CO. V. SHARMAN (110).........................................................................18 BRIDGES V. HAWKESWORTH (111)........................................................................................................18 CITY OF LONDON CORPORATION V. APPLEYARD (114)............................................................................19 GRAFSTEIN V. HOLME AND FREEMAN (114)...........................................................................................19 KOWAL V. ELLIS (115).......................................................................................................................19 ELWES V. BRIGG GAS CO. (115).........................................................................................................20 JOINT FINDING: .................................................................................................................................20 KERON V. CASHMAN (124)..................................................................................................................20 EDMONDS V. RONELLA (126)...............................................................................................................20 ISSUE OF INTENTION............................................................................................................................21 BIRD V. FORT FRANCES (128)..............................................................................................................21 NOTES ON BIRD:.................................................................................................................................21 AG (CANADA) V. BROCK (136) .........................................................................................................22 WEITZNER V. HERMAN (139)...............................................................................................................23 STATUTORY LIMITATIONS ON OWNERS RIGHTS AGAINST FINDERS (140).....................................................23
Property Summary
REAL PROPERTY: POSSESSORY TITLES.........................................................................24 RELEVANT STATUTES...........................................................................................................................24 RELEVANT DOCTRINES.........................................................................................................................24 ASHER V. WHITLOCK (143).................................................................................................................25 NOTES ON ASHER:...............................................................................................................................25 RE ST. CLAIR BEACH ESTATES V. MACDONALD (163)...........................................................................25 NOTES ON ST. CLAIR...........................................................................................................................26 CO-OWNERS AND ADVERSE POSSESSION................................................................................................26 TENANCY AT WILL..............................................................................................................................27 MCLEAN V. REID (1978) NS SC AD (174)......................................................................................27 DISPOSSESSION OF A LEASEHOLDER........................................................................................................27 THE ELEMENT OF INTENTION..............................................................................................................28 KEEFER V. ARILLOTTA (182)...............................................................................................................28 BRIAN BUCKNALL, TWO ROADS DIVERGED: RECENT DECISIONS ON POSSESSORY TITLE.......................29 PIPER V. STEVENSON............................................................................................................................29 MASIDON INVESTMENTS LTD. V. HAM...................................................................................................29 BEAUDOIN V. AUBIN............................................................................................................................29 BUCKNALLS OBSERVATIONS:...............................................................................................................30 NOTES ON TWO ROADS....................................................................................................................31 WOOD V. GATEWAY OF UXBRIDGE PROPERTIES INC.................................................................................31 NOTES ON WOOD................................................................................................................................32 QUIETING TITLES................................................................................................................................32 FUNDAMENTAL PRINCIPLES GOVERNING PROPERTY INTERESTS IN LAND ....33 RELEVANT PRINCIPLES AND TERMINOLOGY...........................................................................................33 DOCTRINE OF ESTATES.......................................................................................................................33 RELEVANT TERMINOLOGY.....................................................................................................................33 TYPES OF ESTATES:.............................................................................................................................33 CONVEYANCING AND LAW OF PROPERTY ACT.........................................................................................35 VARIATIONS ON A FEE-SIMPLE ESTATE................................................................................................36 CONDITION PRECEDENT........................................................................................................................36 CONDITION SUBSEQUENT (RIGHT OF RE-ENTRY)...........................................................................37 FEE SIMPLE DETERMINABLE (POSSIBILITY OF REVERTER)..........................................................37 NOTES ON CONDITIONS:......................................................................................................................38 REMOTENESS:.....................................................................................................................................38 VOID CONDITIONS:..............................................................................................................................38 EFFECT OF VOID CONDITIONS...............................................................................................................39 NOTE ESSEX, DOWN, TUCKS: ..........................................................................................................39 RE: ESSEX COUNTY ROMAN CATHOLIC SEPARATE SCHOOL BOARD AND ANTAYA (250).............................39 RE: TUCKS SETTLEMENT TRUST (254).................................................................................................40 RE: DOWN (259)...............................................................................................................................41 NOTES ON DOWN................................................................................................................................42 LIFE ESTATES....................................................................................................................................42 RE: WATERS......................................................................................................................................43 RE: MCLOGAN...................................................................................................................................43 LIFE ESTATES: PUR AUTRE VIE........................................................................................................44 LIFE ESTATES AND SUCCESSIVE INTERESTS IN LAND................................................................................45
Property Summary
THE RULE IN SHELLEYS CASE...........................................................................................................45 AVOIDING THE RULE IN SHELLYS CASE................................................................................................46 RE RYNARD.......................................................................................................................................47 COMMON LAW REMAINDER RULES:.....................................................................................................47 NO REMAINDERS AFTER A FEE SIMPLE...................................................................................................48 NO SPRINGING FREEHOLDS...................................................................................................................48 TIMELY VESTING.................................................................................................................................49 NO SHIFTING FREEHOLDS......................................................................................................................49 LAW AND EQUITY...............................................................................................................................50 EQUITABLE ESTATES............................................................................................................................50 DOCTRINE OF USE...............................................................................................................................50 STATUTE OF USES, 1535 ....................................................................................................................51 SITUATIONS WHERE THE STATUTE OF USES DOES NOT APPLY.................................................................52 THE STATUTE OF USES AND LEGAL EXECUTORY INTERESTS......................................................................53 MODERN TRUSTS:...............................................................................................................................54 RULE AGAINST PERPETUITIES:.............................................................................................................54 NOTES ON RULE AGAINST PERPETUTITES............................................................................................55 BAILMENT, LICENCES AND LEASES.................................................................................56 BAILMENT: .......................................................................................................................................56 BAILEES RESPONSIBILITIES:.................................................................................................................56 BAILORS RESPONSIBILITY:...................................................................................................................56 TYPES OF BAILMENT: ..........................................................................................................................57 HEFFERON V. IMPERIAL PARK (366)......................................................................................................58 LICENCE: ..........................................................................................................................................59 PROPERTIES OF LICENCES.....................................................................................................................59 LEASES: ...........................................................................................................................................60 PROPERTIES OF LEASES:.......................................................................................................................60 STATUTORY FRAMEWORK.....................................................................................................................61 BRITISH AMERICAN OIL V. DE PASS (386)............................................................................................61 METRO-MATIC SERVICES V. HULMANN.................................................................................................62 HIGHWAY PROPERTIES V. KELLEY, DOUGLAS & CO. (407).....................................................................62 RESIDENTIAL TENANCIES:.....................................................................................................................64 RE CANADIAN PACIFIC HOTELS LTD. AND HODGES (401).......................................................................66 REMOVAL OF A TENANT:......................................................................................................................67 COHEN V. KLEIN (424).......................................................................................................................67 HORST V. BEINGESSNER (434)..............................................................................................................68 VALERY CONSTRUCTION LTD. V. ARNO (435)........................................................................................69 TRANSFERRING PROPERTY INTEREST BY GIFTS AND SALE...................................70 REQUIREMENTS TO MAKE GIFTS ENFORCEABLE..........................................................................................70 GIFTS GENERALLY: ............................................................................................................................70 COCHRANE V. MOORE (442)................................................................................................................71 TRUSTS:.............................................................................................................................................71 IN RE: COLE (453)............................................................................................................................72 NOTES ON COLE:................................................................................................................................73 INTENTION:........................................................................................................................................74
Property Summary
THOMAS V. TIMES (464).....................................................................................................................74 CAPACITY:.........................................................................................................................................75 CASADA V. CASADA (470)..................................................................................................................75 DONATIO MORTIS CAUSA:..................................................................................................................76 RE ZACHARIUC; CHEVRIER V. PUBLIC TRUSTEE (478).............................................................................76 TRANSFERS OF INTEREST IN LAND..................................................................................78 STATUTE OF FRAUDS:..........................................................................................................................78 AGREEMENT OF CONTRACT AND SALE:....................................................................................................78 LYSAGHT V. EDWARDS (490)...............................................................................................................79 NOTES ON LYSAGHT:...........................................................................................................................80 SPECIFIC PERFORMANCE........................................................................................................................81 SEMELHAGO V. PARAMADEVAN (452)....................................................................................................81 NOTES ON SEMELHAGO:.......................................................................................................................81 STARLIGHT V. CLOVERLAWN (504).......................................................................................................81 INWARDS V. BAKER (524)...................................................................................................................83 NON-POSSESSORY ESTATES IN LAND:.............................................................................84 EASEMENTS GENERALLY.......................................................................................................................84 REQUIREMENT OF A DOMINANT AND SERVIENT TENEMENT........................................................................84 IN RE ELLENBOROUGH PARK (552)......................................................................................................84 NOTES ON ELLENBOROUGH...................................................................................................................85 JENGLE V. KEETCH (555)....................................................................................................................86 NOTES ON JENGLE...............................................................................................................................86 THE REQUIREMENT THAT THE DOMINANT AND SERVIENT TENEMENT CANNOT BE OWNED OR OCCUPIED BY THE SAME PERSONS....................................................................................................................................86 EASEMENT MUST BE CAPABLE OF FORMING THE SUBJECT MATTER OF A GRANT.........................................87 SHELF HOLDINGS V. HUSKY OIL (558).................................................................................................87 LIMITATIONS ON EASEMENTS:...............................................................................................................88 EASEMENTS BY OPERATION OF LAW......................................................................................................88 NEGATIVE EASEMENTS:.......................................................................................................................89 PHIPPS V. PEARS.................................................................................................................................89 COVENANTS AND THE USE OF LAND.....................................................................................................90 FREEHOLD COVENANTS: ENFORCEMENT AT LAW.....................................................................................90 FREEHOLD COVENANTS: ENFORCEMENT AT EQUITY..................................................................................91 TULK V. MOXHAY (604).....................................................................................................................91 NOTES ON TULK:................................................................................................................................92 BENEFIT OF THE COVENANT:.................................................................................................................92 CANADA SAFEWAY LTD. V. THOMPSON..................................................................................................92 COVENANTS AND DISCRIMINATION.........................................................................................................94 NOBEL AND WOLF V. ALLEY................................................................................................................94 NOTES ON NOBEL:..............................................................................................................................95 NEW TYPES OF COVENANTS RUNNING WITH THE LAND..........................................................................95 BUILDING CODE .................................................................................................................................95 PLANNING ACT...................................................................................................................................96 SUBDIVISION PROCESS UNDER THE PLANNING ACT..................................................................................96 CONDOMINIUM ACT: OBLIGATIONS ON UNIT HOLDERS.............................................................................96
Property Summary
ONTARIO HERITAGE ACT: HERITAGE EASEMENT AGREEMENTS.................................................................97 CONSERVATION AUTHORITIES ACT AND CONSERVATION EASEMENTS..........................................................98 CONCURRENT INTERESTS AND FAMILY PROPERTY..................................................99 CO-OWNERSHIPS.................................................................................................................................99 MCEWEN V. EWERS AND FERGUSON....................................................................................................100 SEVERING A JT.................................................................................................................................100 KNOWLTON V. BARTLET (670)...........................................................................................................101 PROPERTIES OF CO-OWNERSHIPS:.........................................................................................................101 PARTITION ACT S. 2.........................................................................................................................103 NOTES ON PARTITION ACT:................................................................................................................103 KNOWLTON V. BARTLETT (680).........................................................................................................103 COOK V. JOHNSTON (678).................................................................................................................104 PARTNERSHIP:...................................................................................................................................104 OWNERSHIPS IN COMMON APPLY TO PERSONAL PROPERTY.........................................................................105 FAMILY PROPERTY...........................................................................................................................105 HISTORY:.........................................................................................................................................105 DOWER............................................................................................................................................105 CURTSEY..........................................................................................................................................105 CURRENT FRAME WORK....................................................................................................................105 CARATUN V. CARATUN (694).............................................................................................................107 NOTES ON CARATUN..........................................................................................................................108 PETKUS V. BECKER (707)..................................................................................................................108 NOTES ON PETKUS.............................................................................................................................109 FAMILY INTERESTS:..........................................................................................................................109 WHAT OBLIGATIONS ARISE?................................................................................................................110 MARY ELLEN TURPEL, HOME/LAND................................................................................................110 ABORIGINAL LAW AND TITLE:...........................................................................................................111 ABORIGINAL CONCEPTS OF PROPERTY..................................................................................................111 LEROY LITTLE BEAR, ABORIGINAL RIGHTS AND THE CANADIAN GRUNDNORM....................................111 NOTES:............................................................................................................................................111 PROPERTY, POWER, POVERTY.............................................................................................................112 NOTES ON PROPERTY POWER, POVERTY...............................................................................................112 K. MCNEIL, COMMON LAW ABORIGINAL TITLE...............................................................................112 BRIAN SLATTERY, THE HIDDEN CONSTITUTION: ABORIGINAL RIGHTS IN CANADA..................................113 DELGAMUUKW V. BRITISH COLUMBIA..................................................................................................114 NOTES ON DELGAMUUKW...................................................................................................................114 ABORIGINAL TITLE AND THE CROWN...................................................................................................115 BUCKNALLS OBSERVATIONS AND COMMENTS ON ABORIGINALS..............................................................115 RIGHTS TO THE LAND.........................................................................................................................116 WISDOM IN VIEWING ABORIGINAL LANDS ACCORDING TO CURRENT STANDARD.......................................116
Property Summary
Property Characteristics:
De Soto: Property is not things it is a bundle of rights. It is not a primary expression of assets but a legal protection of an economically meaningful expression about assets. o Capitalism doesnt work in developing countries because they do not have an accessible means of enforcing property rights. Property: A bundle of rights against other people to tangible and intangible things (example: land and chattels) o Relationship among people in respect of objects o Rights of ownership that the legal system will enforce against others o There may be limits on property rights (i.e. treatment of animals) To be property it must be alienable. Rights are relative not absolute.
Types of rights:
Real Property: traditionally rights to land.
Property Summary o Claims based on these can result in recovery of the property. (Traditionally only land was subject to such a right and so it has come to be known as real property) o There are two subdivisions of Real Property rights: Corporeal Heriditiments: Capable of being held in Possession Traditional land Incorporeal Heriditiments: Incapable of being held in possession. Easements, covenants, Personal Property: traditionally rights to property. o Claims based on these are settled with damages only. It is now possible to get some items back that are personal property. Chattels Real: Leaseholds Chattels Personal: Other personal Property Chattels Personal was further divided into: o Choses in Possession: Tangible property Cars, Watches, o Choses in Action: Intangible property. Promissory notes, bonds, IP Sui Generis: Of its own nature. o Aboriginal Rights are an example. They are held by the tribe in common.
Property Summary True owner can recover where there is a defective title. Ex. A thief can only pass on the title has. This is less than the title of ownership. Obligation/Covenants: restrictions or forced actions on a party. Escrow: a deposit of documents to be held in trust. Bailment: One party owns, one possesses the person in possession is said to be in possession of a bailment. Selling Real Property: o Chattels, fixtures and Accretions. Accretion: cannot be removed from the property without damage to itself or the real property Not about the diminution in value, more about causing actual damage to the property. Are sold with the Real Property. Unless otherwise stated in the contract Fixture: objects that are screwed to the walls but can be removed without damage to itself or the property (not those things simply hanging on the walls). Are sold with the Real Property. Unless otherwise stated in the contract Chattel: can be picked up and removed. Are NOT sold with the Real Property. Unless otherwise stated in the contract Deed: if a deed is created for a property then, without express terms, the full interest is granted.
Property Summary
Property Summary o World is better off if everything is divided among PRIVATE PROPERTY OWNERS. Tragedy of the Commons: open to the public no one cares for it and it is wasted. Frozen Capital- if no one owns land- shanty towns, no capital investment for infrastructure & development. o Contrast: allowing public use of ROADS INCREASES their value. Non-natural use of land: o Vibration cases: Someone creates a big factory with machines that cause vibrations. These vibrations shake other properties. o Rylands v. Fletcher: could have been protected against the water breaking through into a mine shaft. This is a type of nuisance. An action on one property that adversely affects another property. Conversion: an action to retake something that belongs to you but has been taken by another party. o The problem with pleading this in this case is that nothing was taken from them. They still have all the information they would have had before. o The misappropriation of information is not really a conversion; it causes economic damages but not physical damages.
10
Property Summary
NOTES on Harrison:
Amendment: o Ontario Labour Relations Act: allow people to legally picket where ever the public normally has access. POLICY: Shopping Mall Picketing - Arthurs. o Picketing is lawful even if it interferes with the normal use of the picketed property. o Inconvenience to adjacent shop owners is handled by restricting activities. o Justification: In public: taxes pay for the maintenance of the sidewalk and roads. They are entitled to picket there. 11
Property Summary In a mall: the landlord pays for the maintenance of the common areas. Making them picket on the roads is impracticable. BUT cant let employers avoid impacts of labour conflicts just because they are in a mall!
ONUS on claimant to show it is a public area. Facts: the p was distributing leaflets in Dorval airport (government property). There was a federal regulation stating that no person should advertise or solicit on his own behalf or on behalf of any other person without permission from the Minister. The CCC was told to leave. They challenged this. Held: LHD
12
Property Summary o LHD takes stand that property rights are subject to infringements. If you cant exercise Charter rights on PUBLIC PROPERTY (government owned property) the Charter loses all meaning. But not all government owned property!! o Offices, air traffic control towers, judges chambers Refuses to take a stand on PRIVATE PROPERTY. Cites US position: o The more an owner, for his advantage, opens up his property for public use. o The more the statutory and constitutional rights of the people using his land circumscribe his rights. ONUS on claimant to show it is a public area. o NON-SECURITY zones of airports satisfy the test.
NOTES on CCC
Cannot invoke freedom of expression so as to interfere with the functions of the public place. o Parliamentary Library: cant enter and start a public speech. But can enter wearing a T-shirt with a political message. R v. Behrens o Facts: Demonstrators in Parliament. o Held: could not be charged with trespass so long as they were peaceful and did not interfere with the function of the legislature. R. v. Banks: Freedom of expression is more to protect POLITICAL instead of COMMERCIAL communication. o Begging is more commercial. So it is not protected as a CORE value of the Charter. R. v. Shack: o Facts: a group trying to reach migrant workers to inform them of their rights was stonewalled by the owner of the property they were staying on. o Held: The benefits of the migrant workers hearing the information outweighs the detriment to allowing the trespass. Mans right to his property is not absolute. BUT solicitors and peddlers of all kinds are also not permitted to enter the property without permission. Lehman v. City of Shaker Heights (55) o Facts: Politicians wanted to advertise on busses and subways. The city prohibited such advertising. o Held: This was valid. People on busses are captive audiences. They should not be forced to see political advertising; they have no method of escaping the advertising. Task Force on the Law concerning Trespass: o Trespass to Property Act creates the potential for abuse.
13
Property Summary Especially against minors. Owner voluntarily limits the duration of the ban. o Public perception is that the shopping center is public property The inconsistency between the public perception and the legal position causes strained communications. o Malls are socially important They are where young people go to be seen, meet and converse. Displaced and replaced streets and street corners. Privatization of town squares should carry with it obligations to allow for non-productive uses.
NOTES:
UK: human tissue (blood, sperm, eggs) should not be bought and sold for profit. Bill C-13 Act Respecting Assisted Human Reproduction and Related Research
14
Property Summary o S. 5(1): (a) No cloning, (b) no creating in vitro embryos (for any purpose other than reproduction or training for producing reproduction.) o S. 7(1): No one can purchase, offer to purchase or advertise the purchase of sperm or ova from a donor or person acting on behalf of a donor. Woodward v. Commissioner of Social Security: Facts: mother was impregnated using fathers frozen sperm AFTER the fathers death. o Held: Children entitled to inheritance if mother shows that Father gave consent to have his sperm used as it was.
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Property Summary
NOTES on Pierson:
California Gold Rush: much deference given to the custom of the miners. Majoritys CLEAR ACT was undoubtedly meant to be wider than the audience suggested by the Minority (Fox Hunters understanding).
16
Property Summary Held: The p was able to recover the object (original finder). o It was a custom in the field of metal detecting to assert possession over an item that you had begun to dig a hole on. o Custom of the group was followed by the court to determine the clear act of possession
17
Property Summary o Rights and Obligations of the Finder No rights unless It has been abandoned or lost He takes control of it. Very limited rights if he takes it into his control with dishonest intent or in the course of trespassing. Finder acquires a right to keep it against all but the true owner, those claiming through the true owner, those with a prior right subsisting at the time the chattel comes into his control. An employee finder takes it into care and control on behalf of his employer (employer acquires the finders rights). Obligation to take all reasonable measures to find the true owner and to take care of the chattel until then. o Rights and Liabilities of an Occupier Occupier of land has rights superior to those of a finder if: Chattel is attached to the land. Occupier of a building (or chattel: ship, car, ) has superior rights to those of a finder if: Chattel is attached to a building. Occupier has manifested an intention to exercise control over the building and the things found upon it. If occupier has rights superior to the finder he has an obligation to take such reasonable measures to ensure that the lost chattel are found and to take care of the chattel until it is found.
18
Property Summary find the real owner. The shop keep looks for the real owner and then keeps the money. Held: The p was entitled to recover the money less the amount the shop keep spent on his search for the real owner. o The money was found in a public area of the store. The shop keeper was not exercising adequate control over that area of his store to claim it for himself. The notes were never in his custody or within the protection of his house o Had it been found behind the desk it would have been in an area the shop keep exercised control over and would have been his.
19
Property Summary o Pump goes to the finder. o The property owner was not asserting manifest control over the land.
Joint Finding:
Keron v. Cashman (124)
Need to have state of mind to possess. Possession is not just the person who first takes personal possession. Finder who has no intention to inspect the object cannot claim title to the value of the object if it is taken away from him. If the value of an object is realized jointly it is shared jointly. Facts: One of 5 boys finds a sock. Another boy takes the sock and the 5 stat playing with it. The sock bursts open and money falls out. Held: The money was divided equally between the boys. o Found while in the common possession of all the boys. Insufficient evidence to show that Crawford (original finder) wanted to examine the stocking before it was snatched from him. Had this been established all of the money would have been Crawfords.
20
Property Summary
Issue of Intention
Bird v. Fort Frances (128)
Where the true owner asserts no intention to possess they have no rights even if wrongfully dispossessed of possession. The finder even if trespassing, has superior claim to the chattel, against all but the true owner. Facts: A boy trespasses onto a property and finds a can full of money. He begins spending the money without trying to find the real owner. The police came and took possession of the money. Held: Since the true owner and occupier of land had no intention to assert their claim to the money the finder had the highest rights to everyone else. o Possession creates rights. Not as extensive as ownership. o The boy was not a true finder. Money was not in a publicly accessible place. Money was not lost Someone put the money there deliberately. o No Animus Furandi: good intention on finding (no attempt was made to find the true owner). o But finder was in possession. Even though his possession was interrupted he is allowed to take it back. o The owner of the property made no claim on the money.
Notes on Bird:
R. v. Christie (132): There needs to be an intention to exercise control in order for it to be considered in your possession. o Facts: police found marijuana in the trunk of the accuseds car after an accident. She claims she saw it, panicked (believing it to be her childrens) and drove around looking for friends in a panicked state. o Held: This was a criminal case. There was no intention to exercise control over the marijuana. This is important in a Criminal Code matter. Moffatt v. Kazana (133)
There was no intention to abandon it was simply forgotten. The true owner wanted to reassert his right. True owners rights are better than the finder. o Facts: Russell, when he moved into his house brought with him a biscuit tin filled with money. He placed the box in a false flue. From time to time he would take money out of the box and use it. The house is sold to Kazana. 21
Property Summary Workers find the box filled with money. Moffatt, the heir of Russell sues for the box filled with money. o Held: The box was not abandoned, it was simply forgotten. Moffatt was able to recover the money, as the true owner of the box. Russell had never ceased to be the owner of the box. True owner trumps finder, finder trumps 3rd party. Moffat didnt get ownership of the box as the purchaser of the house because it wasnt considered when the house was sold. She should get everything that the vendor has not said she will not sell. The object was not abandoned. It was forgotten. o NOTE: Recaption: The right to enter onto someone elses land to recover a chattel without the assistance of the legal process. (Permits technical trespass.)
22
Property Summary
23
Property Summary
Relevant Doctrines
Possesory Title: The right to hold title because of you have held it for a certain period of time (10 years) Livery of Seisin: ceremony for the transfer of land. o Grantor and grantee stand on land to be granted with a witness. Grantor symbolically delivered seisin by handing the grantee a twig or a handful of sod and expressing the words of transfer.
24
Property Summary
Notes on Asher:
Durante viduitate (during widow hood): Type of estate. It is a life estate subject to termination at the end of widowhood. It is held for the life of the party or until the condition is met.
25
Property Summary Possession was with the intention of excluding from possession the owners or persons entitled to possession. Discontinuance of possession for the statutory period by the owners and all others, if any, entitled to the property. o Appellants did not have the intention to exclude the owners. They made 2 offers in writing. Admission that the other party has title. Owners were able to come onto the land and they chose to pick apples. They werent prevented from using the land as they pleased.
Adverse Possession can be acquired without the intention to exclude the other coowners
26
Property Summary
Tenancy at Will
Tenancy at Will: Person is in possession with the owners permission and is not paying rent (usually arises in a family situation) o Possession via tenancy at will becomes adverse after one year and the limitation period begins to run from that date. o Limitations Period- After Occupying land for 10 years- Claim Adverse Possession- can try to claim title from true owner. Must be- exclusive, visible, actual, open not secretive- without permission or violent. o Reward those in society which maintains land for society. Ontario Real Property Limitations Act 5 (7): one year after the tenancy at will begins adverse possession begins to run.
Dispossession of a Leaseholder
Limitation period runs against the leaseholder until the end of the lease Landlord has no right of possession while the lease is in force. Limitations period does not run against landlord until the lease ends. Leaseholder gets an AP and the limitation period expires vis--vis the leaseholder. However, the leaseholder surrenders the lease to the landlord at the end of the lease period. So the AP against the leaseholder cannot also dispossess the landlord. AP period starts again with the land lord. o Limitation period against AP begins to run against the landlord who is now entitled to possession at the END OF THE LEASE.
27
Property Summary A lessee whose own title had been extinguished by adverse possession could by surrendering the lease to the landlord and enable the lessor to evict the squatter.
28
Property Summary o Did Keefer Satisfy the test? Only satisfied the test with respect to the part occupied by the garage.
Beaudoin v. Aubin
Facts: Beaudoin (B) leased the property for 15 years then purchased it. From the time of that lease up until they purchased the property they had possession of a piece of land (now in dispute) because the fence was in the wrong spot. At the time they bought the land they knew that it was not theirs but continued to occupy it for a further 13 years. At this time the Aubain family (A) learned that they had paper title to the land and disputed As claim to it. Held: B was entitled to keep the land. o But there is no knowledge and therefore no intention of adverse possession!! o Anderson J rejected the intention test entirely and determined that the intention and adversity tests were not appropriate elements of the law is a simple matter of possession.
29
Property Summary
Bucknalls Observations:
Beaudoin v. Aubin was decided a year before Masidon v. Ham. o Masidon v. Ham did not discuss Beaudoin v. Aubin. Divergence in approach is almost as different as the divergence in results for Masidon and Piper. Masidon decision depended heavily on the reasons in Keefer by Justice Wilson (then of the Ont. CA) o Animus possidendi: need to have the intention to exclude the owner from the use the owner wants to make of the land. o Relied on the Leigh v. Jack decision. Two tests for proof of intention under Masidon: o Intention of the possessor to exclude the owner from such uses as the owner wants to make o Intention of the owner to make some use, or no use, of the land. In other words: o A person in possession of land which he does not own can only acquire possession if: He knows he DOES NOT OWN the land, and He knows the INTENTION of the owner and acts in a manner INCONSISTENT with those intentions. o The weaknesses of this test are apparent. Cant get possession due to mistakes. It is inconsistent with previous decisions. Common law: o Without stealth Needs to be actual possession. A series of trespasses will not suffice. o Without violence Cant physically keep the true owner from the land Without permission Cant be exercising the owners rights with respect to the land. Bucknalls Ideas of a Modern Approach: o Peaceful ownership amounting to possession is the DEGREE of use of the property that a true owner would make of it. Property that is not susceptible to some degree of open continuous control will remain with the paper title holder UNLESS the claimant to a possessory title takes unusual measures to establish the existence of his interests. o Possessory estate established through a variety of indicia (none on their own sufficient to establish possession: Enclosure Continuous possession Formal repudiation of claims by the true owner Demonstrated intention to possess the lands as if the claimant were the true owner. 30
Property Summary o Intention to possess: Open, obvious, continuous possession. Intention is not an issue it is assumed. Facts are equivocal and the lands are not in continuous use. Subjective intention of the possessor MAY BE a relevant factor. o In possession without the permission of the title holder is a necessary factor. In possession with the permission of the owner, possessory period does not run.
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Property Summary True owners were effectively excluded from possession (Inconsistent use test) o Mutual Mistake: Court will not bar possessory title due to inability to form an intention. Mutual mistake can create and inference that the party did intend to exclude others (including the true owner). Inconsistency test DOES NOT APPLY to CASES OF MUTUAL MISTAKE. Inconsistency test was developed to prevent injustice by allowing trespassers to gain title over rightful owners. (Leigh v. Jack) Can establish effective exclusion of the true owner.
Notes on Wood
Possessory title claims only run under a registry in the Registry Act in Ontario. o Once Land Titles is completed there will be no more possessory claims. ***Wood can be used to argue against Keefer that intention is not required. (BB)
Quieting Titles
In cases where a person can show a title based on possession an application may be made to register such an interest. Under quieting titles legislation. o Ontario application is made pursuant to the Courts of Justice Act
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Property Summary
Doctrine of Estates
Multiple parties can have a claim to the land at different TIMES. o Quantity of the estate is the important figure (amount of time) Historical Perspective: Property used to be a method of securing the family. Currently property is viewed as a commodity.
Relevant Terminology
Grant: An intentional transfer amongst living people Devise: A transfer that takes place in accordance to a will. Perpetuities: If a property might vest at a later date then it must happen with in a Perpetuity period: a life or lives in being plus 21 years. o If you create an estate for your Grandson then he must take it within the perpetuity period.
Types of Estates:
Fee Simple: highest form of ownership in a tenurial system (not the same as allodial ownership as in a civil law system). o Free and common socage: you were free to use the land as you so chose. This is the only type of fee simple in Ontario. o Grant or Devise to create a fee-simple. John & his heirs (Words of Purchase) & (Words of Limitation)
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Property Summary Used to be the only way to transfer land in Fee-simple. Otherwise (without those exact words of limitation) it was determined to be a life estate. Currently the presumption is in favour of a grant of fee simple. o Statute of Wills: This created the current estate of fee-simple. Enabled land owners to leave land to anyone. This made Escheat rare. No longer needed an heir to pass your estate to, you could designate an heir. o Fee simple can be divided up into the smaller estates. Life Estate, Leasehold, Life Estate: Fee-simple on the property for the life of the grantee. o Life Tenant: grantee. o Remainder: the remaining interest in the land after the life tenant dies. o Remainderperson: the person entitled to the remainder of the estate. If no Remainderperson is declared in the grant then the grantor is the remainderperson. In such a case the grantor is said to have a reversionary interest in the land. Grantor is then called the reversioner If the grantor is dead then it reverts to his estate. o Grant or Devise to Crate a Life Estate: X to A for life. A has a life estate (control of the estate for her life). X has a right of reverter. o When Mary dies the estate returns to him. X to A for life then to B A has a life estate. B is the remainder person. o When A dies the estate goes to B. Both have a current estate. Both can alienate it to the point that they control. o A can sell her estate to C (estate pur autre vie) but when A dies the estate reverts to X (even if C is still alive) X no longer has any interest in the land. o Life estate is for and indeterminate amount of time. Fee-Entailed Estate: the estate lasts as long as there are lineal descendants to the grantee. The grantee gets a life estate and so do his lineal descendants. o These are essentially obsolete everywhere except Manitoba. Land subject to a Fee-tail was under valued and under used. o Grants to Mary for life and the heirs of her body. Mary has nothing to give away. It goes to her descendants. Mary has no say in how the estate is .
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Property Summary The law has since barred the entail (turning it into a fee simple). These no longer exist. Conveyancing Law and Property Act: any words of limitation that would have created an Entailed Estate now create a fee-simple (or the largest estate the grantor had to give) Leasehold Estate: this is the same as a life estate but for a determined amount of time. o A leases to B for 10 years. Same as a life estate but it is of a determinate amount of time. Leaseholder (B) Right of Reversion (A) A can terminate the lease at any time with reasonable notice. The estate (either way is alienable!) B can sell his estate to some one else (to the point where he controls it only for however long his leasehold is) A can sell his estate Words of Purchase and Limitation o Words of Purchase: Indicate to whom an interest is being conveyed Example: To X o Words of Limitation: Define the size of the estate conveyed to the grantee (i.e. fee simple, life estate) Example: and his heirs or and the heirs of his body The heirs are not getting an interest in the land. The term is used to define the size of the estate being given. o Under Common law words of limitation had to be precise to grant feesimple (and his heirs). Default position was a life estate. o Conveyancing Law and Property Act: Default position for a grant is fee simple and need to give intention to show it is a life estate. To X, to X in fee simple, to X forever, to X and his issue These all create a fee simple whereas they used to create a life estate. o Ontario Succession Law Reform Act: Same but for devises.
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Condition Precedent
The grantor does not grant the estate until a condition is met. This is a condition on the acquisition of a grant. o Common words used in Fee Simple subject to a Condition Precedent: On the condition that When he o Similar to a unilateral contract. The estate does not automatically transfer this must be requested (similar to a right of re-entry) No abeyance of seisin. Example: o X grants to A and his heirs on condition that A marries B. o (Words of Purchase) (Words of Limitation) (Condition precedent) Before wedding: X has Fee Simple. A has a unilateral contract with X but no property right. After the wedding: A has Fee Simple. If X decides to give it the estate to someone else before the wedding. This a unilateral contract o Act or forbearance of the party seeking the benefit makes the unilateral contract effective. The transfer would be valid BUT X would be in breach of his contract with A. What if he decided to mortgage the property? He is able to do this. o The estate is contingent so it is improbable that he can transfer the right BUT it is not impossible.
36
Property Summary
Property Summary o X to A in fee simple until B marries o (Words of Purchase) (Words of Limitation) (Determinable event) A has determinable fee simple When B dies (unmarried) A gets a fee simple absolute. X has possibility of reverter o X grants 5 Acres to the church for so long as the property is used for church purposes. Could the trustees rent the land? Probably, so long as they use the money for church purposes. Could the trustees sell the land? Probably not to just anyone. BUT they may be able to sell to another church. Could they mortgage the land? The trustees have the power to mortgage BUT no one would take that mortgage because if the Church is in default they can get nothing. o Once the land stops being used for church purposes it would revert to Xs estate. So if the bank tries to take the land it would go to Jeans estate. Would the mortgage be on the land when it went back to Jean? No. Once the estate is gone anything dependent on that estate is lost. So the mortgage is no longer secured. Jean gets back the estate she gave. o The bank took the risk that the estate might dissolve. Possibility of Reverter: event occurs, the estate reverts to the grantor automatically.
Notes on Conditions:
Remoteness:
The law dislikes interests that may arise at a remote point in time. Rule against perpetuities: created to combat the problem of remote vesting of interests. o A right of entry could thus be lost if it vested at a time too remote in the future. o But a possibility of reverter could not occur beyond the event so the rule against perpetuities did not apply to it. Statute has changed this. Rule against perpetuities now applies to both right of entry and possibility of reverter.
Void Conditions:
Can be void for a number of reasons:
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Property Summary o Repugnant: if the condition is inconsistent with the freedom of enjoyment, disposition, and management of the estate. Any restriction that substantially takes away the power of alienation. Ex. Absolute prohibition on the sale of land, land can only be sold to one person, land cannot be alienated without consent. Partial restraint on alienation may be upheld. Ex. Preventing alienation to a particular person or a particular class. Contrary to public policy Ex. Conditions that incite the grantee to commit a crime. Ex. Discriminatory restraints on alienation. o Uncertain: if the court cannot tell what the grantor wanted the condition may be void for uncertainty.
Re: Essex County Roman Catholic Separate School Board and Antaya (250)
Court made it a condition subsequent to avoid having the grant fail. The condition was too vague uncertain what was meant by school purposes could not be determined. Court tries to give effect to the grantors intention. Facts: The respondents father granted land to the applicant so long as the land was used for school purposes in 1925. The school stopped using the land for school purposes around 1977. The respondent is trying to get the land back. o If it is a determinable fee simple it is not subject to the rule against perpetuities. Statute only impacts after 1966 and common law does not apply to determinable fee simples. Condition remains on the land forever. o If it is a condition subsequent then the rule against perpetuities bars the right of entry. 39
Property Summary Held: Used the Education Act. If the property has been within the possession of the church for 50 years any restriction is removed. o In addition, it was decided that it was a condition subsequent superadded condition upon a grant of a fee simple rather than an integral part of the very limitation of the estate created in the School Board Clause in question: the grantor reserves to himself and his heir the preference to buy the said property at the current price should the same cease to be used for the purpose intended o Principle of the Perpetuities period: The perpetuity must vest with in the perpetuity period. Perpetuity period is a life or lives in being (someone who is alive normally the grantor but can be any assigned person) plus 21 years (21 years starts running when the life in being ends) to a maximum of 40 years. o Perpetuity period had expired: He did not leave a perpetuity vested in the life of an individual. As a result the perpetuity expired so the right of reverter was lost. o Difference between Determinable Fee Simple and Fee Simple subject to a condition Subsequent. Determinable: part of the grant. While, during, as long as, until Subsequent: added on clause. Provided that, on condition that, but it, if it happens that
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Property Summary Dont know what the testator wanted to do, we thus cannot achieve their goals Renders the condition meaningless. o Evidential Uncertainty: the condition is clear enough but the facts are not clear enough to apply the clear condition. NEVER renders the condition meaningless. o There was no Conceptual uncertainty. o The issue of evidential uncertainty is solved by the use of the Rabbi.
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Property Summary o OR Must he continue to stay on the farm (Condition Subsequent) o Court chooses condition subsequent Influenced by desire to give effect to the testators intent to benefit two sons equally Principle of interpretation that attempts to give effect to the testators wishes. o If they chose condition precedent then the son would get nothing. o Test of conceptual certainty for Determinable or Subsequent: condition must be such that the Court can see from the beginning, precisely and distinctly, upon the happening of what event it was that the preceding vested estate was to determine Need to know from the beginning what will bring the estate to an end. Too unclear what stay on the farm means. What does stay mean? To what extent? What about farming? To what extent? No duration is indicated. Is it a life commitment? Must he be on the farm at the time he is 30 (Condition Precedent)
Notes on Down
What if Stanley mortgages the property BEFORE Harold turns 30? o Harold would have a claim against Stanley. o The mortgage would be good. Contracts are only enforceable against the other contracting party BUT property is enforceable against the world.
Life Estates
Life estate is granted for the duration of the lives of one or more persons. Terminates on their death. o If a life estate is based on two or more lives, it is measured by the person who lives the longest Example: To A and B for as long as either of them live Life estate can be Qualified (subject to any of): o Condition subsequent o Condition precedent o Determinable Question: Did the testator or grantor intent to create a qualified life estate or personal licence? o Licence: enforceable only against the grantor (privity of contract) o Life Estate: enforceable against the world and alienable. Impact of Striking Down a Qualified Life Estate o Condition Precedent: the entire grant will fail 42
Property Summary o Condition Subsequent: the condition will be struck down, converting the estate into an absolute life estate o Determinable Limitation: the entire grant will fail.
Re: Waters
Cardinal Rule of construction: Try to give effect to the testators intention. Read each clause in the context of the whole will and the circumstances under which the will was made. Life estates are alienable rental of the property was permissible. However if she had a licence rental would have been impermissible. Facts: Waters leaves to Jones (in contemplation of Marriage) the USE of his house for as long as she lives or until she re-marries or decides she doesnt want the house anymore. Taxes, insurance, repairs and other up-keep shall be paid by Jones. Jones chooses to rent out the house beneficiary of the Waters estate does not want her to do this. o Determinable life estate: she has the right to alienate her estate as she chooses. o Licence: renting the property is beyond her power to do. o Other issue: There is an outstanding work order on the house for repairs. Held: This is a determinable life estate (upon her marriage or upon giving the trustees notice that she no longer needs or desires the property) o The language: for as long as she lives is sufficient to create a life estate. Conditions are only against remarriage or written notice she no longer wants the property o Rent: She is able to rent the house because she has a life estate! There is no condition barring her from renting the property. No condition that she must remain in the property. o Repairs: Jones is to take the burdens with the benefit (encumbrances that accompany the property). Failure to make the repairs does not mean that she is giving up her interest in the life estate because she is not doing her repairs!! This is too vague to create a reversion.
Re: McLogan
Need to look at the intention of the grantor and try to give effect to that intention. Courts will construe a determinable fee simple as a condition subsequent if they want to preserve a grant with a void condition. 43
Property Summary Courts very willing to find a life estate over a licence when they think it better suits the intention of the grantor. Facts: Kovalchik and McLogan were great and good friends and had an intimate relationship. When McLogan died he left his house to Mary then the remainder to Leftdahl then to his estate. The wording of the devise is: o To hold my property as a home for Kovalchik until her death or until she is not residing therein personally, whichever shall first occur and thereafter to Leftdahl until her death or until she is no longer residing therein personally whichever shall first occur. o Kovalchick, due to illness had to leave the house but first wrote to the trustees to say that she was not giving up her interest in the house. If this is a licence the trustees can terminate her interest in the property upon reasonable notice. Held: It fits within the testators intention to say she has a life estate in the property. Condition is void for uncertainty so it is an absolute life estate. o Court was swayed by the language and decided that this was in fact a life estate. To be held as a home. Until her death. o Subject to a condition subsequent: Not residing therein personally Subject subsequent is void for uncertainty. What is meant by not residing personally? On vacation, in hospital, Need to be able to tell from the beginning precisely what event would cause the estate to be determined.
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Property Summary S. 48, 49 and 46: court can order a person be produced in a case where it is believed a body is being concealed S. 46: If the person has left the jurisdiction and is away for more than 7 years, it is presumed s/he is dead. Presumption is rebuttable.
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Property Summary o Relief only applied when the heir took the land by inheritance and NOT an inter-vivos transaction o Landowners invented a grant to seize on this rule and avoid relief X to A for life, remainder to the heirs of A in fee simple A is acquiring a life estate As heirs would get an interest in fee simple. Lords could not get relief because transfer stemmed from an intervivos conveyance. o Lords wanted to end this practice to ensure they got their relief. Rule in Shelleys Case o If a freehold estate is granted or devised to a person, and by the same instrument, an estate is limited by way of remainder to his heirs, whether the remainder immediately follows his estate or follows an immediate remainder, the word heirs is construed as a word of limitation and not purchase. The heirs do not receive the fee simple estate in remainder. That just indicates the size of the estate given to the grantee. o Result: A just gets the fee simple. Doctrine of Merger: A gets a life estate and a fee simple BUT the life estate is swallowed by the fee simple. Limitations on the Rule: o The rule ONLY applies when the grantor uses the word heirs to refer to the whole inheritable issue over generations BUT, does not apply if X has a specific heir in mind (or a limited group of heirs). o Rule applies if there is an intermediate remainder (X to A for life, then to B for life, remainder to As heirs). BUT, in this case, the doctrine of merger doesnt apply because of the intervening life estate
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Property Summary
Re Rynard
Determinable life estate, so Shellys Rule does not apply. Shellys Rule is still a part of Ontario law but it only applies to pure life estates. Facts: Rynard owned a farm she inherited from her father. Her husband was to get the property but he died. She left the use of the farm to Kennedy (he had to pay $160) to his father until his fathers death. Upon Kennedys death $1500 of the estate should go to Bernard and the remainder to the heirs of Kennedy o The executor of the estate and Kennedys children would be fighting Kennedys attempt to apply Shelleys rule. Held: The interest was limited to a determinable life estate SO Shelleys rule does not become applicable o There were obligations. SO the rule in Shelleys case did not apply. Not a pure life estate. Shelleys rule only applies to PURE life estates with the remainder going to the heirs. o Testatrix seems to have been referring to Kennedys children alive at the time the will was made. o Shelleys Rule is still a part of Ontario Law. HAD Wilson found this was a pure life estate and that the testatrix had intended his full line of issue instead of living heirs only Shelleys rule would apply and Kennedy would have had a fee simple. Even though this flies in the face of the testators intention. o Try to apply the law in a way that would apply the testators will in the way that they would have wanted.
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Property Summary o Timely vesting o No Shifting Freeholds Note: ONLY apply to common law conveyances these rules dont apply to devises (wills) because they are equitable. The estate is given to a trustee who gets fee simple in the estate. o The trustee is then given terms for paying out the trust. o The trustee then follows those terms.
No Springing Freeholds
Prohibits creation of an estate that springs up in the future unsupported by a prior particular estate in Freehold. o The rule requires an immediate passage of seisin from grantor to grantee. Examples: o X to As first born child in fee simple (unborn) Invalid. There is no possibility to transfer immediately. o X to A for life, remainder to As first born child in fee simple (unborn) The contingent remainder is supported by a prior particular estate. The transfer occurs immediately to A then to As first born on As death. Goes in reversion to grantor if no first born at the end of As life estate. o X to A for 2 years then to B and her heirs upon attaining 21 years. (B 20)
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Property Summary A gets a leasehold interest which is not the same as a freehold interest. There is no seisin in a leasehold estate. Leasehold estate cannot support a contingent remainder. This estate cannot support the grant to B so B gets nothing. o X to A for 2 years then to B and her heirs upon attaining 21 years. (B 21) A gets a leasehold interest. B gets an estate in seisin immediately subject to As 2 year lease.
Timely Vesting
There cant be a gap in seisin. So the estate must vest before the prior particular estate runs out. o Common law normally takes a wait and see attitude to determine if the interest will vest. o If the grant requires a gap in seisin then it will fail. Examples: o X to A for life, remainder to B when B turns 21 Contingent remainder that requires wait and see If B turns 21, when A is alive then the remainder is valid If A dies before B turns 21, the remainder is invalid o To A for life then one year after As death, remainder to B in fee simple A one year gap in seisin that violates the rule. Remainder to B is invalid ab initio (from the outset) A gets a life estate grantor gets reversion.
No shifting Freeholds
A remainder is void if it operates to defeat the prior particular estate of freehold. o Can only vest in possession upon the natural determination of the prior estate. o The common law does not allow the grantor to convey a right of entry to a stranger. This rule does not apply to a Determinable Life Estate. There the condition is a part of the estate. So that event determines the natural determination of the estate. You cant transfer the possibility of reverter or right of re-entry to anyone. Examples: o X to A for life, but if A goes bankrupt, then to B immediately. The condition subsequent attempts to give B the right to terminate the estate before its natural determination. So it is void. A gets a fee simple subject to a condition subsequent. B gets nothing. X holds the right of re-entry. o X to A for life or until the CN tower falls, and if the CN tower falls, then the remainder to B in fee simple.
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Property Summary As estate terminates naturally when the CN tower falls or when A dies. B acquires a valid possession that will vest in possession when As estate ends.
Doctrine of Use
A grantor granted seisin of his land to X with the direction that X was to permit B to use the land. o Legal seisin conveyed to a trusted person. o Trusted person held the property for the benefit of the grantor Uses of this doctrine: o Avoid taxes were not paid for the transfer of the land by transferring to younger people to the use of someone older. o Avoid the common law remainder rules. Could create springing interests and shifting interests in equity. Springing interests did not vest until the condition was met. Until then the grantor retained the use of the land. Example: o X to A and her heirs to the use of B and his heirs A was seised of the land in fee simple. Enforceable in the courts of common law. Encumbered by the equitable right of B to use the land. Enforceable only in the courts of equity. Avoiding the common law remainder rules. o X to A her heirs to the use of B when B turns 21 (B 15) When B reaches 21 the equitable use will vest in A. Until the contingent is met, its an equitable executory interest Executory Interests: equitable interests that have yet to be executed (i.e. future interests that have not vested and will only do so in the future, if at all) The grantor has the resulting use of an equitable fee simple until B turns 21 at which point it springs from X to B A has the legal fee simple and B as the equitable fee simple
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Property Summary For A to obtain the legal fee simple, F must transfer it and seisin would pass to F. o X to A and her heirs to the use of B for life and the reminder to C and his heirs when C turns 21 (C 18) A receives legal fee simple as feoffee of uses B holds a vested equitable life estate C gets an equitable fee simple at age 21 vested in interest (does not get possession until B dies) AND resulting use springs from grantor to C Until C turns 21, he has an equitable executory interest The use is with the X of the equitable fee simple and springs to C when he turns 21 (X has no further interest in the land when C turns 21 Cs executory interest becomes an equitable fee simple)
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Property Summary C gets a legal vested remainder in fee simple. Vested in interest and will vest in possession when B dies.
53
Property Summary Equitable grant provides there may be a gap in seisin which violates common law remainder rules. However, the rule does not apply here because the interest contemplates an executory springing interest that cant comply with the legal remainder rules
Modern Trusts:
Feoffee of uses now called the trustee. o Has a fiduciary obligation to the beneficiary. Cestui que use now called the beneficiary of the trust. These are essentially the same as a to the use of
Property Summary If B has a son: The interest must vest to his eldest son within 21 years after Bs death. o X to A for life then to B. If A lives for over 40 year after the grant from X, Bs interest is lost. The interest becomes a fee simple in A.
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Property Summary
Bailees Responsibilities:
Recent case law: there is one standard of care, that of general negligence but liability is determined by bearing in mind who was to benefit from the arrangement. o The bailor must act reasonably with the bailment to see that no harm comes to the chattel. If they do this they are unlikely to be held responsible. Exceptions: o Common carriers: held to strict liability unless altered by statute or the terms of the contract. o Innkeepers: statutorily exempt from strict liability so long as they conspicuously post signs that show the statute saying they are not liable. o Employee: not a bailee of employers chattels. Simply in custody. But there is no intention to hand over control of the chattel. Bailee may have a right of action against a 3rd party that deprived him of his bailment.
Bailors Responsibility:
Bailor for reward: a responsibility to ensure that the chattels are reasonably fit and suitable for the purposes of the hirer. Gratuitous Bailor: only required to inform the bailee of known defects. Liability to 3rd parties: o Bailee acting simultaneously as an agent. Liable for the agents acts o Personal negligence: careless instructions regarding the use of the chattel. 56
Property Summary Liable for defects (as above) o Bailment with operator. Responsible for operator.
Types of Bailment:
True or Formal bailment: highly documented and contractual. It is critical in current Property law. (GE Capitals Bailment of planes to Air Canada, Heffron) o Leases of Equipment, storage of chattel, o The essence is that it is a contractual obligation. Informal bailment: undocumented but intentional bailment relationships. (All Finders Cases) Constructive Bailment: Items which one would reasonably expect to be found in the bailed item. As well as unexpected items that are communicated to be with the bailed item. Are constructively bailed with the bailed item. o This occurs in Hefferon v. Imperial Parking and Minichiello v. Devonshire Hotel. o There is not the same DEGREE OF INTENTION as in the two types of bailment above. The courts construct it even though it might not have been explicitly considered by the parties.
Minichiello v. Devonshire HotelFacts: There was a briefcase filled with $16K worth of jewels. The p informed the ds attendant that there were valuables in the trunk. Then gave over the keys. The brief case was stolen. Held: There was bailment. The items in the trunk were considered to be constructively bailed with the car. o Devonshire Hotel is a classy hotel. The p took some steps to protect himself. He does all he can to create a contract to protect himself. The hotel allowed the contract to occur. It is responsible. Involuntary Bailment: o There is a commercial tenancy. The landlord goes to the office after the tenancy has expired (paid in full). He finds it is fully equipped with office furniture. The landlord would be bailed of those items involuntarily. Warehousemans lien: The landlord would move the items into storage and pay for those items to be in storage. When you pay be $X you can have it back. This is the same as when your car is towed. o There is a residential tenancy. The tenant leaves and leaves unmarketable furniture. Tenant Protection Act: the landlord must keep the furniture together for 1 month. Then the landlord is able to sell it.
57
Property Summary
58
Property Summary o Facts: the p left his keys in the car at the request of the attendant. There was a sign that said that charges are for use of parking space only. The car was stolen. o Held: The p was unable to recover. This was seen as a licence because of the sign.
Licence:
Definition: A grant of such authority to another to enter upon land for an agreed purpose as to justify that which would otherwise be a trespass and its only legal effect is that the licensor until the licence is revoked is precluded from bringing an action. (Hefferon) o Licensor: person who gives non-exclusive use of their legal title o Licensee: person who has non-exclusive use of the land.
Properties of Licences
There is no obligation on the licensee other than to honour the licence! There is no property right in a licence it is merely a contractual right. o Little more than a defence to a charge of trespass. o Not alienable o Not enforceable against the world Just the licensee. Though it is possible to have rights enforced by equity. o No Equitable remedies are available on breach. 59
Leases:
Definition: A lease is a grant of exclusive possession from the land of another person for a predefined period. This is a legal estate in land. Leases are a mix of property and contract law. o Lessor/Landlord: owner of the land under lease. o Lessee/Tenant: party possessing the land under lease. Main difference between lease and fee simple is that lease is for a specific period of time.
Properties of Leases:
Leases are Alienable: o The Landlord can alienate the land, subject to the interests of the tenant. o The Tenant can assign the remainder of his interest to another. OR if he wants to maintain the lease he can sublet it to another party. o It is possible to put in contractual terms that stop it from being alienable. BUT absent those terms it is possible for the tenant to sublet! Leases are Enforceable against the world: o New owner of land has to recognize the lease. On breach can bring equitable remedy for re-possession. Length of time: o Leases are normally for a certain term. o There are also periodic tenancies which automatically renew at the end of each period. These keep renewing period by period by period until the landlord or tenant cuts it off. Period can be 1 or 2 years. But normally is 1 month. o How much notice has to be given to terminate the tenancy. Periodic if it is renewing for more than 1 year. 6 months notice. Periodic if it is less than one year. Period. Commercial Tenancies: common considerations. o Fixturing: It may be necessary for the landlord to have their tenants fixture and improve a property (happens in malls). If this is required then the Landlord may give the Tenant rent abatement for this fixturing. o Anti-competition: Restricts the landlord from allowing competition near the leasee. You cant rent to another pharmacy (or whatever) on this same property. OR you must use this store for X purpose.
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Property Summary
Statutory Framework
Landlord and Tenants Act. o Rights and obligations on both the tenants and the landlords. In 1968 Part IV to the Landlord and Tenants Act was added to deal with residential tenancies. Landlord and Tenants Act has been replaced by the Commercial Tenancy Act and the Tenant Protection Act. o Commercial Tenancy Act: for leaseholds all of the covenants that touch and concern the land can be enforced against assignees. Example: o A leases to B. B assigns to C. C defaults. Property: Estate in A tenancy in C. Contract: Covenant with B remains enforceable unless A has agreed to release B. Statute: A has the right to seek recovery from C. Commercial Tenancies Act.
Property Summary
Property Summary Landlord can advise the tenant that he intends to re-let the premises on the tenants account and enter into possession on that basis. Terminate the lease with notice to the tenant that damages will be claimed for the loss of the lease. o This option is introduced in this case Property law is brought into contractual law: rights under a lease do not terminate with the estate. BB: Option number 1 is eliminated. There is a positive duty to mitigate on the termination of a lease. It is possible to try to rely on it but unwise. Facts: Highway Properties owns a shopping center. Kelley Douglas is a grocery store and the anchor tenant in the shopping center. Kelley Douglas decides to leave. Highway Properties divides up the vacant store and rents it out. However it is still not getting the same amount of money for the rental space it was with Kelly Douglas. Lease required Kelley Douglas to carry on business continuously after taking possession of the premises. Held: Highway Properties is entitled to damages from Kelly, Douglas & Co. o Options available to Highway Properties on the breach by Kelly, Douglas & Co.: Do nothing and sue for damages and rent. Terminate the lease. Retaining the right to sue for the rent accrued. Landlord can advise the tenant that he intends to re-let the premises on the tenants account and enter into possession on that basis. th o 4 option available: Terminate the lease with notice to the tenant that damages will be claimed for the loss of the lease. o In this case: Highway properties cannot reasonably leave the property vacant. They need a vibrant plaza for the other tenants. For this they need a new anchor. There is a clause that states that Kelly, Douglas & Co. will continuously run a business on the property. o Overrules Goldhar precedent that states that contractual rights are terminated with the estates termination. So the mitigation of losses does not destroy the landlords ability to collect damages. BBs idea of the effect of this case: o You are obligated to mitigate damages. o Options available: Leave the lease empty and sue for your rent. This option is no longer available. ****This is in disagreement with the book. The book believes there are now 4 options available.
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Property Summary Possible to try to rely on this BUT it is unlikely to work. Take the property over as an agent for the tenant. Landlord takes the estate over to lease for the tenant. Mitigating damages by finding another tenant BUT original tenant is still on the hook for the difference. Sublet on behalf of the tenant. Accept the repudiation and lease to someone else. This is what would happen if there was more money given in the new lease or subletter than the old leasee owed. o Over ruled Goldhar: The contractual relationship are as important as property relationships. Upon the termination of the Estate there remains the ability to sue for damages. Goldhar v. Universal Sections: The landlord can only get damages up to and until they take possession. o The termination of the estate in land also terminates the terms of the lease. o The contractual right is terminated when the landlord takes possession so it is not possible to get damages. Goldhar tried to sue for the lost future earnings When you accepted surrender of the lease you gave up your right to claim future damages.
Residential Tenancies:
Different from Commercial tenants: o Commercial tenants, interested in having a long term lease, someone that will draw others to the building (good stores for the mall), So there is a commercial interest on either side. This means that there is a slightly better equality in bargaining power. In residential tenancies there is very little commercial interest on both sides: o There is an emotional attachment to your home that does not exist to the same extent with a commercial tenancy. o There is an inequality in bargaining power. Sometimes this depends on the strength of the market. o There is an inequality with regards to documentation There is a 3 page standard form contract. The average tenant doesnt really read it AND the average tenant doesnt really think that they have the ability to negotiate. The landlord can thus put in VERY strong terms in the tenancy agreement. o There is an inequality in enforcement. Landlord can easily have the tenant removed by court order.
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Property Summary But is the tenant going to go to court and spend money to get changes? History shows us they wont. Ontario Tenant Protection Act was passed to alleviate some of these inequalities. o Security of Tenure: tenant is able to stay on the premises until the LL has a good reason to get him out. o The LL has to maintain the building at an appropriate standard (S. 96). Pajelle v. Herbold (SCC 1973): Property advertised as having a swimming pool and recreational facilities. But the pool was empty. Tenant argued that the property was not maintained because the advertised swimming pool was not maintained. Tenant really just wanted out of the lease because the building was in a poor area. LL has to maintain the building at a reasonable level. If they advertise a feature (swimming pool) they have a duty to maintain that feature. Held: The SCC held that it was important to keep the pool in good condition because it was advertised. Thus she was able to walk out on her lease. o Control of Rent. 1975: possible to raise rent in whatever increments LLs wanted. This became an abusive practice against Ts by LLs. Rent Control Act: Each unit had rent established at the time the act came in. o Rent could be increased by guidelines set out in the act 2-3% (established guidelines). o The rent control was on the unit. The tenant did not matter. o Problem: the landlord has no real incentive to keep the property properly maintained. Tenant Protection Act: o The tenant is protected from rent increases. o When the tenant leaves it is THEN possible to go to the market and get whatever the market will bear. o Until the tenant leaves the unit is rent controlled. o Duty to Mitigate: This is on both the tenant and the landlord. Bars residential LLs from using option 1 in Highway Properties. o Statutory obligations Cannot be overruled by contractual obligations. Prohibition on Security deposits in excess of 1 months rent. LL cannot prohibit pets in the building. 24 hrs written notice before the LL can enter. LL cannot arbitrarily refuse the tenants right to sublet. 65
Property Summary o Curtailment of LLs remedies. Right to distress: LL may impound tenants goods until payment of rent. REMOVED. o Recognized grounds for early termination: Failure to pay rent Tenant carries on illegal acts Tenant misrepresented income to get public housing Tenant commits wilful, negligent or undue damage to the property. Tenant causes substantial interference with the landlords or another tenants reasonable enjoyment with his residential complex for all usual purposes. Tenants act seriously impairs the safety of any person. Tenant has too many persons in the unit. o No fault grounds: Good-faith possession where the landlord requires the premises for himself or herself or a family. This remedy is not available to corporations. Demolition and conversion to a non-residential use.
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Property Summary
Removal of a Tenant:
Cohen v. Klein: o It is only in exceptional circumstances that the tenant will be able to block forever the landlords attempt to retake the premises. o BUT this is if the Landlord is acting in good faith! Horst v. Beingessner: o If the landlord is not acting in good faith then the tribunal will not find that it is unfair to block the eviction. o In that case they are swayed by the fact that there were 4 units available and the unit they chose to possess was the one with the lowest rent! Neither apply as precedent. o The LL must show that he is acting in good faith. o The tenant must show that it should exercise its discretion.
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Property Summary LL may have other alts but this does not give the tenant a superior claim. Fairness goes to tenants more restricted choices and/or misconduct by the LL. o Only exceptional circumstances when it will be refused: Forever: Wrongdoing by the LL. Inducing the tenants to invest lots of $$ in the property Foreseeable Future: serious prejudice to the tenant. Serious illness, no other options - beyond the tenants control. Delay Eviction: fairness factors As in this case (delay of 4-8 months ordered) o To hold otherwise than to allow eviction would give the tenant property rights better than ownership. LL, because of investment, entitled to use the property as he wishes.
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Property Summary o Ontario Tenant Protection Act S. 84 : the ORHT is entitled to refuse to grant the application unless unsatisfied, having regard to all the circumstances that would be unfair to refuse The LL must establish that it is unfair to the LL Unable to do this in the circumstances.
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Property Summary
if:
Gifts Generally:
In gift law we look for: o Intention to give o Intention to receive o Delivery of the gift. Some of the ideas from the finders cases apply: o Delivery: an intentional act of donation (words of gift can be an act not just words) by the donor AND an intentional act of acceptance and possession by the donee. was the transfer so clearly made that it has to be recognized by a 3rd party? Delivery timing o BEFORE the gift Donee in possession of something that he does not own [bailee] then the donor says you can have that. o Delivery can come WITH the words of gift. o Delivery can come AFTER the words of gift. Constructive delivery:
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Property Summary o The parties act as though the gift has been made. Symbolic delivery: o Picking up and transferring the property is not necessary/possible. You put your hand on something and say I am giving this to you. Note: If it is something simple and identifiable then it is not generally necessary to make a deed of gift. o BUT if it is a complex multi-faceted gift then it is wise to make an inventory and a deed of gift.
Notice of a gift will make it enforceable on a new owner. Facts: Moore, a gentlemen rider (a person not paid to ride the horse court looks on him with a certain degree of sympathy). Benzon gives more the interest in a horse. Cochrane advanced a significant amount of money to Benzon. Benzon then sold a number of assets to Cochrane, including the horse in which Moore had a stake. When the horse was transferred to Cochrane, Benzon told him about Moores interest and Cochrane told Benzon he would make it right. Held: Moore was entitled to win. He retained the interest in the horse. o Delivery of the interest in the horse is not possible. But the letter from Benzon to Moore was constructive delivery. o Cochrane told Benzon he would recognize the gift This made Cochrane a trustee of Moores stake in the horse. Minority: o Actual delivery is required. Only parliament can change that. There was no delivery so there was no gift. o There is another ground on which they decide the case: It is an invalid sales contract because it was based on a fraudulent misrepresentation. Benzon had legal title to the horse and held of it in trust for Moore. So Moore can claim against Benzon NOT against Cochrane o Benzon tried to make a proper gift in Moore, passing legal title. But he failed to do this. So a resulting trust was created in Benzon for Moore.
Trusts:
Express Trust: Trustee has an equitable duty to the beneficiary of the trust. To create one 3 criteria must be met. o The intention to create a trust.
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Property Summary o The subject of the trust. o The object of the trust. Resulting Trust: a transfer of property without an intention to create a gift. o Recipient of the property holds it in trust for the transferee. o Presumption of advancement: presumes a gift not a resulting trust in the case of family. Family Law Act repealed this doctrine for husbands and wives. Constructive Trusts: to ensure a just result where a person without title to property has made a significant contribution to acquiring or maintaining it, thus preventing an unjust enrichment.
Property Summary There is not one here. They shared the property and the possessions. Legal title remains with the husband.
Notes on Cole:
A great problem with the vagueness of the gift. o There was no inventory in the house. It is very ambiguous as to what was the content of the gift. o The gift was made years before the bankruptcy. It was not possible to tell what had been added after the gift. If Cole had chosen a specific item and given it to her then this would likely have worked. (I give you this piano (puts his hand on it). She says I accept (he removes his hand). That may work. o BUT if they both played the piano then it might be joint possession just like what occurs here. o The case where the father gives the furniture then leaves the house makes a gift because there was no joint possession. But the gift is not vague so it might work.) Types of Delivery o Constructive Delivery: the son worked on a barge for a period of some years and this was considered delivery when the father spoke the words of gift. o Symbolic Delivery: bulky chattels that cannot easily be delivered. The donor can put his hand on the gift and accompany this gesture with the words of gift. Hypotheticals: o A man was a great collector of art. He gave gifts of art to his partner. He was defrauding clients and was sued. The claim of the partner to the art was not respected. o If Mrs. Cole had spent family money to buy the furniture then it would be a half interest in the furniture for her. Mackedie Estate v. Mackedie: A son was given five paintings over five years for his birthday by his father. The paintings were taken down, wrapped and handed to him with a note saying happy birthday. They were then, with the agreement of all parties put back in the possession of the father. o The son got the paintings. There was a clear delivery of the paintings. Constructive/Symbolic Delivery: o Watt v. Watt Estate: the daughter was given the keys to a car and told this is for you. But he kept a duplicate set of keys. No gift because there was no change in possession o Bauernschmidt v. Bauerschmidt Estate: a duplicate set of keys was given to a safety deposit box. No gift because there was no change in possession. o Admr v. Lewis: the only set of keys to a safety deposit box were given and the donee said you can have anything in there.
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Property Summary There was a gift because there was a change in possession.
Intention:
There must have been an intention to make the gift.
Act of delivery can occur after the words of gift and through an intermediary with the donors consent. BB: this looks like a unilateral contract. Facts: A poet wrote what turned out to be a very famous play, under milk wood. He lost the original manuscript on the eve of a trip after a night of heavy drinking. The plays producer (Cleaverdon) gave him a copy of the manuscript for his trip. He said thank you told the producer where he might have lost it and if you find it its yours. The producer found the manuscript. The play-write died unexpectedly on the trip. The producer sold the manuscript to the d. The administratrix of Thomas estate, his widow, is suing the d to get the manuscript, now very valuable, back. Held: There was a gift. Ds argument prevails. o ONUS is on the party claiming that there was a gift. o Ds argument: It was intended as a gift. The manuscript was not very valuable (but that is not important) Thomas was prone to this sort of gift AND the producer had just saved his trip by getting him a copy. The producer told the story of the gift several times while Thomas was still alive. There would have been no reason to do this unless it was true because Thomas was expected back! Delivery: Delivery was made by the bar in which Thomas lost the manuscript. He got that possession with the authorization of Thomas. o Ps argument - Failed: It was never intended as a gift. You have to treat statements about what a dead person said with GREAT SUSPICISION the dead man cannot rebut the statement. He told many people the story when he thought Thomas would return from his trip. Evidence that Thomas did not give the manuscript as a gift.
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Property Summary Thomas had hoped that the manuscript would be returned to him. He said that the producer was looking for it. The conversations were from 12 years ago. There was no delivery. There was delivery through the bar. o BB: Contract analysis: it looks like a unilateral contract.
Capacity:
The donor must have the capacity to make the gift. o This includes being free from undue influence.
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Property Summary The younger brother was in a mentally weak state and highly susceptible to a domineering person. The older brother was such a person. Younger brother was under the influence of the older brother at the time of the gift. There was no evidence of independent legal advice. Gift was NOT a spontaneous act and was not a free exercise of the will of the donor.
NOTE: the public trustees ability to take property that was left behind when the person dies and has no family or will (Escheats). o The public trustee is reluctant to deny a lawful claim. o This is why they did not put up much of a defence. They do not want to aggrandize themselves. Corroboration is necessary when showing a gift made by a deceased donor. Onus on the donee to show that the gift occurred. Facts: Chevrier and Zachariuc are good friends and neighbours. Zachariuc had no will, but on the night of his death he said, I give what I have to you to Chevrier. He makes arrangements to make a will the following morning. He gives him a key, first and only time he did that, and asks him to check in on him and bring a witness to make a will. He also told Chevrier about a large sum of money ($16K) hidden under the house in a tin. When Chevrier stopped in the following morning Zachariuc was dead. The public trustee was given title to the property. Checked the house and did not find the $16K then scheduled the house for demolition. Chevrier went to the Trustee and told him where the money was. They found the money. Held: The gift was a donation moritus causa. o It was made in contemplation of death.
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Property Summary Made reference to his not dying tonight when the gift was made. o The key constituted delivery. (Similar to safety deposit cases.) Delivery requirements are much MORE relaxed from the standard of inter-vivos gifts. The key combined with the description made delivery valid. 1st time he ever gave Chevrier his key. o The third requirement is valid. Zachariuc remained on the property. If he didnt die it wouldnt revert. o Other considerations: Zachariuc was dead. There was a need for corroboration of Chevriers story. The fact that they found the money where no-one else would have looked was corroboration. Level of corroboration is not that high.
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Property Summary
Property Summary BUT the vendor cannot conceal a problem. This will void the contract. What if it is something that the vendor knows BUT is not obvious to the purchaser? (House floods in the spring time) It remains Caveat Emptor in Ontario. But the law is evolving due to new cases in the US. o In the US the vendor has to tell the buyer everything that they know about the house. o BB: Wouldnt be surprised if this happened in Ontario in the near future. The buyer can put a warranty clause in the contract from the vendor. This is common in buying new homes. o Something that the government is running (New Home Warranty) However it is uncommon in re-sale residential homes. Conditions: o The agreement contains a number of conditions. If all of the requirements are not met and the Buyer will not accept them not being met then the contract is null and void and the deposit money is returned. o Examples: This contract is dependent on the property being re-zoned. This contract is dependent on the survey of the land. There can be terms dependent on the environment of the land.
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Property Summary Vendor has a right to retain possession of the estate until the purchase money is paid (in the absence of an express time for possession) o Valid Contract: a contract sufficient in form and in substance so that there is no ground whatever for having it set aside as between the vendor and purchaser. o The risk is then transferred from the vendor to the purchaser as soon as there is a valid contract. The vendor must take reasonable care of the property in the meantime. If anything happens without the negligence of the vendor the damages will be the responsibility of the purchaser.
Notes on Lysaght:
Before Contract Contract Conveyance Law Vendor Vendor Purchaser Equity Vendor Purchaser Purchaser o Interests of the vendor and purchaser in law and in equity. All interests are in fee simple. o Equity deems as done that which ought to be done. Hypothetical: o A nursery has a large tract of land that is sold to a developer on condition that it be re-zoned for a subdivision (condition that the developer gets draft plan approval). The nursery removes shrubs; the developer tries to stop them because they wanted to use the shrubs for the subdivision. There is no draft plan approval yet. The contract is not yet valid so there is no EQUITABLE interest in the shrubs. There is no draft plan approval so there is no valid contract yet. Once there is a valid contract the vendor has an obligation NOT to WASTE the estate. BUT under contract law it is probably possible to say the shrubs were a part of the purchase contract (they are fixtures). Can the nursery owner, before draft plan approval, pick up the shrub and leave with it. There may be contractual remedies. What if the land burned before the re-zoning. The risk goes to the purchaser once the purchaser has a common law estate. Contractually, the risk is generally put back on the vendor.
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Property Summary
Specific performance
In equity the courts could order both damages and force an individual to do something (specific performance). o Specific performance would only be awarded where damages were not a sufficient remedy. Such as for a unique item. Property was prima facia Unique. But no longer considered as such (Semelhago v. Paramadevan)
Notes on Semelhago:
Damages leave the purchasers of houses under-compensated because it ignores the emotional attachment to the house. Generates uncertainty in the law.
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Property Summary Specific performance will not be ordered if it will injure a party who has done nothing wrong. In that case damages will be ordered. Facts: Starlight owns a franchise of convenience stores. It procures a place for the franchise and makes changes to the property, stocks shelves and so on. They then get 2% of the profits. Cloverlawn builds shopping malls. Cloverlawn and Starlight come to an agreement that Starlight will rent a unit at $100 k/year. Starlight made a number of alterations to the property at some expense to them. Cloverlawn never signed the lease agreement with Starlight and then leased the property to another company, Macs. o Starlight had to sue for specific performance. Even though they knew they would be barred from success because Macs now had the store. They did this to engage the equitable jurisdiction of the court. In common law the contract would be set aside by the statute of frauds. Because the completed part performance and a claim for specific performance is available they can sue for damages! Otherwise they would be stopped for claiming damages. Held: Starlight is entitled to damages from Cloverlawn. o Doctrine of Part Performance relieves the burden of the statute of frauds. It requires The acts of part performance must be referable to no other title Such as to render it a fraud in the defendant to take advantage of the contract not being in writing. Contract must be such that in its own nature it is enforceable by the courts. Proper parol evidence of the contract. o This was met by: The payment of the deposit cheques. This on its own would not have been enough. Preparation of altered plans. Purchase of signs and shelving. Payment of expenses concerned with these matters. o Damages: Starlight tires to claim for the money it would have made. The courts are unwilling to do this because it is too uncertain. They decide to look at the difference in lease values in order to establish an award of damages. But does not award the full amount. Uses the Macs contract to establish what the market rate might be. Sets damages at $20k plus the deposit of $790. o The courts could not award specific performance because Macs had a valid claim to the unit. It took the property without knowing that Starlight had a claim on the place. 82
Property Summary If Macs had known then it would have been possible to evict them and have the courts place Starlight in its place.
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Property Summary
Easements generally
There are no time limits on easements (they are equivalent to a freehold) But it is possible to set time limits on easements (these are equivalent to leaseholds) o You can pass over my property for 10 years. By then you will have a road. Types of easements o Easements by operation of law o Easements by necessity o Easements by grant (I grant you an easement to pass over my land) o Easements by reservation (I will sell you this land subject to an easement that I can pass over it)
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Property Summary o It cannot be inconsistent with the proprietorship or possession of the alleged servient owner. o It cannot be a mere right of recreation without utility or benefit. The easement must provide some benefit to the dominant tenement not simply to the people. (Access to the park increased the value of the homes so it provided a benefit to the dominant tenement). Facts: A park is available to certain users, who are given keys, whose land abuts the park. It is also available to certain users whose land is close to the park. Held: There was an easement. o There is a Dominant Tenement and the Servient tenement. Dominant Tenement and Servient Tenement do not need to touch each other Helps if they do but is not necessary. But there needs to be some nexus between the dominant and servient tenement. This existed because the homes were near to the park. Easement in Gross: Easement for which no dominant tenement exists. These were not allowed by the OLD common law. BUT this is an evolving area. o The easement needs to accommodate the dominant tenement. It needs to add some convenience to the dominant tenement (the land). The park did this by providing a benefit to the OWNERS of houses. o The dominant and servient tenement need to be owned by different people. Otherwise the easement is destroyed. o The easement needs to be capable of forming a grant. The rights cannot be too vague. They werent it was an ability to access the park It cannot be inconsistent with the proprietorship or possession of the alleged servient owner. Amounted to a joint occupation of the park. It cannot be a mere right of recreation without utility or benefit. The access to the park increased the value of the property. There was utility and benefit to the property.
Notes on Ellenborough
Hill v. Tupper: A man owned a property that allowed him to launch boats into the river. He attempted to block others from gaining the same right. o Held: the monopoly on launching boats into the river is not the accommodation it is the ability to launch boats.
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Property Summary How is the park owned? The park is likely vested in trustees who maintain the park for the owners. The park is the servient tenement. What is the nature of an easement: o It can be a freehold estate if there is no termination on it. o It can be a leasehold if it is subject to some temporal limitation. o It can be a life-estate if it is for as long as they live. Example: just a utility and benefit. o Everyone who buys a house in a subdivision is granted a membership in the golf course. Membership in a golf course is a contractual right BETWEEN the PURCHASER and the GOLF COURSE. The golf course charges annual fees. It remains purely contractual not an easement interest!
Notes on Jengle
Question: What if B gets a severance and splits the property in half. o The easement would still be available to the second half of Bs property. o But it would strictly speaking not be available to service Cs lot. Only the second half of Bs lot. Question: What if B gets the land re-zoned to a marina. o A would need to bring an (injunction) against the use of the easement in that manner.
The Requirement that the Dominant and Servient Tenement cannot be Owned or Occupied by the same Persons.
If the same person owns both the dominant and servient tenements the easement is destroyed.
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Property Summary
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Property Summary
Limitations on Easements:
Easement serves ONLY the dominant tenement to which rights were granted. Subject to an implicit limitation on the degree of use it will bear. o Cant offend the original agreement. Subject to contractual limitations. o Can make such limitations as: this easement is only for Pedestrian traffic Emergency vehicles Residential traffic. For so long as it is used for a single family dwelling. Ect. Easements are not exclusive. o The grantee can give them to whomsoever they choose. Servient and Dominant tenement have the RIGHT to make repairs BUT not the OBLIGATION to make repairs. o Servient tenement is subject to tort claims.
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Property Summary
Negative Easements:
Phipps v. Pears
Easements can be: Positive: Give the owner a right to do something on the neighbours land they otherwise would have no right to do. Negative: right to stop the neighbour from doing something they otherwise would have a right to do. o Easement for support: if the wall is relying on the other wall structurally then it is not possible to tear down that wall. BB: Both are really negative and positive at the same time. It just depends on your perspective. Need to proceed cautiously with creating new negative easements. There is a concern of unduly restricting the enjoyment and alienability of land Facts: 2 houses were built side by side with touching walls. The houses were built by one owner but are now owned by two separate owners. The older of the two houses is condemned and torn down. The wall that was touching the other was not weatherproofed. Cracks due to weather damage. The p sues claiming that there is an easement of protection that is similar to an easement for support. Held: There is no such thing as an easement for protection. o Easement for support: if the wall is relying on the other wall structurally then it is not possible to tear down the wall being relied on with out buttressing the wall needing support. Protected from loosing its support. Fails here because the wall was not supported. o Positive easement: Give the owner a right to do something on the neighbours land o Negative easement: Right to STOP the neighbour from doing something. BB: Both are really negative and positive it just depends on who you are looking at. o Need to proceed cautiously with NEGATIVE EASEMENTS. There is a concern of unduly restricting the enjoyment and alienability of land. Easement for light and air: Arises through prescription by the passage of time. o Ive had the sun coming in my window for a great deal of time. I can prevent the neighbour building a house that will prevent the sun from coming in my window. o This is not the law in Ontario.
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Property Summary Light and air are not an easement! But in England it was previously able to arise by prescription. The limitations act has stopped this from happening in Ontario.
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Property Summary o Covenantee and assignee must have the same legal estate in land. o Touches and concerns the land Covenant was entered into for the benefit of the land and not a merely personal benefit. Must affect the land (mode of occupation, value of land in more than a collateral way) It doesnt have to actually affect the covenantors land in order to enforce it. o Pakenhams Case: Covenantors assignee able to enforce a covenant to perform a mass on Sundays Burden of a covenant cannot pass with the land.
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Property Summary The covenant is worth $. It hurts the value of the land. Courts dont want to allow the vendee to be able to profit off of the vendor.
Notes on Tulk:
Covenant is a proprietary right in the land until the land is conveyed with out notice of the covenant. Requirement of Notice: Need to give notice to a bona fide purchaser in order to maintain the covenants enforceability. o Squatters dont count as bona fide purchasers: Re Nisbet and Potts Contract Squatter is bound by the covenant. It must be a negative covenant: No power to enforce a positive covenant. o Haywood v. The Permanent Benefit Building Society Tulk has both a positive (to maintain the square) and a negative (to not build on the square) covenant. o The court will not enforce the POSITIVE obligations but will not enforce the NEGATIVE obligations.
Property Summary It must affect, and be intended to affect by the original parties, the land itself by controlling its use. o Touch and concern the land: it must be imposed for the benefit, or to enhance the value, of the benefited land. Land must be capable of being benefited by the covenant AT THE TIME the covenant is imposed. Two plots of land must be concerned. One must be the dominant tenement and the other must be a servient tenement. The dominant tenement can be a lease. Anti-competition covenants: These are important in the development of shopping centers. The preference to restrictively construe covenants that restrain trade is of little importance; so long as they are not too restrictive. Facts: Woolworth had a long term lease with Safeway (made in 1971). Woolworth owned property, which it partially leased to Safeway, with an option to purchase adjacent property. The lease with Safeway restricted Woolworth from using the land in the adjacent property to build a store that would compete with Safeway. They also gave Safeway options on parking in the optioned property. 20 years later Woolworth sold its land to the city. Safeway seeks a declaration of its rights. City had notice of the covenant. o In 1971 the parking agreement is purely contractual. o In 1975 Woolworth buys the optioned property. Inwards v. Baker: might be a licence coupled with an equitable interest. More likely it is an easement. o In 1982 Woolworth sells the original mall to Thompson Mall (but not the option property). The rights would bind Thompson mall. o In 1995 the option property is sold to the city. Is the anti-competition included in the sale to the city? Held: The obvious intention was a restrictive covenant o Safeway: Restrictive covenant. It runs with the land. o City: Covenant was not clearly annexed to the land. It is a restriction on alienation not on use. This is a personal Anti-competition clause. Covenant was not clearly drafted. o Court looks at the intention of the parties. Court refuses to destroy the obvious intentions of the parties by being overly technical. This does touch and concern the land It intimately affect the lessor-lessee relationship.
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Property Summary Policy: it is important to allow these types of covenants in shopping centers. (Spence) The public policy objective of restrictively construing covenants that restrain trade is of little importance in these modern public shopping cases. As long at the clauses are reasonable and not too restrictive the court should not strike down the covenant for restricting free commerce and alienation of the land. Required Elements of a Restrictive Covenant: o The Covenant must be negative in nature (similar to an easement). The court will look at the actual meaning of the covenant NOT so much the wording. The property will be used as a single family dwelling. o This sounds positive but is in effect negative. The property is to be used only as a golf course for the benefit of the subdivision. o This sounds negative but is in effect positive (they have to run a golf course!) If it is a POSITIVE covenant is there anything that the land owner could do to keep the covenant running?!? Yes you can put it into the transfer AND take a further covenant that the new land owner will not transfer the land to anyone who will not take on the positive covenant. o Though this doesnt stop someone from transferring without the covenant but damages will arise. o It must affect, and be intended to affect by the original parties, the land itself by controlling its use. Touch and concern the land: it must be imposed for the benefit, or to enhance the value, of the benefited land. Land must be capable of being benefited by the covenant AT THE TIME the covenant is imposed. Intimately effects the relationship. o Two plots of land must be concerned. One must be the dominant tenement and the other must be a servient tenement. Covenantee must be a separate person to the covenantor.
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Property Summary A covenant restricting sale to certain races does not touch and concern the land. There is a clause in the Conveyancing Law of Property Act that says that no covenant on land can be discriminatory Facts: There is a covenant on the land which Nobel owns not to sell to anyone of Jewish blood. Nobel wants to sell to Wolf, who is of Jewish blood. Alley, represents the other owners in the community who want to maintain an all white community. Held: the covenant is not enforced. o It does not touch and effect the land. This is not a covenant on the land it is a restriction on Alienation. Tulk has never been applied to protect something like this. o Also fails on annexation. Cant be sold BUT it can be inherited. The covenant is not sufficiently connected to the land. o Too uncertain to be enforced. Makes the covenant unenforceable. Unclear who is of unclean blood.
Notes on Nobel:
There was a clause in the Conveyancing Law of Property Act that says that no covenant on land can be discriminatory.
Building Code
Ensure that new work is done up to the appropriate safety standards and old buildings remain safe. o Meet the statutory building code requirements. o Also possible to force old buildings to be repaired to ensure their safety. The city can issue a work order. If it is not done the city can spend its own money to perform the work order. The work order cost is then added to the propertys taxes. This is really a regulation and not a covenant o If you want to build or renovate you need a permit. o To get a permit you give the building office your plans. o The office checks the plans to ensure they are up to code o The office approves plans and sends an inspector to ensure that the work is done according to the approved plans. If work is not done up to code or plans are not approved and construction goes ahead anyways then it is possible for the city to have the building torn down.
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Planning Act
There are several levels of planning. Regional: Official Plan o Very broad plan that gives the general usage of the land. o Infrastructure is planned around this plan. Roads, schools, electricity usage Municipal: Municipal Plan (Zoning By-laws) o Much more detailed. o Says how far from the road the building has to be, the amount of land coverage the building is permitted to be Zoning is ENTIRELY NEGATIVE o It is pervasive on a municipality level. o It is possible to get variances with consent of the surrounding owners and failing that it is possible to get variances from the Ontario Municipal Board If Zoning laws change and they are no longer in accordance with the use of land then there is no obligation to change the use of land. o Lawful non-conforming use.
Property Summary And positive Covenants Can order changes or repairs to the problems to the approval of the board of directors. Failure to do so would mean that the Board could fix the problems and charge the unit holder. o By-Laws adopted by the Condominium More about how the condo is run. o The rules adopted pursuant to the by-laws. Tend to be negative. Enforceable in court. NOTE: o There is a vacant land condominium clause in the Condominum Act. You could structure a subdivision under similar by-laws and declarations as a Condo! This would enable you to create very strict covenants on the use of the land.
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Property Summary No. There is no right to sell the density. It has to be transferred through the city. Easement is registered against the land and it runs with the land to new owners. o There is no dominant tenement. This is an easement in gross.
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Property Summary
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Property Summary Disliked JT because on death the interest was lost and could not be transferred. o In electronic registration you check a box saying JT or TC. This gives the clear intention of what you are trying to create.
BB: in electronic registration that clear intention is made via a check box that says joint tenants. Facts: Father leaves a property jointly to his daughters. Each of them was to have an equal share of the proceeds of the said sale. Bertha, one of the daughters, dies. The other daughter sells the property. Bertha leaves her interest in the property to her brother. Held: There was a tenancy in common relationship. o Conveyencing Law of Property Act s. 13: there is an assumption in favour of Tenancy in Common. The court requires a CLEAR intention to create a Joint Tenancy. o Intention: the father left the property Jointly to his daughters. Jointly is not enough. He also said that if they sold they should divide the land equally. If this was a JT it would be superfluous to include this. This makes it apparent to the court that the Testator did not intend to create a JT by the use of the word jointly Courts were unclear if the Testator meant to create a JT. So they employed the presumption in favour of TC.
Severing a JT
JT cannot be revived after it has been severed. It must be re-created. 3 ways to sever a JT: Look for an irrevocable act of severance. o Any act that destroys any one of the unities severs a JT and creates a TC. Such acts can be undertaken unilaterally. Look for a clear and irrevocable act of severance. This way there is a mutuality (giving up right of survivorship as well as removing the right from others). o Mutual agreement. o Any course of dealing that suggests that all JTs view their interests as TCs. Unclear if JT was severed 2 factors sway courts: o Courts prefer TCs over JTs due to the inherent fairness of TCs compared to JTs.
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Property Summary This continues though it is no longer justified. It began due to the common laws preference for JTs. However now JTs are only created when that is the express intentions of the parties. o Fairness to a 3rd party to allow severance. Murdoch v. Barry: a wife in a JT wished to sever the JT before her death. She conveyed a deed from herself to herself. o Held: This was an irrevocable act of severance. Notes: o Conveyance of an estate will sever a JT but conveyance of an encumbrance will not. o There is a low threshold for when an agreement to sever occurs. o Murder of one co-owner by another does not sever a JT. This creates a TC
Properties of Co-ownerships:
Right of Survivorship when it is not possible to tell who died 1st a TC relationship imposed. o Ontario Succession Law Reform Act S. 55(2) It is possible to enter a JT or a TC with a corporation. o Conveyancing and Law of Property Act. TC or JT: there is a right to alienate (includes mortgages) the interest the JT/TC has in the land. o Implications: JT: severs the JT because it destroys 2 of the unities (unity of title and unity of time). Vendors interest is then converted to a TC.
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Property Summary However the remaining members of the JT would remain JTs with each other (on the remaining portion of the land) and TC with the vendor. TC: new owner of one of the interests. To divide land there is a requirement of a court order of an agreement amongst the JTs and TCs o Consequences of Sale Court will order sale if partition is not possible. Partition is preferred because if the sale is ordered it proceeds by way of a Sheriffs Sale. At sale the land goes to the highest bidder in a sealed bid. There is no guarantee that the party seeking to partition the land will be able to buy it. Obligations for JTs/TCs: o Property Taxes: There is an obligation to pay the taxes because it is a condition of owning the land. o Invest in the land: There are no obligations to carry out any repairs to the property But there is a right to do so. Investment contributes to the value of the land: An accounting for what is invested in the property is made on the sale of the land. o Statute of Ann: if you get more than your share from a 3rd party you can divide that money up. BUT this more applies to money made off the land. o Share in the profits of the land from 3rd parties Does not apply when the profits come from the work of one of the co-owners. Occupation rent. o 3 circumstances where there is a requirement to pay occupation rent. Co-owner in possession has excluded the other co-oweners. Co-owners come to an agreement over occupation and occupation rent. Where the co-owner in possession is required to be viewed as an agent of the other co-owners. All co-owners are entitled to possession of the whole of the land. o No one co-owners use of the land governs the other owners use of the land. It is wise to consult with the other co-owners before making a new use of the land. Adverse possession: o Courts make it harder to allow an adverse possession of the land when they are siblings.
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Property Summary o If they werent siblings the court is not as careful about preserving interests All co-owners are as entitled to make use of the land. No one JTs use of the land governs the other owners usage of the land.
Partition Act S. 2
Co-owners may be compelled to make or suffer partition o Permits the court to order the destruction of the co-owners unity of possession by defining boundaries for entitlement to individual parcels. If sale is ordered it would be a Sheriffs sale done by sealed bid. o The existing co-owners would have no control over who got the land. Court does not like to allow dysfunctional relationships to continue. o So person seeking partition is likely to succeed. o Court is unsympathetic to parties trying to make other co-owners buy them out for more than the value of the land. Partition Act pre-dates Municipal Zoning Acts. o There is need for approval to make changes on the land now according to the zoning plan.
Property Summary o Due to the type of land partition is not possible. Small cottage. o Due to the parties involved sale should be postponed. Court has discretion to order postponement of sale when partition is not possible. Chooses to exercise that discretion Bartlett was of advanced age. Bartlett was unaware his wife had severed their JT. Bartlett had made improvements to the land and paid for taxes o No concern that land would loose value if not sold immediately. o The investments would need to be considered in the sale of the land. Bartlett wants to live on the property Knowlton wants to realize on its value.
Partnership:
Governed by the Partnership Act. An agreement amongst parties to pursue some gain. o These are not corporate or Juridical Entities. o This is more like family than like a corporation. Partners are co-owners as Tenants in Common. o Partners own the property NOT the partnership 104
Family Property
History:
At common law women could hold property. She was a juridical entity as a single woman (femme sol). After marriage however the woman lost her claim to the property by coverture. o The man took her property and became the Juridical entity for the husband and wife. There was some unease in wealthy families about this because they did not want to give all of their property to go to the husband. o So the wealthy families transferred the entitlements of the woman to a male relative. o Settled the estate: she is the beneficiary of that estate. Coverture did not apply to equitable estates. o A womans equitable interests in land or her trust-fund would not become her husbands property.
Dower
Dower: A protection for the wife. A formal and legal undertaking by the husband to the wife, giving her the husbands goods. o Conditional estate on the wife surviving the husband. o She is then entitled to a life interest in 1/3 of his property. If you held an interest in equity Dower did not attach. o So the wife did not have any interest in to uses granted to the husband. o The dower claim was sufficiently an estate so that the husbands property could not be sold without the wifes bar of dower. This applied in Ontario until 1977 family law act.
Curtsey
Curtsey of England: Wife dies before the Husband. Any land that she brings into the marriage becomes a part of her estate. The husband gets a life interest in 1/2 of that property.
Property Summary Divorce: o Divorce is within the jurisdiction of the federal government. o Got divorce law in 68. Before that you needed to get special legislation from parliament. Divorce legislation did not discuss assets. Most women did not take advantage of the Married Womens Property Act. Husbands still controlled the majority of the marriages property. Murdoch v. Murdoch: Mrs. Murdoch had worked on her husbands farm with him as a partner. She had however made no financial contribution to the farm. She claimed that it was a resulting trust. Held: Mrs. Murdoch was entitled to $200/month of financial support but was not entitled to share in the land. In the absence of a financial contribution a resulting trust cannot arise. The work she did was that which any ranch-wife would do. Dissent: Mrs. Murdochs considerable contribution to the success of the farm was beyond what any wife would do. She was entitled to a property interest by way of a constructive trust. Murdoch Provided the Catalyst for Change in the law: o Recent amendments ensure sharing of property on a divorce. This is as a matter of entitlement based on the existence of a marriage. Based on status rather than need. o Family Law Act created in 1977. Created under the assumption that protection needed to be given to women. BUT protection actually goes both ways. Property is defined in general terms (s. 4). Any interest, present or future, vested or contingent, in real or personal property o Family Law Reform Act: actually sets out the division of assets. There is still room for interpretation on some issues of property such as professional degrees : Corless v. Corless: Wife worked to support husband while he finished his 3rd year of Law School. Husband forced wife to move around a lot o Held: LLB should be valued as property but of $0 value. Partnership in law firm was property of value. Keast v. Keast: wife put her mature student husband through medical school. o Held: Medical degree is not property. But wife entitled to extra support. Linton v. Linton: wife supported husband financially while he acquired his Ph.D.
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Property Summary o Held: Doctorate is not property. Instead awarded substantial and on-going support.
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Property Summary
Notes on Caratun
An income stream from a work related injury would not be considered property o It is explicitly removed from family property by the Family Property Act. o Disability is directed at an individual that can no longer work. It is compensation for future earnings which are not included in property. An income stream from a pension would be considered property. o It was created by the work of the husband that he was enabled to do by the work of the wife. It is transferable and can be divided between them.
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Property Summary
Notes on Petkus
Example: A is a pensioner. He wants to buys a house for $100,000. Asks his son B to move in to help defray the costs. B becomes a tenant. B invests $50,000 to renovate the basement. B becomes unhappy with the relationship and moves elsewhere. B wants to reclaim the $50,000 he invested in the house. o Probably this is a resulting trust. It is unjust for A to enjoy the benefit with no recognition of Bs interest and the two intended to share the property. o Easier to show is that there is a constructive trust. o Application for partition and sale would probably be best. If you have an interest in land you can make an application. BUT Taking this to court would not be worthwhile because legal fees would easily eclipse the value of the damages. Better solution is to work out a deal. Have the land setup as joint ownership. Have a mutual will setup (mutual will is unchangeable). Petkus did not end up paying because he lied, cheated and hid his assets. Mrs. Becker killed herself in protest to the legal system. The outrage from the Murdoch decision (Pre-Dates the family law act) that generated the new wave of legislation that finally bloomed in Petkus. Peter v. Beblow: co-habiting couple. Man worked outside the home while the woman did the household work and had a part time job. o SCC Held: The idea that household work and child rearing should not give rise to equitable claims is untenable. Household labour will result in a constructive trust. Anderson v. Luoma: principle in Peter expanded to same-sex couples. But not entitled to family law remedies (1986). OLRC: recommended expanding family law protection to all heterosexual and same-sex cohabitee couples.
Family Interests:
Blood relationship: parent and child, child and child, cousins (pushing it) o There is a property relationship to this. Dependents have certain prerogatives with regards to support and wills (statutory). Conventional Matrimonial Relationships (husband and wife): the courts give a great deal of privilege to these. Division of assets, division of matrimonial home, entitlement to support. Common Law Heterosexual Relationships: creates an obligation for support but it does not yet provide for a division of assets or division of the matrimonial home. Formal Same Sex Union: a matrimonial relationship just like the conventional matrimonial relationships. It is not yet at the same level of protections because the statutes have not yet caught up.
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Property Summary Common Law Homosexual Relationships: This is probably going to be the same as a common law heterosexual relationship. Long Term Non-Sexual Co-Dependant Relationships (two-old maids sharing a house): Is this a relationship that should give rise to support obligations? There is a care obligation that otherwise might have to be taken care of by the state.
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Property Summary Can only get financial compensation. o This is no compensation. The matrimonial home is much more than financial value. The loss of a place to live on the reserve often results in the women being forced to leave the reserve and her family. o Compensation is normally small because most on the reserve live below the poverty line. o This leaves the aboriginal women with no protection under these Acts. Yet of all women aboriginal women are most in need of protection. 70% of aboriginal women are subject to abuse. Traditionally women in aboriginal society had a status that was superior to men in traditional aboriginal culture.
Notes:
Delgamuukw v. British Columbia
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Property Summary o Recognized that aboriginal title is Sui Generis and held communally by aboriginal peoples. Includes a right to exclusive occupation and use of defined lands. o The differences of ideas about ownership lead to misunderstandings in land negotiations. Also create legal challenges for aboriginal property interests at common law. o Historical relationships to land need to be established by evidence.
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Property Summary o There were no strong arguments advanced on behalf of the natives that they had an equal claim to the land. Marshall: Aboriginal rights are still in existence unless. o The rights were ended by a treaty o The rights were legislated away by Parliament o The rights were incompatible with British law US: 1955 defined aboriginal claims on land. o Permissive right of occupation on Government owned land. Not really a fair balance between the competing aboriginal and European claims to land. Canada: Still largely undefined (1989) o Sui Generis, neither beneficial nor personal and usufructuary in nature. o General inalienability Can only be surrendered through the Crown. (Creates a Fiduciary obligation on the crown.) Aboriginals should now be able to assert their rights to the land. o They were the original occupiers and the Crown does not have better claim to the land. It is not too late to declare and enforce the rights of the aboriginals. o Present-day holders of land would likely be protected (even if unlawfully taken) by statutes of limitation. So only publicly held lands are at stake to the ceded to the aboriginals. The resources on these lands should go to the original occupiers and not the public at large. Not unreasonable to leave the fate of these lands tied up with the people who are so intricately interconnected with them.
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Property Summary
Notes on Delgamuukw
Policy Question: How should aboriginal Title evolve? Ontario faced a similar problem in the Chippewas of Sarnia
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Property Summary o There was no real treaty (the treaty on which the land was ceded was a fraud). o The Chippewas were not allowed to re-enter the land o The social structure in place could not be overturned. o The Chippewas were granted compensation for their lost land.
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Property Summary Taught in English, not allowed to use native languages, taught western faith, abused, (TERRIBLE TIME) o In the 1970s the Indian Act was nearly abolished, bringing about the assimilation of Natives into Canada (ending their distinct culture. What is the nature of the current crown interest? o Crown has the right and it is burdened by the Aboriginal right of title. o They have a fiduciary relationship with the natives. Aboriginal Rights with respect to land o They are able to buy land BUT it does not gain protection. Only lands that satisfy the test in Delgamuukw are protected.
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Property Summary No one took care of the common areas. SO they were destroyed. No one had responsibility for the land so no one took care of it and everyone exploited it. o Should property be the basis of aboriginal cultural identity
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