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Property Law Outline Term One

Chapter One Concepts of Property in Law
Property as a relationship, comprised of dynamic and complex mutual rights and
obligations among people in respect of objects.
Victoria Park Racing and Recreation Grounds Co. Ltd. v. Taylor (1937), 58 C.L.R. 479
: Australian case. Race track. broadcast the results of the races by looking over from a
platform on their own land, to the great profit loss of the .
Ratio: Latham CJ. for the majority: no authority for the action. Looking onto the
spectacle is not interference with the property. not unlawfully using their
own land. Just because it is a broadcast doesnt mean it is unnatural. At no point
does the influence or interfere with the s land. It is simply competition and if
the is losing money, he should erect a higher fence. No general right of privacy
recognized in English law.
International News Service v. Associated Press, 248 US 215 (1918)
: Associated Press : International News Service
: seeking injunction to restrain from certain activities. Misappropriation of property.
The issue is whether there is property in news.
: copying news of WWI from their east coast early editions and printing them in the
west. had access to foreign news that didnt.
HELD: agreed that the should be enjoined to some extent re: their appropriation of the
s news.
I. The Right to Exclude Others
Harrison v. Carswell , [1976] 2 S.C.R. 200
: 4 charges of trespass under the Petty Trespasses Act.
Issue: whether the owner of the property had sufficient possession of the shopping plaza
sidewalk to be capable of availing itself of remedies under the PTA, 1(1).
In Peters (an Ont. C.A. decision) it was held that an owner who has granted a right of
entry to a particular class of the public has not thereby relinquished its right to withdraw
its invitation to the general public or any particular member thereof.

Ratio: The majority followed this view and held that could withdraw permission and
thereafter charge under the PTA. has sufficient possession of the plaza
sidewalk to withdraw invitation at his discretion to , even though public
generally allowed there. If there is to be an exception for picketing
(Notwithstanding the Grosvenor decision to allow picketing of a supermarket.) it
must be made by the legislature.
RWDSU v. T. Eaton Company Ltd. (1986)
: Complaint before the Ontario Labour Relations Board. Union organisers leafleting on
mall property. Mall had no solicitation policy, which union said was in violation
of OLR Act.
HELD: Cadillac Fairview (mall) was in violation of the OLRA because they were
interfering with the administration of a trade union. Harrison v. Carswell was
held to not give mall-owners a blanket exemption for unfair labour practices. It
was found that they were acting as employer and they werent acting in any other
interest than Eatons (employer) because leafleters were interfering with shopping
public.
The Queen v. Committee for the Commonwealth of Canada [1991] (S.C.C.)
Issue: How does the fact that the events occurred on govt property affect the freedom of
expression and prospective limitations with respect to that right?
LH-D: the Charter did not have the effect of reducing in any way the govts rights and
prerogatives as an owner. The s. 1 analysis simply has to be sensitive to the
unique relationship between govt and its property (as a public use facility).
Recognize that some, but not all, govt-owned property is constitutionally open to
the public for engaging in expressive activity.
LH-D then set out guidelines to determine what is a public arena.
1. Traditional openness of such property for expressive activity.
2. Public ordinarily admitted.
3. Compatibility of the propertys purpose with such expressive activities.
4. Impact of availability of such property for expressive activity on s.2(b).
5. Symbolic significance of property for message being communicated.
6. Availability of other public arenas in vicinity for expressive activities.
Consider the place, time and manner. Onus is on the state to justify infringement.
D.P.P. v. Jones, [1999] (House of Lords)
: free Stonehenge demonstration. They were on the highway edge, not obstructing.
Were charged with trespass because using highways in excess of their rights.

HELD: Used the common law to determine rights. (as opposed to Constitution above)
Can be flexible about the reasonable use of a highway. Not just passing and repassing.
Regardless of private or public owners, if users unreasonably exceed their rights, they are
in trespass.
There is ample authority to extend the use of a highway. It is good to allow peaceful
assembly. Unless you have a right to express yourself on public land, you really have no
where else to do it but your own property (from Commonwealth).
Common law right of assembly, and the test of the reasonableness of action when
deciding trespass. Govt has to have a very good reason to restrict public access to public
land.
Decision: Right to freedom of assembly on a public highway was upheld.

Chapter Two The Concept of Possession

Property interests are always relative, never absolute.
Relativity of Title - The who can establish a right on possession that is prior in time
to the defendants claim can succeed in an action against the , even if there is a true
ownera person with a better claim than the plaintiffs.
What is possession?
Mix labour with it (Pierson v. Post, Lockean labour theory)
Consent theorythrough consent of rest of society
Common law theory possession through first occupancy
Possessory title: possession as a root of title.
Riparian rights: rights ascribed to land owners bordered by water. A riparian landowner
owns the soil under the non-tidal river and the right to fishing the water. Ownership does
not apply to tidal water (i.e. oceans). In Canada, made the distinction between navigable
and non-navigable.
R. v. Nikal, [1996] (S.C.C.)
: accused did not have a fishing license, but was fishing. is aboriginal. Made 2
arguments: argued that the fishery regulations violated his existing aboriginal rights,
which are constitutionally protected by s. 35(1) of the Constitution Act, 1982.
Argued that the fishery in the Bulkley River was within the boundaries of the Indian
reserve, so they had an exclusive right to that fishery, and that certain Indian Band
Council by-laws, not BC regulations, governed use of the fishery.
According to the common law, land covered by water is the same as land not so covered:
it is susceptible to private ownership but until granted by the Crown to a subject it

constitutes part of the royal demesne (Crowns lands). Fisheries are regarded as profits of
the soil, and therefore the owner of lands covered by water has, as an incident of that
ownership. However this rule is not applicable, because of the modifications made to the
rule viz. the navigable/non-tidal distinction. the assertion by riparian owners of private
fisheries to the middle of such rivers as a "wild claim" which "the warmest advocates for
the right of exclusive fisheries would scarcely contend for."
The Bulkley River was de facto navigable, so the fish were public property and Nikal was
trespassing, this was a good decision for private vs. public property, but not so great for
aboriginal rights.
Armory v. Delamirie (1722) finder of chattel has good title against all except the true
owner. (and an employer is liable for his employees negligence). Finder was entitled to
the return of the jewels or a price equivalent to its highest value.
Parker v. British Airways Board [1982] unless you assert your control over the land
and items on it, non-trespassers could take possession of things they find on it. When
there is found item on private property, the finder gets to keep it unless the owner of the
property has asserted control over it.
If it is embedded in the land, it isnt chattel, but part of the land (South Staffordshire
Water Co.)
Occupier might win over finder if:
Finder is trespasser
If isnt chattel, but embedded (part of land)
If restricted access (to pass through, etc)
Control and possession:
Where the public is invited, owners have sufficient C+P to ask them to leave
(Harrison v. Carswell), but not enough C+P to claim all lost objects because the
public is invited (Bridges v. Hawkesworth)
If not a public premise but owner still not exerting a lot of control then finder wins
(Kowal v. Ellis)
If owner of land wasnt the occupier then the finder wins. (Hannah v. Peel )
If chattel found in course of job, then belongs to employer unless totally incidental to
the job (Grafstein)
When have joint finders, the time of finding will determine who shares in it.
Tendency to find that time of finding allows sharing of the money. In favour of
joint finders. (Keron, Edmonds)
The Issue of Intention

Bird v. Fort Frances [1949] wrongful taker. He was trespassing, but the people who
took the money from him was the town, not the estate of the owner, so judgment for
finder (seems to be on basis of Armory).

AG of Canada v. Brock (1991) $300k found. Shady circumstances to drug money. CA

seems to believe this so really seem to not what the estate of the driver (who died of a
cocaine overdose) to have it, so give it to municipality.
Two elements needed for to exert control over the chattel:
1. he did not purport to control it (money. Said it wasnt his)
2. he did not indicate an intention to possess it. (so he wasnt in possession that day)
Possession in Relation to Land
If you occupy the land, you have a possessory title (traditionally in the courts).
Asher v. Whitlock [1865] Williamson adversely possessed land, devised it to wife until
she died or remarried and then to daughter. Wife remarries and later daughter dies. Now
new hubby wants the land, but so does daughters legally defined heir.
is estopped from claiming adverse possession because he wasnt there long enough
(only 3 yrs) and he accepted that wife didnt own the land, but that daughter did, so he
cant get title from wife. wins.
Statute of Limitations
From Perry v. Clissold possessor has good title over everyone but rightful owner. If
rightful owner doesnt assert title within the statutorily prescribed period, then the
possessor gets absolute title.
It is 10 years in Ontario, starting from when the right of action accrued. Dont just lose
right of action, but very title in the land. (it is extinguished).
Re St. Clair Beach Estates Ltd. v. McDonald (1974)
Three elements for animus possidendi for adverse possession (from Pflug and Pflug):
1. actual possession for the statutory period by themselves and those through whom they
claim
2. that such possession was with the intention of excluding from possession the owners
or persons entitled to possession; and
3. discontinuance of possession for the statutory period by the owners and others, if any,
entitled to possession.
Intents with respect to land
1.
2.
3.
4.

to possess
to possess as owner
to exclude the true owner
to use the land inconsistently with the use intended by the true owner

MacLean v. Reid (1978) Tenancy at will (no fixed end) ends after one year and then
the clock for adverse possession starts counting. Can get around this problem by having a
fixed tenancy, rather than an open ended one vulnerable to the statue of limitations.
Keefer v. Arillotta (1976)
HELD: was on neighbours land pursuant to right of way, and even if they exceeded
this right, that didnt mature to a possessory title. A possessory title cannot be acquired by
depriving him of uses of his property that he never intended or desired to make of it.
Used the test from Pflug and it failed the 2nd and 3rd leg.
Masidon Investments v. Ham (1984) no adverse possession because no inconsistent
use since the owner was holding the land for future use. New test is:
1. actual possession
2. intention of excluding the true owner from possession
3. effectively excluded the true owner.
Time runs when all 3 have been satisfied.
The requirement that usage be open should be treated as being a means of ascertaining
that the claimant to possessory title has acted in a manner consistent with the holding of
an estate in land. (It is not a notice or warning requirement.) (Beaudoin v. Aubin)
Inconsistent User, Intention, Mistakes and Land Grabbing
Giouroukos v. Cadillac Fairview Corp. Ltd (1983) (Ont. C.A.)
Clock started running against the owner when the tenancy ended. CA found no policy
reasons for expanding the definition of adverse possession. Unless he had done any
improvements to the land, paid taxes or did anything in reliance of having the land, he
has no estoppel (against owner). Statute of Limitations period not expired. He knew he
didnt own the land, so no adverse possession.
Wood v. Gateway of Uxbridge Properties Inc. [1990] mutual mistake
Three part test from Masidon. But #2 and #3 arent really there in cases of mutual
mistake (inconsistency test)
On #2: where there is mistake, you can infer an intention to exclude the true owner.
(Masidon)
On #3: Cant really use the inconsistent user test (#3) otherwise trespassers get protected
and innocents dont.
Because statutory period elapsed, title goes to .
Ties v. Ancaster (City) (1997) mutual mistake
Inconsistent user test doesnt apply in mistake cases. Its application may unduly limit
knowing trespass cases.

Continuous seasonal counts. Intermittent use (by owner) is sufficient if it is farmland.

Chippewas of Sarnia v. AG of Canada at trial: sale of land was void

Chapter Three Fundamental Principles Governing Property Interests in

Land
Doctrine of Tenure
Tenure all interests in land are head of the Crown. In theory, the Crown retains
ownership of all land since the Norman Conquest (1066).
The only incident of tenure left now is escheat. If tenant dies without heirs, the land
escheats (goes back) to the Crown.
Native title to land is not tenurial because it doesnt originate from a Crown grant.
Doctrine of Estates
Estates were developed to fragment interests in land over time.
Life Estate: X to A for life, and then to B.
A is the life tenant with a life estate, B has a remainder interest. X has nothing now.
X to A for life and then to C
A to B
If A sells his/her interest to B, B only has it for As life. (pur autre vie) A is the
cestui qui vie.
C is the remainderperson.
X to A for life
X retains the remaining interest. X is the reversioner. (the land reverts back to Xs
estate).
X to A for Bs life
B is the measuring life (cestui qui vie)
Fee Simple: X to A and his heirs
This estate is virtually unending as long as A has heirs. The Statute of Wills (1540)
allows testamentary dispositions to anyone they designate.
Fee Tail: X to A and the heirs of his body.

Obsolete. Lasted only as long as A had lineal descendants. The grantee receives only a
life estate interest. No more fee tail after May 27, 1956: all construed as fee simple.
Applies to both inter vivos grants and testamentary dispositions.
Freehold and Leasehold Estates
The difference between these two is that freehold estates are of uncertain duration (like
fee simple, fee tail and life estates) while leaseholds are of fixed duration.
In a leasehold, the lessor retains reversionary interest (it reverts when lease expires).
Creating Freehold Property Interests: Inter Vivos Transfer and Succession
Inter vivos conveyance: transfer of land between living persons. Needs to be X to A and
heirs NOT: to A, to A forever, to A in fee simple or to A and his issue. Dont need those
words after 1886.
The courts were more flexible with testamentary dispositions. They will give effect to the
words/intention even if language isnt precise. The only one that would result in a life
estate is to A
*Legislation has reversed this presumption to life estates by relaxing the fee simple
requirements of precise language.
The term and his heirs are words of limitation, not purchase. (DArundels Case)
Words of limitation: delineate the size of the estate conveyed (fee simple or life estate)
Words of purchase: indicate to WHOM an interest is being conveyed.
Variations on the Fee Simple Estate
Determinable Fee Simple
Will automatically determine on the occurrence of some specified event, which may
never occur. Grantors interest is called a possibility of reverter, ie. it is possible it will
revert upon the happening of the determining event.
X to A in fee simple until B marries.
A gets determinable fee simple and X retains the possibility of reverter.
If B marries, reverts to X.
If B dies without marrying, upon Bs death, A gets fee simple absolute.
DETERMINABLE WORDS: so long as, during, while, until, whilst.
Fee Simple Subject to a Condition Subsequent
Created by an addition of a condition to a fee simple, which may terminate the grant at
the instance of the grantor (he has to come onto the land and take it back).

X to A in fee simple on condition that A does not marry Y.

Condition has been added to a grant in fee simple.
Grantor retains a right of entry, not automatic like determinable fee simple.
CONDITION SUBSEQUENT WORDS: on condition that, provided that, but if, if,
but if it happen that.
DIFFERENCE BETWEEN DETERMINABLE AND CONDITION SUBSEQUENT:
former is intended only to give the land for a stated use, when that has ended, the land
automatically returns to grantor. Latter is to compel compliance with the condition on the
pain of forfeiture.
Fee Simple Subject to a Condition Precedent
The grantee will receive NOTHING unless the condition is satisfied. It is a condition of
acquisition (versus a condition of retention as in condition subsequent).
X to A on the condition that she marry B.
A will take no interest unless the condition is fulfilled. If it is, she gets fee simple
absolute.
In Re Down (1968) characterisation of the grant (subsequent or precedent) is crucial
as to whether the grant will take effect or not.
Void Conditions
A condition may be repugnant to the interest granted if it is inconsistent with freedom of
enjoyment, disposition or management or the estate, such as absolute prohibition of sale
of land. May also be void for public policy.
Total restraint on alienation (many cases on p. 259). Partial may be ok (Blackburn)
Void for uncertainty (Re Tucks Settlement Trusts)
Restraint on marriage. (Re Tucks Settlement Trusts)
If the condition is void and it is a condition precedent, then the entire grant fails, so
the courts give liberal interpretation to keep the condition (i.e. if uncertain, then try to
find a meaning)
If it is a condition subsequent and it is void, then just the condition is struck and
grantee gets fee simple absolute. Thus, they interpret them strictly.
If it is a determinable fee simple and the condition is void, the entire grant fails
(Eisenhauer v. Eisenhauer)
They want to keep the grant, so try to find it as a condition subsequent if it is void.
(Re: Essex)
Like to protect testators intention.(Re Tucks)
Look at fairness and try to give effect to testators intent (Re Down) Read the whole
grant together.

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Life Estates
Can be subject to the same qualifications as fee simple. Sometimes hard to tell if
determinable life estate or if just licence to occupy.
Re Waters (1978) licence or determinable life estate? Determinable life estate, but
condition doesnt exists (in light of other conditions) so just life estate. (because she
doesnt have to live there which is required for licence).
Try to ascertain the intention of the testator or having regard to language used, the
context in which the language is used and the circumstances under which
the will was made.
Re McColgan (1969) look at language. To get life estate, should say life in it. As a
home suggests more than licence. Vesting construction (interpretation that will let the
devise or grant vest) will trump. (Also: Re Down)
The Rule in Shelleys Case
THE RULE: 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 or the heirs
of his body, whether the remainder immediately follows his estate or
follows an intermediate remainder, the word heirs is construed as a word
of limitation and not purchase.
Result: heirs simply indicates the size of the estate given to the grantee.
X to A for life, remainder to the heirs of A in fee simple.
After the rule in Shelleys Case, though it appears A only gets a life estate, in fact it is a
fee simple absolute. It is a rule of law and applies regardless of grantor intention.
Re Rynard (1980) First the problem of construction must be resolved. The words are
to be interpreted in their legal sense unless it be made plain to the mind of the Court that
they are not so used, and in what sense they are used by the testator. If the Court is
satisfied that the words are not used in the legal sense, then the rule in Shelleys case is
not to apply.
Present and Future Interests, Vested and Contingent Remainders
X to A for life, remainder to B in fee simple.
Bs estate is a vested future interest. Will become vested in possession when A dies.
A obtains a particular estate because it is less than a fee simple estate. Vested in
interest and time. It is a prior particular estate.
X to A for life, to B for life, and then remainder to C in fee simple.

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C acquires a remainder in fee simple. It is a vested future interest. If C dies, it goes to

his/her estate.
If there is no remainder person after a life estate grant, it reverts back to the grantor.
Both right of entry and remainder are future interests.
X to A for life and then the remainder to B in fee simple when he turns 21. (B is 15 at the
time of the grant.)
Bs interest is subject to a condition precedent, so it is a contingent remainder.
Vested remainder:
1. Limited to a person who is in existence.
2. Limited to a person who is ascertained. (ex. "to As widow is not ascertained until A
dies)
3. Not subject to a condition precedent.
If all three criteria dont apply, then it is a contingent remainder.
Possibility of reverter is not a contingent interest, but a vested interest in time (Re
McKellar) thus, not subject to rule against perpetuities.
Common Law Remainder Rules
1) NO remainders after FS
- once grantor disposes of FS he has nothing left to give
X to A in fee simple as long as CN tower stands and then to B
in fee simple
- this doesnt work makes no difference that A gets DFS
remainder part still void
2) NO springing freeholds
- cant create a freehold that will spring up in the future
- must be supported by prior particular estate or else we have gaps in
seisen & thats bad
X to A at 21 (A is 15)
X to As first born child (A has no children)
X to A upon As marriage (A is unmarried)
-

void b/c must be immediate transfer of seisen (someone has to hold estate
before A turns 21, has child, gets married)
Can have them with leaseholds because lessor stays seised of the land.

3) Timely vesting
- must vest by the end of a prior particular estate or its void

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X to A for life & the remainder to B in fee simple upon

attaining 21
- B must be 21 before A dies or his interest will never take effect &
remainder reverts back to X
- Common Law adopts wait & see attitude (unless the grant
requires a gap in seisen then its void from the outset)
X to A for life and one year after As death, remainder to B in
fee simple (also void)
4) NO shifting freeholds
- remainder void if it can possibly defeat the prior particular estate of
freehold
- and if
- but if
X to A for life, but if A goes bankrupt, then the remainder to B
in fee simple
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
- B is a stranger (ie. not heirs) & he gets right of entry upon condition
broken - bad
- this isnt a DLE b/c Bs interest can act to prematurely end the prior
particular estate here
- If changed words to or until A goes bankrupt that just created a
determinable life estate with remainder, which is valid.
Equitable Interests
Created uses and trusts to get around the incidents of tenure and the common law
(remainder rules) because equitable future interests, so then King passed Statute of Uses
passed.
Springing & Shifting Interests With the introduction of the equitable interest in land, it
became possible for the first time to create springing and shifting interests in property.
Known as executory interests.
Bona Fide Purchaser The security and equitable estate was similar to that of a legal
estate, with one major exception. Courts of equity would not use their jurisdiction to the
disadvantage of the bona fide purchaser for value without notice. However, if the
purchaser of the land was aware that the land was subject to an equitable interest, i.e. the
purchaser had actual notice of this interest, the purchaser was bound by the obligation.
Statute of Uses The Statute of Uses sought to reunite the legal and equitable title by
removing the legal title from the feoffee to uses and placing it in the hands of the cestui
que use, thereby executing be used. The statute of uses was part of the received law in
Canadian common-law provinces.

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X to A and his heirs to the use of B and his heirs.

After Statute of Uses, the first use is executed, A gets nothing and B gets the
fee simple absolute.
Limits of the statute of uses
1) The statute did not eliminate all uses, and those that survived came in due
course to be called trusts. First, the statute only applies when one person is
seized to the use of another. If A is not seized of the land, but instead hold a
leasehold a state, the use is not executed.
2) The statute applies when any "person" is seized of the use of " any other
person, any body politic." In describing, the feoffee to uses, the statute does
not include the term "body politic". Consequently, statute does not apply and
the use is not executed where the feoffee to uses is a corporation.
3) The statute can also be avoided if feoffee to use is given active duties to
perform in a grant. Additional interpretation ltd. the statute to "bear uses"
only, where a feoffee to uses had no obligations other than to hold seisin:
Romanes v. Smith.
Modern Trusts
Modern trust documents often imply a language they might seem to invite the
application of this debt statute, such as " to my trustees, to hold on trust for A, B,
and C." Typically, such trust documents require the trustees to maintain or manage
the property in some respect. These active duties prevent such trusts from being
executed by the statute.
Purefoy v. Rogers
This rule applies to contingent remainders contained in it conveyance to uses:
X to A and his heirs to the use of B for life and then to B's first child to attain 21
years of age. (B has no children)
A's interest is executed, and B acquires a legal life estate. The remainder interest
is contingent because the remainderperson is unascertained (not yet born) and the
remainder is also subject to a condition precedent (not yet 21).
As a result of the operation of the Statute, the common-law courts are required to
permit enforce a broad range of legal executory interests. However, the common
law courts took a more restrictive view when it came to contingent remainders.
According to the rule in Purefoy v. Rogers, if the legal executory interest can
comply with the common-law remainder rules, it must. In other words, a
legal executory interest will be void if it can comply with the common-law
remainder rules, but fails to do so.

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Avoiding the Rules Application include the words either before or after B's death to
the contingent remainder.
The rule in Purefoy v. Rogers does not apply to this grant because the scrapped
contemplate executory springing interest that cannot comply with the remainder rules.
Testamentary Dispositions Statute of Wills (1540), allowed the power to devise their
lands that there free will and pleasure. Similarly, the courts of CL determined that
devises do not need to comply with common-law remainder rules, thus permitting the
creation of legal executory interest in a devise: Pells v. Brown (1620).
There remains some question about whether this rule applies to testamentary gifts.
English case law suggests that it does not; Ontario case suggests otherwise.
Devise v. Conveyance
It is critical to distinguish it devise from a simple common law conveyance. A
devises does not need to comply with the common law remainder rules, so it is
possible to create shifting and springing interests in a devise without employing a
use. It is not possible to create shifting or springing interests in a simple common
law conveyance that does not comply in use.
The Statute of Uses and Conveyancing allowed transfer of land by bargain and sale,
rather than livery of seisen.
Exhausting the operation of the Statute of Uses
X to A and his heirs to the use of B and her heirs to the use of C and his heirs.
The courts of equity began to interpret be above grant as giving a legal fee simple to B
and moving the equitable fee simple to C. The statute executed the first use, passing
legal title to B. The operation of the statute was thereby exhausted and the statute did
not execute the second use of the fee simple to C. Simply describing Cs interest as the
trust, however, is not sufficient to evade the statute. In a grant to be in trust for C, the
trust is still executed because the statute applies to any use, confidence or trust.
Use v. Trust In law there is no difference between a use any trust; however, in practice
" use " is reserved for uses executed by the statute, and "trust" is used for interests there
remained equitable.
Use After a Use
It is important not to confuse the distinction between a used upon a use, a use after a use.
The statute is only exhausted by a use upon a use. A use after a use arises in a grant:
"X to A and her heirs to the use of B for life and then to the use of C and his heirs."

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The statute does not apply where person is seised to his own use. The words of the
statute requires that one person be seised to the use of another, not himself. The language
was then compressed as follows:
X unto and to the use of B in trust for C
The Rule Against Perpetuities
Because a contingent remainder in a common law conveyance must vest during the prior
particular estate, these remainders generally vest, if at all, at a point not too distant in the
future. However, the combined effect of the statute of uses and the statute of wills was to
bring into existence whole new range of executory interests immune from the remainder
rules. The operation of the rule itself is notoriously complex. The basic common-law
rule can be stated as follows:
An interest must best in interest, if it all, within the perpetuity period. This period is
calculated by taking the lives in being at the date that the instrument takes effect,
plus 21 years.
"An Interest Must Vest"
The rule against perpetuity as applies to almost all contingent interests in property, real or
personal, legal or equitable. Contingent interests are future interests have not yet vested
interest, and include contingent remainders any executory interests. A future interest is
contingent if the person entitled to take the in trust has not yet been ascertained; is not yet
in existence; or if this interest is subject to a condition precedent. Future interests are
vested interest if the remainderperson is ascertained, a existence, and the remainder
interest is not subject to a condition precedent. Such interests are not subject to the rule
against perpetuity as because, be already vested in the interest, they will not vested
interest at some remote time in the future.
The rule does not apply to a possibility of a reverter. as discussed earlier, the possibility
of reverter was regarded as a vested interest and not, therefore, subject to the rule against
perpetuities. The rule did, however, apply to the right of entry for condition broken.
Possibilities every murder are now subject to the rule against gratuities as modified by
statute.
"If at All"
Some contingent future interest will never vested interest. If the interest ever does vest, it
must comply with a rule against perpetuities. The rule is concerned with what may
happen, not what does happen. The common-law courts examined the inter vivos grant at
the time at which it was executed, or the devise at the moment of the testator's death. If
at this moment there is any possibility, no matter how unlikely or ludicrous, at the
contingent interest might vest outside the relevant perpetuity period, the contingent
interest would be void ab initio. this harsh feature of the common-law rule against
perpetuity is as in most common law jurisdictions now been changed by statute by
incorporating a wait-and-see principle in the law governing perpetuities.

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"Within

the Perpetuity Period"

Contingent interests must fast within the perpetuity period, and if there's any possibility
that a contingent interest might best outside this period, the interest was void ab initio @
Comm law. Difficulties arise when tried to determine the exact perpetuity. That applies
to any specific gift. Thus it is calculated according to the formula that consists of the
duration of all law "lives in being" plus a period of 21 years. The perpetuity period
does not have a fixed like but varies from one conveyance to another. In the living
person or persons may be used as lives in be in. However, only those persons mentioned
in the gift either expressly or by implication are taken into consideration when
determining the applicable perpetuity period.
Devises only take effect on the death of the testator. One can always assume that the
testator is deceased and is not relevant life in being. Because the contingent interest will
vest, if it all, during the life of a " life and being " plus 21 years, the contingent interest is
not violate the rule against perpetuities.
Although less frequent, a life in being can also arise by implication.
A devises to my grandchildren who attain 21.
The lives of X's children alive at the time of the devise can help can find the period of
time during which this contingent interest to the grandchildren can vest. Their
contingent interests will necessarily vest within 21 years of the death of any of X's
children. Because the contingent interest will necessarily vest during one of the lives
of X's children plus 21 years, the contingent interests are good.
In an inter vivos trust, X could also grant his grandchildren and executory interest
springing up at 21. However, in this case, because X is not deceased, the
grandchildren's executory interest can now conceivably violate the perpetuity: <X to
the use of my trustee in trust for my grandchildren who attain 21.> X may have
another child (A) after the trust has been established and then, more than 21 years
after the death of all those alive at the time of the grant, this child may have a child
(B). In this case, B's contingent interest will not vest during the life of a "life in
being" plus 21 years.
Some common-law interpretation rules were developed to mitigate the harshness of the
rule against perpetuity is particularly the " class closing" rules.
There were a number of common traps for the unwary. In the above example, although X
might be and 80 year-old widow, the common-law would still presume that she might
give birth to more children after the trust was executed, attract known as the " fertile
octogenarian." Another example was the "unborn widow". This trap can arise when it
testator or wishes to make success of provision for child, this surviving childs spouse,
and then his children. The identity of the widow will be unknown until the moment of

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the sons death. It is possible, even if unlikely, there will be a person who was not alive
at the time of the devise.
Statutory Reform
In Ontario reform efforts have simply added a " wait and see " rule to the common-law
rule against perpetuities, thus retaining most of the common-law rule but with some
modification. Under these latter reforms, three options are possible: first, if the gift
complies with the old common-law rule because there is no contingent interest that might
best outside the perpetuity period, the gift is valid. Second, if there is a potential
perpetuity problem, the statute provides for specific remedies with somewhat more
realistic assumptions for certain problems that frequently rose at common-law. For
example, it addresses the fertile octogenarian problem. Finally, the Statutes also provide
for a wait-and-see period:
(a) the legislation provides that a contingent interests in real or personal property
shall not be treated as void for perpetuity merely because the interest may
possibly vest beyond the perpetuity period, thus reversing the common-law
rule on this point.
(b) the statute provides s and that a contingent interest that is capable of testing
within the or beyond the perpetuity period is presumptively valid until actual
events establish either it is incapable of vesting within the period, in which
case it is void, or that is incapable of vesting be on the period, in which case it
is valid. This process allows actual events to determine whether the contingent
interest is valid.
Purefoy v Rogers
- applies to contingent remainders in conveyance to uses (S of U must apply for this rule to apply)
- if contingent remainder can comply w/ Timely Vesting Rule IT MUST
- a legal executory estate will be void if it can comply w/ the rules but doesnt
X to A and heirs to the use of B for life and then to Bs first child to attain 21 (B has no
children)
- B=> legal LE
- Contingent remainder interest (unascertained & subject to CP)
- Grant must vest in Bs lifetime or it cant take effect
- To avoid this rule include either before or after Bs death in grant
- CL will take a wait & see approach (if it vests in time, its good, if not, its void)
-

X to A, but if B marries, then to B

A = legal FS
B = legal shifting executory interest in FS when he marries

X to A and heirs to the use of B and heirs to the use of C and heirs
- a use upon a use
Before Tenures Abolition Act 1660
After Act 1660
A use was executed
A use executed by statute
B=both legal & equitable FS
B=legal FS
C=nothing
C=equitable remainder in FS (trust)

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