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Property Winter CAN – Professor DagneGrace Kim

PROPERTY LAW

WINTER CANS

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Table of ContentsTopic 1: Doctrine of tenure..........................................................4

I. HISTORY OF DOCTRINE OF TENURE................................................................................................. 4

Topic 2: Doctrine of Estates.........................................................5I. FREEHOLD ESTATES (Owning)........................................................................................................... 5

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A) Fee Simple................................................................................................................................................................5Property Law Act RSBC - s.19..........................................................................................6Land Title Act RSBC - s.186 (5) & (6)...............................................................................6

B) Fee Tail...................................................................................................................................................................... 6Property Law Act RSBC - s.10..........................................................................................6

C) Life Estates...............................................................................................................................................................6Wills, Estates & Succession Act SBC – s.41 & 42.............................................................7

CASE LAW: Fee simple v. Life Estate..................................................................................................................7Re Walker................................................................................................................................7Re Waters................................................................................................................................8

II. LEASEHOLDS (Renting)....................................................................................................................... 9Residential Tenancies Act SBC........................................................................................9Residential Tenancy Regulations...................................................................................10

III. INTESTATE SUCCESSION AT COMMON LAW.............................................................................10Wills, Estate, Succession Act (WESA)............................................................................10Adoption Act..................................................................................................................11Law & Equity Act...........................................................................................................11

Flowchart - degree of consanguinity (kinship) for intestate succession........................................11Tataryn v. Tataryn Estate......................................................................................................13

IV. BOUNDARIES....................................................................................................................................... 13

Topic 3: Aboriginal Title............................................................14St. Catherine’s Milling & Lumber Co. v The Queen................................................................14Calder v British Columbia......................................................................................................15Guerin....................................................................................................................................15Delgamuukw..........................................................................................................................16R v Marshall...........................................................................................................................16Tsilhqot’in Nation v British Columbia 2014 SCC.....................................................................17

Aboriginal Title Related to Economic Development of Aboriginals in Canada...................17

Topic 4: Conditional Estates......................................................18I. BASIC CONCEPTS................................................................................................................................... 18II. INVALIDITY OF CONDITONS............................................................................................................ 20

Categories of Invalid Condition.........................................................................................................................20Blackburn v. McCallum..........................................................................................................21Re Brown (1953)....................................................................................................................21Sifton v Sifton........................................................................................................................22Kent v. McKay........................................................................................................................22Canada Trust & OHRC...........................................................................................................23Re Ramsden Estate................................................................................................................24

Topic 5: Future Interests...........................................................24I. TRANSFERABILITY OF INTEREST....................................................................................................24

A. Contingent interest:...........................................................................................................................................24B. Gaps in Seisen.......................................................................................................................................................25C. Trusts....................................................................................................................................................................... 25D. Rule against Perpetuities................................................................................................................................28

Caroline (Village) v. Roper.....................................................................................................28

Topic 6: Concurrent Interests....................................................29Joint Tenancy & Tenancy in Common............................................................................................... 29

Determining If It’s JT or TIC?..............................................................................................................................30Creating a joint tenancy........................................................................................................................................31

Land Title Act s.173; s. 177...................................................................................................31Creating a tenancy in common...........................................................................................................................31

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Property Law Act, ss. 11 (2), 18 (3).......................................................................................32McEwan v. Ewers and Ferguson, [1946]................................................................................32

Severance of Joint Tenancies..............................................................................................................................33Feinstein v. Ashford, 2005 BCSC 1379...................................................................................34

Termination of concurrent ownership...........................................................................................................35Condominiums..........................................................................................................................................................35

Topic 7: Matrimonial Property...................................................35History of Matrimonial Property........................................................................................................ 35

Murdoch v. Murdoch (1973)...................................................................................................36McIntire v. McIntire (2012) BCCA...........................................................................................36Royal Bank of Canada v. Fraser (1994) SCC..........................................................................37Horne v. Horne (2011)...........................................................................................................37

BC Family Law Act.................................................................................................................................... 38

Topic 8: Land Registration.........................................................391. Common Law Priorities..................................................................................................................... 392. Title Registration - Principles......................................................................................................... 40

Land Title Act – Principles of Title Registration..............................................................403. Registration of Charges - Mortgages............................................................................................. 41

Indefeasibility Principle........................................................................................................................................42Land Title Act – Charges & Event of Fraud....................................................................42WESA – Registrable Charges.........................................................................................43

Cases – Mortgages, Registered Charges.........................................................................................................43Credit Foncier v Bennett........................................................................................................43Canadian Commercial Bank v. Island Realty.........................................................................44Gill v. Bucholtz.......................................................................................................................45

Remedies for Non-Payment................................................................................................................................454. Adverse Possession (Squatters Rights)........................................................................................46

Land Title Act – Adverse Posession...............................................................................46Limitation Act, s.28........................................................................................................46Land Title Inquiry Act, s.16............................................................................................47

5. Registering non-Proprietary Interests & Aboriginal Title....................................................47Skketchestrn Indian Band v. BC.............................................................................................47

Topic 9: Incorporeal Heridaments..............................................481. Easements.............................................................................................................................................. 48

Land Title Act - s.182(2)................................................................................................48Land Transform Act – s.3...............................................................................................48

Phipps v. Pears.......................................................................................................................49Ellenborough Park..................................................................................................................50

Creation of Easements...........................................................................................................................................51Israel v. Leith.........................................................................................................................53Malden Farms v. Nicholson....................................................................................................53

2. Covenants............................................................................................................................................... 54Enforcing Covenants – 3 scenarios [covenant w/ no Privity of Contracts]....................................54

Durham Condominium v. Amberwood Investments Ltd.........................................................56Aquadel Golf Course v. Lindell Beach Holiday Resort............................................................56

FALL MATERIAL.........................................................................57I. THE NATURE OF PROPERTY..............................................................................................................57

What is Property?.................................................................................................................................................... 57Yanner v. Eaton......................................................................................................................57Harrison v. Carswell...............................................................................................................57

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11 Elements of Ownership (Bundle of Rights) [Honore]:.....................................................................58Figure 1.1 Types of Property Rights................................................................................................................58

II. PRIVATE PROPERTY: JUSTIFICATIONS & LIMITATIONS........................................................597 Categories - Justifications for Private Property......................................................................................59

III. CLASSIFICATIONS OF PROPERTY.................................................................................................60Real Property.............................................................................................................................................................61Personal Property....................................................................................................................................................61

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TOPIC 1: DOCTRINE OF TENURE

All provinces except Quebec follow a British archaic feudal land law.o Why study archaic feudal law?

Partly still operative & basic values of the land holding system

5 ways in which interests in land is governed:1) Doctrine of tenure

o Tenure = to holdo Allowed dividing interests among the feudal hierarchy concurrently

2) Doctrine of estateso Measurement of timeo Individuals’ interests in the same parcel of land successively, dividing

interests over time 3) Legal & equitable interest (“trusts”)4) Co-ownership5) Leases & license

I. HISTORY OF DOCTRINE OF TENURE A system where an individual holds land on behalf of a superior – the title is held

by a superior

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This was started by William the Conqueror who declared that all land in England belonged to the Crown. Then he divided the land and gave rights over the areas of lands to lords

o Ultimate ownership of these lands held by Williamo And these lords had certain obligations to be loyal to King

SubinfeudationTenant transfers land to someone else; tenant then placed in role of lord of guaranteeCROWN LORD (Tenante in capite – mesne lord) TENANT (tenant in demesne) and so these tenants will also divide this land in exchange for other incidents of tenure

Transfer of land (Feoffment) – no written transfero BUT today, rights in land are created thru written documents (deeds)o BC Land Title Act s.185 – s.20

Process of subinfeudation changed to substitutiono Incidents of tenure was slipping away: didn’t know who was on the land in

the hierarchy, who he can collect taxes from etc.

Doctrine of tenures in Land Law in Canada today (common law provinces not QC):1. Tenurial landholding - all hold land from Crown2. Form of tenure - free and common socage3. Incident of escheat still left – now found in legislationo Escheat – When the Crown holds the land, if there are no heir or next of kino Tenurial system - focus on rights and obligations related to the land, in

context of lord/tenant relationship, but how about duration of those rights?

TOPIC 2: DOCTRINE OF ESTATES

I. FREEHOLD ESTATES (OWNING)3 Kinds of Freehold estates recognized at common law:

1. Fee Simple2. Fee Tail3. Life Estate

A) FEE S IMPLEA fee allows the closest approximation to absolute ownership

DURATIONo Potentially infinite duration (fee)

RIGHTS OF THE HOLDERo No limits to the heirs it could pass to (simple)o Includes rights to use/rent/sell/leave by will, grant (inheritable)o Owner can transfer either by

a) Sale or gift inter vivos b) By will/grant

CREATIONo Requires specific language to make a fee simple:

1) Words of purchase – specify who’s getting the property interest

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2) Words of limitation – what interest do they takeo Example: “To A & His Heirs” - “his heirs”, words of limitation

LEGISLATIONLegislation presumes fee simple in a will/grant unless contrary intention is expressed. (To A for vs. To A for Life)

Property Law Act RSBC - s.19 19 (2) A transfer of land to a person without words limiting the interest transferred or to a corporation sole by his or her corporate designation without the words “successors” passes the fee simple or the greatest estate or interest in the land that the transferor has power to transfer, unless the transfer expressly provides that a lesser estate or a particular interest is being transferred.

Land Title Act RSBC - s.186 (5) & (6)186 (5) …if the transfer does not contain express words of limitation, the transfer operates to transfer the freehold estate of the transferor in the land to transferee in fee simple.

186 (6) …if the transfer contains express words of limitation, the transfer operates to transfer the freehold estate of the transferor in the land to the transferee in accordance with the limitation

B) FEE TAILFee tail estates are only direct lineal descendants of the holder like children, but exclude “collaterals” (nieces/uncles, etc).

o Abolished in BC by Property Law Act s.10 (1) & (2)

Property Law Act RSBC - s.1010 (1) An estate in fee simple must not be changed into a limited fee tail…10 (2) A limitation which before June 1, 1921 would have created an estate tail transfers fee simple or the greatest estate that the transferor had in the land.

C) L IFE ESTATESFreehold estate granted or to vested in a 3rd party for only a lifetime.

RIGHTS OF A LIFE TENANTPrimary rights associated w/ estates in land:

(1) Possession(2) Profits(3) Destroy/alienate (this right is excluded for life estates)

o DOCTRINE OF WASTE i. Ameliorating – acts that enhance the value of landii. Voluntary – acts that diminishes the value of the land (ex – over-cultivation,

destruction of buildings, etc)

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iii. Equitable – severe & malicious destructioniv. Permissive – damage resulting from the failure to preserve or repair property.

This is not automatically imposed on a life tenant – if not imposed, no duty to repair/maintenance

o Life tenant is not allowed the first 3. Permissive waste allowed (unless precluded by will)

o Note : Grantor can create a life estate “w/o impeachment for waste” or “unimpeachable for waste” which is a waiver of ameliorative & voluntary waste and allows it.

o BUT for equitable wastes, even using those words doesn’t allow its use - Law & Equity Act s.11

CREATION OF A LIFE ESTATEo No magic words to create life estates; must interpret words to determine intentiono Must show clear intention to create life estate (Starting presumption being

fee simple) 2 ways to Create a Life Estate:

1. Conventional Life Estates (Gifts & Wills)o Person whose life measures the length of life estate: Cestui que vie

i. To last for the life of the recipient (pur sa vie) – “To A for Life” This life estate can be transferred:

“To A for Life” A sells to B A remains as the measure of life estate

What if B dies before A? Willed/descend to be enjoyed by B’s heirs A dies

ii. To last for the life of another (pur autre vie) – “To A for Life of C”

2. Life Estates by Operation of Lawa) Historically, Dower & Curtesy; but abolished by WESAb) Now, Homestead legislation

o WESA s.33 - “in trust for an estate for the life of the surviving spouse, or so long as the surviving spouse wishes to retain the estate for life”

LEGISLATIONThere’s no specific sections about life estates in legislation. But use s.11 of Property Act (on creation of life estate), that the presumption is a fee simple but contrary intention an be shown to express otherwise (like a life estate)

Wills, Estates & Succession Act SBC – s.41 & 4241 (1) Property that can be gifted by will42 (1) Meaning of particular words in a will – this section is subj to a contrary intention appearing in will

CASE LAW: FEE SIMPLE V. L IFE ESTATE

RE WALKER[Life estate vs Fee simple; Repugnant doctrine]

ISSUELife Estate or Fee Simple?

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FACTSWill says: “I leave everything to my wife (except some jewelry to nephews) but if any of my estate remains undisposed at her death, then to my nephews A, B, C.”

RULEPresumption in Wills Act is if not clear, it is fee simple.

ANALYSISWhat did the wife get from her husband?

What are the possibilities the court considered? o Fee simple? if true, nephews have no claim. Wife can pass on as she

likes, she and only she can dispose of ito Life estate? if true, nephews are considered remainders and they

have entitlement.o Life estate with the power of sale? an estate with advancement (she

can sell) What did the court conclude? – wording inconsistent. First part seems to give

fee simple, but then the second part talks about remainders, suggesting life estate.

CONCLUSIONCourt ruled that it’s a FEE SIMPLE.Why? Repugnant doctrine – cannot give the estate to W, intending her with ownership & then try to control what she can do with it with additional conditions.In this case, the intention is clear to give a fee simple interest.

RE WATERS[life estate; license; cardinal rule of construction]

ISSUELife Estate or License?

FACTSWill says: “I give the use of 48 Walker Ave to Ellen for as long as she lives, or until she remarries, or until she gives notice that she no longer needs it.”

o License = permission to do something with the land that which, if you didn’t have permission, would be a trespass

RULE“Cardinal rule of construction” – looking at the testator’s intention by considering the language used & context arround the will to determine if it is license or life estate

ANALYSISLooking at the testator’s intention by considering the language used & context around will

“Use…for as long as she lives” (seems like life estate) Given furniture and household effects (consistent with life estate) No condition requiring personal occupancy of the house (so not a licence, she can

come and go as she pleases in the house unlike a license)

CONCLUSION

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Ms. W is given life estate

II. LEASEHOLDS (RENTING)Leaseholds are estates for a definite duration that is set for a certain amount of time.

ELEMENTS OF A LEASE1) Transfer of exclusive possession

o Landlord holds a fee simple throughout, but the right to actual poss’n is suspended for the term of tenant, can’t interfere with lessee’s use and enjoyment

o Landlord retains a reversionary interest2) For rent

o Rent being paid/promised to be paid, or value or a right given/agreed to be given

3) Limited durationo Fixed term, periodic

LEASE VS LICENCEGrant/transfer of exclusive possession Merely a permission to do something

which otherwise would be wrong (ex – trespass)

Creates an interest in land No interest in land; can’t sue for trespassStatutory protection for residential

tenantsNo statutory protection for licence of

residential premises

DURATIONo Estate for a definite duration; fixed term or periodico But landlord (lessor) retains a reversionary interest:

Landlord’s right to actual possession is suspended during the term of tenancy

LEGISLATION

Residential Tenancies Act SBC s.5* - RTA cannot be avoided [include this in the beginning of every RTA

agreement] s.12* - Tenancy agreements include the standard term s.28 – Protection of tenant’s right to quiet enjoyment s.29 – Landlord’s right to enter rental unit restricted

o s.30 – Tenant’s right of access protectedo s.31 – prohibiting change of locks & other access

s.32 – Landlord & tenant obligations to repair and maintaino s.33 – emergency repairso s.34 – assignment & subletting

s.42 – Timing & notice of rent increaseso s.43 – amount of rent inco s.45 – tenant’s notice

s.47 – Landlord’s may end tenancy by giving notice s.49(3) - A landlord may end tenancy early if the landlord or a close family

member of the landlord intends to occupy the rental unito 49(1) – close family member means landlord’s parent, spouse or child OR

the parent, child of that

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s.50 – Tenancy may end tenancy early s.58 – Determining disputes

Residential Tenancy Regulations**Addresses the change in the Lease

s.2 – security deposit & pet damage deposit s.3 – pets s.5 – payment of rent s.6 – rent increase s.8 – repairs s.9 – occupants & guests s.10 – Locks

o s.11 – Landlord’s entry into rental unit s.12 – Ending the tenancy s.22 – Annual rent increase

III. INTESTATE SUCCESSION AT COMMON LAW Intestate: not having made a will before death; a person who has died w/o a will

o When someone dies without a will, legislation directs how estate is to be distributed

Apart from the right of the surviving spouse, the scheme is based on the degree of kinship (siblings) & lineal descendants (‘issues’)

o Descendants include adopted children (under s.37 – Adoption Act)

LEGISLATION

Wills, Estate, Succession Act (WESA)Materials p. 12 - 20

DEFINITION OF SPOUSEs.2 – “spouse” were alive immediately before a relevant time and

(a) were married(b) lived together for 2 years

WHEN A PERSON DIES WITHOUT A WILLSpouse but no descendantss.20 – person dies w/o will and has no kids, the intestate given to spouse

Spousal preferences.21(3) – the descendants are both of theirs, then preferential share of spouse is $300,000

(4) – the kids are not common to both, then preferential share of spouse is $150,000If the net value of intestate estate is GREATER than preferential shares.21(6)(b) - The residue of intestate estate is distributed as 1/2 to spouse and 1/2 to descendants.

No spouse but intestate leaving descendants or relativess.23 (2) – sets out the ranking if no spouse starting from: descendants deceased’s parents deceased’s bro/sis grandparents so forth.

Right to Spousal Home

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s.26 – If not given away in gift, will – surviving spouse can acquire the spousal homes.27(2) – must exercise this right to get spousal home no later than 180 days after grant is issued

Prohibition on disposing spousal homes.28 - w/o written consent of surviving spouse, personal rep cant dispose spousal home for at least 180 days

Retention of Spousal Homes.33 – “Homestead Legislation”. Surviving spouse can apply to court to retain spousal home, so the descendants can’t kick them out; “title to the house”

Maintenance from estate (Tataryn)s.60 - If testator dies with a will that doesn’t make adequate provision and support for proper maintenance & support of spouse & children…, the court may order it to do so.

When persons die simultaneouslys.5 – 10 – governs what happens when 2+ people die at the same timeFundamental rule s.5 – each person is deemed to have held the property or as TIC with the others

Adoption Act s.37 – Adopted children becomes the child of adoptive parent

Law & Equity Acts.61 – abolishes any distinction b/w status of child born inside marriage & outside marriage

FLOWCHART - DEGREE OF CONSANGUINITY (KINSHIP) FOR INTESTATE SUCCESSION

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TATARYN V.

TATARYN ESTATE[WESA s.60; maintenance from estate]

FACTSHusband excluded one son out of his estate and only left his wife with a life estate – everything to be determinant of son 2, his face son, when she dies. Suing husband under the Wills Variaton Act.

RULEWESA - s.60 If testator dies with a will that doesn’t make adequate provision and support for proper maintenance & support of spouse & children…, the court may order it to do so.

“Proper maintenance & support” is not just limited to bare necessitieso This is the “moral duty” approach – from the Walker v. McDermott case

2 sets of norms addressed in determining what’s “adequate, just & equitable”1) Testator’s legal responsibilities during his/her lifetime

The maintenance & property allocations during the testator’s lifetime should be similar after the testator’s death

2) Testator’s moral duties toward spouse & children What the society thinks of as moral (i.e. – although not legally required, supporting a spouse after death; or dependent adult children)

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ANALYSISo Legal obligations to Ms. T, to provide maintenance for her

o She contributed much to their assets, and worked hard; no factors that should negate her from entitlement

o Moral obligations to Ms. T, she has outlived her husband and must be provided for the “extra years” she has lived; they were in an understanding that the estate would be there for her in her old age

CONCLUSIONAppeal allowed. Title to the home and residue of estate after gift payment to sons for Ms.T. 1/3 of property to John and 2/3 to Edward.

IV. BOUNDARIES Rights to horizontal plane of area + above land

(Cujust est solum ejus est usque ad coelom et ad infernos)a) Airspace – owner of land has rights above the surface but not forever upwards,

rights to only ordinary use; limited by realistic needs of the publicb) Below the surface – owner of land has rights below the surface, but only to the

reasonable use of the person

TOPIC 3: ABORIGINAL TITLE

Nature of Aboriginal Title Sui generis Ultimate sovereignty and underlying fee simple lie w/ the Crown

o Inalienable only to the Crown Communal right Inherent right – doesn’t flow from a crown grant

o Arises out of fact of historic occupationo Relationship b/w CL & pre-existing systems of Aboriginal law

Proof of Aboriginal TitleDelgamuukw Test Section 3535. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

(2) In this Act, "Aboriginal Peoples of Canada" includes the Indian, Inuit and Métis peoples of Canada.

(3) For greater certainty, in subsection (1) "treaty rights" includes rights that now exist by way of land claims agreements or may be so acquired.

(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.

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Analysis regarding claims that gov has infringed an Aboriginal right (incl. aboriginal title):1.Did the right/ title exist, historically?2.Does it still exist today or was it extinguished at some point?3. If the right/ title is still in existence, does the government action, prima facie, infringe it?4. If yes, can that infringement be justified:

- in furtherance of a legislative objective that is compelling and substantial?; protection of endangered species, forestry management

- In keeping with the Crown’s fiduciary obligations?

ST. CATHERINE’S MILLING & LUMBER CO. V THE QUEENAboriginal Title is a “personal and usufructory” right over the land

FACTSFrom 1670-1870 HBC had Crown rights to Rupert’s Land. In 1870 Fed purchased it from HBC and granted a timber lease to PL. Fed claims that it had acquired the land from the Ojibwa Treaty 3, and it was in their power to give timber rights. ON claimed it was Crown land, and it was provincial jurisdiction allocating the timber rights.

RULE Aboriginal Title is a “personal and usufructory” right over the land, which entailed

occupation and use of the land, but not of exclusive possession. Occupation & use (hunting, fishing) of the land was allowed, not an exclusive

possession Aboriginal Title was to exist in conjunction with the Crown title, which gave Crown

the exclusive ability to unilaterally extinguish Aboriginal Title. The source of Aboriginal Title was to have been flown from the Royal Proclamation

and not as an inherent right.

DIFF FROM F/S AT only alienable to the Crown, distinguished from that of a fee simple, which is

inheritable and has no limits to the heirs it could pass to.

CALDER V BRITISH COLUMBIAAboriginal title is an inherent right based on historic occupation

FACTSThe Nisga’a were asking for recognition of their pre-existing title as a legal right arising out of their prior occupation or the Royal Proclamation, and for a declaration that extinguishment required explicit government action that had never taken place in BC. Decided against the Nisga’a on a procedural ground: they had not obtained permission to sue the prov. crown which you had to do at the time.

RULE Reiterated from St. Cats - Aboriginal title exists in conjunction with Crown title - Can only be alienated to the Crown- Can be extinguished unilaterally by the Crown, although disagreement as to what

would be sufficient for extinguishment - test comes later in Sparrow

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New - Aboriginal title is an inherent right, not dependent on any Crown grant,

proclamation or legislation- Instead, based on historic occupation and use of land based on historic occupation

and use of land pre-dating the assertion of colonial sovereignty

GUERINAboriginal Title is “sui generis”

Guerin case characterized Aboriginal Title as “sui generis” (unique) to define the nature of the interest not only by its general inalienability, but upon surrender, it gives rise to a distinctive fiduciary obligation on the part of the Crown

DELGAMUUKWTest for establishing Aboriginal Title

FACTSIn 1984, the chiefs file a collective claim for recognition of their ownership and jurisdiction over their territory. In appeal to SCC, the claims changed to ownership and jurisdiction and self governance. This sent the case back to the trial court. Lower courts dismissed the claim, and it went to SCC.

RULEDelgamuukw test establishes three requirements for Aboriginal title:

1. Was the land sufficiently occupied prior to sovereignty?2. Is there continuity between present and pre-soverignty occupation?3. Was there exclusive historic occupation?

ANALYSISReiterated Aboriginal Title as:

- sui generis, general inalienability cept to the Crown, inherent right flowing from historical occupation

SCC said in this case:- Aboriginal Title encompasses the “right to exclusive use & occupation of the land

held pursuant to that title for variety of purposes, incl. non-traditional purposes, provided these uses can be reconciled w/ communal & ongoing nature of the group’s attachment to the land.

Comparison w/ fee simple:- Similar to f/s in regards to the right to use land for a broad range of purposes- But a fee simple is not subject to this inherent limit restricting land use from being

irreconcilable with the community’s relationship with the land.

CONCLUSIONNo Aboriginal Title.

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R V MARSHALLApplication of Delgamuukw test

RULE & ANALYSISDelgamuukw Test – further refined what is meant by sufficient occupancy, exclusivity & continuity.(McLachlin) Exclusive occupation looks at the intent and capacity to control the land and that the use of land that is sufficiently regular and exclusive at the time of assertion of sovereignty will amount to AT.

CONCLUSIONNo Aborignal Title

TSILHQOT’IN NATION V BRITISH COLUMBIA 2014 SCC*Landmark case that was successful in establishing AT using Delgamuukw Test

ANALYSIS- Use of land sufficiently regular and exclusive will amount to Aboriginal Title.- Expanded content or definition of rights within aboriginal title to preserve for

future generations rather than being limited to preservation for future generations for historical use.

- Aboriginal Law & Common Law:Look at pre-sovereignty aboriginal practices and land use and translate that as faithfully as possible into a modern legal right. (McLachlin)

- AT comes w/ restrictions as it is a collective title held for all succeeding generations and that it cannot be alienated except to the Crown, nor encumbered by ways in using the land that is irreconcilable with the continued relationship with the land

Similar ownership rights of AT with f/s: - Titleholders carry broad rights to use, possess and enjoy the land- right to decide how the land will be used- right to enjoyment and occupancy- right to possess, right to economic benefits of the land- right to proactively use and manage the land

Differs from Fee Simple- general inalienability- sui generis nature- requirements of proof based on sufficient occupancy, exclusivity, and continuity of

land (Delgamuukw)

CONCLUSIONAboriginal Title granted.

ABORIGINAL TITLE RELATED TO ECONOMIC DEVELOPMENT OF ABORIGINALS IN CANADA

“LOSING THE LAND AGAIN” – K. Wyatt

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Nisga’a Nation private home initiative, McKay contends that f/s estates such as private home ownership can help Aboriginals move towards economic and political power by leveraging lands to obtain credit.

McKay suggests that the power to transfer, a key feature of a fee simple, can break the cycle of dependence upon the Crown, which advocates for a move away from the inalienability of Aboriginal Title.

Opponents to the potential fee simple shift on Aboriginal lands (McKay) - refers to fee simple land ownership as another “assimilationist Western

concept imposed on Native culture”. Sees the power to alienate as a threat to the title in Aboriginal land itself, as they

perceive the fee simple plan under the Property Ownership Initiative as giving non-Aboriginals the power to take over and privately own Aboriginal land. T

These contrasting perspectives as portrayed by Wyatt and McKay demonstrate the potential effects of shifting Aboriginal Title to fee simple interests and its diverging implications for the economic development of the Aboriginal Peoples of Canada.

BC First Nation leads historic & controversial move toward aboriginal private home ownership

3 private mortgaged homes on Nisga’a Nation reserveo For – private ownership of aboriginal land will pull natives out of poverty

and towards economic & political powero Against – the Nisga’a culture will be lost; “individual privatization of

indigenous collective lands & resources will impose colonizer’s model on our peoples”

Whoever ends up owning these plots, the Nisga’a will always remain ultimate title to the land – however homeowners will pay Nisga’a taxes and be subject to their laws and the property will revert to their ownership

o Nisga’a will still remain a fee simple interest

TOPIC 4: CONDITIONAL ESTATES

I. BASIC CONCEPTS Absolute Estate – no conditions

o Reversionary interest is only in absolute/life estates

Conditional Estates - estates are to which conditions (strings) are attachedo Every interest can be classified as:

1) Vested interest – No limitations or conditions obstruct enjoyment of property interest Vested in Possession: To A for life Vested in Interest: Then to B (B gets it when A dies, no

conditionality)2) Contingent (future) interest – Vesting is delayed pending the

occurrence of a condition

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Condition precedent: condition of eligibility

Conditional Subsequent: attached to an estate so that the estate will be lost if that condition occurs

**Defeasible & Determinable Interests only occur after there is vested interest & there’s conditions attached:

DEFEASIBLE INTEREST(subject to a condition subsequent)

DETERMINABLE INTEREST(subject to a determinable limitation)

o A property interest that can be brought to a premature end on the occurrence of a specific event

o Ex: “To A, but if A starts smoking, then he will lose it”

o Grantor will have the option to exercise the right of re-entry (so if A starts to smoking, they have the exercise to re-entry, to re-claim)

o Right of re-entry can be sold; transferable and is contingent

interest on conditions that occur it is certain as to what would happen in that

specific event so thus, it is a vested interesto Words often used: “On condition that;

but if; provided that; if it happens that; phrases that seem tacked onto the estate”

o Property interest that will end automatically on the happening of the prescribed event; limit put on an interest

o Grantor may take back the property; has the possibility of reverter

o Words often used: “while; during; so long as; until”

o Ex: “To A so long as A joined TRU Law” – possibility of reverter begins when A joins another law school, the interest reverts back to the testator.

o it is certain as to what would happen in that determining event so thus, it is a vested interest – A would lose it for sure if they didn’t go to TRU

Similarities: Vesting has occurred; there is a condition Differences: The intention of the grantor are diff in the way how he considers the

importance attached to the conditions. If grantor wanted the condition integral part of the grant, then it would be determinable – the interest would automatically end

Why do we have a distinction between defeasible and determinable estate?i. Breach of conditions clause in determinable & defeasible estates- Possibility of reverter (defeasible) vs. Right of re-entry (determinable)

ii. Transferability- Can sell both- s.8 of the Property Law Act says that a contingent interest, right of re-entry &

possibility of reverter may be disposed by deed.

ii. Effect of invalidity of conditions- Effects are different if conditions are held to be valid or invalid- Defeasible Estate:

If invalid, conditional subsequent would be struck out; estate-holder who had the fee simple subject to condition subsequent gets the fee simple absolute;

- Determinable Estate:If invalid, entire estate is invalid. Land reverts to grantor or estate/heirs

- Contingent Estate:Estate that was contingent on that consequent precedent is wiped out, it would fail.

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II. INVALIDITY OF CONDITONS

CATEGORIES OF INVALID CONDITIONDoctrine of Repugnancy (restraints are invalid if they are inconsistent with an inherent attribute of ownership (ex – such as alienation)

1. RESTRAINTS ON ALIENATION (Blackburn, Brown) Conditional transfers that impose unacceptable restraints on the transfer of property

are invalid Starting presumption is that blanket restraint alienation is not permitted. However,

some restrictions may be permitted. To analyze the extent of restriction to see whether the condition is valid or not:

a) Mode of alienation – prohibiting mortgage, sales, lease, etcb) Class of recipients – determining who will it be alienated toc) Time period – how long it’s restrainedd) Price limitations

If the combined effect of the restriction on alienation based on the above is not substantial, limits to alienation may be valid (Blackburn).

2. UNCERTAIN CONDITIONS (Sifton) Conditions attached to property transfers that are too imprecise may be found to be

void. This is to enable the recipients of property to understand the scope of any conditions affecting their entitlements.

The courts would apply objective tests; a common-sense approach (ROP Standard) – would the recipient know what is expected of them to keep the property.

Conditions subsequent – donee must be able to see distinctly and precisely from the outset those actions will lead to a loss of the interest

Conditions precedent – lower threshold of certainty; because the interest has not even vested already so all you need to see for certainty in the conditions is to give some “plausible meaning to the words”

3. CONDITIONS CONTRARY TO PUBLIC POLICY (Kent, Canada Trust, Ramsden) Conditions that contravene public policy will not be enforced. But public policy should be raised in clear cases in which the harm to the public is

“substantially incontestable” Sources of public policy: Human right codes [**BC Rights Code – discriminatory conditions will not be accepted], Charter, Case law, int’l law, Charter conventions, statutory acts

Examples of conditions invalid on public policy:- Encouraging criminal activity- Separating parent from child- Encouraging a couple to separate- [sometimes] general restriction on remarriage- Preventing someone from exercising rights under Act

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BLACKBURN V. MCCALLUM Restraint on alienation (restriction on time period)

FACTSFather left land to two sons and said that land cannot be sold for 25 yrs, after death.

RULEWhere a property is given absolutely, a condition can’t be imposed that is inconsistent with its absolute character and that the proprietor shall not have the power to alien b/c they are repugnant to the character of the estate (doctrine of repugnancy)

ISSUE & ANALYSISIs it condition subsequent or condition precedent?

Condition Subsequent – the condition will be struck out Defeasible b/c will doesn’t suggest an automatic retraction of ownership

o This means if the condition is invalid, the condition can be struck out and the estate can remain an absolute estate

Is it a restraint? If so, is it saved by the fact that it is only for 25 years? Yes, this was most definitely a restraint But, NO condition is not saved; it was still considered to be a substantial

restriction when considering all factors together

HOLDINGSon takes absolute interest in fee simple, relieved from the restrictions imposed by dad’s will

RE BROWN (1953)Restraint on alienation – restriction on recipients; to “family” may be an

acceptable restriction FACTSTestator leaves family business to 4 sons. Will has condition that says sons can’t sell or mortgage to any others except the brothers.

ANALYSISIs this condition: condition subsequent or condition precedent? Determinable/defeasible?

o Condition subsequent and defeasible interesto If the condition is violated, the will doesn’t say the estate will stop automatically.

But rather, a life estate will be created for the individual & their children. No automatic end to the estate means defeasible interest

Is this restraint on alienation valid?o The mode of alienation in this case is restricted on the class of recipients (only b/w

sons)o The Court looked at past cases on class restrictions to see if this case would be

valid or invalid. As a rule it is valid to limit the class of recipients (like just to family) but, this case is much more restrictive than just restricting it to “family” according to jurisprudence

o Diminishing class of purchasers through time. Thus, last brother would be completely unable to alienate (Transfer)

Condition is invalid & struck out. Bros get full ownership of the shares w/o the condition.

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SIFTON V SIFTONUncertainty in condition subsequent

FACTSTrust set up for daughter (life estate) but only as long as she resides in Canada. Daughter wants to go back to Europe for study/travel.

ISSUE & ANALYSISWas the condition to reside in Canada, condition precedent or subsequent?

o Condition subsequent: because she was already getting the payments, and it’s if she leaves she would lose it

Is the interest defeasible or determinable?o Presumptively, defeasible (premature end of an interest after an

occurrence)o Although “so long as” – determinable

RULETEST for whether condition subsequent is sufficiently certain: Must be able to see from the beginning exactly what events/behavior would breach condition

In this case, dad didn’t mean daughter could never set foot outside Canada, nor did he mean she could just keep a house here, but travel all the time. There’s no guidance between the two and thus, it’s an uncertain condition. It’s not clear to ROP as to what daughter should be doing.

HOLDINGCondition invalid – struck off. Daughter gets it in fee simple.

KENT V. MCKAYConditions contrary to public policy

FACTSTestator created a condition in his will that, “anyone who commences any litigation with provisions of the will, other than for judicial interpretation, then their benefits will be revoked”

RULEBC Wills Variation Act (Now WESA)

o Public policy to protect the interests of the dependents and windows for adequate maintenance and support. Testators should make reasonable provision for dependents, which may include commencing litigation on the provisions.

HOLDINGThis condition is against public policy, thus, invalid & struck out. Changed to fee simple.

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CANADA TRUST & OHRCConditions contrary to public policy (source: Charter); Doctrine of Cy-pres

**After this case - Public policy assessment, applies to quasi-public & private trust

FACTSTrust set up in 1923 to provide uni scholarships.

- Recipients had to be white, British, Protestant (stated that these groups were by nature best qualified to ensure the continuance of civilization)

- Also 3/4 had to men, rest for women. Priority to children of teachers & ministers.

RULEStarting presumption:A public or quasi-public trust based on notions of racism & religious superiority is contrary to public policy and the condition will be void.

o But Doctrine of Cy-pres could be applied (for charitable trusts) to save it to amend the terms of the as closely as possible to the original intention of the testator. Charitable trusts restricting class of beneficiaries are not always void as being against public policy.

ISSUE & HOLDING1. Do the provisions of trust contravene public policy or are they void for uncertainty?

Yes, the provisions do not align with modern (contemporary) public policy for equality & anti-discrimination

2. If the answer is yes to above, can the doctrine of cy-pres be applied to save the trust?Yes, doctrine of cy-pres applies to amend the terms of trust; not all restrictions are discriminatory (ex – preference for children of teachers)

CONDITION IS NOT INVALID, THUS, IS KEPT

ANALYSISHere, the doctrine of Cy-pres applies as the original objective of the testator became impossible/impractical, so the terms of the charitable trust are amended to prevent trust from failing. It can be saved if it is directed towards acceptable policy ends.

RE RAMSDEN ESTATEConditions contrary to public policy; Doctine of Cy-pres

FACTSRamsden left a will which set up a bursary for protestant students, w/ preference for students intending to enter the field of ministry. Estate created was a condition precedent – anyone who qualified for the conditions would get the scholarship

o However, there is a University Act – “management of uni shall be non-political & not religious… AND uni can’t accept gifts that would be prejudicial to its non-denominational character”

ANALYSIS

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Doctrine of Cy-pres is applied to amend the terms, and give effect to the testator’s wishes w/o violating the Act.

What is allowed after Leonard’s Trust? On what basis is Ramsden distinguished from Leonard? Leonard was based on blatant religious supremacy and racism that was absent from the Ramsden case. The motivation in this case was not same.

As long as the one administering the trust is not a public entity (i.e. – university), then this condition can be allowed

HOLDINGAdministering a religious test by the university (public entity) would violate the Act. BUT if trust is administered someone else instead of the uni, then it would be valid.

TOPIC 5: FUTURE INTERESTS

I. TRANSFERABILITY OF INTEREST

A. CONTINGENT INTEREST: It is a future interest to a 3rd party, if that interest would take effect by cutting

short the prior particular interest. An interest is also contingent if vesting is delayed pending the occurrence of some

condition precedent s.8 of Property Law Act – allows contingent interest to be disposed by deed

EXAMPLESo Ex: “To A for life, remainder to B, but only if and when B marries”

B’s marriage is a condition precedent on B’s contingent remaindero Ex2: “To A for life, then to B, if B has finished law school

This is a contingent remainder

B. GAPS IN SEISEN

COMMON LAW RULESThere can never be a gap, a moment during which someone was not seized of the land.

- Seisen: condition of legally owning & possessing

A. Could not create gap from the beginning:Example: Will - “To A, 7 years after I die” Who holds seisen in that 7 year gap? There will be a gap for 7 years. In will, you can’t have a gap, so this will is void right away.

B. Could not have gap come about through eventsExample: “To A for life, then to B when B finishes law school or when B becomes 30”What happens if A died before B finished law school or before he’s 30? There will be a gap.

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C. TRUSTSTRUSTS - “splitting of title”

Trustee: legal title – disposition management, administration & possession Beneficiary: equitable title – use & enjoyment; holder of benefit In a Trust, you always need in a sense 3 parties operating

STATUTE OF USES- Statute of Uses does not apply to wills but prevents having trusts in grants inter

vivos- Legal estate shall be vested in person having trust. Statute collapses both legal &

equitable title which executes/kills the trust.

SUMMARYIn a grant inter vivos:“To A in trust for B” would be collapsed by the Statute of Uses such that B would hold legal & equitable title, and A would have nothing. Assuming that:

i. A is not a corporation ii. No active duties have been placed on Aiii. No personalty (land)

To create a trust in a grant inter vivos - Exhaust the Statute by creating a “trust on a trust”

2 WAYS AROUND STATUTE OF USES1) Avoiding the application of the Statute – The Statute only applies where a person is seised to the use/trust of another person or corporation

Instances where the Statute does not apply:a) When the trustee holds a leasehold estate, since a leaseholder can’t be seised

to the use of anotherb) When a corporation holds property to the use of (in trust for) someone else (Ex

– To Encana in trust for B)c) When the trustee has active duties to perform that requires keeping the legal

title (Ex – managing property, paying rent, etc)d) When a person is seised of land (you can create trusts for personal property)

2) Exhausting the operation of the Statute Trusts on a Trusts – creates 2 levels of equitable title. The Statute of Uses can be

exhausted on first use only and thus, can’t execute the 2nd trust. Ex: “To A in f/s in trust for B, in trust for C ”

o Statute collapses A’s title into B and exhausts the first trust, but will not exhaust the trust of C. So B holds legal title & C, equitable.

RESULTING TRUST (Only in Trusts)

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Also called “legal executor trust” - this is when the gap investing of a future interest goes back to the grantor temporarily.

Proven on common intentions of parties. 2 situations where a resulting trust can arise:

i) When an equitable title has not been vested on a remainder (Gaps in Trusts)

ii) In a matrimonial context or business partner context where the legal title is in one person’s name but there is a common intention that the person holds the title for the benefit of the other (requires evidence)

CONSTRUCTIVE TRUSTS A law imposed trust in which a title holder is held to an equitable duty to convey it

to another on the ground that his acquisition or retention of the property is wrongful & that he would be unjustly enriched

Must prove the other party is unjustly enriched Matrimonial context (Murdoch v. Murdoch) – p.34 of CAN

WHY CREATE A TRUST?1. Create trust so that a trustee holds legal title

Protection of minors, vulnerable parties, dependants (allowing person to enjoy benefit of trust income while preventing beneficiary from having full control of prop)

Investment (mutual funds) Pension funds Tax advantages Charitable trusts, philanthropy

2. Avoid common law restrictions on future interests – provides more flexibility The timely vesting rule

- “To A for life, then to B if B joins law school, whether this happens before or after A’s death” C/L rule - B must join law school before A dies, or it’s too late

OR- “To X in trust for A for life, then in trust for B if B joins law school, whether this happens before

or after A’s death” To X in Trust for A For Life, Executed by Statute of Uses

o A is legal and equitable title holder for life From that moment on, B’s interest is protected as equitable title

o B’s interest is described as legal executor

WILLS - TRUSTS FRAMEWORK

O’s WILL: To T, in trust for A

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It is a valid trust because it is in a will and the Statute of Uses does not apply T: is a trustee so has a legal title to f/s; A: equitable f/s ; O’s estate: nothing

O’s WILL: To T, in trust for A for life, then in trust for B T: legal fs; A: equitable life estate; B: equitable f/s remainder; O’s estate: nothing

O’s WILL: To T, in trust for A for life, then in trust for B when B turns 21 [B is 7 at time of O’s death]

T: legal fs; A: equitable life estate; B: equitable contingent fee simple remainder O’s estate: resulting trust – equitable fee simple, vested in interest but subject to

divestment if B reaches 21 // if B hasn’t turned 21 by the time A has died, there is a gap and equitable title goes back to O first, until B turns 21

O’s Will: To T, in trust for A, but if A ever starts to smoke, then B may enter T: legal fs; A: equitable defeasible fs; B: equitable right of re-entry; O: retains nothing - normally O would have right of re-entry here, but gave it to B

D. RULE AGAINST PERPETUITIES

RULE AGAINST PERPETUITIESSets a max period within which any interest subject to condition precedent must vest, it is not perpertual. Only applies to trusts.

HOW TO CALCULATE 80 yrs when you know the date of the will that was created - calculate 80 from that

date.BC Perpetuity Act – s.7(1)(b) 80 years

If you don’t know the date, then use the common law calculations:Perpetuity period in common law: (life in being + 21 years)

Contingent Estates (What estates are subject to condition precedent)STEPS:

1. Identify any interests which are contingent2. Identify the vesting event3. Determine maximum period in which vesting event could take place.4. Having determined latest date at which vesting could possibly occur - match this

against the perpetuities period Perpetuity period

[lives in being (a person whose life is measured as time) + 21 years]

CAROLINE (VILLAGE) V. ROPERFACTS

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Land transferred to community trustees. Land “shall revert back to the late Thomas Roper Estate if used for other than a community centre...” Hall burnt down, not rebuilt, now town wants to sell land for commercial purposes.

ISSUEIs the transfer defeasible or determinable? It was meant to be determinable, but the language made it defeasible

RULERight of re-entry (defeasible interest) are conditional interests and those are subject to the rule of perpetuities. Right of re-entry could expire under rule against perpetuities.

THE LAW “If the terminating event is an integral & necessary part of the formula from

which the size of the interest is to be ascertained, the result is the of a determinable interest;

But if the terminating event is external to the limitation, if it is a divided clause from the grant, the interest granted is an interest upon condition (condition subsequent).”

DECISIONWords used indicate a fee simple + condition subsequent (a future event that may or may not occur)= Defeasible Interest

There is no condition that the fee simple is good only so long as certain use is made of it= which would’ve made it determinable interest

TOPIC 6: CONCURRENT INTERESTS

Concurrent interests are 2+ owners having shared title of an estste. Two forms of co-ownership

(1) JOINT TENANCY(2) TENACNY IN COMMON

JOINT TENANCY & TENANCY IN COMMON

Joint Tenancy: One tenant, no distinct shareo Joint tenancy may be ideal for family estate planning, or when trustees are holding

title, the right of survivor ship is usually seen as inappropriate in a commercial setting

Tenancy in common: Respective distinct shares, but these shares remain undivided during TIC

o Tenancy in common is usually used for partnership assets or condo properties

Similarities

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o Co-owners have an equal right to possession and the use of the whole propertyo Can make dispositions of his or her share in the undivided property – a single

estate

Differences: o Only the tenant in common can dispose of his or her share of the property by willo Only in Joint Tenancy - Right of survivorship: Joint tenants constrained by the

right of survivorship On death of joint tenant, her share of property goes to the surviving co-

owners On death of tenant in common, her share may be devised by will

DETERMINING IF IT’S JT OR TIC?Step 1: INTENTION If clearly stated, intention determines whether the interest is JT or TIC. If not, presumptions apply

Step 2: LEGISLATED PRESUMPTIONBC Property Law Act presumes in favor of tenancy in common for personal property s. 11 (2) of the BC Property Law ActIf, …land is transferred or devised in fee simple, charged, or contracted to be sold by a valid agreement for sale in which the vendor agrees to transfer the land to 2 or more persons, other than personal representatives or trustees, they are tenants in common unless a contrary intention appears in the instrument.

Step 3: COMMON LAW PRESUMPTION In will/trusts or personal property, JT is presumed In the presence of 4 unities, JT is presumed

o Common law presumptions might be negated by use of “words of severance” (ex – ‘equally amongst them’; ‘share and share alike’ etc) to signify a TIC

FOUR UNITIES If all 4 unities are present, then it could be either tenancy in common or joint

tenancy, but if at least 1 unity is missing, then it could only be tenancy in common

o All 4 unities must be present in a joint tenancyo Only unity of possession is required for a tenancy in common

Unity of Possession

Unity of Title Unity of interest Unity of Time

o Interests must relate to same

o Concurrent ownership must have been created

o Co-owners must have the same estate in the land,

o All co-owners receive their estates at the

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piece of propertyo Co-owner is entitled

to possession of all the property – subject to the equal right of possession of the other co-owners.

o Choosing not to exercise the right to possession does not, by itself, destroy the unity of possession.

in same instrument, whether will or deed

o Ex - So if A and B were made on will by March 1 and C in grant on May 1 = no unity of title, bcuz 2 diff instrument.

Basically, it cannot arise from two simultaneous instruments

equal share in that estate, and each must have the same quality of estate (legal, equitable or both)

o Ex - can’t be one life estate, one fee simple

same time

o Exceptions: Remainder to children as JT

“To A for life, remainder to the children of A as joint tenants”

At the time the will comes into effect, A has no children - subsequently, 3 are born at different times, so interests would vest at different times

EQUITY PRESUMPTIONS Equity presumes a TIC for:

a) partnership assetsb) in cases where money is advanced & secured under a mortgagec) when money to purchase property is provided in unequal sharesd) or if possession is shared by individuals w/ separate commercial enterprise

CREATING A JOINT TENANCY

1. There needs to be an express declaration that it is to be in JT because the starting presumption is in favor of TIC in s.11(2) of Property Law ActNOTE: In Wills/Trust or Personal Property, starting presumption is JT.

2. ALL 4 unities needs to be present Exception: Executors and trustees creates joint tenancy - Because legal and equitable title can be held by same co-owners, but one held as tenants in common and one in joint tenancy

ExampleWill - To A and B, in trust for C and D [no intention expressed]

o Trustees A and B: legal title held in joint tenancyo Beneficiary C and D: (equitable title) - presumption of tenancy in common

(no contrary intent)

LAND TITLE ACT S.173; S. 177 Several persons interested in registrations.173 - The registrar may effect registration of the fee simple at the instance of a joint tenant or tenant in common, or of several persons, who together are entitled to the complement of the fee simple.

Registration of joint tenantss. 177 - If, on the registration of the title to land under an instrument or document, 2 or more persons are joint tenants, the registrar must enter in the register, following the names, addresses and occupations of those persons, the words "joint tenants".

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CREATING A TENANCY IN COMMON

1. Presumption of TIC in S. 11 (2) Property Law Act o Interest devolves in accordance with general principles (to heirs or on

intestacy)

2. Express creation of TIC or a failed attempt to create a JTo Guidelines about words used:

Jointly & equally? TIC Words of division/distribution like “to be divided”/ “equally”? TIC Any intention to divide the property? TIC

3. Pursuant to the statutory presumption (see number 1)4. Severance of joint tenancies

o The destruction of the right of survivorship

PROPERTY LAW ACT, SS. 11 (2), 18 (3) Tenancy in common11 (1) In this section, "transferred" includes a vesting by declaration of trust or order of court.

(2) If, by an instrument executed after April 20, 1891, land is transferred or devised in fee simple, charged, or contracted to be sold by a valid agreement for sale in which the vendor agrees to transfer the land to 2 or more persons, other than personal representatives or trustees, they are tenants in common unless a contrary intention appears in the instrument.(3) If the interests of the tenants in common are not stated in the instrument, they are presumed to be equal.

Rules for transfer and ownership to oneself18 (3) A transfer by a joint tenant to himself or herself of his or her interest in land, whether in fee

simple or by a charge, has and is deemed always to have had the same effect of severing the joint tenancy as a transfer to a stranger.

MCEWAN V. EWERS AND FERGUSON, [1946] JT vs. TIC;

FACTS Testator devised lot to his daughters Bertha and Janet under a will, which stated

that it was to become their property jointly. o Should they decide to sell the property each of them is to have an equal

share of the proceed of the sale. Bertha predeceased Janet and by her will devised her half of the lot to the P,

Robert.

ISSUE & HOLDINGWhat was the initial interest the will created? Joint tenancy or TIC? Tenancy in common

o If the initial will created a tenancy in common, Bertha can give her half to Robert. o If a joint tenancy, that part of her will is of no effect, because of right of

survivorship – Janet gets the interest, when Bertha dies.

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RULESimilar to s. 11 (2) Property Law Act

The statutory presumption is tenancy in common, unless clear intention otherwise

ANALYSISTestator uses the word “jointly” (this was not a clear enough intention as contrary intention for JT) but uses the word “equal share” to show clearly an intention to create a tenancy in common. “Equal share” are words of division.

SEVERANCE OF JOINT TENANCIES

3 DIFFERENT WAYS TO SEVERSeverance – subsequent destruction of a right

*Note: You cannot sever a JT in a will – because of a right of survivorship A. Severance through unilateral action

Destroying 1 of the 4 unities brings JT to end and makes it TICo If one of the tenants conveys all or part of estate (even to self) - Feinsteino Ex - “A and B as joint tenants: A sells to C or A sells to self”

Selling it to another or yourself creates a separate title, and at diff time = severance; Unities of time and title are no longer there

Note : You can have a combo of JT and TIC on same property. How?o Ex - “A, B, C, and D own it as joint tenants. A sells to Z. If B died, C and D would get

his share upon right of survivorship.”

B. Severance by agreement or a course of dealing Only splits title in these 2 cases - operates only in equity

Legal title is not severed & remains in JT which creates a trust situationi. By mutual agreement:

You can agree to convert joint tenancy into tenancy in commonii. By any course of dealing sufficient to indicate that the interests of all were mutually treated as constituting a tenancy in common

There were negotiations about changing to a TIC, but the agreement was not finalized

Equity will intervene to prevent the parties from asserting the right of survivorshipo Ex - “ABC agrees to share JT 1/3 each thru mutual agreement.”

This severance is only in equity. So ABC holds legal title as joint tenants but A, B, C holds equitable in tenancy in common.

o Ex 2 - “AB has joint tenancy. B has will that D will get 1/2 on Feb 23. On Feb 24, B died”A gets all of it as right of survivorship bcuz you can’t sever a JT through a

will:If he wanted D to get it, he should’ve unilaterally severed, or by course of dealing.

C. Severance by course of conduct

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Finding of severance supported when dealings fall short of firm/explicit agreemento Matter of interpretation on the course of conducto Q to ask: by their course of conduct, have the joint tenants effectively

declared that they hold their interests in common, and not as joint tenants? OR by their course of conduct, have the joint tenants effectively declared that they don’t want survivorship to govern their property.

o Onus rests on the party claiming severance to establish this

D. Severance by other means Bankruptcy/seizure by creditors of one of the joint tenants (Ziff)

EXAMPLE OF SEVERANCEBret & Megan are willed a house as joint tenants. Bret & Megan informally agreed to severe their interests, but never do anything to formalize this. Bret dies a few months later, leaving all his property by will to a dear friend. Megan dies two years after Bret, without a will. Her only relatives are a niece & elderly aunt. Who owns the house after Megan dies?

The informal agreement means that Bret & Morgan hold the legal title (jointly) and hold the equitable title in trust for Bret and Megan (tenancy in common)

When Bret dies, Megan continues to hold the entire legal title as you cannot sever a joint tenancy in a will – right of survivorship

However, Bret’s ½ share of equitable title goes to his friend – Megan holds ½ the house in trust for Bret’s friend

When Megan dies, her niece would inherit the legal title & in trust for ½ the equitable title + in trust for ½ the equitable title for Bret’s friend

FEINSTEIN V. ASHFORD, 2005 BCSC 1379 JT severed on unilateral action

FACTS Couple buys property in 2002. In 2004, F and A agreed to sell property. 2005, F finds out that A executed transfer to himself, but registration not filed. A wanted to create TIC, but dies in 2005. Re-registration of title as TIC filed later that day. Later, F finds notice of this re-registration.

F seeks declaration that she is co-owner in joint tenancy with A prior to his death, and by right of survivorship, should get property.

ISSUEIs the act of making an application for transfer in common w/o actually filing it sufficient to sever a JT?

RULE & ANALYSIS Common law: Stonehouse v AG for BC (1962 SCC): Joint tenancy severed on

delivery of conveyance (A was giving it to himself, it satisfied the conveyance), not on the registration.

In exception to s.35 of Land Registry Act (equivalent to s.20(1) of Land Title Act):The transfer is effective against party making it, even before registration, thus severing joint tenancy.

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S.18 (3) Property Law Act – a transfer by JT to himself severs the joint tenancy as it would for a transfer to a stranger

HOLDING The application for re-registration executed by A sever the joint tenancy on date

it was signed, even though not registered. (Para 27)

By the time the individual died, the title was a TIC

TERMINATION OF CONCURRENT OWNERSHIP

o Parties could agree to terminate tenancy by ending the co-ownership. Not severance to make JT into TIC

o If one party wants to terminate & other doesn’t, they can apply for court order partitioning property or for its sale with a division of the proceeds – s. 3 of Prop. Act. Under statute - judicial partition or sale

CONDOMINIUMS Condominium – when 2 or more property owners band together an arrangement in which there are individually owned units (fee simple) coupled w/ shared ownership of other lands (common property in condos – lobby, elevators, stairs)

o So when one condo tenant dies, the JT in the common areas like lobby, elevator – allow other tenants have the “right of survivorship” over it

o Strata Titles Act, BC – land may be subdivided into strata lots by the deposit of a strata land; fee simple interest in strata has same attributes as fee simple

TOPIC 7: MATRIMONIAL PROPERTY

HISTORY OF MATRIMONIAL PROPERTY 1. Context of Matrimonial Property Law.

1985: UN noted that women share a very low percentage of property Marriage and Divorce is in Federal jurisdiction But, property law falls under Provincial jurisdiction We are concerned about division of property and title, not about spousal

support

2. Common Law Rules Historically, governed by doctrine of coverture W’s personal property passed to H absolutely W’s leaseholds passed to H on marriage; control revived only if she survived

him H has sole control W’s realty & does not need to account to her for profits Wills Act 1540 doesn’t apply to married women

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Married W has no capacity to contract

3. Married Woman’s Act (1880s) Developed a concept of separate property regime Allowed married woman to have their own property, separate from their

husband’s, and they have the right to contract or will this property The married woman still has no right or control over the husband’s property –

even if she had rights over the property during marriage, the rights were still unequal

There is no common property

4. Judicial Response on Equitable Doctrines (1950-1980) Discontent with separate property – questioned the contribution of the

other spouse, other than financial contribution. The value of the work wife brings is not recognized.

At the time of divorce, only entitled to property under your name – wife would often end up with nothing as she would not have title to the property or main assets

Doctrine of equity provide solutions.o Resulting Trust – when there is a common intention b/w husband

& wife to hold it in common, such that the H has title but holds in trust ½ of the property for the wife (Murdoch v Murdoch)

5. Family Relations Act Family Law Act

MURDOCH V. MURDOCH (1973)Resulting trust in matrimonial context; constructive trust

FACTSWife wants ½ the interest for ranch when marriage ended. Ranch was in husband’s name and she did not put in financial contributions for the ranch. However, wife contributed substantial physical work on the land. She worked on it even alone when he would go away for long periods of time for business.

RULE & ANALYSISFor resulting trust to occur there needs to be a common intention or financial contribution by wife.

o Here, resulting trust could not be found on the facts. There was no evidence that H + W had agreed that through title in his name, the beneficial interest was to be shared.

o There’s no evidence to contrary – no evidence where wife made financial contribution

Dissent – constructive trust should be given to wife to prevent unjust enrichment by husband

o Wife gave considerable contribution of physical labour despite lack of title

MCINTIRE V. MCINTIRE (2012) BCCAFACTS

Wife didn’t really work, husband was the breadwinner What is to be considered family property? Trial: Increase in value

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CoA: Entire value In this case, there were 2 pensions – self-directed pension and a locked-in person

ISSUE Was the pension itself part of the family property?

RATIO Self-Directed pension = family property Locked-in pension = NOT family property (no one contributed to it) Vehicle = family property Time Bank = NOT family property

ROYAL BANK OF CANADA V. FRASER (1994) SCCFACTS

William and Tracey were a married couple They took out a mortgaged on their matrimonial home with RBC In the contract, the husband signed as the mortgager, while the wife signed as a

3rd party spouse They defaulted on their mortgaged for 3 months, and now RBC is trying to

foreclose on their home

ISSUE Did the wife mortgage her interest in the home?

HOLDING No

ANALYSIS One spouse can consent to the other spouse mortgaging half their interest in the

house – this forfeits the mortgaging spouse’s rights to the other half of the house which now belongs to the bank

If this happens, the spouse and the bank become joint tenants – each owning 50% of the interest of the home

Outcome would have been different if they were joint tenants

RULE One spouse can consent to the other spouse mortgaging their half interest in the

house – this forfeits the mortgaging’s spouse’s rights to the other half of the interest which now belongs to the bank

If this happens, the spouse and the bank become joint tenants, each owning 50% of the interest in the home S.91: Family law act does not allow this anymore

HORNE V. HORNE (2011) ISSUE

Whether or not a contingent interest should be party of the family property This case was dealing with a pension that was residue

RULE Trial: Contingent interest is NOT matrimonial property because dividing it could be

unfair to one party CoA: Because both spouses make contributions to the pension, it is family

property. HOWEVER, since it is a contingent interest meaning that the right has not

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yet crystallized, meaning no one can physically contribute to it because if is not theirs yet, it is not family property

BC FAMILY LAW ACT

Materials p. 171-180

Goal of this ActSharing of family property in case of divorce or separation, in presumptively equal shares, regardless of fault, title.

Whose Interest? s.3 (1)(a) – Married s.3 (1)(b)(i) - Relationships that lasted at least 2 years will be treated as a

marriage-like relationshipo s.3 (1)(b)(ii) - Couples less than 2 yrs but w/ children may have rights

Note: Couples can contract out from FLA (pren-up) - s. 92 subject to variation by the court under s. 93

* In very rare circumstances, if not covered under what is considered a “spouse” under the FLA, CL Applies.CL Rule (Murdoch v. Murdoch)

Dissent (later adopted in Kerr). There are 2 ways for the court to construct trusts (they are both legal fictions)

Resulting Trust: common intention + financial contribution Constructive Trust: Deals with unjust enrichment (Contribution other than financial)

When does this happen? s.81(b) - Upon a triggering event - separation

How do you prove separation? s.3(4)(b) - By communication or action of the intention to separate permanently

(ex – moving out, getting separate bank acc., etc.)s.81(b) Upon the triggering event, each parties become TIC on the family property.

What is family property? s.84 – lists what is family property s.85 – lists what is not family property

Once determined, what is family property how is it divided?*Starting Presumption*

s.81(a) – Spouses entitled to family property/debt irrespective of contribution and (b) - right to undivided half as TIC

What if equal division is unfair? s.95(1) – Court may order an unequal division if equal division would be

significantly unfairo s.95(2) – By considering these factors (i.e. – duration of relationship,

spouse’s contribution to the career, etc.)Temporary orders respecting family home & protection of property

s.90 - temporary order granting occupation art family home; but does not grant proprietary rights

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s.91(1) Spouses can apply for temporary orders for the protection of property, to temporarily prevent the other party from dividing it.

*Death as the triggering event:Ex: If a couple had $400,000 and they separate, 2 weeks before H dies.

TIC splits the $400,000 in half.H – 200,000 & W – 200,000

Then WESA comes into the picture: The surviving spouse would acquire some preferential share therefore gain the preferential share from the asset of the spouse who has died

o Preferential share – s.(21)(4) WESA – preferential share of spouse is $300,000 (or greater amt if prescribed)

o W – 200,000 + 200,000 (preferential share)NOTE:

s.2 WESA - within 1 year of separation, you’re a spouse for the purpose of this. o Under s.20(2) WESA – distributing an estate w/o will

Exception: a protection of “family residence” s.91 (1)

TOPIC 8: LAND REGISTRATION

1. COMMON LAW PRIORITIES

PROVING GOOD TITLETo qualify as a good root of title, such a transfer document must:

(a) identify the land adequately(b) show a disposition of whole legal & equitable interests to be transferred and (c) offer nothing that would cast doubt on the validity of title

COMMON LAW PRIORITIES*applies to non-registerable interests as well*

1) Legal interest followed by a legal interest (L v L) o Priority is based on chronology

Nemo Dat – “you can’t transfer what you don’t have” o Ex - “B transfers the f/s interest to A. B then transfers the fee f/s interest to

C” A has better claim then C: Nemo Dat applies

2) Legal interest followed by an equitable interest (L v E) o Legal claim will prevail - First in time, first in right

Unless something in the legal holder’s conduct would make it unfair from asserting a better title and would thus, warrant in favour of the later equitable one

o Ex - “B contracts to sell the f/s interest to A and parties complete the transfer. B then receives and accepts a better offer from C and agreed to transfers title to C at a future date”

A has legal; C has equitable. A has better title – B had nothing to transfer to C; first in time to first in right

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3) Equitable interest followed by a legal interest (E v L)o Bona fide purchaser for value of legal title who buys without notice of an

equitable interest will have better title than the prior equitable interest holder.

o Ex - “B contracts to sell the f/s interest to A, the parties to complete the transfer at a future date. B then receives and accepts a better offer form C and transfers title to C”

A has equitable, C has legal title. C has better title as long as they are bona fide purchaser (Because C has not been aware of A’s purchase of the land)

4) Equitable interest followed by an equitable interest (E v E)o When the equities are otherwise equal, first in time prevailso Ex - “B contracts to transfer the f/s interest to C. B then receives a better

offer from A and contracts to transfer the interest to A. B has not transferred title to either C or A”

This is equitable as both parties are duped and has not transferred to either. However, C gets the title – as first in time, first in right

2. TITLE REGISTRATION - PRINCIPLES

Title Registration was designed to protect the purchaser & the transactions of the land. o It serves 2 functions: (1) Determines the ordering of rights & (2) Helps a vendor in demonstrating a valid title

on sale Once you register a fee simple interest, you create an infeasible title. You are automatically the owner.

Principles of Title Registrationi. The registration principleii. The indefeasibility principleiii. The abolition of notice principleiv. The assurance principle

Land Title Act – Principles of Title RegistrationMaterials p.200 – 202

i. Registration Principle [Unregistered instrument does not pass estate]s.20 (1) Except as against the person making it, and instrument purporting to transfer, charge, deal with or affect land or an estate or interest in land does not operate to pass an estate or interest, either at low or in equity, in the land unless the instrument is registered in compliance with this Act.

Registration is not required, but no interest will pass unless you register, so transfer only occurs when the document showing transfer is registered.

Person who’s registered holds the legal titleo Ex - Someone sells property. Buyer has the equitable title, but not the legal

title until he registers the new title

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ii. Indefeasibility Principle23 (2) An indefeasible title, as long as in rem ains in force and uncancelled, is conclusive evidence at law and in equity, as against the Crown and all other persons, that the person named in the title as registered owner is indefeasibility entitled to an estate in fee simple to the land described in the indefeasible title, subject to the following…

Once you register a fee simple interest, you create an infeasible title. You are the owner.

Exception of indefeasibility in cases of fraud – s.23(2)(i)

iii. Abolition of Notice Principles.29 (2) Except in the case of fraud in which he or she has participated, a person contracting or dealing with or taking or proposing to take from a registered owner

(a) a transfer of land, or (b) a charge on land, or a transfer or assignment, is not,…affected by a notice, express, implied, or constructive, of an unregistered interest affecting the land or charge…\

Registered owner has better title and negates the doctrine of notice. Exception of this is fraud

o Ex – Legal interest may take priority over equitable interest if BFPFV without notice. But this section says even if purchaser knows about the unregistered interest, doesn’t affect their title, notice doesn’t matter anymore.

Assurance Principle [sit’n where there’s an error in the court, gov provides compensation]s.296(2) A person, in this Part referred to as the "claimant",

(a) who is deprived of any estate or interest in land (i) because of the conclusiveness of the register, in circumstances where, if this Act had not been passed, the claimant would have been entitled to recover the land from the present owner, and ii) in consequence of fraud or a wrongful act in respect of the registration of person other than the claimant as owner of the land…

Title registration provides compensation to the prior owner who is deprived of the land in consequence of fraud or wrongful act

3. REGISTRATION OF CHARGES - MORTGAGES

CHARGES Mortgages – security arrangement whereby the loan is secured through the

creation of an interest in the debtor’ property held by the creditor; mortgage is not a personal debt, it is an interest in the land

o Borrower (Mortgagor) – one who gives mortgage (pledge/security). Borrower’s obligation is to (1) loan& promise to repay (contract) and (2) conveyance of title – property

o Lender [Mortgagee – giiiive] Mortgages in common law no longer applies because of LTA – [Before, creation of a

mortgage made a split b/w legal (lender) & equitable title (borrower)] Fee Simple owner is an indefeasible title owner Charge owner is deemed to be an indefeasible title owner.

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MORTGAGE IN LEGISLATION - LAND REGISTRATION ACT Mortgage does not involve a shifting of the estate from lender to borrower.

o Mortgagor is considered the “owner” of the property. Entitled to possession & control of the property, can lease, re-mortgage or will the property .

o Does a mortgage taken by one of the joint tenants sever the JT? NO. Mortgage creates an interest less than fee simple - no conveyance of title so there is no severance.

Mortgage creates a charge in favor of creditor/lender

EFFECT OF REGISTRATION FOR A FEE SIMPLE INTERESTOnce you register a fee simple interest, you create an infeasible title - you are an owner automaticallyvs.EFFECT OF REGISTRATION FOR A CHARGEOnce you register a charge, you are “deemed to be entitled” to the estate

3 KINDS OF FRAUDEx - “D owns Greenacre. B’s title/mortgage is registered with the Registry”

FRAUD 1 FRAUD 2 FRAUD 3A impersonating D, approached B.B, without being aware of the mischief, advances $ on mortgage.

A impersonating as D sells B mortgage

A created a forged document for the sale of land from D to A. The Registry was unaware of the fraud and registered A as title holder. A went ahead and get into mortgage with B.

A created forged document from D A. Registered A as title holder sells to B.

A creates fictional name C. A then transferred D's title to fictional C. The Registry registers C as a title holder. C (actually A), gets into mortgage or sale with B. (Gill)

A made fictional C. A transferred D’s title to C fictional C sells to B.

INDEFEASIBILITY PRINCIPLE

In BC, we are immediate indefeasibility jurisdiction of a fee simple - s.23(2).

For a mortgage, you are “deemed to be infeasible” s.26 (1)”(“deemed” = creates just a presumption)

Land Title Act – Charges & Event of FraudCHARGESDefinition of Charges.1 - “charge” means an estate or interest in land less than the fee simple and includes

(a) an estate or interest registered as a charge under s.179 and(b) an encumbrance

Registration of a charges.26(1) – A registered owner of a charge is deemed to be entitled to the estate, interest or claim created or evidence by the instrument in respect of which the charge is registered, subject to the exceptions, registered charges and endorsements that appear on or are deemed to be incorporated in the register.

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A registered owner of a charge is deemed to be entitled to estate

(2) Registration of a charge does not constitute a determination by the registrar that the instrument in respect of which the charge is registered creates or evidences an estate or interest in the land or that the charge is enforceable

Priority of charges based on priority of registrations.28 - Priority of charges depends on the order of the registration

See Canadian Commercial Bank

Registrar may refuse to register the charge if:s.197(2)(a) – no good, safe-holding and marketable title has been established

(b) – claimed charge is not an interest that is registrable (i.e. – Aboriginal Title)

- - - - - - - - -EVENT OF FRAUDIndefeasibility of a Registered Fee Simples.23(2) - Once you register a fee simple interest, you create an infeasible title.

(2)(i) – Unless the registered owner participated in fraud, then no indefeasibility.

Even under a void instrument, title is deemed to be indefeasible if BFPFVs.25.1(2) & (3) – Even under a void instrument, a registered owner of fee simple is deemed to have title if BFPFV.

s.26(2) - Charges cannot be applied s.25.1(2) & (3) even if BFPFV

WESA – Registrable ChargesRegistrable chargess.34(1) - Registrable charges become due and payable in certain circumstances

Circumstances when registrable charge becomes payables.35 (2) - Additional circumstances in which a registable charges become due & payable

CASES – MORTGAGES, REGISTERED CHARGES

CREDIT FONCIER V BENNETTFACTSFirst, Fee simple estate in Vancouver – BennettSecond, Forged Mortgage – Allan, Todd InvestmentsThird, Purchased mortgage from Allan – Stuart THEN assigned to Credit Foncier

Credit Foncier sent a letter showing amount owing to Bennetts they did not get.More letters followed but Bennett ignored them thinking it was a mistake.As no payments ere made, credit brought action for foreclosure.

P - Credit Foncier, is claiming “deemed title” under s.26(1) and thus, “irrefutably presumed”.

Original title (Bennett) Fraud Mortgage (Allan) Void Mortgage (Credit Foncier)

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RULE & ANALYSISRule that “deemed entitled” is a presumption until the contrary is provided. So, Bennett’s original title is conclusive evidence against a “deemed” title. – s.23(2) LTA

“Deemed title” depends on the context to establish a conclusive OR a rebuttable presumption

A mortgage is only security for the amount actually owing. No load had been made to the Benetts, and therefore mortgage secured nothing. Onus is on the assignee of a mortgage (in this case, Stuart) to check the amount actually owing

CANADIAN COMMERCIAL BANK V. ISLAND REALTYFACTS

1. Park Meadow owner of land.2. Granted 1st mortgage to Imperial life3. 2nd mortgage to Island Realty4. Cowan (director of PM) gave 3rd mortgage to Almont on the understanding the 2nd

mortgage of IR was to be replaced/discharged by Almont’s mortgage.o This mortgage was forged

Park Meadow went into bankruptcy and the land foreclosed. Imperial Life under 1st mortgage was paid. Only Almont can be reimbursed, not Island Realty.

ANALYSISTJ first gave IR the priority, as it was a valid charge and the forgery of documents rebuts the presumption that Almont takes priority. But he has erred. Although Cowan is a fraudulent person, he is an extension of a registered holder (PM) of a f/s, so Almont acquired interest from registred owner – and not interest from IR. Because Almont acquired interest from Park Meadow, a registered holder, they did not take under a void instrument of IR. Has priority over IR.

This case is different from Credit Foncier; as this isn’t about a forged assignment from the beginning but Almont was a valid mortgage granted by an owner of valid title that is registered.

GILL V. BUCHOLTZ FACTSMr. Gill owner of real property.Fraudster, “John Doe” signed a forged document of transfer to Mrs. Gill.Mrs. G became registered owner.Mrs. G granted mortgage to the D, BucholtzMrs. G filed a 2nd mortgage to a corporate defendant, who registered. Gill is suing Bucholtz.Original title Fraud title Mortgage

RULEo When there is a fraud for fee simple:

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Despite the fact that the registered fee simple owner is indefeasible s.23(2); In the case of fraud, the owner have to show that there was no fraud on their part.

Under s.23(2)(i) If the registered owner has participated in the fraud, the right to land is deprived

Under 25.1 (2) and (3) if the fee simple was instrument, it gives the protection of registration to the BFPFV of fee simple

o When there is fraud for a mortgage: The indefeasibility is deemed (presumed), but Land Title Act does not establish indefeasibility to charges, and Nemo Dat still applies to registered charges in the case of fraud – different to than of a registere f/s under s.25.1(2) and (3)

ANALYSIS & HOLDINGThis case is diff from Bennett case as the true owner was the registered owner. Here, the registered owner was not a true owner, but mortgage was dependent on faulty title.

- s.26 (registration of a charge) presumed nature of indefeasibility of charge.- But s.25.1 shows that the same kind of distinction should be maintained b/w

owners of a registered charge, and owners of fee simple. The statute shows a differential treatment for charges, and hence the CL would apply [nemo dat rule]

- s.23(2)(i) indefeasibility of title and s.25.1(1) preserves the nemo dat rule with respect to charges – even where the holder has relied on the register and dealt bona fide with a non-fictitious registered owner (MR.G).

The mortgagees, Bucholtz, did not acquire any interest in the registration of their instruments because they have been granted Mrs. G who had no interests to give, those instruments were void under s.25.1(1) LTA and under the nemo dat rule. Mortgage is cancelled.

REMEDIES FOR NON-PAYMENT

1. Sue on the personal covenant In the mortgage – covenant (promise to repay)

2. Interim measures – (a) taking possession(b) appointing a receiver

Income from property is applied to the money owing.

3. Foreclosure/sale Foreclosure: s. 271 (1) LTA – how foreclosure closes Distinction between foreclosure and sale:

Features of foreclosure Equity of redemption extinguished Lender becomes owner of property Debt extinguished, so cannot sue on personal covenant, if there is a deficiency

s. 32 PLA Lender can keep surplus if any

Sale◦ Can be private, tender, auction◦ Features of foreclosure do not exist

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Lender applies to court for order of foreclosure Borrower can

o File statement of defence – disputing claim, court may order period of redemption, usually up to 6 months (s. 16 .Law and Equity Act)

o Pay the money owing-o Do nothing (usual)

Up on the end of redemption period, mortgagee applies for an order absolute Mortgagee can not sue if debt is not fully covered by the sale

4. ADVERSE POSSESSION (SQUATTERS RIGHTS)“Squatters rights” abolished in BC under s.23(3) & s.24 of the LTA & s.28 of Limitation Act

Land Title Act – Adverse Posessions.23(3) - After an indefeasible title is registered, a title adverse to title is…not acquired by length of

possession(4) - Adverse possession still applies in case of first indefeasible title register

s.24 - Title by prescription abolished

Limitation Act, s.28Adverse Possessions. 28(1) - Except as specifically provided by this or any other Act, no right or title in or to land may be acquired by adverse possession. (2) - Nothing in this Act interferes with any right or title to land acquired by adverse possession before July 1, 1975.

Land Title Inquiry Act, s.16Adverse claimant to file statement of his claim s.16 - A person with an adverse claim or a claim not recognized in the applicant's petition, may, at any time before the declaration of title is granted, file a short statement of the claim, verified by an affidavit to be filed with it, and notice of filing must be served on the petitioner or the petitioner's solicitor.

5. REGISTERING NON-PROPRIETARY INTERESTS & ABORIGINAL TITLE

CAVEAT Caveat is a registered charge warning future/other purchasers that any further

dealings in the land are subject to someone else’s interest Caveats are not proof of any interest in the land, it is simply a notice to future

purchasers.o Caveators are listed under s.282 LTAo It can be a charge s.1(a) + (b) LTAo It’s purpose s.31 LTA. The register serves as a record of any or all interests.

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ExampleSomeone purchases some lands but you have not yet obtained all the documents to register title. By registering a caveat (by showing the deed) it disallows the original owner from selling to anyone else as it indicates at the registry that a transaction has already occurred. It gives priority to the first purchaser. Otherwise if the original owner sold the property to someone else and they registered the title first, that second person would have priority.

REGISTERABLE INTERESTS1. Interests in which the CL recognizes as interests in land

o Estate in f/s, mortgage, freehold estates, leasehold estates, future interests, covenants, easements. NOT licenses

2. Non-common law interests – they can be registerable as “charges” Certificate of pending litigation, Spousal interest, Judgments, Restrictive covenants, Statutory right of way

INTERESTS THAT CAN’T BE REGISTEREDEquitable mortgages, Details of a trust, Sub-right of purchase, Aboriginal Title (Skeetchestn)

SKKETCHESTRN INDIAN BAND V. BCFACTSSkeetchestn Indian Band wants to register first, a certificate of pending litigation and second, a caveat on parcels of land comprising the 6 Mile Ranch.

ISSUEIf the band succeeds in action, would it be entitled to a registerable in the lands?RULEIn principle, if Aboriginal Title can be registered they could, but Aboriginal Title is an interest that cannot be registered (Uukw v. BC)

ANALYSIS & HOLDING- Aboriginal Title does not have marketable value. There is no ownership by

individuals as aboriginal title is communal. The property is not transferable, only alienable to the Crown. There are limits to the use.

- No good safe-holding & marketable title to an interest unknown to the law- Registration is refused.- Only an encumberance in the Nisga’a case

TOPIC 9: INCORPOREAL HERIDAMENTS

1. EASEMENTS

INTRODUCTIONEasements - rights over/in relation to another’s land; Right of land less than ownership

Easement attaches to the land – A’s right to exercise easements arise not because of who they are as an individual, but because they own the land to which the easement is attached

Benefit & burden run automatically with the lands in question [intangible right]

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o What does it mean that the easements “run with the land”?a. New owner of dominant land acquire the benefits of easements

Benefits on the easement on A land sold to C – C exercises rightb. New owner of servient land, the burden transfers

Burden on the easement on B land sold to D – D can’t prevent exercise of easementPrinciple in Land Title Act s.182(2) or Land Transfer Form Act s.3

LEGISLATION

Land Title Act - s.182(2)182(2) A transfer of the land by an indefeasible title on which an endorsement under subsection (1) has been made transfers, w/o express mention, the benefit of the covenant, easement, agreement or right

Land Transform Act – s.3p.51of Materials

Easements vs. OwnershipEasements permit A to exercise rights over the land of another (B) – but B retains ownership of the land

Example - (Robinson v. Pipito) – F: easement over nearly 80% of the second parto Easement was invalid and Court ordered the cancellation of the registration

of easement. This is because easements prevented exercise of ownership rights.

o Easements are limited in nature

Easement vs. LicenceLicence allows doing something that would otherwise be a trespass. Licence is personal, attaches to personVS.Easements rights are not personal, attached to the land

DOMINANT & SERVIENT LANDSOne piece of land benefits [dominant land] & another piece of land is burdened [servient land]

Law requires some degree of proximity b/w the 2 lands, but they don’t have to be side by side

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TYPES OF EASEMENT1. Positive Easement

o Easement entitling dominant landowner to do something in relation to servient lands

2. Negative Easement o Easement preventing servient landowner from doing something on servient

lands. Dominant land owner can prevent servient owner from doing something on

servient land

PHIPPS V. PEARS No easement to prevent neighbor from their property down;

May be done through restrictive covenantsFACTS & ISSUENeighbour’s house protected P’s house from weather. Can neighbor tear down his house? Is there an easement of P to be protected from weather?

RULE & ANALYSISThere is no such thing as a negative easement to prevent neighbor from tearing their property down.The only thing the neighbor could be through restrictive covenantsException: “Easement of fencing” – which requires the dominant land owner to upkeep good fencingCHARACTERISTICS OF EASEMENT Common Law

1. Must be existence of both dominant and servient lando You need 2 lands. You can’t have easement on some other land unless you have a

land yourselfo Statutory exception can be found in LTA, Statutory Right of Way s.218(1)

2. Dominant & Servient Land are owned by different peopleo See s.18(5) & (8) of BC Property Law Act

3. Easements must accommodate (enhance) the dominant landso Right must be seen as improving the dominant landso Ex - (Ellenborough Park) – right is sufficiently attached to dominant land.

The Court said in this case the easement should be connected to the normal enjoyment of the land

4. The right is capable of being granted o Right must be sufficiently de-alienated o The person who is granting the easement must be legally capableo (Ellenborough Park) – owners of the park granted easements to owners of

the lands w/ houses, the “full enjoyment of the parks”. The Court said this was a well-defined and commonly understood right to use park as a garden.

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ELLENBOROUGH PARKEasements must accommodate the dominant lands; The right is capable of

being granted

FACTSPark is located across the street from houses. Person who owned the park gave builders of the houses “full enjoyment in common pleasure of ground” when he sold them the land to build houses. People who live in the gouses are applying to have their right to use park recognized as an easement.

ISSUEWhat do you need to have in order for an easement to exist?

RULE- Easements must accommodate the dominant lands- The right is capable of being granted.

ANALYSISThe Court said in this case the easement should be connected to the normal enjoyment of the land.And that this was a well-defined and commonly understood right to use park as a garden.

CREATION OF EASEMENTS

1. Creation by StatuteEx - Hydro, telephone & conservation easements – LTA s.218(1) & Land Act – s.40

2. Express grantOwner of servient land gets easements (asking to use a road on the dominant land)

o Ex – A divides land A and B A (dominant) grants B right of way (like a road) on A’s land

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3. Express reservationOwner of dominant land reserves the right to use something like a path on land.

o Ex – A dividing his own land and sold to B, but explicitly retains the right of way (road) for this land

*Note: Implied reservation of grant & easement do not exist if there wasn’t a subdivision of land

4. Implied grant of easement “Even though there’s a new owner in the implied grant, the grant is ‘carried over’ and still allows new person to use the road”

Here, there’s no express grant so have to prove one of the three:i. Easement of necessity – something like a fire escape, or a hallway – even if

there is no expressed easement, it can’t be helped. [high standard – hard to make out]

OR ii. Common intentions – if the grant of an easement carries out the common

intention of the parties (even if not expressed) the law will recognize this easement.

ORiii. Quasi-easements – have to prove quasi-easements

o Easement must have existed before subdivisiono A must have used it continuously & apparent o Easement must be related to the enjoyment of B’s land

5. Implied reservation of easement“Even there’s a new owner on the other land that was sold, I still reserve the right to use the road on the sold land – the reservation is ‘carried over’ to new owner”

A subdivided the land but, retains the dominant land. This easement is when the landowner expects to get from the land she sold (servient land) – but is not explicitly stated.

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This can happen in 2 ways:i. Easements of necessity (ex – underground piping) – high standard, hard to

make outOR

ii. Intended easements (look at the common intention of the agreement) – this rationale is so that the owner should not benefit from the land they have already sold

But, NOT quasi-easements

6. By court ordero Easements for repair or work – s.34(1) of LTAo Easements on adjoining land – s.36o Prescription / lost modern grant – this is now avoided s.24 LTA

ISRAEL V. LEITHImplied grant of easements;

FACTSOwner sells lot 1 to someone new. Pipes for Lot 1 pass thru Lot 2.

ISSUECan the new owner still use pipes running through Lot 2 owner’s land?

ANALYSISEasement can be implied. At the time, it was used by the owner to benefit his land.

MALDEN FARMS V. NICHOLSONScope of easements

FACTSA right of way granted across neighbour’s land to sandy beach, which was privately used. Later, “hundred traveled up and down the [right of] way” because owner of dominant land opened a beach resort.

HOLDING & ANALYSISBurden on the servient land has “markedly increased”o“A private right of way… as originally contemplated” was changed to “a use of the way

for owner’s commercial purpose by great numbers of the public who travel over the respondent’s lands much as though the same constituted a public highway or a bust toll road”

oThe scope of the easement has markedly increased so the owner of the land was restrained from using the land in that way

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EXTINUISHMENT OF EASEMENT◦ Express release (i.e. – in writing)◦ Completion of use for which easement was granted◦ Expiry of time◦ Court order◦ Abandonment

2. COVENANTS

INTRODUCTIONCovenants – promises to do (or not do) to your land. Promises must be under seal. [s.16 of PLA]

o Covenants do NOT run automatically with the land. They’re made under contract.

Why make a covenant? To control the use of land (ex – historical buildings). Maximize benefits you get

from owning the land by putting obligations on them Regulate the nature or quality of residential houses Covenants in the past:

o 1945 – “Drummond Wren case” – covenant not to sell Jews or persons of questionable ethnicity. Found to be contrary to public policy

o 1949 – Noble & Wolfe case - Public policy: covenant did not touch & concern the land do not valid

o Another reason why covenants can be dismissed – s.222 LTA subjected to s.35(2) PLA

Servient Tenement: Burdened by the covenant, assumes obligation – Covenantor

Dominant Tenement: Benefits from the covenant – Covenantee [Be=ee] Positive covenant - Covenantor promises to do something Negative covenant – Covenantor promise to do nothing

ENFORCING COVENANTS – 3 SCENARIOS [COVENANT W/ NO PRIVITY OF CONTRACTS]

1. DOMINANTS LANDS SOLDDoes benefit of the covenant run with the dominant land?

Covenants enforced if:- Original owner of dominant lands assigned benefit of contract

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- Benefit of covenant are intended to run with the land. [Need to be demonstrated]

A. Benefits Running in Common Law i. Original covenantee held the legal estate.

New owner of the DL has the same legal estate. If it’s a mix of title, then it will not run.

ii. Original parties intended that the benefit would attach to the dominant land Show promise is attached to the land If it is a “personal favor”, it is attached to the person, not the land

iii. Covenant touches and concerns DL If it affects the way the land is used or the value of land

[Ex – Covenant: “no farming pigs on your land” affects nearby land (value) ]

Galbriath v. Madawaska Club – affect the dominant land as regards mode of occupation or it must by itself and not merely from collateral circumstances, affect the value of the dominant land

B. Benefits Running in EquityOriginal covenantee or new owner does not have legal title OR is seeking equitable remedy.Servient lands have also changed hands.

Criteria:a. Covenant touches and concerns DLb. Assignee of covenantee shows entitlement through either:

(1) Annexation OR [it requires more explicit, clear identification](2) Existence of a building scheme [s.25 PLA]

2. SERVIENT LAND SOLDDoes burden of covenant run with the servient land?

A. Burden Running in Common Law Under common law, burden cannot run with the land - regardless of whether it’s a positive/negative covenant. (Durham)

B. Burden Running in EquityCriteria:1) It must be a negative (restrictive) covenant2) At the time the covenant was made, it was intended that the burden would attach to

servient land3) It must touch & concern the dominant land4) The dominant lands clearly identified in the document5) The new owner of servient land had actual or constructive notice before

purchasing the land. s.186(2)(c) - LTA

3. BOTH LANDS SOLD – DOMINANT & SEVIENT LANDS TRANSFERREDCan new owner of dominant lands enforce covenant against new owner of servient lands?

Must meet criteria for running of burden AND the running of benefits.Burden would only run in equity. So the benefit of the DL must also run in equity as CL can’t apply. Therefore, it only applies to negative covenants.

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See Aquadel Golf Course Ltd.o Is this a restrictive (negative) covenant?o In form it is a negative covenanto But really it was a positive covenant; it required owner’s of servient land to

maintain the golf course

DURHAM CONDOMINIUM V. AMBERWOOD INVESTMENTS LTD.Servient land sold – Burden running in common law

ISSUECan positive covenants "run with the land"? NO

RULEUnder common law, burden cannot run with the land - regardless of whether it’s a positive (in this acse) or negative covenant.

REASONSMajority - positive covenants do not run with the land. Therefore Amberwood prima facie does not have to pay for the costs of the shared facilities.

They examine two proposed exceptions to the rule – the benefit and burden doctrine and conditional grants of easements – and decide that they do not apply in this case. Although the Law Reform Commission has recommended change in the law of positive covenants, this should be left to the legislatures.

AQUADEL GOLF COURSE V. LINDELL BEACH HOLIDAY RESORT Both Dominant & Servient lands sold scenario

FACTSRobert sold to Thousand Trails (Canada) Inc. three of the parcels containing some 85 acres As a term of the sale, Robert entered into an agreement with Thousand Trails by which he agreed to restrict the use of the remaining parcel to the operation of a golf course. The Agreement was registered as a restrictive covenant on title to the Whitlam Land and was endorsed on the titles to the Thousand Trails Lands.

Section 35(2)(d) of the PLA allows the court to cancel a restrictive covenant if cancellation will not injure the person entitled to the benefit.

o In Collison,it was held that in s.352(d) “injure” means “to cause harm to.” o In Murrayfield, in a case of this kind, the issue of injury amounts to the obverse

of the issue of practical benefit. Being deprived of the practical benefit of the covenant would, I find, injure the respondents and their business activities.

ANALYSISIn the result, Aquadel is not entitled to cancellation of the restrictive covenant.

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It must, however, be remembered that Robert agreed to the restrictive covenant to enable him to sell the balance of Aquadel Acres to Thousand Trails. The covenant was a condition of that sale. The Agreement was intended to benefit and continues to benefit the owners of the Thousand Trails Land.

FALL MATERIAL

Ziff pp. 1-75, 76-80Materials 3-24

I. THE NATURE OF PROPERTY

WHAT IS PROPERTY? Property is a bundle of rights to/in things that is enforceable against others concerning claims

to tangible and intangible items; Ownership is a bundle of rightso Objects of property: physical/non-physical things in which one has property rights

Tangible (corporeal) chattels: land, buildings, goods Intangible (incorporeal) chattels: claims on revenue, mortgages, patents,

copyrightso Subjects of property: persons (humans and legal persons like orgs)

YANNER V. EATONRight to exclude; [crocodile]

FactsP charged with killing and keeping crocodiles under Fauna Conservation Act. The Native Title Act gives people right to traditional activities.

IssueIs there a right to excludability under the Fauna Act? .No, judgment for P – no exclusive state right to control fauna.

RatioProperty as opposed to full/absolute ownership can best be understood in terms of control. Property is seen as the power to control over access (right to exclude & right of exclusivity).

HARRISON V. CARSWELLRight to exclude; limitations to private property; [mall]

Facts

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Carswell picketing peacefully at the sidewalk of a mall. Owner of mall said that she would be charged with trespassing if she did not stop.

Issue Did the owner of property (mall) have sufficient possession of shopping mall sidewalk to press charges of trespassing? Yes! Owner had the right to exclude tenants as per his private property rights

RatioPP extends into public

11 ELEMENTS OF OWNERSHIP (BUNDLE OF R IGHTS) [HONORE]:a) possession, management & control - exclusive use, right to exclude others

o Right of exclusivity – the exclusive right to own all the aspects of property in its entirety by the owner

o Right of excludability – the owners power to exclude others from his property; state-enforce right of exclusion

b) income & capital - to alienate, to consume, waste, or destroy the whole or part of itc) transfer – inter vivos & on deathd) protection under the law – security against expropriatione) liability to seizure – exact compensation for debts that may occurf) prohibitions on harmful use – have a duty to use your property that does not

maliciously /carelessly harm othersg) rights correlate w/ duties – Abeziz v. Harris Estate: disposal of a corpse by an executor;

duties was of a dignified burialh) Not all rights of ownership are absolute – limitations on ownership in soc interest

Ex: search & seizure in crim procedurei) bundle of rights can be augmented/reduced through judicial/legislative action

F IGURE 1.1 TYPES OF PROPERTY R IGHTS

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1. Private Property: the individual has the right to exclude others from the use/benefit of the property.

2. Common Property: the individual in a community has a right not to be excluded from the use/benefit of the property. 2 catories:

a) Communal/collective ownership - in some societies or cultures (ex. Indigenous peoples), more restrictive than open access – stipulations for qualification

b) Public domain – fully open access; no property rights; the commons (light, air, water)

3. Public (state) Property: the state creates/enforces the right to exclude individuals from property. (ex. City parks, city streets, highways)

II. PRIVATE PROPERTY: JUSTIFICATIONS & LIMITATIONS

7 CATEGORIES - JUSTIFICATIONS FOR PRIVATE PROPERTY

1. Economic Prosperity o Law & Economics

Highways, roads, parks

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o Economic efficiency: rewards from PP inc productivityo Economic efficiency and wealth maximization achieved through commodities of

exchange if the law protects: Exclusivity of Ownership Ownership entitlements be transferable: This facilitates market

exchange over property interests. Property should be as universal as is feasible: Broad array of items

available for exchange (objects of property) and rights be tenable by as many people as possible (subjects of property)

2. Tragedy of the commons o Explains situation in which individuals, acting in their own self-interest use up all or

majority of limited resources, causing detriment to rest of the group/area. Group of herders share common grazing area for their cows. Solution: allowing people to have their own property.

o Benefits: harmful effects internalized among each ploto Disadvantages: stifles creativity, patent blocking

3. Labour/Desert Theories: you mix your own labour with material objects that were held in common; you should reap the benefits through private propertyDisadvantage: environmentally unfriendly, there is no infinite supply of resources

4. First Occupancy : first in time, first in right – the first person to take occupancy/possession of something has property rights on it

5. Utilitarian: security for private property holdings imperative for peoples’ need for happiness: exclusivity of ownership. PP necessary b/c it maximizes happiness of society and efficiency in the economy

6. Flourishing Freedom : private property seen as promoting autonomy, the guarantee of every other freedom; PP as a means of exercising power/control

7. Personhood: being able to control property satisfies basic need for development of the person, moral growth & human nature. Conferring property rights on a person makes that person a better citizen. Property as extension of our self, of our personality.

o Ex: Native’s relationship w/ land = expression of cultural identity

8. Anti-Commons : this is a situation where there is too much private property and too many people have the right to exclusion.

9. Pluralist Approaches : various approaches/theories combined, each reinforcing each other

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III. CLASSIFICATIONS OF PROPERTY

REAL PROPERTY

Various interests with the LAND; Immovable Property 2 categories of real property:

1) Corporeal hereditaments: TANGIBLE; actual physical things over which rights of ownership can be exercised – all tangible obj affixed to the land

a. Ex: buildings, trees, dirt, grass2) Incorporeal hereditaments: Intangible; non-physical rights affecting land – rights of the

use of landb. Ex: easements, profit a prendre (non-possessory interest which give the holder the

right to take natural resources from the land of another), mortgages

PERSONAL PROPERTY

All other property other than land; Movable Property 2 categories of personal property:

1) Choses (things/chattels) in possession: TANGIBLE property; may be felt/touched and can only use it exclusively or dispose of it (methods to dispose – gift, sale, bailment, inheritance; technical method of transfer is thru physical transfer or deed)

2) Chose in action: an abstract entity in INTANGIBLE things; rights under this category can only be enforceable by legal actions

Property

Real property (immovable)

Corporeal: can be possessed.

freeholds

estates

Incorporeal: cannot be

possessed; can be used.

E.g. easements, rent charges,

profits a prendre,

restrictive covenants.

Personal property

Personal Property (movable)

Choses in action: (intangibles movables) “no legal right in a

corpse. Rather than rights there are only obligations”). -

can only be recovered by court action

debts commercial paper

negotiable instruments - doc of ttle to money

non-negotiable instruments - doc of title to goods

goodwill industrial & IP

Stocks & Shares

Choses in possession: (tangibles) (animals,

merchandise, goods). - can be possessed

Money Funds

Chattels real

Leases

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c. Examples: - Debt: promise to pay – property right in debt is transferrable- Commercial paper: contract for sale of goods b/w merchants- Goodwill, IP, stocks & shares, money

Somewhere b/w real & personal property:Chattels Real/Leasehold: interest in land less than a freehold (interest in land that you have forever); leases

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