LAW211: PropertyFull Year CAN (2005-2006)

Jennifer Lau

BASIC PRINCIPLES IN LAND LAW...............................................................................................4THEMES IN PROPERTY LAW..........................................................................................................4THEORIES OF PROPERTY..............................................................................................................4SOURCES OF REAL PROPERTY LAW.............................................................................................4THE RELATIONSHIP BETWEEN REAL AND PERSONAL PROPERTY....................................................4LEGAL VERSUS EQUITABLE INTERESTS.........................................................................................4

The Use: An Equitable Interest...........................................................................................4FEUDAL CONCEPTS OF LAND OWNERSHIP....................................................................................4POSSESSION: IT'S MY LAND! GET OFF!..........................................................................................4

Law of Finding / “Finders keepers, losers weepers”.........................................................4Aboriginal Title..................................................................................................................... 4Adverse Possession............................................................................................................4

FREEDOM OF ALIENATION.............................................................................................................4GOOD, SAFE-HOLDING AND MARKETABLE TITLE.............................................................................4ABORIGINAL TITLE.......................................................................................................................4

What is an Aboriginal Right?..............................................................................................4What is Aboriginal Title?.....................................................................................................4

LEGAL CONCEPTS OF LAND - PHYSICAL DIMENSIONS.........................................................4AD COELUM / AIRSPACE RIGHTS..................................................................................................4AD INFEROS / BELOW THE LAND...................................................................................................4WATER RIGHTS / RIPARIAN RIGHTS..............................................................................................4

Sources of Water Rights:....................................................................................................4Riparian Ownership Rights to the Water Itself..................................................................4Ownership of Water Beds....................................................................................................4Accretion and Erosion.........................................................................................................4Access by Riparian Owners................................................................................................4

FIXTURES: IS THE MOBILE HOME A CHATTEL OR A FIXTURE?...........................................................4SUPPORT..................................................................................................................................... 4

ACQUIRING AN INTEREST IN LAND...........................................................................................4CROWN GRANT........................................................................................................................ 4INTER VIVOS TRANSFERS: SALE OF LAND..........................................................................4INTER VIVOS TRANSFER: GIFTS............................................................................................4

Presumption of Resulting Trust / Presumption of Advancement............................................4TESTAMENTARY TRANSFERS: WILLS OR INTESTACY..............................................................4

Interpretation of Deeds & Wills (Re Shamas)....................................................................4General Rules re: Testamentary transfers.........................................................................4Statutes governing testamentary gifts...............................................................................4Testacy................................................................................................................................... 4Intestacy................................................................................................................................ 4

DONATO MORTIS CAUSA: A GIFT MADE IN CONTEMPLATION OF DEATH..........................................4PROPRIETARY ESTOPPEL..............................................................................................................4UNJUST ENRICHMENT:.................................................................................................................. 4

REGISTRATION OF TITLE............................................................................................................4HISTORICAL BACKGROUND: DIFFERENT METHODS OF TRANSFERRING INTERESTS IN LAND.............4

Common Law Conveyancing: Livery of Seisin..................................................................4Recording System................................................................................................................4

TORRENS LAND REGISTRATION SYSTEM.......................................................................................4Effect of Torrens..................................................................................................................4Torrens in BC Today............................................................................................................43 Underlying Principles of the Torrens System:................................................................4

The Mirror Principle.........................................................................................................4The Insurance Principle...................................................................................................4The Curtain Principle.......................................................................................................4

FAILURE TO REGISTER................................................................................................................. 4The General Principle: s.20, Except as against the person making it.............................4Timber Cases........................................................................................................................ 4Prohibited Transactions......................................................................................................4

THE ROLE OF THE REGISTRAR (LTA, S.10)...................................................................................4

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General Duty & Roles of the Registrar...............................................................................4Quasi-Judicial Role.......................................................................................................4Administrative Role.......................................................................................................4

THE ASSURANCE FUND................................................................................................................4REGISTERABLE INTERESTS: WHAT CAN I REGISTER?..........................................................4

THE GENERAL PRINCIPLE.............................................................................................................4NON-COMMON-LAW INTERESTS WHICH ARE ALSO REGISTERABLE AS "CHARGES"............................4UNREGISTERABLE INTERESTS: WHAT CAN I NOT REGISTER?..............................................4

MECHANICS OF REGISTRATION................................................................................................4PROCESSING GAP: FROM PENDING TO FINAL REGISTRATION.........................................................4

CAVEATS (LTA, S.282-294): A RED FLAG..................................................................................4CERTIFICATE OF PENDING LITIGATION / LIS PENDENS (LTA, S.215-217)............................4JUDGMENTS (LTA, S.210-214)....................................................................................................4FEE TAIL........................................................................................................................................ 4THE RULE IN SHELLEY’S CASE [NOT EXAMINABLE]..............................................................4THE FEE SIMPLE: THE LONGEST POSSIBLE ESTATE.............................................................4

THE GENERAL PRINCIPLE.............................................................................................................4CREATION OF FEE SIMPLES..........................................................................................................4STATUTORY MODIFICATIONS..........................................................................................................4DOCTRINE OF LAPSE.................................................................................................................... 4INTERPRETING REPUGNANT CLAUSES............................................................................................4REGISTRATION OF TITLE IN FEE SIMPLE FOR THE FIRST TIME (LTA, S.169).....................................4TRANSFERS OF FEE SIMPLE INTERESTS (LTA, S.187)....................................................................4TRANSMISSION (LTA, S.263-268).................................................................................................4

THE GENERAL PRINCIPLE OF INDEFEASIBILITY.....................................................................4DEFERRED INDEFEASIBILITY VERSUS IMMEDIATE INDEFEASIBILITY..................................................4STATUTORY EXCEPTIONS TO INDEFEASIBILITY (S.23(2)(A)-(J)).......................................................4

FRAUD / FORGERY: S.23(2)(I): AN EXCEPTION TO INDEFEASIBILITY...................................4SECTION 29: NOTICE OF UNREGISTERED INTERESTS...........................................................4

COMMON LAW RULE RE: NOTICE OF UNREGISTERED INTERESTS......................................................4TORRENS, NOTICE OF UNREGISTERED INTERESTS & FRAUD (FRAUD = NOTICE).............................4

"IN PERSONAM" CLAIMS............................................................................................................4THE LIFE ESTATE: DURATION LIMITED TO LIFE OF A PERSON............................................4

THE GENERAL PRINCIPLE.............................................................................................................4CREATION OF LIFE ESTATES.........................................................................................................4COMMON LAW RIGHTS & OBLIGATIONS OF A LIFE ESTATE.............................................................4

Rights of the Life Tenant........................................................................................................4Obligations of the Life Tenant................................................................................................4

Waste.................................................................................................................................. 4CO-OWNERSHIP: GENERAL PRINCIPLES & RIGHTS AND OBLIGATIONS OF CO-OWNERS4

GENERAL PRINCIPLE....................................................................................................................4REGISTRATION OF TITLE FOR CO-OWNERS...................................................................................4RELATIONS BETWEEN CO-OWNERS...............................................................................................4

Common Law Rule...............................................................................................................4Share of Profits..............................................................................................................4Share of Expenses........................................................................................................4Rent................................................................................................................................ 4

Equity Rule........................................................................................................................... 4Statutory Attempts...............................................................................................................4

TENANCY IN COMMON...................................................................................................................4JOINT TENANCY............................................................................................................................ 4

The Four Unities...................................................................................................................4Creation of Joint Tenancies................................................................................................4

Creation at Common Law................................................................................................4Creation at Equity............................................................................................................4Statutory Creation of Joint Tenancy..............................................................................4

TERMINATION OF CO-OWNERSHIP.................................................................................................43 Ways to Sever a Joint Tenancy........................................................................................4

Common intention of the parties....................................................................................4Destruction of one of the unities....................................................................................4Course of dealing.............................................................................................................4

PARTITION AND SALE...................................................................................................................4

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Common Law........................................................................................................................ 4Statutory Modifications.......................................................................................................4

REGISTRATION OF CHARGES....................................................................................................4INDEFEASIBILITY OF A CHARGE.....................................................................................................4

INCORPOREAL INTERESTS (RIGHT TO USE, BUT NO EXCLUSIVE POSSESSION)..............4LICENSES (NOT AN INTEREST IN LAND)..........................................................................................4

Bare License......................................................................................................................... 4License coupled with interest in land / chattels in land....................................................4Contractual License.............................................................................................................4License by Estoppel:...........................................................................................................4

INCORPOREAL INTERESTS: EASEMENTS........................................................................................4Common law characteristics of easements.......................................................................4

There must be a dominant and a servient tenement....................................................4Easement must "accommodate" the dominant tenement............................................4Dominant and servient owners must be different persons..........................................4A right over land cannot amount to an easement unless it is capable of forming the subject-matter of a grant........................................................................................................................................... 4

(a) Is the right conferred to wide and vague?................................................................4(b) Is it inconsistent with the proprietorship or possession of the servient owners?.......4(c) Is it a mere right of recreation without utility or benefit?............................................4

Statutory Modifications of Easements...............................................................................4Creation of Easements........................................................................................................4

Express Grant.................................................................................................................. 4Grant to Self.....................................................................................................................4Statute............................................................................................................................... 4

INCORPOREAL INTERESTS: PROFITS À PRENDRE...........................................................................4COVENANTS................................................................................................................................. 4

Common Law........................................................................................................................ 4Covenant must be negative in substance and constitute a burden on the covenantor's land analogous to an easement........................................................................................................................... 4Covenant touches and concerns the land..........................................................................4Benefited as well as burdened land must be described with precision..............................4Conveyance should state the covenant is imposed...........................................................4It must be registered, unless precluded by statute.............................................................4Covenantor and covenantee must be different people (changed by PLA, s.18(8))...........4

Statutory Modification of Covenants..................................................................................4FUTURE INTERESTS.................................................................................................................... 4

COMMON LAW FUTURE INTERESTS...............................................................................................4Determinable Fee:................................................................................................................4Conditional Fee....................................................................................................................4

EQUITY........................................................................................................................................ 4Rule Against Perpetuities....................................................................................................4

Perpetuity Act (BC)................................................................................................................... 4

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Basic Principles in Land Law

Themes in Property Law Interests which run with the land Registration: what can be registered? How to register? What happens if no registration? Indefeasibility: Title that cannot be defeated, revoked or made void. Alienability: Common law alienability versus Aboriginal inalienability Possession: exclusivity

Theories of PropertyProperty is culturally based, a physical object of value and a collection of enforceable rights and responsibilities. A common law property holder can freely alienate their land either inter vivos or upon death. Multiple owners can own the same piece of property. Property can be held either publicly or privately.

Sources of Real Property Law In 1066, common law began in England. The First Nations in BC have occupied the land since before 1790s when the Europeans came. Reception of English Law into BC occurred in 1858 (Law and Equity Act, s. 2) - all British statutes and case law in existence before 1858 are of legal force and in effect in BC. In 1870, BC passed the Land Registry Ordinance, giving us the Torrens Land Registration System. In 1871, BC joined Confederation.

Property rights are under provincial jurisdiction via the common law, equity and statutes: Land Act deals with Crown land, Crown grants (s.50), the 7 land districts, and surveying. Land Title Act sets up the BC Torrens land registration system and requires that all transfers must be made on the

prescribed form (Form A) and on a single page (s.185). However, s.185 does not apply if another statute allows a different form, or the Registrar accepts the different form.

Property Law Act deals with everything else (statutory provisions with land issues). Land Transfer Form Act (ch.4-12) deals with the meaning to be given to words in prescribed forms.

The Relationship between Real and Personal Property

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Real property: Either corporeal-tangible (right to possession) or incorporeal-intangible (right to use).

Personal Property: Either choses in possession-tangible (chattels) or choses in action-intangible (intellectual property; money; stocks, etc).

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Historically, real & personal property had different actions (in rem vs in personam) and intestate distribution schemes. Today, there is no distinction b/t real & personal property in intestate distribution.

Personal property operates under absolute/allodial ownership (owner is absolute). No concept of tenures for personal property. But courts can create equitable interest in personal property, which essentially create estates (i.e. car leases).

Personal property is free alienable both inter vivos and upon death. No registration is required for a completed gift of personal property.

A holder of a life estate in personalty owes a fiduciary duty to preserve the estate for the ultimate recipient (Re Fraser, widow-can't-encroach-on-personalty-if-not-granted-that-right).

Legal versus Equitable Interests Legal Interests come through the common law and are good against the world: upon completion (registration) in BC, you receive the legal interest. Equitable interests originally came from the Court of Equity, but were not as secure as legal interests: upon signing of the CPS, you receive the equitable interest (as you have entered into a binding contract).

The Use: An Equitable InterestEquity developed the Use to compel the holder of a legal interest to hold that interest for the benefit of a 3rd party (who held the equitable interest). This addressed issues such as English Knights going off to the Crusades (knight's-best-friend-holds-legal-interest-for-knight's-wife-who-holds-equitable-interest), Monks and Inheritance Tax Evasion (rich-folks-trying-to-avoid-taxes). The Use's survival was guaranteed by joint tenancy which ensured that the estate would never come to an end through the right of survivorship.

Statute of Uses failed to force equitable beneficiaries to assume legal title as it did not apply to active uses (uses with obligations), or to a person who was seised to his own use (A is both beneficiary and trustee), or to a use upon a use (A holds interest for B for the use of C for the use of D). The Modern Trust emerged out of the Use. Legal title remains in the trustee who holds the land in trust for the beneficiary (who holds the equitable interest). As the legal owner, the trustee can transfer ownership to a 3rd party. However, the beneficiary can deal with his equitable interest just like any other interest in land. Trusts are a great way to avoid taxes, for better or worse.

Feudal Concepts of Land OwnershipCrown owns all the land. Two remaining concepts of land ownership:

Tenure: Conditions under which land was held. Only free and common socage exists today (Tenures Abolition Act, 1660 abolishes knight service, sergeantry, frankelmoin). Only remaining conditions are forfeiture (treason) and escheat (no heirs)

Estate: How long an interest in land could be held [freehold versus leasehold]o Corporeal Interests: right to use and exclusive possession

Freehold estates Leasehold estatesIndefinite, uncertain (almost forever) time period Certain, ascertainable, limited time periodExclusive possession In possession of the land [landlord retains

some residual possessory rights]Ex: Fee simples, Life estates Ex: Leases

Fee tails: required heirs to be direct descendants of the owner. Abolished by the PLA, s.10. Future interests: where the estate is promised to the holder in the future.

Possession: It's my land! Get off!Right of Possession: An intention to possess and an ability to exclude others. Corporeal interests have the right of possession.

Common Law Rule: Possession depended on the nature of the land and manner in which land was commonly enjoyed. Intermittent/ sporadic possession may be adequate for title. Exclusivity did not preclude consensual arrangements that recognized shared title to the same parcel of land.

Law of Finding / “Finders keepers, losers weepers”The finder of a chattel (personal property) acquires title that is good against the entire world except for the true owner. Not indefeasible title since true owner can always reclaim his interest.

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Aboriginal TitleAboriginal title is sui generis (of its own class or kind). Exclusive occupation of land is sufficiently similar to the common law concept of possession to impose aboriginal title.

Adverse Possession / "Possession is 9/10s of the law" / Get that squatter off my land!LTA, s.23(3) abolishes the concept of adverse possession in BC, except against land which has never had an indefeasible title imposed before (i.e. a Crown grant) (LTA, s.23(4); CPR, 2002, BCSC). The court can adjudicate adverse possession claims (Land Title Inquiry Act, s.171). Acquisition of title by adverse possession can arise both through mutual mistake and where the adverse claimant is a knowing trespasser. In order for a successful adverse possession claim to title, the act of possession must be open and notorious, adverse (not with the permission of the owner), exclusive, peaceful (not by force), in general actual possession (as opposed to constructive) and continuous.

Freedom of AlienationOur liberal capitalist system likes to ensure that our land is freely alienable: that we can sell & dispose of our land whenever we want. The Quia Emptores, 1290 allowed free disposal of land (except that which reverted back to the Crown). The Statute of Wills, 1540 and Tenures Abolition Act, 1660 also allowed land to be freely willed. Direct restraints on alienation could be voided by the courts. But rich folks tried to restrict alienation by imposing fee tails (Statute De Donis Conditionalibus) and future interests (barred by Whidby v. Mitchell; Statute of Uses) and strict settlements (broken by BC Land (Settled Estate) Act) so that the owner couldn't freely dispose of his land inter vivos or by will.

Good, safe-holding and marketable titleSafe-holding title: Gives an owner rights against the world in terms of exclusive possession, even though he has no proof of his title.

Marketable title: Gives an owner rights against the world to freely alienate his title, and provides the owner with proof of that title.

Aboriginal Title

Historical caselaw on Aboriginal TitleHistorically, the courts held that the Royal Proclamation of 1763 had extinguished Indian title. Aboriginals had only a "personal and usufructory right" to land (St Catherines, timber-license, 1889). This right was not equivalent to a legal and equitable interest in land.

Personal: a right or interest less than an estate in fee simple Usufructory: a right of enjoyment of some land owned by another

St. Catherines was overturned by Calder: the courts no longer consider aboriginal title to be a "personal and usufructory right". Likewise, RP1763 does not apply to aboriginal title in BC because the British weren't present in or aware of BC at the time of the Proclamation (Calder).

Calder (SCC, 1973, Nisga'a-claim-Nass-River-Valley-based-on-use-for-time-immemorial) held that Aboriginal rights and title have always existed under the common law. The Constitution didn't create aboriginal title, but it does protect it now under s.35 (Van der Peet, 1996, SCC, aboriginal-fishing-rights?). Aboriginal title is not prescriptive (Calder). It is grounded in the reality of pre-sovereignty occupation (FN-were-there-when-the-Europeans-arrived) (Calder).

The Crown owes a fiduciary duty to Aboriginal peoples (Guerin, Musqueam-golf-course).

What is an Aboriginal Right? Van der Peet originally held that in order to be an aboriginal right, an activity had to be an element of a practice, custom or traditional integral to the distinctive culture of the group claiming right. However, the "integral" requirement was overturned by Delgamuukw which held that a use of aboriginal lands under title did not have to be integral to the group.

Factors in deciding whether an activity is integral to the distinctive culture:o Perspective of aboriginal people themselveso The precise nature of the claim being madeo Central significance to the society in questiono Continuity is required [from pre-contact traditions to current times]o Must consider the rules of evidence, and the evidentiary difficulties in determining aboriginal traditions - oral

history is allowed [Delgamuukw]

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o Specific rather than a general basis - success for one community may not lead to success for another community

o Distinctive versus Distinct - the activity must be a feature of the culture, but it does not need to be unique to that culture

What is Aboriginal Title?Aboriginal title has 3 main characteristics: Inalienability // source // held communally (Delgamuukw)

Inalienable: cannot be transferred to anyone else. Source: pre-sovereignty occupation Held communally by the group for the use of the group [inherent limit on land use]

Aboriginal title is sui generis: courts must take into account both common law and aboriginal perspectives (Delgamuukw). Pre-sovereignty aboriginal practices will be translated "faithfully and objectively" into modern legal rights/title. However, only aboriginal practices that indicate a degree of possession similar to common law possession will impose aboriginal title (Marshall/Bernard). Common law recognizes aboriginal title for groups with pre-sovereignty occupancy who never ceded right to land. Note that LeBel in Marshall/Bernard differed on the test for aboriginal title: aboriginal title can't simply reflect common law concepts of property and ownership; must reflect diversity of pre-sovereignty land use patterns as well as aboriginal practices.

Aboriginal title includes the right to use the land for a variety of uses beyond practices integral to the group (Delgamuukw). There is an inherent limit on the land use due to the nature of the group's attachment to the land (Delgamuukw). This distinguishes aboriginal title from regular fee simple lands: if a native band wants to use lands for non-reconcilable uses, they must convert the land to fee simple.

In order to establish aboriginal title, FN must show pre-sovereignty physical occupation and exclusive possession in the sense of intention and capacity to control is required to establish aboriginal title.

Exclusion can be shown by the right to control the land, and if necessary, to exclude others. Semi/Nomadic peoples can demonstrate physical occupation by showing regular occupancy/usage.

Continuity b/t pre-sovereignty & current practices must be established. Connection to land must have been of central significance to their distinct culture. Colonial separation will not affect continuity.

This links aboriginal title to the basic common law conceptions of property: occupation, possession, exclusion and control (Marshall/Bernard, Mikma'q-indians-want-to-fish)

Legal Concepts of Land - Physical Dimensions

Land is measured on both the horizontal plane and vertical plane. Horizontal boundaries of land are fixed at the moment of surveying, but can change by accretion or erosion.

Surveying required in BC (LTA, s.58): Surveying assists in giving certainty of ownership as the physical description clearly spells out boundaries of land. Normally, surveying produces a Plan which divides the land into a lot // block // district lot // section // township // meridian. Registrar can also accept a Metes and Bounds description with or w/o a reference plan (LTA, s.99). Indefeasible title is subject to the right of a person to show that your land is wrongly described (LTA, s.23(2)(h)). No obligation on lawyers to investigate whether the plan & the boundaries of land are correct (Winrob v. Street, lawyer-does-not-obtain-plan)

Ad Coelum / Airspace Rights

Common Law Rule: Whoever owns the title to the soil also holds title all the way up to the heavens and down to the depths of the earth.

An owner has a right in the air space above his land only in the enjoyment of that land, and in preventing anyone else from acquiring a right in that air space.

Owners & leasors who have possessory interests in the building can also have possessory interests in the airspace above the building (Kelsen, billboard-over-building). Airspace rights extend only up to the "ordinary use & enjoyment" of the plaintiff (Bernstein v. Skyviews, aerial-photographer). Owner has no property right or legislative jurisdiction in relation to airspace above his land (Manitoba v. Air Canada, Manitoba-tries-taxing-AC). Owner has a right to fell overhanging branches and remove protruding roots of trees grown on a neighbouring property. Intrusion into airspace by a land-based object likely constitutes trespass (Didow v. Alberta Power, power-poles-intrude).

Statutory Principles

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Civil Aviation Statutes recognize airspace rights by parties other than the owner. Land Title Act, s.138: recognizes air space parcels and air space plans

o s.139: Title to airspace is recognizedo s.140: A grant of an airspace parcel to a grantee does not allow that grantee to interfere with that grantor's

interest in land or remaining airspace parcels o s.142: Minister of Transportation can grant airspace parcels above highways for power lines, billboards,

Skytrain, etc.o Title: Fee simple owner of airspace parcel receives a separate title. Does not normally appear as a charge

on the surface landowner in question, but will appear as an easement if one is required to access the airspace.

Strata Property Act: permits a person to acquire fee simple ownership in a multi-unit building situated on land that s/he does not own.

o Grants a strata lot owner an airspace unit. o Each strata lot owner gets a series of rights (access, support, services) o Bare land strata plan permits the subdivision of the horizontal plane only o Building strata plan allocates strata lots to individual owners (vertical)o Title: Strata owner's title includes both the condo & a part-interest in the common area. No separate title for

the land on which the condo building sits.

Ad Inferos / Below the LandBottom Line: Everything of value stays with the Crown. Check title for mineral rights

Common Law: Crown retained rights to gold & silver, but remaining mineral rights passed to the grantee. Post-1897: Base metals reserved to Crown Post-1899: Coal & petroleum reserved to Crown Post-1951: Natural gas reserved to Crown

Mineral Tenures Act allows free miners with proper licenses to come onto public and private land to prospect for Crown mineral rights. You must obtain a license first to prospect on private land (but you don't need permission from actual owner).

Mineral Rights: Fee simple owner of mineral rights appears as a charge on the fee simple surface landowner in questionWater Rights / Riparian Rights of owners whose land border water

Sources of Water Rights: Common Law: percolating groundwater; water which has never been licensed Water Act: Use of flowing water (must be licensed, unless s.42 exceptions) Land Act: Water bed rights Land Title Act: Rights upon accretion or erosion

Riparian Ownership Rights to the Water ItselfCommon Law: Riparian owner had proprietary rights in flowing water and percolating water (groundwater). Acquisition of an interest in water not based on prescription (rights by use).

Common law rights to water: Water flow, quantity and quality in its natural state Use of the water for domestic purposes while on your property, even if your use affects the rights of other riparian

owners Obligation to not cause injury to other riparian owners by diminishing the flow, quantity or quality of their water. Use of the water must be connected to the property where the water exists Limited irrigation purposes

Statutory Modifications: In BC, the Water Act governs your riparian rights. Riparian rights, if any, can only exist for a person lawfully using the water. The only way to acquire the right to the use and flow of water in any stream in BC is under the provisions of the Water Act.

WA, s.2: An interest in water cannot be acquired via use Original right to use flowing water is vested in the Crown. WA, s.3: Percolating Water governed by common law, not Water Act. Owner entitled to flow, quantity and quality

of percolating water on his property in its natural state (Steadman, spring-fed-dugout-gets-polluted). WA, s.5: License is required to acquire an interest in water bordering riparian lands

o You Snooze, You Lose: Unused licenses are subject to cancellation. o Priority: Priorities between licenses are determined by dates of licenses.

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o Diversion: License-holders can divert their water to other users and expropriate land on which to construct pipelines to divert water.

WA, s.42: No license required for water use if firefighting, domestic purposes or prospecting for minerals

Remember those common law rights: The Water Act does not completely cancel out common law riparian rights. A riparian owner maintains the common law rights to clean flowing water on his land until the Crown issues a license removing those rights (Johnson v. Anderson, unauthorized-diversion-of-stream-from-unlicensed-domestic-use; Steadman, unlicensed-spring-fed-dugout-gets-polluted). But if the water is used contrary to the licence granted under the Water Act, no enforceable rights exist (Schillinger, no-protection-for-polluted-unlicensed-fish-farm-water).

Ownership of Water Beds

Non-Tidal Riparian Rights (Freshwater)Common Law:

Land bordering on a non-tidal non-navigable body of water: Riparian owner owns land up until the middle of the water bed

Land bordering on a non-tidal navigable body of water: No right to the water bed Owner has the right to the use, flow and quality of the water for domestic purposes, subject to the rights of all other

riparian owners who had the right to have water come to them undiminished in flow and quantity.

Statutory Modifications: In BC, riparian owners have no rights to the navigable or non-navigable river bed of shore (Land Act, s.55(1)) unless specifically granted or where those rights were never taken away (s. 56) (R. v. Nickel, aboriginal-argues-for-right-to-fish-and-loses).

Tidal Riparian Rights (Saltwater)Common Law: Riparian owner had a right of access to the foreshore (between high water & low water mark), but no right of ownership

Today in BC: Foreshore is owned by Provincial Crown. Riparian owners have rights to high water mark, which is marked by change in vegetation. Federal Crown owns water beyond foreshore, and the foreshore in 6 harbours: Victoria, Esquimalt, Nanaimo, Alberni, Burrard Inlet and New Westminster.

Accretion and ErosionAccretion: The process by which land bordering on a tidal water body is increased by the silting up of soil, sand, or other substance.

Erosion: The process by which land bordering on a tidal water body is decreased by the permanent withdrawal/retreat of the waters.

Accretion/Erosion applies to both riparian owners and leaseholders, and to inland lakes as well (Southern Centre of Theosophy v. South Australia, leaseholders-apply-for-accreted-land). Accretion must be gradual and imperceptible. Human action (except that of the owner) can produce accretion. Accretion can only be produced by natural substances, though those substances need not be carried by water.

Riparian owners are entitled to an increase by accretion, or may suffer a decrease by erosion (LTA, s.94-96). A new plan must be registered to show change in boundaries.

Access by Riparian OwnersRiparian's owner right of access stems from his ownership of land which abuts water. This right of access is distinct from the public right of navigation and does not depend on ownership of the water bed.

Right to moor vessels on the shore Riparian owner must not interfere with any public right of navigation and cannot impede access by building a

structure on the foreshore (Murray v. North Saanich, Murray-builds-wharf-which-blocks-foreshore). A pier/causeway is an acceptable means of access as long as it doesn't interfere with foreshore owner's rights.

Fixtures: Is the mobile home a chattel or a fixture?3 possibilities for personal property: (1) Chattel (2) Fixture (3) Part & Parcel of the Land

Fixture: A chattel so fashioned or connected to the land that in law it forms part of the land. Common Law Rule: A transfer of an interest in land included all the fixtures on the land.

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Bottom line: Evaluate the degree of annexation and the object of the annexation.Onus of Proof: The opposing party must rebut the Stack presumptions.

Test: Has the chattel become a fixture? (Stack v. Eaton, 1902)1) What is the degree of annexation?

o If a chattel rests on its own weight, it is presumed to be personal property.o If a chattel is attached, it is presumed to be a fixture.

2) What is the object or purpose of the annexation? o Objective Test: Would a reasonable person, familiar with the customs of the time and place, conclude that

the parties intended that the item remain a chattel, or become part of the real estate?a. Intention is only important for considering the degree/object of annexation

Test: Has the fixture become "part and parcel of the land"? Whether an object is part and parcel of the land must be determined by examining the degree and object of the annexation, to infer whether the annexation was intended to be permanent or temporary (Elitestone, bungalow-on-concrete-pillars-for-50-years).

Canadian principles for fixtures (Stack v. Eaton, 1902)1. Articles attached to the land by their own weight are chattels unless intended to be fixtures 2. Articles affixed to the land slightly are considered fixtures, unless intended to be chattels.3. Must examine degree and object of annexation in order to rebut the presumption. 4. Intention is only relevant if it can be presumed from the degree & object of annexation. 5. Tenants' Fixtures: Tenants' fixtures (attached for trade) become fixtures unless the tenant wants to take them

back.

Maczko's 6 principles in Royal Bank of Canada (restaurant-equipment) (best to cite Stack)1. Chattel - If an item is unattached and can be removed w/o damage to the item or land. 2. Chattel - If an item is only plugged in and can be removed w/o damage to the item/land 3. Fixture - If an item is even minimally attached (i.e. not just plugged in)4. Fixture - If an item would be useless without a certain removable part 5. Tenant's Fixture - A fixture may only be removed if it is a tenant's fixture, provided the premises are restored 6. Purpose test - If the item is unattached, but the party can establish that the intent was that it be a fixture, then it is a

fixture

Historical Caselaw on Fixtures: Was the object of the annexation was to improve the land, or whether it was to improve the chattel? (Haggert v.

Brampton Town, 1897) If object was attached for the better enjoyment of the building as a building, it is a fixture. If it was for the better

enjoyment of the chattel as a chattel, it is a chattel. (Re Davis, bowling-alleys-aren't-fixtures!) Chattel became a fixture when it is affixed to the land by more than its own weight and the purpose of the attachment

is for the better use of the building as a building, and not for the better use of the chattels as chattels (La Salle, carpet-vendor).

Large equipment may be chattel if you can remove it easily and install it somewhere else. Also look at purpose of annexation (and use of object). Hedges Stack since large equipment may have some degree of annexation, but can be easily removed (Pioneer Envelopes, large-equipment-was-chattel).

Contracts for chattels cannot bind subsequent purchasers (Diamond Neon, signpost-contracted-as-chattel-but-became-a-fixture-after-sale-of-land)

Mobile Homes: the schizophrenic caselaw Chattel : 2-story house resting on rocks (no annexation) (Bing v. Kee, 1910, house-on-rocks) Chattel : Mobile on concrete blocks (no annexation) (Burlington, applied-La-Salle-reasoning, 1910) Chattel : Mobile with supporting blocks & piers (no intent) (Litchy) Fixture : Mobile with steel frame removed and concrete basement foundation attached (Plaza Equities)

Tenant’s fixtures: articles affixed to the land by a tenant When an owner adds a chattel, it improves the land. When a tenant adds a chattel, it merely improves the chattel. Test: Was it affixed by the tenant? Can be removed with no material damage? If yes, then tenant's fixture. If tenant wants to take her fixture with her, it must be removed during the lease, subject to the terms of the lease.

Support

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Common Law Rule: An owner of land is entitled to have his land left in its natural plight and condition without interference by the direct or indirect action of nature facilitated by the direct action of the owner of adjoining land (or subsurface owner) (Cleland, removal-of-sand-causes-lot-to-sink).

An absolute right: Exists independent of any claim in negligence (Rytter v. Schmitz, basement-excavation-causes-building-to-fall). Properties need not be contiguous to have a duty of support.

Lateral support: right of support between adjoining surface ownersNo one can interfere with the land by removing lateral support (Trinidad Asphalt Co., excavating-pitch; Rytter v. Schmitz). Note that loss of lateral support can occur even where the movement is vertical.

The right of support does not extend to actual title in dirt (Bremner v. Bleakley, digging-holes-to-steal-sand). Limited to land in its natural state: Does not include support for the additional weight of any structures which have been on the land unless obtained by easement or prescription or unless it can be shown that subsistence would have occurred even absent the buildings on that parcel (Gillies v. Bortoluzzi, collapsing-grocery-store). Capilano Bungalow (collapsing-concrete-building-in-North-Van) may be useful in arguing that we need to extend the doctrine of vertical support to cover buildings, but do not rely on this case.

Vertical/Subjacent support: Subsurface owner's duty to support surface owner Gillies v. Bortoluzzi; Rytter v. Schmitz. Limited to land in its natural state, but can be extended to vertical support for a building by applying the rules of trespass rather than the support doctrine (because removal of vertical support requires trespass underneath the soon-to-collapse building).

Acquiring an Interest in Land

CROWN GRANT 1866: Provincial crown of BC created and acquires ownership of all land in BC. 1870: Land Registry Ordinance Act (Land Title Act) sets up present system of land ownership

As a result, all lands in BC are owned by the Provincial Crown, except: Federal Crown lands (e.g. public harbours, national defence lands, Indian reserves, some railway lands), Privately owned lands (though Crown still "owns" fee simple lands) Aboriginal title lands (granted via treaty, or lands contingent on settlements).

Crown grants normally given for leases / rights-of-way / licenses of occupation (Land Act). If you get a fee simple Crown grant (rare), Land Act, s.50 establishes what rights the Crown still holds to your land.

INTER VIVOS TRANSFERS: SALE OF LANDCommon Law: Livery of seisin or sealed document/deed required to transfer landConveyance/Conveying: An instrument in writing which creates/transfers an interest in land Today in BC: Transfer of equitable and legal interest takes place by sale/contract via (1) the Contract/Executory Stage and (2) the Transfer/Executed Stage, respectively

The Contract or Executory Stage (transfers equitable interest)Contract of Purchase and Sale: A contractual agreement between the vendor and purchaser which results in a legally binding contract.

Equitable interest passes: Vendor becomes a trustee for the purchaser (beneficiary) of the transferred estate. Vendor retains legal interest until completion (registration)

Rights of Vendor: Vendor retains right to possession until purchase money is paid. Vendor has right to purchase money & can sue for breach of contract or impose lien on property if unpaid.

Obligation of Purchaser: Purchaser must pay purchase money. Purchaser has right to sue for specific performance. At common law, purchaser bore risk of loss, but CPS, s.6 holds that vendor bears risk of loss until completion. Purchaser should ensure that insurance begins upon completion, when both legal & equitable interest have transferred.

The Transfer or Executed Stage (transfers legal interest)Completion: Carries out the binding contract reached at the Executory State, and transfers the legal interest from the vendor to the purchaser. Under Torrens, completion = Form A registration.

LTA, s.185 - transfer must be in writing, in prescribed form and on single page (Form A).

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s.185(2)(a)-(b) (Other Forms): Registrar has discretion to accept alternate forms and/or historical documents for registration

s.43-45 (Witnessing): Officer's signature required to certify identity of transferor as person named in title (individual > corporation > POA)

s.186(2) (Meaning of Words): Words of Form A deemed to be words in Part 1 of Land Transfer Form Act with the meaning given in Column 1 of Schedule 2

s.186(4) (No Express Words of Transfer): Form A legally transfers the interest even without express words of transfer (X transfer to Y)

PLA: additional Form A requirements s.5(1): Vendor must provide Form A s.5(2): Leases over 3 years must be registered s.15: Transfer need not include word "grant" or other terms of art. Transfer may occur without livery of seisin (no

actual entry required) s.16(1): No seal required to effect transfer

INTER VIVOS TRANSFER: GIFTSGift: A voluntary & intentional transfer of property from the owner (donor) to another (donee) without consideration, and is normally not enforceable by the donee. Can be transferred inter vivos, upon death or as donatio mortis causa. Testamentary gifts are always revocable, up until death/completion.

4 required steps for a completed Gift (note: personal property gifts don't require registration)1) Intention: Donor must have "sufficient intention" to donate. Donor must have mental capacity to appreciate the

nature of what they are doing (parting with ownership). Words, or actions, must be "unequivocal" or unambiguous: Must clearly point to intention to part with ownership. Matter of evidence: circumstances, donor-donee relationship, size of gift, relation of gift to donor's total assets.

2) Acceptance: The donee must accept the gift. Anything short of outright refusal = acceptance. Usually assumed that the donee is accepting, but sometimes donee might not want obligations tied to gift. Donee must decide within a reasonable time if they don't want to accept.

3) Delivery: Transfer of possession (or its equivalent) of the gift from donor to donee is required to complete the gift. Delivery is both evidence of intention/acceptance, but also a required element of the gift on its own.

4) Registration (LTA, s.20): The donor must have done everything that needs to be done in order for the transfer to take place. This includes both delivery of deed and registration. A written Form A is required to transfer an interest in land (no oral gifts). Donor must provide Form A (PLA, s.5). Unregistered gifts are valid between the original parties, but not against subsequent BFPs (s.20).

Perfectly enforceable gift: Gift in writing under intentional seal are enforceable even without consideration (Romaine, Pissed-off-Uncle-tries-to-get-out-of-sealed-gift-document, 2001, BC). Seal creates intention, and thus enforceability, despite the uncle's later change-of-heart. Otherwise, gifts aren't enforceable until the transfer is complete (Delivery).

Enforceable gift despite no physical delivery: Delivery is a required element of completed gifts. Delivery can be something other than parting with physical possession of the document. You must examine the intentions of the grantor (Ross, Deed in grandma's purse, 1977, NS). A deed is still operative even though the grantor may have retained it in his possession for many years and up to the time of his death (Zwicker, 1899, SCC, Land-giving-overly-married-uncle). Gift is enforceable even if the donee does not know that the deed has been registered (Xenos v. Wickham).

Unenforceable gift due to lack of delivery: Gifts explicitly held to be delivered or recorded upon death are not enforceable, as testamentary gifts are always revocable (Zwicker, Land-giving overly-married uncle-tells-lawyer-to-hold-onto-deed-until-death, 1975, SCC). In the absence of a "completed" gift, the donee cannot enforce the gift (Re Waite, Husband promises wife car).

Unenforceable gift due to lack of registration: Donor must do everything they are required to do in order to effect the transfer (MacLeod, No Duplicate Title, 1980, AltaCA).

Presumption of Resulting Trust / Presumption of Advancement

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Presumption of Resulting Trust: Common law presumes that a gift (transfer w/o consideration) transfers only the legal interest and not the equitable interest: Donee holds gift in trust for donor (trust results back to donor). No one gives away something for nothing. Can be rebutted by: Sealed gift document (Romaine): shows intention to transfer both legal/equitable interest Presumption of Advancement: Gifts to spouse/children presumed to transfer both interests Some other evidence

TESTAMENTARY TRANSFERS: Wills or Intestacy

Interpretation of Deeds & Wills (Re Shamas) Deeds: Court focuses on Form A (prescribed form) to determine transferor's intention Wills: Court focuses on all the words used in the will [not just the clause in question] and all relevant surrounding

circumstances in deciding testator's intentions (Cielein). o Armchair Rule: What facts were known to the testator at the time the will was made?

General Rules re: Testamentary transfersAny person may dispose of their real and personal property by will. Any person can acquire an interest in real or personal property as the result of a death of another person.

Death triggers transfer Testamentary gifts revocable up until death Testamentary gifts are subject to debts against the estate (but insurance/RRSP/joint tenancies are safe from debts) Real property may be sold off in order to provide assets for descendants Transfer of Assets: When testator dies, the legal interests in their assets are transferred to the PR who must

distribute the legal & equitable interests according to the will or EAA.

Statutes governing testamentary gifts Common law rule: personal property to PR, real property to eldest male heir (modified by EAA, s.77(1)) Wills Act: Formal requirements for wills Estate Administration Act: Intestacy

s.77(1): Both real & personal property go to personal representative Trustee Act: Governs how trustees (executors/administrators) act Wills Variation Act: Allows the court to vary an otherwise valid will if current/separated spouse or

biological/adopted children have not been adequately provided for - considers both legal obligation and moral obligation.

Testacy Will: A declaration made by a testator in writing in the form required by law of what s/he desires to be done after his or her death. May include a codicil. May establish a trust

Personal Representative: Executor chosen by deceased and named in the will. Will speaks from the date of death (not the date of signing): Wills Act allows the PR to dispose of all property

acquired by the deceased both before and after the signing of the will. Contains name, division of assets, funeral arrangements, children's guardian, etc. No special words required Intention must be unequivocal & express desire to dispose of assets only after death Witnesses/Signature: Testator & 2 witnesses must sign in presence of each other Holograph Wills not valid in BC

Intestacy Intestacy occurs when the deceased dies without a will. Governed by the EAA which determines administrator and division of estate.

Administrator: spouse > next of kin (beneficiaries) > other indvls > gov't official Distribution (EAA, s.10): (1) spouse if 2 years before death and (2) lineal issue

o If no spouse/issue, then intestate's estate goes to parents Survivorship and Presumption of Death Act: If 2 people die close in time, but you can't tell who died first, it is

assumed that the oldest person died first.

Example: A (24) & B (25) are spouses with no children. A's parents are still alive. Only B's brother & sister are alive. While driving up to Whistler, A & B die in a car crash together.

If B dies first (assumed), then B's estate goes to A, and then to A's parents. If A dies first, then A's estate goes to B, and then to B's brother and sister.

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Donato Mortis Causa: A Gift made in contemplation of DeathA donatio mortis causa CANNOT be revoked and need not comply with formal requirements of testacy

1. Contemplation of Death: Gift must be made in contemplation of, but not necessarily in expectation of death (Re Zachariuc, danced-a-little-jig)

2. Delivery: Must be delivery of gift to donee. Delivery may be something less than delivery required for inter vivos gift3. Absolute upon Death: Must show or infer that gift was to become absolute on death of donor.

Proprietary EstoppelWhere it would be inequitable for the defendant to assert his rights, the plaintiffcan claim proprietary estoppel as a cause of action (Zelmer, reservoir-gets-built-D-changesmind). The following conditions must exist:1) Plaintiff must have made a mistake to his legal right.2) Plaintiff must have expended money or act on faith of his/her belief. 3) Defendant must know of his legal right and that it is inconsistent w/ P's claimed right. 4) Defendant must know of the plaintiff’s mistaken belief of right. 5) Defendant must have encouraged P in expenditure of money or other actions either implicitly or by abstaining from

asserting his/her legal right.6) D's actions were unconscionable, inequitable or unjust equitable fraud

Unjust Enrichment: Unjust enrichment can be remedied by monetary compensation or real property (Crick, flight-attendant-girlfriend-fixes-up-house)

1) That there has been an enrichment (D received benefit)2) There must be a deprivation (P has given up something)3) There must be the absence of a juristic reason (i.e. lack of contract)

Registration of Title

Historical Background: Different Methods of Transferring Interests in Land

Common Law Conveyancing: Livery of SeisinThe Historical Feudal System: Only the legal interest exists, and can be transferred via livery of seisin, a public and physical act. Documentation later introduced as a record of the transfer taking place. Livery still required to effect the transfer of the legal interest.

The Even Later Feudal System: Legal interest continues to pass under livery of seisin. Equitable interest develops (Use/Trust), and can be transferred without public ceremony (i.e. after death). Statute of Frauds requires that enforceable agreements with respect to land must be in writing. Increasing use of documentation.

Recording System: Livery abolished - ceremonies no longer required to transfer possession. Written deed required to transfer ownership. In order to effect transfer, both the written document & delivery are required [intention > acceptance > delivery]. Recording System records these deeds, but has no legal effect on the title. Good root of title established by searched deeds, mortgages, transfers, wills (standard conveyancing practice = 60 years). Recording systems still exist in some Canadian jurisdictions (i.e. Ontario, NS)

Torrens Land Registration System

Effect of TorrensTorrens imposes a registration system which (1) records the written document and (2) gives legal effect to the document via registration. Legal effect given to the title by virtue of 2 elements: (a) Registrar contains all relevant information related to title, and (b) the fact of registration creates indefeasible title (s.23). Prescribed form required to register the transfer [s.185; Form A or its equivalent]. Registration is required (s.20) in order to effect transfer of legal interest, and to protect that interest against the world ~ except as against the person making it. Equitable interest transferred upon forming a binding contract (CPS).

Torrens in BC TodayTorrens system comes from Australia. In 1870, Land Registry Act imposes Torrens on colonies of Vancouver Island and Vancouver. Today, the Land Title Act governs the Torrens System. Common law rights and obligations remain except where explicitly modified by LTA.

Quasi-Torrens: Register is not complete mirror (s.23 exceptions); possible deferred indefeasibility

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7 Land Title Districts (LTA, s.4): Kamloops, Nelson, New West, Prince George, Prince Rupert, Vancouver, Victoria. Most have their own Land Title Offices, although some share an LTO.

No central registry in BC: you need to know the location of the land in order to determine the specific LTO (i.e. name / BC region / lot #)

LTOs are only open Monday to Friday, 9am to 3pm: title that is not registered during those hours remains unregistered until the next business day.

Registrar: Each LTO's Registrar performs quasi-judicial and administrative role: determines whether title can be registered (good safe-holding & marketable title)

Not all land is under Torrens: federal lands / national harbours / Indian reserves / provincial Crown lands may not be registered.

Pre-Torrens Rights: Apply to the registry with your pre-Torrens documents > receive a preliminary registration of your title in the Register of Absolute Fees > 7 years later, transfer your absolute fee to an indefeasible title (LTA, s.174).

3 Underlying Principles of the Torrens System:1) The Mirror Principle - Title is a complete and accurate reflection of all interests affecting the land. If it is not on a

register, then it is not binding on a 3rd party.a. s.23 - exceptions to the mirror principle (events which may revoke indefeasibility). b. s.20 - unregistered documents may have an effect

2) The Insurance Principle - If mistake or fraud occurs, compensation is available (Assurance Fund) 3) The Curtain Principle - Under pure Torrens, the curtain drops upon registration. Immediate indefeasibility in BC for

fee simples, but not for charges.

Failure to Register: If I don't register, is my interest still protected?

The General Principle: s.20, Except as against the person making it

Translation of s.20: No registration = no transfer of legal interest. But an unregistered instrument is operative against the person making it [that is, one of the parties to the instrument] (Stonehouse v. Attorney-General, wife screws husband by giving unregistered Form A to daughter, 1962, SCC). But if you don't register your interest, you run the risk of a BFPFVWON registering their interest in land and screwing you.

Leaving an unregistered Form A with a lawyer to be registered is sufficient for intention to register (Feinstein, 2005, BCSC).

Gifts: A Form A which is executed for a gift, but left unregistered, will be enforceable against the giftor, but not against any subsequent purchasers.

Easements: An unregistered easement cannot be enforced against a subsequent purchaser (Sorenson v. Young, P tries to enforce easement, 1920, SCC)

Timber Cases A profit a prendre is both an interest in land, and a contractual right. "Except against the person making it" also applies to assignees. An assignee is in direct privity, and therefore can enforce the right as though he were the original grantee (L&C Lumber, profit a prendre assigned & enforceable against new assignee, 1942, BCCA).

Whether a contract relating to timber constitutes (1) a sale of chattels, or (2) an interest in land, will depend on the terms of the contract. Where parties agree that the thing sold shall be immediately removed, the land is to be considered a mere warehouse for the thing sold, and the contract a sale of good (Carlson, unregistered timber right not enforceable against BFP, 1931, BCCA)

Prohibited TransactionsParties cannot claim protection of s.20 for unregistered transactions which are prohibited for reasons of illegality or public policy. s.73 prohibits 3 year+ leases of portions of land without subdivision. s.73(3) does not apply to buildings - you can lease parts of buildings for 3 years+ without subdivision (Top Line, landlord screws tenant, 1996, BCCA).

The Role of the Registrar (LTA, s.10)

General Duty & Roles of the RegistrarGeneral Duty: Administer the LTA with respect to the lands within their Land Title District. Registrar's powers are derived from the LTA - they aren't a s.96 Constitutional judge, and therefore can't adjudicate the contested rights of parties - you need to go to court for that (Heller, husband realizes mistake, tries to cancel wife's transfer, 1963, SCC).

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Quasi-Judicial Role: Act on principles of law to determine whether interests are registerable [good, safe-holding and marketable title]. In this role, the Registrar is bound by established law because they can only apply the facts to the law.

1. Not all interests are registerable: Torrens only registers interests which are good, safe-holding and marketable; therefore, Aboriginal title is not registerable, nor are charges relating to aboriginal title registerable (Skeetchestn, FN tries to register CPL against ab.title lands, 2000, BCSC).

2. Don't Perpetuate Errors in Title: Registrar has a duty to satisfy himself that the title is good, safe-holding and marketable when registering any instrument. (Evans, westerly 40 feet, 1960, BCSC)

3. Power to refuse bad documents: Registrar can refuse to register, if the documents & evidence produced fail to establish either a prima facie or good safe-holding and marketable title (Shaw, son scams dad, 1915, BCCA)

Administrative Role: Act on policy and/or expediency. In this role, the Registrar has the discretion to make the rules.

1. Discretionary power to cancel or correct instruments (s.383): If an instrument has been issued in error by the Registrar, contains a misdirection, or an endorsement has been made or omitted in error on a register/instrument, Registrar "may" cancel/correct (Heller).

2. No Obligation for non-Registrar Errors: Registrar is not obligated to correct errors which are not the fault of the Registrar (Heller).

3. Cannot prejudice BFPs: Power of cancellation occurs only if it doesn't prejudice rights acquired in good faith and for value (s.383(1)).

4. No Appeal of Discretionary Decisions: You cannot appeal discretionary decisions of the Registrar, but you can appeal a refused application (Basque Improvement District v. Lischa, 2003, BCSC)

When an instrument/application is submitted to the LTO, the Registrar must determine (1) whether the instrument deals with an interest in land (Re Kessler)(2) whether the interest is properly derived from the owner/applicant(3) whether the transaction and instrument are, prima facie, valid (Shaw; Heller).

The Assurance FundThe Curtain Principle of Torrens provides security to those who registered by imposing immediate indefeasibility upon all registered titles (LTA, s.23). However, the security provided by Torrens means that some common law rights are lost under the LTA. Under the common law, a BFP taking land under a void instrument would lose that land to the original owner. Under the LTA, the new "owner" would be protected if they registered that void instrument - because registration provides immediate indefeasibility.

The Assurance Fund is a statutory scheme which protects equitable rights and compensates people who lose their common law property rights as a result of the expeditious and certain LTA. Recovery is dictated by the terms of the statute. The Assurance Fund is funded via percentages taken from each land transaction. While successful AF claims are rare, the Assurance Fund is not to be regarded as a citadel which no one is allowed to scale (Gordon v. Hipwell, fake diamonds for land and mistake of Registrar, BCCA). However, as McCaig shows, there are severe limits to liability under the Assurance Fund.

The Assurance Fund covers two situations:1) Person deprived of interest in land: A person has been deprived of land in certain circumstances [involving fraud]

by reason of the conclusiveness of the registry (s.296)2) Fault of Registrar: A person has sustained loss solely as a result of an omission, mistake or misfeasance of the

registrar (s.298; Gordon v. Hipwell)a. Registrar owes no duty to unregistered claimants (as an unregistered title will not appear when Registrar

determines GSHM title). Registrar's only duty is to those seeking to use Registry. A successful claim against the Assurance Fund must show that the plaintiff's loss flowed naturally and directly from a mistake of the Registrar (Royal Bank v. BC, AF claim for defaulted equitable mortgage fails, 1979, BCSC)

Successful Claims against the Assurance FundClaimant must show that (s.296; McCaig v. Reys, loss of equitable option not compensable by AF, 1978, BCCA):

a. They have been deprived of land or interest therein; b. The loss was occasioned by the operation of the Land Title Act (and not the CL),c. The loss was occasioned by fraud, misrepresentation or wrongful act in registering of another person as having

an interest in the land; andd. They are barred for bringing an action for rectification of the register.

Other rules for the Assurance Fund:

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s.296(3): AG must be joined as a party in any claim against the Assurance Fund s.296(8): 6 year limitation period s.303: Liability is limited: the following owners cannot claim against AF

o s.303(a)(i): Undersurface rights owners o s.303(a)(ii): Equitable mortgagees by deposit of duplicate indefeasible title o s.303(d): Errors in airspace plano s.303(f): Contributory Negligence: New LTA amendments will lower plaintiff's damages in the even of

contributory negligence (previously, contributory negligence would bar a claim)

Example: A transfers interest in land to B. Contract is voidable. B transfers land to C before A decides to void the contract. C registers and receives indefeasible title as a result of being on the register. C is a BFPFVWON. No fraud or mistake, so s.296 does not apply. A has no AF claim.

Example: Y impersonates X and transfers X's land to himself via a forged Form A. Y then transfers the land to Z, a BFPFVWON. Z registers transfer and becomes RO. Because of fraud, the transaction b/t X and Y is void. At common law, Z would not have received title because of nemo dat: one (Y) cannot transfer what one does not have. But Torrens gives Z indefeasible title because of registration. Under s.25.1, Z can keep the land and X can claim against the Assurance Fund because he has lost his land because of fraud (s.296) and the conclusiveness of the register.

REGISTERABLE INTERESTS: What Can I Register?

The General PrincipleCommon Law: Only those interests which were recognized as CL interests in land were registerable: fee simples // leases // life estates // easements // mortgages // trusts (see below) // mineral rights. 2 categories of interests will appear on a land title search:

1) Fee simples: The fee simple owner with the indefeasible title2) Charges: covenants, mineral rights, life estates, mortgages, etc

Neither licenses nor zoning bylaws can be registered as interests in land: Licenses give some rights of occupation, but are not a valid interest in land Zoning Bylaws do not need to be registered in order to have effect (Kessler)

Non-common-law interests which are also registerable as "charges"1) Caveats (LTA, s.282-294)2) Certificate of Pending Litigation (lis pendens) (LTA, s.215-217)3) Judgments (LTA, s.210-214)4) Statutory Right of Way (LTA, s.218): Allows certain gov't bodies & others to acquire a right to use

another's land for a certain purpose. Different from the CL easement which allows adjoining land owners to obtain access through their neighbour's land.

5) Restrictive Covenants (LTA, s.219): Imposes restrictions on the use to which land may be put. Frequently restrictive (negative), but may also be positive (benefits).

6) Statutory Building Scheme (LTA, s.220): Restricts use of land. Enforcement comes from adjacent property owners (or developers) rather than from the municipality.

7) Agricultural Land Reserve Parcels (Agricultural Land Commission Act): While zoning bylaws are not registerable as an interest in land, ALR parcels are. Appears on title under "notations". Examples: prohibitions on subdivision and prohibition on uses which will destroy agricultural capability

8) Marriage / Co-Habitation Agreements (Family Relations Act, s.17): Rarely used agreements which allow non-titled individuals to acquire some interest in the property (i.e. veto rights over land dealings // prevent severance of joint tenancy).

UNREGISTERABLE INTERESTS: What can I NOT register?

You cannot register the following common law interests:1) Equitable mortgages (LTA, s.33): where you mortgage your home and provide security by leaving your duplicate

title with the bank

2) Details of a trust (LTA, s.180): while the trustee is listed on the title, you cannot specify who the trust is being held for. But the trust document is usually deposited at the LTO.

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3) Sub-right to purchase (LTA, s.200): All sub-rights after 1979 cannot be registered. A sub-right to purchase occurs where an agreement for sale is registered on a title, and the owner of that agreement for sale enters into another agreement for sale with a 3rd party (the subsequent agreement cannot be registered).

4) Aboriginal Title (Skeetchestn): Because aboriginal title is inalienable except to the Crown, it does not provide good safeholding and marketable title and therefore cannot be registered. Therefore, caveats and CPLs relating to aboriginal title also cannot be registered. But encumbrances relating to Nisga'a lands can be registered (LTA, s.1).

MECHANICS OF REGISTRATION

LTA, s.153 (Time of Application): Applications for both fee simples & charges are date/time-stamped upon receipt and given a serial number (s.153(1)(a)-(b)). For the purposes of determining priority, the time/date recorded by Registrar is the "real time" (s.153(2)).

s.28 - Priority of charges is determined by time/date of pending registration - that is, when the application is received [not the time/date of final registration]

s.27 - Actual notice of charges occurs upon registration. s.31 - If registered caveators or CPL-ers are successful, their claim will gain priority over all other

titles/charges/claims registered after the date/time which the caveat/CPL in question was registered s.168 - Registrar has the right to reject an application upon receipt, but can also inform applicant of mistakes and

give her time to correct them s.154 - Form A is required for fee simple registration. s.155 - Form B is required for mortgage registration. Fee simple registration is required before mortgage registration

can occur, but in practicality, they move from pending to final registration almost simultaneously.

Processing Gap: From Pending to Final RegistrationThere is a gap between pending registration and final registration. The processing gap can vary in length (up to a year). What happens a caveat or a CPL is lodged during the processing gap?

Delays caused by LTO administration will not affect a purchaser's right to title (Rudland).

Caveats (LTA, s.282-294): A Red Flag

Caveat: Can be lodged by a person who has an unregistered instrument which is incapable of immediate registration because there is no Form A or by operation of law (i.e. proprietary estoppel). Prevents any further dealings in the land. Easy to file (1 page ~ 1 hour)

s.293: Privately-filed caveat expires after 2 months s.285: Registrar has the power to lodge a caveat himself which never expires unless expressly provided for s.286: Individual may lodge a caveat, if caveat is in the prescribed form s.287(a)-(c): Upon receiving caveat, Registrar must endorse date/time of receipt, enter endorsement into register,

and send copy of caveat to titleholder in question s.294: Improperly filed caveats can result in damages payable by caveator s.288 (Effect of Caveat): Once a caveat is lodged, the Registrar must not register another instrument affecting the

land unless the instrument explicitly subject to the caveator

Example: A sells Blackacre to B with a CPS, but no Form A. In the meantime, A sells Blackacre to C. B files a caveat on Blackacre. C registers her Form A on Blackacre subject to the caveat. If B succeeds against A and successfully registers Blackacre, C is screwed.

Certificate of Pending Litigation / lis pendens (LTA, s.215-217)Certificate of Pending Litigation: Allows litigants to freeze disputed title and provides notice to potential buyers that land is being litigated. A CPL can be registered as a charge against the disputed land by a person who has commenced or is party to litigation involving an interest in that land (s.215(a)). The test for a CPL is far less stringent than a caveat; however, the process for filing a CPL is much slower than a caveat, since you need to launch a lawsuit in order to file a CPL. An individual conveying an interest in land in order to avoid their creditors will have those conveyances set aside.

Bottom Line: No one likes to deal with land that has a CPL on it.

Example: A starts a lawsuit where he is claiming an interest in Blackacre. A lodges a CPL against Blackacre. A only needs to show that his claim is against land (don't need to show merit).

Effect of CPL: Once a CPL is registered, the Registrar must not allow a charge, transfer or other application to be registered with respect to the land until the litigation has concluded, unless the new applicant explicitly takes subject to the CPL (s.216).

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Priorities of interests are decided upon time/date of the application for registration (Rudland, CPL lodged against BFP). Rudland stands for the proposition that purchasers acquire some rights after pending registration (at odds with s.23 immediate indefeasibility).

Notice given by CPL: Registration of a charge constitutes notice of risk, rather than notice of a valid interest [registration enforceability] (Peck, monthly payments made for land before CPL lodged, 1904, BCCA)

Effect of CPL if prior application for title is pending: Individuals who acquire a full interest prior to the lodging of a CPL will take free of the CPL (Peck; Rudland). Likewise, notice of a CPL which occurs after the application to register will not affect the BFP's title (Rudland). In the absence of fraud, you can equate a clear right to registration despite a CPL if you are:

o Bona fide purchaser for valueo Applied for prior to the CPL

The BFP is not party to the litigation (Rudland) CPL registered after mortgage will not affect BFP mortgagee's registration (Canada Permanent Mortgage,

Vorsteher transfers to Vistica who grants mortgage to BFP). o s.155 / s.198 require that the fee simple be registered before mortgage can be registered - if Canada

Permanent Mortgage, Rudland and Peck had considered these sections, mortgages likely wouldn't have been registered at all (as the fee simple wouldn't have been registered, due to the CPL).

Pending Applications lodged after CPL: Certain pending application lodged after the CPL may or may not take subject to the CPL (s.217(2)):

s.217(2)(a): prior applicant is a party to the lawsuit takes subject to the CPL s.217(2)(b): prior applicant is not a party to the lawsuit takes free of the CPL s.217(2)(c): prior applicant's application is related to a certain proceeding [i.e. Wills Variation Act, Family Act,

Divorce, etc] takes subject to CPL even if the prior applicant is not a party to the lawsuit

s.31 - title or charges clearly registered after the lodging of a CPL/caveat will take subject to the CPL/caveat But lack of registration = lack of notice. Unregistered CPLs have no effect (First Citizens, mortgage registered

before CPL lodged)

Judgments (LTA, s.210-214)Judgments are governed by the LTA, s.210-214. Judgments are enforced by the Court Order Enforcement Act.

Money Judgments: Claim by plaintiff results in Certificate of Judgment against defendant ordering that "judgement creditor is owed x dollars by judgment debtor".

Non-monetary judgments may include unjust enrichment, proprietary estoppel, etc. These alter the title to the land, rather than order the transfer of money.

LTA, s.210: Judgments can be registered as a charge against a specific fee simple using Form 17. o Registered judgment creditors can force sale of land via court proceedings in order to claim their debt owed

LTA, s.28: Judgments are given priority according to date of registration s.210(c): Don't need to register judgment in Register of Judgments anymore COEA, s.83: Judgments expire 2 years after registration. Judgments can be re-registered, even after expiry, but not

if the judgment debtor has already disposed of their property.

A judgment is registered against the equitable interest. Judgments are subject to the rights of a new BFPFVWON who, prior to the registration of the judgment, acquires the legal interest in the land (COEA; Martin Commercial Fueling, 1997, BCCA).

If an earlier, unregistered interest is found to be bonafide and validly executed, it is entitled to priority over a later, registered interest. "Except as against the person making it" applies to both registerable and unregisterable interests: it does not matter whether the interest can not be registered. A judgment creditor cannot obtain any more rights than the judgment debtor (Yeulet v. Matthews, son gives mom equitable mortgage, 1982, BCSC).

Fee TailHistorically, the doctrine of fee tail limited those who could inherit your property to your lineal (blood) descendants. Fee tails are abolished by PLA, s.10. If you don't specify express "words of limitation", the default transfer is a fee simple.

The Rule in Shelley’s Case [not examinable]The Rule in Shelley’s Case DOES NOT apply in BC. The Rule holds that "to A for life, remainder to A's heirs" grants A the fee simple, with "to A's heirs" as words of limitation (Shelley’s Case (1579-1581) K.B.)

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The Fee Simple: the longest possible estate

The General Principle Fee: An interest capable of inheritance Simple: Unlimited range of heirs allowed. Not limited to relatives. Heirs: Not limited to relatives unless specified. Heir is anyone who receives land by act of testator/will/statute

[intestacy]. Crown is ultimate landlord: Allodial ownership not allowed in common law system, so all land is held in fee simple

to the Crown Result of Fee Simple: Interest continues after death of original holder No "Heir": Interest escheats back to Crown - therefore, it isn't "forever". Title: Generally, the fee simple owner holds only the rights to the land surface.

Creation of Fee Simples

Common Law ("I leave Blackacre to B and his heirs) Both "words of purchase" and "words of limitation" were required to create a fee simple - otherwise, only a life estate

would be created [note statutory modifications] Magic Words: "To A and his/her heirs" Words of Purchase/Substitution ("To A"): Recipient of interest Words of Limitation ("his or her heirs"): Duration of interest granted. DOES NOT confer any interest on the heirs.

Creates a fee simple by creating an inheritable interest, and specifying that A will be the owner as long as A has heirs to whom the land can pass [no longer required by PLA, s.19]

Statutory modifications ("I leave Blackacre to B") PLA, s.19 (Words of Transfer) - it is now sufficient to use the words "in fee simple" instead of "and his heirs". LTA, s.186(4) - a freehold estate transfer for valuable consideration which uses Form A will transfer the fee simple.

No need to include express words of transfer. LTA, s186(5) - Assumed that fee simple is the default transfer, unless express words of limitation are used. LTA, s.186(6) - express words of limitation may be used on the Form A to limit the estate [i.e. to a life estate] Wills Act, s.24 - if property is given without express words of transfer, the transfer is assumed to transfer the fee

simple interest

Doctrine of Lapse – You must be alive to take a gift. If a specific gift lapses [that is, the giftee is not alive to claim gift], it goes into the residue. If the residue lapses, the gift goes intestate. Statutes may lessen harshness of the lapse rule by holding that certain individuals can receive an interest if the heir has died before the gift can pass (i.e. children, spouses).

While words of limitation are no longer necessary to convey fee simple ownership, their inclusion should not be ignored. A will should always be interpreted first on the words used - if words are clear, subsequent circumstances cannot alter their meaning (Tottrup, brother leaves estate to twin who predeceases him, 1969, SCC). The courts in Canada today will probably look at the surrounding circumstances to construe a will, as we have a strong presumption against intestacy.

Interpreting Repugnant ClausesRepugnancy: Inconsistency, opposition or contrarity between two or more clauses of the same document. Occurs where the grantor makes an outright gift of the fee simple interest, but attaches a condition ("gift over") that is inconsistent with outright passing. Restraint conditions are void because they are repugnant to the character of the estate (Cielein, deceased leaves estate to CL partner, then to 5 kids, 1987, BCCA). The intention may be clear, but will fail because it is repugnant to the first gift. Court will give effect to the dominant testamentary intention, and reject the subordinate intention as being repugnant (Re Walker, husband grants repugnant fee simple gift to wife, 1925, OntCA)

Repugnancy can apply to both real and personal property. Repugnancy cases are usually driven by the facts, and not necessarily by the strict rules. Court must decide (1) whether grantee receives outright ownership or something less and (2) who receives the remainder (if any).

4 possible solutions to a repugnancy:1) Outright Interest – Grantee gets the full fee simple ownership2) Life Estate with the Power to Encroach - Grantee gets life estate with general or specific power to encroach on the

estate during their lifetime; remainder to pass to someone else after grantee's death. Generally, trustee makes decisions regarding encroachment, so beneficiary cannot usually encroach to the point of depleting the gift.

3) Modified Life Estate

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4) Life estate – Grantee get a life estate with no power to encroach; remainder to pass to someone else after grantee's death

Registration of Fee Simples: Form A (application is the same as the instrument)

While the Torrens land registration exists, no one is required to register their interest in land. Lack of registration does not automatically meant that the title is not valid (s.23: except as against the person making it), although the titleholder does lose out on benefits and certainty associated with registration.

Exception: Crown Grants must be registered in the LTO (Land Act, s.54).

Practical Note: Typos and other mistakes will prevent indefeasible title form being registered. But you can file a statutory declaration swearing that the mistaken word is equivalent to the correct word.

Registration of title in fee simple for the first time (LTA, s.169). Upon receipt of Form A, Registrar must register your title once they are satisfied that the boundaries are sufficiently

described (s.169(1)(a)) and there is good safeholding and marketable title in fee simple (s.169(1)(b)). Upon registration, indefeasible title is created (s.23): the fact of registration creates indefeasible title.

Sufficient Description: established by land surveys

Transfers of fee simple interests (LTA, s.187). Registration of Form A automatically creates indefeasible title Transferor must legally hold title

o Officer signing Form A certifies that signing transferor legally holds title (s.43). Transferee pays taxes: Transferee must file property tax forms and pay property tax even before Form A can be

registered (even if the transfer is a gift) Transferor need not be alive at registration: As long as the transferor has signed Form A before their death, the

transfer is valid

Transmission (LTA, s.263-268): any method of transfer other than from RO (triggered by event)When registered owner dies, the PR (executor/administrator) must initiate court proceedings to receive a Grant of Letters Probate or a Grant of Letters Administration (GLP/GLA)

GLP/GLA: A court order which puts the PR in a position of authority (above and beyond the authority given in the will). Must be filed in the LTO which transfers the legal interest in the testator's estate from the testator to the PR (LTA, s.264; Form 17). The will/GLP/GLA become public documents on file in the LTO

PR uses Form A to dispose of land according to the will (s.187 transfer process) PR is beneficiary: PR uses Form A to transfer land from themselves as the PR to themselves as the beneficiary (2

legal hats). Chain of Executorships: If A's executor dies before transferring the land as per the will, the executor's executor

becomes A's executor. Death of Joint Tenants: The right of survivorship holds that when a joint tenant dies, their interest passes to the

surviving joint tenant(s) in the form of a transmission.

The General Principle of Indefeasibility Common Law Rule: A forged transfer document was null and void, even if the "purchaser" was a BFPFVWON. The same situation is true under a Recording System.

The Curtain Principle (Torrens & s.23(2)Indefeasibility): The Torrens system provides security for purchasers against the effect of forged documents, based on the principle of immediate indefeasibility. The fact of registration is conclusive proof of indefeasibility. The "curtain is lowered on previous transactions" and the BFPFVWON receives immediate indefeasible title (Frazer, wife forges transfer to BFP mortgagee; s.25.1(1)-(3)). The registered owner is thus safe from any previous defects in the title. A certificate, while unaltered or unchallenged by the Registrar, is one which every purchaser is bound to accept. To allow an investigation into whether a person has the right to appear on the register would defeat the purpose of the LTA (Creelman v. HBC, HBC has good title because of registration, 1920, PC).

Effect of s.25.1: A rogue who obtains land via their own forgery acquires no interest upon registration (codifies the common law rule). A BFPFVWON who receives a fee simple interest via a forged (registered or unregistered) instrument will acquire immediate indefeasible title upon registration. Strengthens s.23 and asserts pure Torrens rule of immediate indefeasibility (cancels out any effect Gibbs might have in BC on fee simple interests). Only applies to fee simple interests - does not apply to gifts of land acquired under a forged instrument (since there is no value/consideration transferred in a gift).

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Mirror Principle (Quasi-Torrens): The exceptions noted in s.23 modify the pure Torrens System by allowing some interests which do not appear on the title to challenge indefeasibility. Other exceptions include s.29 unregistered interests, in personam claims, caveats/CPLs, and interference with title by reason of court order (s.23(2) & s.34).

Insurance Principle: The Assurance Fund compensates those who have lost their land through forgery/mistake as a result of the conclusiveness of the register. Under a pure Torrens system, the public (via the LTO and the AF) bear the risk of forgery, rather than the registered owner.

Example: A forges a transfer of B's title to C (a BFPFVWON) Common law: C loses out as the AC transfer was null and void. If C tries to mortgage his "interest", the

mortgagee loses out due to nemo dat (C can't pass on an interest that he doesn't actually hold). Torrens: C is protected due to immediate indefeasibility (s.25.1). B loses his land but can claim against the

Assurance Fund.

Practical Note: s.23 is central to the conveyancing done by lawyers: is your client getting the interest they think they're getting? Are there any restrictions/encumbrances on the land?

1) Dealings in land involve more than the horizontal plane. 2) Dealings in land involve a description/plan3) A title search is required before commencing any real estate transaction4) The title is never ultimately conclusive (s.23 exceptions)5) The title may change over time [title searches are time-sensitive]6) Not all charges & interests will affect your client/purchaser: but discuss them all7) Section 23 lists all the exceptions that your client must worry about

Deferred Indefeasibility versus Immediate Indefeasibility Previously, the law on indefeasibility was unclear in BC: Gibbs (bad lawyer forges transfer to fictitious person then transfers mortgage to BFP, 1891, PC Aus) imposed deferred indefeasibility while Fraser imposed immediate indefeasibility. Deferred Indefeasibility left the 1st BFP unprotected, but protects every subsequent BFP. The curtain therefore fell one step removed from the fraud. Gibbs stood for the proposition that the courts will not be bound by the literal meaning of the statute.

Gibbs appears to be confined to its facts because it includes a fictitious person (Cameron). Gibbs has never been distinguished in BC on the grounds of the fictitious person. Deferred indefeasibility was supported in BC by s.297(3) which held that a person taking under a void instrument

was not a purchaser and therefore acquired no interest upon registration BUT s.297(3) has been repealed in BC, so this argument no longer flies. A BFPFVWON taking under a void

instrument therefore does acquire an interest upon registration. Gibbs no longer applies in BC as a result of s.25.1(2)-(3) which imposes immediate indefeasibility for fee simples

Statutory exceptions to Indefeasibility (s.23(2)(a)-(j)): may or may not appear on titleThe Torrens-derived right to indefeasibility and the mirror principle is subject to the following exceptions [any of these events could cause your indefeasible title to be revoked]:

1. Exceptions in Original Crown Grant (s.23(2)(a)): see Land Act, s.50 for a list of exceptions to indefeasibility related to Crown Grant. LA, s.50(5) allows exceptions to be reserved, even if not expressly listed on title.

2. Federal or provincial taxes, rates or assessments imposed at date of, or after registration (s.23(2)(b)): i.e. WCB can file a lien on the property of employers who don't pay WCB fees. Don't appear on title.

3. Municipal charges, rates or assessments imposed at date of, or after registration (s.23(2)(c): Don't appear on title.

4. Leases (or agreements for lease) for term not exceeding 3 years if there is actual occupation (s.23(2)(d): Note that s.29(2)(d) protects unregistered leases under 3 years. This is an exception to the general s.29 provision which allows persons dealing in land to ignore unregistered interests (but see notes on notice-plus)

5. Highways or other public rights of way, watercourses, rights of water or other public easements do not pass with the indefeasible title (s.23(2)(e)): Some of these exceptions are protected within the common law, but others are protected by statutes (i.e. the Highway Act)

6. Right of Expropriation / Escheat (s.23(2)(f)): Your indefeasible title is subject to any right of escheat or expropriation which may exist. May not appear on title.

7. Caveats, charges, liens, judgments, etc that are noted on the title either at, or after the date of registration (s.23(2)(g)): for example, ALR land or a builder's lien (Carr v. Rayward) may cause your indefeasible title to be revoked.

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8. Wrong description of boundaries (s.23(2)(h)): Title isn't conclusive evidence that boundaries are correct. If someone shows that the boundaries are wrong, you can lose part of your land. Lawyers do not have a duty to confirm boundaries of land parcel (Winrob v. Street).

9. Right of a person to show fraud (including forgery) (s.23(2)(i)): if you obtained your land via fraud, you can have your indefeasible title taken away

10. Forest Act - imposed tenures or agreements regarding use of forest land (s.23(2)(j)): these tenures will be endorsed on the title.

Fraud / Forgery: s.23(2)(i): An exception to indefeasibilityYour indefeasible title can be cancelled if the registered owner has committed or participated in fraud (including forgery) to any degree (s.23(2)(i)).

Caselaw definition of Fraud: A false representation of a matter of fact, by words or by conduct by false or misleading allegations, or by concealing that which should have been disclosed. It is intended to deceive, or does deceive, another person who acts on it to her legal detriment. A dishonest dealing leading to a deprivation, that is, the loss of an interest in land or of a priority. Deceit, dishonesty or lying. Evidence of fraud:

You must PROVE that fraud has occurred, based on the caselaw definition Simply relying on your legal rights fraud Fraud in s.23(2)(i) and s.25(2)(c) is Actual Fraud, not constructive fraud (Greveling, Mrs. G and her lawyer screw

over Mr. G, 1950, BCCA; Frazer) Generally, the knowledge of the lawyer is imputed to be the knowledge of the client: "knowledge can be brought him

by him or his agents" (Greveling)Practically Speaking, fraud tends to be rare in BC due to LTA, s.43 which requires that signing officers certify that the signing transferor is the same as the registered owner.

Section 29: Notice of Unregistered Interests

Common law rule re: notice of unregistered interestsEquitable doctrine of notice: A person with knowledge of a prior equitable interest takes subject to that interest. Determined according to (1) meaning of notice and (2) consequences of notice. Notice was important at CL because it established priorities b/t dif. interests in same property. At common law, "notice" was divided into 2 categories:

1) Actual Notice: Explicit knowledge of a fact, or set of circumstances2) Constructive Notice: implied by the courts in the following circumstances:

a. Notice to an agent is notice to the principal (i.e. lawyer). b. Recklessness: Person is aware of circumstances which would lead to actual notice, if they chose to make

inquiries [i.e. A sees B renting building, but fails to inquire if there is an unregistered lease]c. Wilful blindness - Person has ability to make enquiries, but deliberately decides not to inquire

Example: A purchases land from B. A has notice that C has an unregistered interest in the land. At common law, A cannot acquire an interest in land, as A is "tainted" by the notice of C's interest. Torrens, Notice of Unregistered Interests & Fraud (Fraud = Notice)Mirror Principle: s.29 cancels out equitable doctrine of notice by holding that persons dealing in land are not affected by (express or implied) notice of unregistered interests, with the following exceptions [unregistered interests which still affect a purchaser]:

(a) interests pending registration (s.29(2)(c))(b) leases not exceeding 3 years (s.29(2)(d))(c) adverse possession against the 1st indefeasible title (s.29(2)(e))(d) where the person dealing in land has participated in fraud (s.29(2))

In the absence of fraud, s.29 protects a purchaser without express knowledge against unregistered interests. A later registered deed will therefore take priority over an unregistered interest (HBC v. Kearns, RO has no notice of unregistered equitable mortgage and takes free).BUT NOTICE may = FRAUD: Don't rely on literal meaning of s.29(2) as the courts have equated fraud with notice.

s.29 test for deciding whether notice = fraud : (a balancing test)1) Time of the notice : Notice before CPS is bad.

a. Before signing CPS: no equitable interest yet; no binding obligationb. After CPS/ Before Completion: Registration hasn't occurred; legal interest not yet transferredc. Before Final Registration: During the gap b/t pending & final registration

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2) Actual Notice or Constructive Notice ? Actual notice is bad 3) Notice or Notice-Plus : Additional acts are bad.

Exception to s.29: A purchaser with actual notice who does any act for the direct purposes of bringing himself under s.29 ("as distinguished from any ordinary course of business") and then attempts to "prejudice" (read: screw) the holder of the unregistered interest must be held to be guilty of actual fraud and will be estopped from invoking the protection of s.29 (HBC v. Kearns).

When will s.29 protection OCCUR?1) Purchaser has notice of an unregistered interest after completion (CPS), but before registration (Central Station,

notice after CPS).2) Purchaser simply relies on s.29 rights without any additional actions to deny unregistered interest-holder (Saville

Row, notice of unregistered option after CPS) When will s.29 protection be DENIED?

1) Purchaser is guilty of conduct equivalent to actual fraud (Greveling; Ghikas)2) Purchaser has notice of unregistered interest before entering into binding contract (Central Station; Woodwest, RO

buys land with notice of unregistered leases and tries to evict, 1982, BCSC)3) Purchaser has express notice of unregistered interest (Central Station; Ghikas)4) Purchaser has Notice-Plus and receives benefits from the unregistered interest (Me-and-Ed's, collects rent from

unregistered tenants)Practice Note: Assume that a purchaser will be caught by the unregistered interest, and have it written into the contract. Advise clients not to take the risk of relying on s.29.

"In Personam" ClaimsIn Rem Claim: Rights against the land. Such claims will return the land to the plaintiff.

In Personam Claim: Rights against an individual person. Such claims will give the plaintiff monetary damages, but not the land.

Mortgages contain both in personam and in rem rights (Pacific Savings) Trust claims contain equitable in personam rights (McRae, trust notation missing, 1994, BCCA). Failure to include

trust notation on title does not defeat the trust if the person taking the land under trust has notice of the trust

Registration [immediate indefeasibility] cannot be used to defeat in personam claims, but registration can be used to defeat in rem claims (Frazer v. Walker). The registered owner cannot rely on the indefeasibility of title which he or she has obtained to defeat rights in personam which he or she has created, or subject to which the interest has been taken, if the right is one the courts will enforce (Pacific Savings; in personam claim not extinguished by registration, 1982, BCCA) Example: B, a bank, forecloses on A's land. B is now the registered owner of A's land. A launches an in personam claim (that is, a lawsuit) against B to get his land back. Because B is not a BFPFVWON, B's registration does not grant indefeasible title, and therefore, A's in personam claim is not extinguished by registration. However, if B then sells the land to C, a BFP, A can't launch an in personam claim against C because their claim is extinguished by C's registration and consequent indefeasible title.

The Life Estate: duration limited to life of a person

The General Principle Freehold estate which differs from a fee simple Uninheritable by the heirs of the life estate holder , unless the grantor expressly allows it. If no heirs, escheats to the

Crown. Duration is limited to the lifetime of the holder ("To A for life, then to B"), or pur autre vie (To A for the life of X, then to

B)". When life ends, interest ends. 2 parties: Registered Owner and Life Tenant. Fee simple divided into life estate & remainder. On death of life

tenant, full interest reverts to the remainder (RO)

Creation of Life EstatesBy the act of somebody (voluntary act)

Inter vivos transfer (Form A): must specify that a life estate is being created, otherwise default fee simple will result (PLA, s.19(1)-(2))

Will: must specify that a life estate is being granted, otherwise default fee simple transfer will result (Wills Act)

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By Operation of Law (involuntary act) Common Law: Dower and Curtesy provided widows and widowers a life estate in their deceased partner's realty,

notwithstanding that they were not on title. Abolished by EAA, s.95 in BC, but valid in some Canadian jurisdictions. Statute

o Estate Administration Act, s.96 - If spouse dies intestate and surviving spouse is not on title, they will get a life estate in the matrimonial home and household furnishings (with no power to encroach). Applies only to spouses, not children.

o Land (Spouse Protection) Act, s.4 - Allows untitled spouse to file an entry on the homestead title, which prevents disposition of the property w/o their consent. If titleholder dies, PR must hold estate in trust for other spouse.

o Wills Variation Act - Allows spouses (broad) and children (narrow) to bring forward an action to set aside a will. Resolution can include life estates.

Common Law Rights & Obligations of a Life Estate (can be increased contractually)

Rights of the Life Tenant1) Occupation, Use & Profits

Generally, life tenant is in the same position as the registered owner LT gets actual possession and management of land This includes the right to crops [i.e. profits from the land]

2) Fixtures LT has right to remove the fixtures during their lifetime

3) Transfer Inter Vivos LT can sell a life estate, but it is still limited by the duration specified by the grantor: LT cannot give more than

they have [i.e. A is a life tenant. A sells to B, but B's estate ends upon A's life]4) Transfer on Death

Estates pur autre vie can be transferred by will if the life in question is still alive Example: X has a life estate for the life of Y. X leaves the estate to Z. Z now has a life estate for the life of Y.

Obligations of the Life TenantReturn in Same Condition: The Life Tenant’s obligations are based on the principle that the property should return to the fee simple owner in substantially the same condition as it was received by the life tenant.

1) Waste Permissive Waste (Not responsible): Passive conduct (omission or neglect) which permits decay. Voluntary Waste (Responsible): Acts which diminish the value of the property (i.e. removing timber or minerals;

demolition). Note that express words "without impeachment for waste" permit LT to commit voluntary waste. Equitable Waste (Responsible): Severe and malicious destruction, Law & Equity Act, s.11. Hard to distinguish

from voluntary waste. Ameliorating Waste (Not Responsible unless-burden-created): Changes to the character of the property which

improve its value. LT is only responsible for ameliorating waste if the change increases the burden on the remainder. 2) Other LT Obligations

Pay all taxes : this entitles LT to homeowner grant. Life tenant cannot use tax sale to subvert life estate (Mayo v. Leitowski; life tenant tries to buy property at tax sale, 1928, ManKB)

Pay current interest on mortgage debt : Not responsible for principal, but if LT makes full payment on mortgage, they may be able to claim against RO for repayment

The Life Tenant is NOT obligated to: Insure the property against losses - the RO is responsible for insuring against losses on the estate No duty to repair the estate (as LT is not responsible for permissive waste)

Co-Ownership: General Principles & Rights and Obligations of Co-Owners

General PrincipleCo-ownership exists when you have two or more people [or corporations] with concurrent rights to possession of real or personal property.

Multiple owners > same interest > same land > same time

Only two forms of co-ownership exist today: (1) Tenancy in Common and (2) Joint Tenancy. Both forms share the same unity of possession. The distinguishing feature is that the joint tenancy has the right of survivorship.

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Common law rules may be increased contractually: expenses / income / rent / improvements / possession of the whole.

Registration of Title for Co-OwnersLTA, s.173 requires that the title reflect the nature of the co-ownership (either JT or TIC). The default setting is "tenancy-in-common". LTA, s.177 requires that the title specifically indicate "joint tenants" in order to create a joint tenancy.

Relations between Co-Owners

Common Law Rule Share of Profits : Co-owners need not account ("share") to other co-owners for benefits derived from possession. A

co-owner who remains on the land can reap the benefits of the land, assuming that they haven't ousted the other co-owner (Spelman, wife-sues-husband-for-rent, 1944, BCCA)

Share of Expenses : The remaining co-owner has no right to request that other co-owner contribute to expenses, unless the remaining co-owner is willing to pay rent for his possession (Spelman)

Rent : An absent co-owner has no right to claim rent from the remaining owner except (Bernard; Wife must pay rent in exchange for mortgage reimbursement, 1987, BCSC)

(1) Where ousted (Mastron)(2) When one co-owner is acting as a bailiff(3) In a partition action, where the occupying owner claims for expenses (i.e. mortgage

interest/taxes/ insurance/repairs/improvements) (Bernard)

Equity Rule Co-owners did not have to account to other co-owners for benefits reaped from the land When a joint tenancy is terminated by a court order for partition or sale, the Court may make all just allowance for

equity between the parties (Mastron)

Statutory Attempts Statute of Anne (1705): Co-owners must account to other co-owners for benefits reaped from the land. Imported to

BC at reception. EAA, s.71(1) - One co-owner may bring an action against another co-owner for receiving more than their "just share

or proportion". But statute only allows for a court order, not a lien. Benefits from 3rd parties (i.e. rent) must be accounted for b/t co-owners. Work performed solely by one co-owner need not be accounted for.

PLA, s.13-14 affirms common law rule that an absent co-owner is not liable for expenses unless the remaining co-owner will also pay for rent.

Co-owner who must pay required expenses (i.e. taxes) can get a court order requiring the other co-owner to pay up - in these cases, the angry co-owner can get a lien placed on the defaulting co-owner's interest.

Summary If no ouster, then the person in possession need not account. If the person in possession is claiming expenses, then they must pay occupation rent. If there has been ouster, then the person in possession must pay occupation rent. There is a distinction between pure rent and blended rent.

Tenancy in Common Unity of Possession: Two or more persons are simultaneously entitled to possession of the undivided property

because of the fee simple interest they hold. Each owner holds 1/2 interest in the undivided whole Unity of interest is not necessary for TIC (TICs can have different % shares) No Right of Survivorship: TICs can dispose of their interest freely inter vivos or by will/intestacy. No Consent Required: No consent of co-owners required to dispose of interests Creation: Created upon registration of 2 or more owners on the same title (LTA, s.173)

Joint TenancyGeneral Characteristics

4 Unities Required: unity of possession > time > title > interest Right of Survivorship: JTs can dispose of interest inter vivos freely, but cannot dispose of interest upon death as

the right of survivorship holds that the surviving JTs will inherit the deceased JT's interest. In/testacy rules and statutes have no impact on right of survivorship. Applies to both real & personal property.

No Consent Required: No consent of co-owners required if JT wishes to dispose of interest, or sever joint tenancy. Intention Alone is Insufficient: While intention is necessary to create JT, intention alone is insufficient if one of the

4 unities is missing.

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Joint Tenants Can Screw Each Other: As land is freely alienable, no consent of the co-owners is required to dispose of a joint tenant's interests, or to sever the joint tenancy. A joint tenancy does not affect the co-owner's ability to freely alienate their interest in land, though this ability can be restricted by contract/trust.

Joint Tenancy & Personal Property: Conceptually, the 4 unities can work with personal property. But the concept of unity of possession is problematic with "intangibles" like money - what if there's no more money in the bank account? Also, most financial institutions require the consent of each joint tenant to sever a joint bank account.

The Four Unities1) Unity of Title : All co-owners must acquire their interests from the same instrument (i.e. same Form A or same will).

If one JT transfers their interest, the JT is severed since the operative instrument is no longer the same. 2) Unity of Interest : All co-owners must have equal interests in the property. Interests must be of the same quality

(both legal/equitable, or both). If one JT mortgages their interest, the JT is severed since the legal interest has changed. Owners can be joint tenants in the legal interest, but tenants-in-common in the equitable interest.

3) Unity of Time : All co-owners must receive interests at same point in time (usually through a single Form A).4) Unity of Possession : Co-owners are entitled to undivided possession of the whole property

Creation of Joint Tenancies

Creation at Common Law The common law favours creation of a joint tenancy. In the absence of any words to indicate otherwise, it was assumed that a joint tenancy was created (Re Bancroft, will doesn't specify TIC or JT, 1936, NSSC). But the slightest hint towards intention to divide will create a tenancy-in-common (Re Bancroft). Re Bancroft no longer applies in BC because of PLA, s.11 which holds that a tenancy-in-common is the default position for fee simples unless the transfer specifies otherwise.

At common law, where real or personal property is granted to two or more people with no words of severance, the presumption is a joint tenancy (Robb; condo lease doesn't specify TIC or JT, 1993, BCSC).

Creation at EquityThough the common law rule that without words to the contrary, a joint tenancy is assumed, the Courts of Equity favoured tenancies in common by interpreting the documents broadly.

The Courts of Equity would presume that a TIC arose in 3 categories (Robb):1) Where the parties contributed purchase money for property in unequal shares [can be rebutted by

evidence of contribution]2) Where property was a mortgage & the co-owners were mortgagees3) Where parties were business partners.

Statutory Creation of Joint TenancyPLA, s.11: Where land is transferred to 2 or more persons, the default position is a tenancy-in-common (unless the instrument explicitly creates a joint tenancy). PLA does not apply to personal property, which follows common law rules.

Problems: Unregistered property interests which don't fall under the provisions of the PLA may cause problems in deciding the nature of co-ownership.

Companies Act, s. 32: A limited liability company can hold property with another (company or individual) as a joint tenant. Dissolution of the company death of company - therefore, the right of survivorship can only move from the individual to the company.

Termination of Co-ownership

3 Ways to Sever a Joint Tenancy (Williams v. Hensman (1861))1) Common intention of the parties : Both parties agree to sever JT and do some act2) Destruction of one of the unities : Usually by alienation of land by one party

a. With or without consent: Unilateral alienationb. Bankruptcy : bankruptcy of 1 JT will sever the joint tenancy

i. Note that registration of a judgment against the co-owner does not sever the joint tenancy. c. Order through partition and sale

3) Course of dealing which prevents one party from asserting that there was no agreement to sever

Granting a mortgage will sever the joint tenancyIn BC, a mortgage granted by one joint tenant will sever a joint tenancy as it passes the legal interest to the mortgagee (LTA, s.231(2)(1)), thus destroying the unity of title (North Vancouver v. Carlisle, 1922, BCCA). But if both joint tenants obtain the

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same mortgage, the joint tenancy remains intact. The Australian rule in Lyons (mortgage severed JT, 1967, AusSC) does not apply in BC.

Transfers to yourself will sever the joint tenancyPLA, s.18(1) - a person may transfer land to himself in the same manner as a transfer to another person. This applies to joint tenants as well. A transfer by a joint tenant to himself of his interest in land, whether in fee simple or by a charge, has the same effect as severing the joint tenancy (s.18(3)). Screw your fellow joint tenant: Transfer Blackacre to yourself via a Form A, then leave Form A unregistered. When you die, your heir can screw your co-owner by revealing Form A, thus severing the joint tenancy and your co-owner's right of survivorship.

Trust Deeds sever Joint TenancyTrust deeds which contains a declaration of severance, and provides that the interest is to be held in trust for another to be registered on the joint tenant’s death will sever joint tenancy (Sorenson).

Course of Dealing will sever Joint TenancyIf the acts and dealings of the parties in respect to a joint tenancy indicate an intention to treat it as a tenancy-in-common, then the court will infer an agreement to sever the joint tenancy (Flannigan v. Wotherspoon; brothers' JT severed by agreement for sale, 1953, BCSC). Estoppel might sever a joint tenancy, if you can show "facts which preclude one of the parties from asserting that there was no agreement" (Kish v. Tompkins Estate).

Intention alone is insufficient to sever a joint tenancyIntention alone is insufficient to sever a joint tenancy. Actual act of severance must occur (common intention > destruction of unities > course of dealing). Onus to demonstrate severance lies on those who so contend (Sorenson v. Sorenson; wife tries to sever JT for disabled son, 1977, SCC). While silence alone will not constitute severance, when considered in light of the surrounding circumstances, it can constitute severance (Flannigan v. Wotherspoon).

A unilateral declaration of intent does not result in severance, regardless of whether notice is given. A positive unilateral act which destroys one of the unities is required to sever (Walker v. Dubord; dying wife tries to sever JT to benefit sister and not husband, 1992, BCCA). A joint tenancy is not severed by (Sorenson):

A settlement agreement which agrees to the division of title, and provides for a lease for the lifetime of one of the joint tenants (but what about a lease not linked to the lifetime of one of the joint tenants?).

The commencement of an action for partition of lands that is not completed. The execution of a will.

Murderous partners can claim right of survivorship - sort ofExample: George murders wife Mary. George then applies for the remaining interest in matrimonial home which was held in joint tenancy with Mary. Registrar can refuse to register the application as there is no good, safeholding and marketable title. Courts can refuse to enforce application, so that George does not benefit from his illegal act. But the right of survivorship is automatic - once Mary dies, George automatically receives her remaining interest (whether it gets registered or not). The court will likely give George the full legal interest in the estate, but reserve 1/2 interest to be held for Mary's estate in a constructive trust. Partition and SalePartition: Dividing of lands held by co-owners into distinct portions so that individual co-owners each have exclusive possession of one part of the whole land. Effectively subdivides the land.

Common LawNo right to enforce partition or sale

Statutory ModificationsPartition of Property Act allows co-owners to apply for a court order which will sell the land and divide the proceeds (sale) or divide the land into multiple parts (partition) for 2 reasons:

1) No Consent: One co-owner wants to sell and can't get the co-operation of the other co-owner [because co-owners can prevent each other from alienating their interests]

2) Exclusive Possession: One co-owner wants exclusive possession of the property, but still maintain their interest

PPA, s.2 - only joint tenants, TIC, mortgagees, creditors, and all other parties interested in the land may use the Act to partition/sell land

s.3 - you can claim sale, partition or both s.6 - if majority of co-owners agree to sale, court must order a sale

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s.7 - otherwise, court has discretion to order a sale (court can refuse) s.8 - in distributing proceeds of sale, court can consider surrounding circumstances to adjudicate claims [i.e. co-

owner's non-financial contributions] s.17 - partition may amount to subdivision, but in order to get partition, you must comply with LTA and municipal

requirements for subdivision No automatic right on a sale that the proceeds will be distributed according to the title shares (i.e. if A & B both have

a 1/2 interest, it's not guaranteed that the proceeds will be split 50/50) (Aleksich, partition ordered where one partner didn't contribute $$, 1995, BCCA)

There is a prima facie right of a joint tenant to get a partition or sale of lands, and the court will compel such a partition for sale unless justice requires that such an order not be made (i.e. age of parties, intent behind acquisition, number of co-owners, etc) (Harmeling; wife seeks to evict 70 year old husband, 1978, BCCA)

Registration of Charges

Charge: An estate or interest in land which is less than fee simple (s.1) [i.e. leases, caveats, CPLs, etc] which can also include undersurface rights (s.179) and encumbrances (s.1)

Encumbrances (s.1) can include voluntary (mortgages/easements) & involuntary (liens/judgments/caveats/CPLs) claims against land. Encumbrances can also be registered against Nisga'a lands in the LTO: this is an exception to the rule that charges related to aboriginal title lands cannot be registered.

Registering a Charge (s.197-209)When registering a charge, the application is generally separate from the instrument.

Judgment: An application (Form 17) and the instrument (the court order). Mortgage: Form B is both the application and the instrument

On being satisfied that the applicant is entitled to be registered as the charge owner, the Registrar must register the charge by entering it into the register (s.197(1)). However, the Registrar can refuse to register the charge if:

There is no good, safe-holding and marketable title (s.197(2)(a)) The charge claimed is not an registerable interest in land under the LTA (s.197(2)(b))

Trusts are also registerable as charges (LTA, s.180(1-(4)).Trustee's name appears on title, but particulars of the trust must not be entered on the title (s.180(1)-(2)) so as to keep the Register clean. Will is generally deposited in the LTO and can be accessed by the public. Interests affecting the land cannot be registered if prohibited under the trust document or will (s.180(7)). A trust that creates an easement which is then registered in accordance with the LTA will survive a tax sale, despite the easement being registered as a trust and not as a charge (Dukart v. Surrey; bathroom on foreshore, 1978, SCC)

Indefeasibility of a ChargeNo immediate indefeasibility for charges: s.26(1) holds that the registered owner of a charge is "deemed to be entitled" to the estate which the charge applies to, subject to the s.23(2) exceptions.

Creates a rebuttable presumption which can be rebutted by verifying the "state of accounts" as required by s.27(3) (Credit Foncier, forged mortgage registered against unknowing RO then assigned to BFP, 1963, BCCA)

LTA, s.26(2) - the mere fact of registration says nothing about the charge's validity: just because you're on the register doesn't mean it's enforceable

LTA, s.27(1) - registration of a charge in effect gives notice to the world of your claim from the date/time that the application is received by the Registrar.

LTA, s28 - priority of charges is determined by the date/time of registration, "subject to a contrary intention" [circumstances that show that a later-registered charge should take priority over an earlier charge]. Registration signing date.

A 3rd party BFPFVWON who acquires an interest from the registered owner is not affected by a fraudulent discharge of another interest [as they do not take directly from the fraudulent interest]. A mortgagee must be able to rely on the Land Title System (Canadian Commercial Bank, BFP receives valid interest from RO and gains priority over fraudulently discharged mortgage, 1988, BCCA)

Incorporeal Interests (right to use, but no exclusive possession)Personal rights (i.e. contractual agreements) must have privity - subsequent parties cannot be bound to the contract. But proprietary rights will run with the land, and will bind subsequent parties who were not parties to the original agreement.

Certain interests in land give a right to possession: leases // life estates // fee simples Other interests in land give no right to possession: mortgages // judgments // easements // covenants

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Incorporeal interests: An interest in land which exists with respect to the land of another, which does not give the right of possession. Historically called incorporeal heriditaments (a property right that was capable of being inherited). 2 categories of incorporeal interests:

Easements: The right by one landowner to use land of another for a specific purpose Covenants: A promise given which controls the use of the land, but does not involve physical access to the land.

Licenses (not an interest in land)

Example: A and B own adjoining lots which abut a road. A and B reach an agreement which allows B to park his RV on part of A's land. A wants to remain the fee simple owner of his lot

Lease: B receives the right of exclusive possession and can exclude A License or easement: B has the right to use A's land, but cannot exclude A

Main Difference between licenses & easements: Licenses are not an interest in land, therefore, licenses cannot be registered under Torrens.

License: A right or privilege to enter upon and use another's land in a certain manner or for a specified service. A personal, non-proprietary right between the licensor (grantor) and the licensee. A license is not an interest in land. A license does not run with the land and may not be enforceable against subsequent purchasers. Examples include mining/timber licenses, hotels, amusement parks, events, skiing, etc.

Sample License: "Mere permission given by the occupier of land to the user to do something on the land which would otherwise be a trespass, but which does not confer the right of exclusion possession."

4 main categories of licenses: categories govern revocability and transferabilit y 1) Bare License

a. Not granted for valuable consideration: gratuitous permission to enter onto property of another.b. Not much more than a defence to trespass.c. Revocable at any time by licensor, and by death of licensor.d. May be granted by a fee simple holder, leaseholder, and life estate holder

2) License coupled with interest in land / chattels in landa. Allows you to go onto the land of another to remove something which you hold an interest inb. License is co-extensive with the interest: it has the same legal character as the interest in landc. Irrevocable, assignable and enforceable against subsequent purchasers: passes along with your specific

interest in the land3) Contractual License (Davidson v. Toronto Blue Jays, implied terms of license)

a. Granted for valuable consideration.b. Rights of license are determined by terms of contract.c. Common law rule: revocable, but licensee must be given reasonable time to leaved. Equity Rule: contractual licensee has more rights - depending on the facts, court of equity might infer

revocability and enforceability against subsequent purchasers4) License by Estoppel:

a. Licensor is estopped from revoking license due to his conduct which has encouraged licensee to utilize the license.

b. Similar to proprietary estoppel

Incorporeal Interests: EasementsCommon Law: Easement attaches to the land so that it "runs with the land", independent of any land registration system. It is a proprietary right, and differs from the personal right accorded by a license. Torrens: Easement is registered under land registration system as a charge. Torrens helps easements [no need to provide notice, since easement appears on title], but registration is not conclusive evidence of enforceability (LTA, s.26(2)).

Common law characteristics of easements (Ellenborough Park, houses by park)

(1) There must be a dominant and a servient tenementEasements cannot exist "in gross" (modified by LTA, s.218). Only landowners can hold an easement (non-landowners must use licenses). The dominant tenement, servient tenement and easement area must be properly described.

(2) Easement must "accommodate" the dominant tenement

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An easement must be reasonably necessary for the better enjoyment of the dominant tenement: it must confer a benefit on the DT. This is fact-driven and dependant on the nature of the dominant tenement & the right granted

(3) Dominant and servient owners must be different persons Abolished in BC by PLA, s.18(5) which allows a fee simple owner to grant herself an easement. Common ownership and possession of the DT and ST does not extinguish an easement (PLA, s.18(7)). Note that you cannot mortgage your land to yourself.

(4) A right over land cannot amount to an easement unless it is capable of forming the subject-matter of a grant:

(a) Is the right conferred to wide and vague? Right conferred must be well-defined and commonly understood and distinct from jus spatiandi (right to enjoy land for purposes of recreation). However, an easement can benefit more than simply the dominant tenement in question (Dukart v. Surrey, bathroom-on-beach).

(b) Is it inconsistent with the proprietorship or possession of the servient owners?An easement does not grant exclusive possession of the servient tenement. Some degree of impairment is okay (Shelf Holdings v. Husky, pipeline-through-farm). Exclusivity of use is not necessarily fatal to an easmenet. The test is whether the right detracts so substantially from the ST's right to exclude: if so, then no easement. Easements can have a certain degree of exclusivity which is determined by the size of the easement area // size of DT & ST // purposes of easement, etc (Grant v. MacDonald, swimming pool battle)

(c) Is it a mere right of recreation without utility or benefit?

Other characteristics: An easement does not include the right to take from the land No Easements for the View/Weather: There is no protected right to a view, nor a protected right

from the weather (Phipps v. Pears, falling-neighbouring-house-causes-water-damage). Note: The more substantial the interference, the more likely that the use is NOT an easement. No Positive Obligation on ST: An easement cannot place a positive obligation on the servient

tenement - that is, the burdened landowner cannot be made to do something else in addition to granting the easement. However, an easement can cause the ST to suffer in that they are prevented from entering the easement area (Nordin, water-pipelines). But there can be a positive obligation on the dominant tenement.

Statutory Modifications of Easements PLA, s.18(5) - You can grant an easement to yourself. Abolishes common law rule requiring different DT and ST

owners. PLA, s.18(7) - Common ownership does not extinguish an easement PLA, s.36 - Encroachment easements are permitted by court order LTA, s.218 (Statutory Right-of-Way / RW) - Certain named persons can create an easement w/o having a DT, if

RW is for purpose linked to grantee's objective. Modifies common law rule which required both DT and ST.o Permitted organizations: Crown, municipal bodies, public utilities, groups designated by Minister of

Environment (to monitor environmentally sensitive lands)

Creation of Easements1) Express Grant

a. Contractual agreement that is negotiated, registered, and becomes binding on subsequent land owners. Includes statutory rights of way (s.218).

2) Grant to Self: The multi-property fee simple owner can grant easement to himself across one of his parcels of land3) Statute

a. Land Act, s.40 – allows Minister to grant right-of-way over Crown lando Highway Act - Minister of Highways may enter land to do various thingso PLA, s.34 – right to enter and repair when your properties are adjacent and too close together to permit

repair from your own property o PLA, s.35(1) - court may modify or cancel an easement w/o permission of registered owners/mortgagees

s.35(2) - criteria which must be met for court order s.35(3) - court can order compensation for modification s.35(6) - upon receipt of court order, Registrar must amend title accordingly

o LTA, s.181-182, 186 - deals with registration and rights of transfer of easements to subsequent landowners s.181 - Easement appears as charge on ST's title s.182(2) - Easement appears as endorsement on DT title

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s.186(2) - transfer of fee simple via Form A also transfer the benefit of the easement. Note that burden of easement also transfers with fee simple transfer as subsequent owner inherits all related charges

o LTA, s.223 – Easements can be created at time of subdivision s.223(1)(a) - if DT is subdivided, each new subdivided lot gets benefit of easement joined to ST. s.223(1)(b) - burden of easement is increased accordingly, even if ST has not consented to increase

Incorporeal Interests: Profits à PrendreCommon law concept rarely seen in BC. A right vested in one party to enter the land of another and remove a profit from the soil. Comprised of (1) the right to the profits and (2) the surface rights necessary for the enjoyment of those profits. May exist in gross: profit-taker does not need to be a landowner. May be granted by the Crown, fee simple owner, profit-owner, etc. The profit-holder's rights to the profit claims can be severed, which allows the profit-taker to remove those profits. An incorporeal interest which is not revocable on the same basis as a contractual license. Similar to a license coupled with an interest in land, but in this case, the profit-taker holds no interest in the profit itself.

Covenants

Covenant: A enforceable contract between landowners which creates a proprietary interest and runs with the land. PLA, s.16(1) abolishes traditional requirement for sealed covenants. Widely used in (1) subdivision and (2) commercial developments. Essentially a private law method of zoning (remember that public zoning bylaws will not appear on the title, except with ALR restrictions). The duty to enforce covenants falls upon the DT owner.

Both dominant and servient tenement required for a covenant (modified by LTA, s.219)Common Law

Positive Covenants: servient owner must do something Negative Covenants: servient owner must refrain from doing something Benefits: Under common law, the benefit of the covenant would pass with fee simple ownership as it was a

proprietary interest. 3 elements were required:1) must "touch and concern" the land2) relate to the mode of occupation3) directly affect the value of the land

Burdens: Under common law, burdens could not be assigned to a subsequent party. Tulk v. Moxley (Garden must be Maintained, 1848) holds that burdens can be passed to subsequent parties under equity if the subsequent purchaser has notice of the equity.

The creation of a valid restrictive covenant (a proprietary right) requires certain qualifying conditions (Canada Safeway, Woolworth imposes restrictive covenant on shopping mall land): (adopted by s.221)

The covenant or agreement must be negative The covenant must affect the land itself by controlling its use Two plots of land must be concerned (modified by s.219)

If the agreement does not meet any one of these conditions, it will still be valid between the original contracting parties, as a personal right, but will not be binding on subsequent owners.

Common law requirements for covenants (Canada Safeway)1) Covenant must be negative in substance and constitute a burden on the covenantor's land analogous to an

easement 2) Covenant touches and concerns the land3) Benefited as well as burdened land must be described with precision4) Conveyance should state the covenant is imposed5) It must be registered, unless precluded by statute6) Covenantor and covenantee must be different people (changed by PLA, s.18(8))

Restrictive covenants will be strictly construed. Court will not presume the intentions of the parties: clear language is required to show that the parties intended to create an interest in land which would benefit one and burden the other (Nylar). Ambiguous covenants will not be enforced. Covenants extracted without agreement of burdened owner do not amount to duress (Deep Six, Richmond imposes building permit covenant; Mount Matheson, "watershed" too vague).

Statutory Modification of CovenantsAs with easements, the mere registration of a document with covenants in it, does not say anything about the enforceability of those covenants (LTA, s.26)

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LTA, s.181(1) - Covenants created at the time of transfer are registered on the servient tenement as a charge s.182 - Registrar must register a covenant as an endorsement against the dominant tenement. s.219(1) - covenants can be granted to specific bodies (i.e. government, public utilities, etc) without a adjoining

dominant tenement s.219(2) - these covenants may be both positive and negative to (1) control the use, (2) restrict building, (3)

restrict further subdivision, (4) restrict purchasers [s.219(2) is widely used by municipalities to control land use] s.219(3)-(5) - covenants can be imposed to protect environmentally-sensitive land. Usually imposed in

conjunction with an easement so that groups can monitor the land s.219(6) - covenants may include a rent charge, to ensure that the covenant is obeyed s.220 - Statutory Building Schemes: when a subdivision is created, a Declaration of Creation of Building

Scheme is registered as a charge against all of the subdivided lots at the same time s.221(1): Registrar must not register a restrictive covenant unless:

the covenant is negative the dominant and servient tenement are satisfactorily described the land is registered

o s.221(2): Registration of a covenant is not conclusive evidence as to its enforceability.o s.222(1)-(3): Racist covenants are void and of no effect whether they were created before or after the

coming into force of this section. Upon application, Registrar can cancel a racist covenant registered before 10/31/79 (s.221(2)). Registrar may also cancel the racist covenant on their own initiative (s.221(3)).

o PLA, s.18(5) - you can grant a restrictive covenant to yourself s.18(8) - common ownership of the dominant and servient tenement does not extinguish a restrictive covenant s.25 - even if the covenant appears to benefit only part of the land, it is assumed that the covenant benefits the

whole of the land s.35 - person can apply for court order to modify or cancel a covenant. There are requirements for

modification/cancellation (s.35(2)). Court may order compensation (s.35(3)). Once ordered, the Registrar must make amend the register (s.35(6)).

Future InterestsFuture interest - Where the right to possession is postponed until a future time. A future interest is a possessory interest which will or may be obtained at a future time. Note that the law assumes that the reversion & remainder-persons are presently existing interests.

“will": To A for life, then to B “may”: To A for life, then to B if she graduates with a LL.B. degree

o Note: if B predeceases A, then it would go to B’s estate in both casesReversion and Remainders are examples of future interests:

Reversion: A grants to X for life. When X dies, A gets the reversion. Remainder: A grants to X for life, then to C. C receives the remainder.

Vested Interests – interest which WILL be granted [to a certain person upon a triggering event]. There are two types of vested interests:

vested in possession: grants an immediate entitlement to possession vested in interest: when the owner has an unqualified right to take possession as soon as the preceding estate (or

estates) becomes vacant (i.e. an unqualified and immediate transfer of interest)

Common Law Future InterestsDeterminable Fee:

The grant of the fee contains words of limitation based on an event: i.e. A grants Blackacre to B for life, then to C The event "determines" the duration of the estate. There is certainty as to the event [death] and the vested interest [C]. Met the common law requirement that land always had to be seised: someone always had to be in possession Generally, determinable fees don't create problems, because the vesting is certain

Conditional Fee The entire fee is granted to the transferee, but is made defeasible [that is, will end] if a specified event occurs. Example: X grants Blackacre to A, unless A begins to smoke. If A begins to smoke, then X can re-enter Blackacre. Common law held that while the grantor had a right of re-entry, this right need not be exercised. A conditional fee creates a Contingent Future Interest: No vesting in the remainder person at this time. We don't

know if A will smoke, so we don't know for sure that Blackacre will vest in X (the remainder). Conditional fees create problems because the vesting is unknown

Common Law Remainder Rule: No remainders can exist after a fee simple transfer

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EquityBecause Uses and Trusts were equitable interests, they were not affected by the common law rules regarding remainders. So land could tied up indefinitely. The courts eventually decided that control of future interests should be cut off, as alienability of land was becoming restricted: this gave birth to the rule against perpetuities.

Rule Against PerpetuitiesBasic Principle: To permit a wide variety of future interests, but to impose a limit at some point.

Common Law Rule: An interest is valid if it must vest, if it's going to vest at all, within the perpetuity period. The perpetuity period is calculated by taking the lives in being at the date the instrument takes effect + 21 years. Failure to vest within the perpetuity period means the interest is void.

Vesting is required Vesting must occur within the perpetuity period. PP: Lives in being at the date the instrument takes effect + 21 years

Example: X leaves the residue of their estate to the Communist Party of Canada, which is unincorporated. Gift was construed as a "gift to the present and future members of the Communist Party of Canada". Because any future member may exist outside the perpetuity period, the gift is void.

Perpetuity Act (BC) Preserves the common law, except as otherwise modified by the statute, but lessens the impact of the common law

rule "Wait and See" Provision: If you have a potential problem under the perpetuity rule, you can wait until the

perpetuity period is over before the gift must be declared void. 80 year perpetuity period: "lives in being" requirement cancelled, and replaced with an 80 year perpetuity period:

interest must vest 80 years after the date the instrument is created.

Practice Note: If disposition is valid under common law rule, no need to check statute. But if disposition is void under common law, see if it can be saved by the statute. When creating contingent future interests, pay attention to possible perpetuity problems.

Example: A (fee simple of Blackacre) grants to B (fee simple owner of Whiteacre) an easement over Blackacre. No problem, since it vests immediately.Example: A (fee simple of Blackacre) grants to B (fee simple owner of Whiteacre) an easement over Blackacre, if a house is built on Whiteacre. Perpetuity problem, since you don't know if the house will be built before perpetuity period ends. But under the PA, you can wait out the 80 year perpetuity period to see if the house is built: if the house isn't built, then the gift is void. Example: Blackacre is left to the Vancouver Bar Association, but if the premises cease to be used by lawyers, then Blackacre is to be left to the SPCA.

If SPCA has a right-of-entry, this right-of-entry could arise outside the perpetuity period, and VBA ends up with the gift outright.

Example: Blackacre is left to the VBA until the premises cease to be used as a club for lawyers, then Blackacre is to be left to the SPCA

This is a determinable reversion and vests with certainty. No perpetuity problem.

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