Aboriginal Title: Sui Generis: ;Gov't has fiduciary duty; reserve a form of group ownership different from aboriginal title.

Delgamuukw v. BC: 1) Oral History given full evidentiary value reflecting reality of FN culture/history as long as it has formal rules etc and proves residency.

Test for proving aboriginal title: i) Pre-sovereignty occupancy; ii) Continuity between pre-sovereignty and present occupancy, and iii) Exclusive possession of traditional lands (have to interpret to be workable in aboriginal communities (may have let other groups use their land, but this can be evidence of exclusivity)

Content of Aboriginal Title: superimposed on Crown title "we're all here to stay" but ultimate sovereignty over ALL land remains w/ Crown; Aboriginal title gives the right of exclusive use and occupation of the land BUT held collectively by the band; not freely alienable (can only be ceded to Crown); must be used in particular ways “not inconsistent with the special connection of the people to their land”

Infringement: Only if in the best interest of society, or for the appropriation of resources; must prove 1) Compelling and substantial legislative objective; 2) have met their fiduciary duty to first nations

Accretion: Inherent right to riparian property to have ~ increased by imperceptibly slow, natural actions of wind and water. Property must run to shoreline; erosion/accretion of shore boundary /= change in upland boundary

Southern Centre of Theosophy Inc. v. S. Australia (1-57) : P has perpetual lease on lakeside land to “high water mark” – lots of proof accretion applies to lakes/rivers; nature can take away land, why not give it? Exception for stagnant waters (Trafford v. Thrower)

BC (AG) v. Nelson: Rising seabed/riverbed still property of province (vertical, not horizontal)Monashee Enterprises v. BC: Accretion beyond ambulatory strip belongs to Crown unless Crown

explicitly grants otherwise.Yukon Gold v. Boyle Concessions: Sudden erosion /= accretion, /= change of ownership.North Saanich District v. Murray (1-64) : P and D own fronts on sea; lease from Crown is for rec

purposes; each side constructed wharf on foreshore adjacent to land. Can D do this? Only if private rights to access, non-interference with others, and if wharf floats, etc.

Adverse Possession (AKA Squatter’s Title)Comes from concept that possession is inherent to title in English law; at odds with Torrens. Must have

been acquired before 1 July 1975, subject to forced displacement laws, caveats etc under LTA S. 23.Must be in continuous, exclusive, peaceful, actual (no flags), “open and notorious” possession for 20 years

(private land) or 60 years (Crown land)After this, the legal owner is not permitted to assert his legal rights (he had 20 years!)

Can get Adverse Possession if before 1 July 1975 1) The land had no certificate of indefeasible title, OR2) The land is subject to a certificate of indefeasible title but the adverse possessor was in

possession of the land and applied for registration.Re RN Pacific Rwy (2002) (BCSC ): Parcel of Crown land in Okanagan used since early 1900s. Obviously

before 1975; all criteria met etc.

Airspace Title Legislation: 1-16Part. 9 – creates new blackacre in air that can be transferred, leased etc. starting with surface owner; must be specifically described etc.

Applications to Register (see CHARGES, NOTICE, REGISTRATION)

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Peck v. SunLife Insurance (1904 BCCA) (8-5) : Henry Elliott is in debt, transfers to Ellen Elliott to avoid debts. Ellen transfers to P. D files lis pendens against Ellen (eventually gets judgement) after the transfer to P, after P starts paying, but before P registers.

Courts: P not affected: had no notice of fraud nor of lis pendens because he acquired before either were placed on title. P is allowed to rely on registry, but P’s payments for land will go to D, not Ellen.

Rudland v. Romilly (1958 BCCA) (8-10) : D conveys blackacre to L, makes proper app to register. L gets loan from P using blackacre as collateral. Same day as P gets title (in collateral), D files lis pendens against property saying the conveyance was a fraud. Courts: “tough, but P is BF3P; filed with a clear conscience.”

Paramount Life Insurance v. Hill (ABCA) : Rogue (D’s husband) fraudulently transfers D’s blackacre to L, who mortgages it with P, who registers. Fraud discovered, and D gets property back but subject to the mortgage. P tries to foreclose. Courts: P is entitled to rely on the register.

Canada Permanent Mortgage Co v. BC Registrar of Titles (1966 BCSC) (8-11) : V1, reg’d owner, transfers to V2. V2 grants mortgage to P, and then V1 files lis pendens against V2 on grounds of fraud.

Courts: Yes, V2’s action was fraudulent, but P was BF3P and they shouldn’t have to wait for title to clear.

Charges (see NOTICE, REGISTRATION, UNREGISTERED INTERESTS: “registerable interest in land reg’ble in fee simple” to which reg’d owner is deemed entitled.

All other interests, incl. CPL, Judgements, Caveats. Except for caveats, CPLs, interests are prioritized by order of registration. (But see APPLICATION TO REGISTER)

Applicant for registration can register any charges the transferor would do to give power to charges.Registered by registrar at time of title, unless R suspects error, improper action, at-risk owner (handicapped

etc), incapable of registration, filed by those claiming interest (incl. $ owed to P) etc. Registrar caveats must be removed by registrar, but private caveats expire 2 mos. Subject to exceptions, unreg’d charges do not affect BF3P.

Carr v. Rayward (1955) (BCCoCT) (6-11) : LTA expressly allows timely leins; therefore, mechanics’ leins can be filed against a property despite the fact that the purchaser bought it without seeing any encumbrances.

Credit Foncier Franco-CN v. Bennett (1963 BCCA)(6-64) : “Alan” forges mortgage on D property, registers it, sells to BF3P who sells it to P, who tries to foreclose. D thought it was a mistake and ignored it. P says it can foreclose because a mortgage (as a charge) is like indefeasible title, and ergo irrebuttableCourts: Charges /= indefeasible title. “Deemed entitled” (s. 25) means rebuttably presumed to have title, and the presumption of mortgage’s validity is rebutted because of fraudulent circumstances.

CN Commercial Bank v. Island Realty Ltd (1988) (BCCA) (6-67) : Park Meadow has three mortgages: M1 with Imperial Life, M2 with D. Rogue (Cowan) negotiates M3 with Almont by forging discharge of M2. Park Meadow goes bankrupt. Who gets priority? Court: We should give it to Almont, the BF3P. Only a mortgage (charge), not an interest in property, was acquired via fraud. Also (unlike Credit Foncier) Almont created a new mortgage (not transferring an old one), ergo Almont entitled to rely on the register.

Claims (see NOTICE, REGISTRATION: In Personaem: Claim against a specific person and his rights, not against “the world”. (Like the rights you

enforce against a trustee); title may still be affected by in personaem claims Pacific Savings & Mortgage Corp v. Can-Corp [1982] (BCCA) (6-49) . M1 mortgages with M2. M1

doesn’t keep up with payments, M2 forecloses, gets “order absolute” to wipe P’s name off the title.17 Nov: M2 gets indefeasible title, registers as sole owner.20 Nov: M1 files lis pendens and files a motion to re-open the mortgage. (This constitutes good notice)21 Nov: M2 gets and accepts BF3P’s offer to purchase.

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Courts: Because he had notice, even one day before, registration doesn’t protect M2. BF3P gets title, but M1 can enforce in personaem right against M2.

In Rem: Right enforceable against the world. (Like the rights a trustee has)

Co-Ownership (11-1):Co-Parcenary (11-1): Intestacy pursuant to the rule of primo genitor: to male heirs in order of birth, and if

not, to all females as coparceners. (Old CL doctrine; abolished by Estate Admin Act)Joint Tenancy (11-2): Creates Right of Survivorship (jus accrescendi): if A and B have joint tenancy and

A dies, B gets the whole thing. (Corporations have these, too, except death is bankruptcy.) Also, if A owes money to a creditor and dies, B takes the entire thing and can fuck over the creditor.

Requires ALL 4 Unities (11-3) 1) Unity in Interest (nature, duration…)2) Unity of Title (must derive from the same instrument)3) Unity of Time (must all vest simultaneously)4) Unity of Possession (modified by exceptions)

NOTE: A transferring to self, even secretly, breaks unities and creates Tenancy in Common.North Vancouver v. Carlisle (1922) (BCCA)(11-33) : Mortgage acts conceptually as a transfer of title

BUT…Lyons v. Lyons: Husband mortgage on joint tenancy house. Husband dies, P claims mortgage severs joint

tenancy because it transfers an interest in property, thereby creating a tenancy in common with the surviving spouse.

Courts: mortgages do not sever the four unities because conceptually, they are actually charges; but defaults on mortgages might break up or alter joint tenancy.

Mastron v. Cotton [1926] ONCA (11-20): General rule: JT may only sue another for use and occupation rents if ousted from property. Courts may make equitable allowances.

Stonehouse v. BCAG [1962 SCC] (11-29) : Wife and husband in joint tenancy; wife secretly transfers to daughter. After wife dies, daughter registers deed. Subject to right of survivorship?

Courts: No. Delivery had happened; “except against the person making it” leaves mother subject to transfer. Each of these enough to basically count as a transfer, ergo a severance of title.

Sorensen Estate v. Sorensen   (1977 ABCA) (11-38): Marriage broke up, parties divorced in 1969 but continued to hold 3 lots in joint tenancy (A, B, C); lot with home (C) would be divided into two lots (C and D). Agreement said they’d hold A and B in trust, sell D and let wife rent C at $1/year. Wife caring for kids, including mentally disabled son, learns she has cancer in 1974 and executed a trust for her son (containing declaration of severance) to be registered on her death. She wrote her will and started transfer proceedings right before she died.

COURTS: This declaration of severance would only come into effect when the trust did (IE after her death), directly after which the husband would get the land via right of survivorship. Because she leased to herself via the $1/year agreement, the lease did not exclude her husband. The transfer proceedings could have been cancelled.

BUT the creation of the trust (irrevocable) succeeds despite being unregistered and uncommunicated because it was made in contemplation of death (donation mortis causa) = understood as a testamentary disposition. (AND she tied speeding up the conveyance: her intent was obvious)

Profits: Spelman v. Spelman [1944] (BCCA) (11-15): Husband and wife owned Victoria property (rented) and

Nelson St. boarding house in joint tenancy. Wife voluntarily left husband (who ran boarding house). She wants a share of the profits, plus the rent her husband didn’t have to pay for her share.

Courts: common law says there is no obligation to account (CL duty, like what executor has to beneficiaries etc; quasi trust idea) unless one tenant is kicked out. Moreover, Henderson v. Esson says that co-tenants cannot claim portions of profits from other co-tenants re farming. This is the same thing,

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as the husband had to run the boarding house himself. It would be inequitable to force husband to pay over fruits of his labour. (Would be different if he had hired a management company to do the work for him, though. And wife does get half share of Victoria house rents.)

Share of Expenses: if parties have agreed re this, there arises no question re expenses of maintenance. Legis (s. 13-14 PLA) has since allowed co-owners to force contributions.

Bernard v. Bernard (1987) (BCSC) (11-22) : Wife owns property jointly with husband (in Yugoslavia); both want to sell but disagree on how much each should get. Wife wants mortgage contributions from him without paying occupation rent (husband left on his own).

Courts: Where one party calls for a contribution, they must make allowance for occupation.Tenancy by the Entireties (11-1): transfer to husband/wife created sole ownership under the married unit.

Could not be alienated unless both husband and wife agree; only severed by the end of marriage. Husbands entitled to income. (Old CL doctrine; abolished by Estate Admin Act)

Tenancy in Common: two or more people simultaneously entitled to possess the entirety of the property. If A and B are tenants in common, A can will his interest to C so that when he dies, it becomes a tenancy in common between B and C. Can be created explicitly with words of severance: “To A and B in fee simple equally.” Can also be created if you transfer to yourself to break four unities.

Re Bancroft, E. Trust Co. v. Calder [1936] (NSSC) (11-4) : Deceased left life estate in house to widow Clara. Residue to be divided into two shares: Share 1 invested, with income to widow.

Share 2, invested with income equally divided into four parts, one each to a) Percy, b) Aubrey, c) Florence, and d) Minnie. Minnie has two kids, Paul and Jean. Clara is still alive, but Paul is dead. What happens to Paul’s share?

Will: “Leave to kids per stirpes – to the kids and their kids etc. “Into four equal shares” are not words of severance but actually specify how to divide up Share 2. Plus, this is a tenancy in common, which equity prefers over joint tenancies.

Robb v. Robb (1993 BCSC) (11-8) : Mr. Robb left all to his second wife, including shares in a leasehold co-op property which Mr. Robb had “purchased” by transferring California property to her. Kids insist it’s a tenancy in common, ergo they get Mr. Robb’s share.

Courts: “Nothing definite, but real estate notes insist it was joint tenancy. Equity might normally presume against this and demand some allowance be made for the kids, but the transfer of the Cali property constituted good consideration, ergo no need to presume Mr. Robb was screwed. Also, the Property Law Act section presuming against this does not apply to co-ops.”

Corpus: original body of property. Remainder is in corpus (profits from bonds etc)

Cujus (est solum ejus est usque ad coelum et ad infernos)Ad coelum - YESKelsen v. Imperial Tobacco (1-1) – Tobacconist’s on ground floor – sign above ~ supposed to be “trespass”.

Previous cases: gunfire in field = trespass; civil aviation acts specifically felt they had to address idea of trespass = remove sign

Gosselin v. Blanchard and D’Onofrio: dispute over damage by trees (natural things can only be nuisance). (See Anderson v. Skender). P not liable for nuisance prior to occupation of property; P not liable for damage by trees b/c D has right to trim them.

Didow v. AB Power: does power pole trespass on land with crossarms? YES. (Corbett v. Hill; Wandsworth Board of Works v. United Telephone Co say right to airspace close to land, +Kelsen); doesn’t matter if doesn’t directly interfere w/P rights @ moment b/c it limits freedom of action, + this is permanent trespass.

Luves v. Scotia Towers: Swinging cranes caused no damage to P, but still violation of sacrosanct property rights

Ad coelum - NO

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Bernstein (Lord of Leigh) v. Skyviews (1-7) – P pissed b/c D took picture of property from plane. “Cujus more about fixed structures than anything; Kelsen did not extend cujus; reconcile Pickering v. Rudd with Kelsen b/c real issue is about right against impairment up to point of ordinary use. Smoke, noise etc. potentially a whole other ballgame

Manitoba v. Air Canada (1-11) : P wants to levy taxes on aircraft flying through. Judge: “Cujus is a dubious maxim at best; cannot posses air; right to reasonable use (see Bernstein)

Ad Infernos Austin v. Rescon Construction Ltd.: anchor rods put under P’s property w/o P’s permission. Even though

not costly to remove and rods would not impede P, P entitled to cost of removal + damages b/c D acted in high handed manner, did not earnestly try to get P permission

Gosselin v. Blanchard and D’Onofrio [supra]: neighbour dispute about hedges, tree roots. Tree roots / branches are natural, therefore nuisance and not trespass.

Mineral Rights: Generally stay with Crown.Support Rights: Right to normal support of normal level of blackacre in natural state – like riparian rights.

Excavation causing loss of support is actionable, strict liability. Can be specifically excluded. (Also <1976 allowed “prescriptive easement” (right to support building if there long enough, but must have been reg’d.)

Cleland v. Berberick (1-66) : D took sand off his own lot; b/c of removal, storms wash away P beach – “happened only b/c of D action, caused loss of support; D exacerbated effects of nature.” BUT

Bremner v. Bleakley (1-68) : Same beach, but D digs trenches. Selling sand irrelevant, accretion was thanks to wind = nature = deal with it.

Support – Buildings: need to prove an acquired right to support OR proof of negligent excavation/trespass.Gillies v. Bartoluzzi (1-72) : D excavating basement – wall of adjacent building collapsed b/c of excavation.

D says they weren’t negligent (no right to support for building), but court finds D dug under bottom of P wall.

Rytter v. Schmitz (1-77) : D dug along lines of 2 properties, loss of support = P building fell. P buildings do have right to vertical support (per Capilano Bungalows: there IS a right incident to property for vertical support of building, not horizontal ~) = D strictly liable; also, D deliberately trespassed anyway.

Doctrine of Marital Unity: Woman’s property falls to man upon marriage

Easements: Rule set out in Re Ellenborough Park: 1) must be a dominant and servient tenement; 2) easement must accommodate the dominant tenement; 3) dominant and servient tenement must be owned by different people; 4) easement can only exist if its subject matter is capable of being subject to a grant. Ergo, easements must: i) not be vague; ii) not effectively deprive tenement of ownership, and iii) must “accommodate and serve” the dominant property with “utility and benefit” beyond recreational activities.

Encroachment: ability to eat into other person’s estate.Re: Fraser – Sr. Citizens’ Home can only get what’s left after wife is done with personalty; power to

encroach via life estate must be explicitly given; without, you’re generally entitled to take income & live in blackacre, but NOT to interfere with assets.

Escheat: Crown takes land if NOBODY ELSE is available to inherit.

Estates: Temporal Right in Land:1) Fee Simple (see FEE SIMPLE) (most common, extensive rights) – pass it on to whoso you wish; not

limited temporally, can bequeath it, only stops with escheat. (Does not confer resource rights etc.)

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2) Fee Tail: Complete bundle of rights over blackacre, but only as long as you have a lineal descendant (no more)

3) Life Estate (see LIFE ESTATE): lasts as long as you live – rules to prevent harming etc. of blackacre when someone else has an interest in land.

4) Autre vie estate – life estate based on another life: To A for the life of her son=to her then son, then to X.

Expropriation: Permitted under Land Act: Crown may take up to ½ of the land which has no gardens, structures etc.Fee simple does not permit rights to highways, resources, etc.

Failure to Register (see CHARGES, INTERESTS, UNREGISTERED INTERESTS): Except for exceptions (<3 year leases, etc.), Unregistered interests only pass title against the person making

them (to prevent people creating multiple interests in land before final transfer).If A transfers to B (unregistered) and C gets judgement against A, C cannot collect from B but can register

that A owes him.General Rule:Sorenson v. Young (1920 BCSC) (7-1) : P has an unregistered easement over Lot 1. Conveyed to R (“same

and except a right of way”), who conveys to D. P relies on easement for years until D puts up fence. D: “I had no knowledge of the easement! I am BF3P”P: “The deed creating the easement (the conveyance) was registered, just not the easement itself!”Court: “Not good enough. That’s a registration of conveyance, not a registration of an easement.”

(Different from Duckard v. Surrey b/c the easement was contained in a trust document you could find in the registry.)

Duckard v. Surrey [1978] SCC (6-56) : Lots subdivided in 1912, given easements which were registered in trust against certificate of title. D acquires some properties in tax sale in 1954. Tax sales give property free of encumbrances, excepting easements. Court: D is subject to the easement because while the easement wasn’t registered, it was contained in a trust document which was specifically registered against the property and referred to on title.

Illegal Interests:International Paper v. Top Line Industries [1996 BCCA] (7-15) : P renting from D, things deteriorate, D

doesn’t want to renew but P wants to enforce the renewal clause.D: “Oops, the lease is illegal because it subdivides the land! The lease and all its clauses are void!”P: “The subdivision is illegal but the lease is still valid!”Courts: With regret, D wins; lease is void ab initio. Cities need control over zoning, and we need to

preserve Torrens.Judgment Interests:Yeulet v. Matthews [1982] (7-04) : D (B) has equitable mortgage which CANNOT be registered (LTA). P

(C) does not have priority over the property because D had a prior interest, ergo D wins:Common law rules that A cannot give C what A does not have because it is in B’s hands.Jellet v. Willkie: A person with interest prior to judgement can register after judgement.Entwhistle: judgement creditor only has hands on lands in which debtor has real or beneficial interest.

Martin Commercial Fishing v. Viranen (1997 BCLR): A sells to C before B can get judgement against A. C’s interest came before B’s judgement against A, so C wins.

Other Interests:L&C Lumber v. Lundgren [1942] (BCCA)(7-12) : D grants lumber concession (profit à prendre, which can

be left in wills and transferred etc) to MacDonald, who sells it to P. D: “‘Except against the person making it’ means only Macdonald has the right.” Majority: “Wrong interpretation. This unregistered interest is valid against you, because you made it. And you’re obviously not a bona fide purchaser.”

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Carlson v. Duncan : H grants interest to K who registers and transfers it to A, who transfers to P. K dies, heirs transfer the interest to D. Did K initially transfer an interest in land or an interest in chattels?

Court: D was given an interest in land which K had already given to A. Nemo dat, bitches!Unregisterable InterestYeulet v. Matthews [1982]: D (B) has equitable mortgage which CANNOT be registered (LTA). P (C) does

not have priority over the property because D had a prior interest, ergo D wins:Common law rules that A cannot give C what A does not have because it is in B’s hands.Jellet v. Willkie: A person with interest prior to judgement can register after judgement.Entwhistle: judgement creditor only has hands on lands in which debtor has real or beneficial interest.

Fee Simple (see LIFE ESTATE, WILLS): Closest to absolute ownership; continues after holder’s death except with escheat. At common law (but no longer), you required “to A and his heirs” if you wanted to transfer fee simple. (Term of art, words of limitation)

Tottrup v. Ottewell Estate [1969 SCR] (9-3) : Now that “…and his heirs” is superfluous, what does it mean?P daughter of deceased (X). X’s brother (Y) got it, but Y was single. Should Y’s estate get X’s estate?P: “…and his heirs” refers to Y’s kids. Since Y has no kids, it lapses back to X’s estate, ergo I get it all.

Rule of lapses: if A gives to B and B dies before A, it lapses back to A re intestacy rules.If I leave to 5 people and 1 dies, that 20% goes back into my estate unless I say otherwise.

SCC: “Not needing to use the words does not change their meaning. Armchair rule only to be used in some ambiguity, and there’s nothing to suggest ulterior intent anyway.

Porter JA (diss, ABCA): “lawyers do not lawyer in vain; if these words are now devoid of special meaning, let’s look at what their ordinary meaning is. Plus, estate is mostly personalty, and wills regarding personalty have take “and his heirs” as words of limitation.Presumption Against Intestacy: if these words are meaningless, they create intestacy

Fixtures: A chattel which has become sufficiently fixed to the land that you consider it a part of the freehold – affixed after building made. If under own weight, it is a chattel; if affixed, it is a fixture. Determined by objective intention of affixing chattel. Fixtures’ purposes is to enhance freehold; chattels’ is to enhance use as a chattel.

Re: Davis (1-21) : wife wanted bowling alleys to constitute an addition to property = more $ in sale, but for enjoyment of chattel, can be replaced, affixed with clips = easy to remove = chattel.

Credit Valley Cable v. Peel Condos: Cable from cable company affixed in minor way, meant to improve enjoyment of TV = chattel.

LaSalle Recreation v. CN Candex Investment (1-23) : Is carpet part of place or can it be repoed? Carpets relatively impermanent b/c of function = minorly affixed, anticipated removal, but only after life of carpet is over; meant to improve hotel = fixture.

Stack v. Eaton: Not a fixture if attached by weight alone except where intended; vice-versa with chattels; must show degree and intent of annexation based on purpose.

Haggert v. Brampton (Town): Even small affixation of chattel to property can be fixture.Fixtures Test: RBC v. Maple Ridge Farmers’ Market (1-30): 1) Anything unattached except by weight and can be removed w/o damage or req’ing alterations = chattel; 2) Anything plugged in is chattel; 3) Anything minimally attached is fixture; 4) Object is fixture if its removal impedes proper function of fixture; 5) Fixture can be removed if tenant can prove it is his and can remove and leave premises unaltered; 6) If all else fails, use a purpose test.

Deen v. Andrews : Greenhouses are chattels based on purpose/degree of annexation

Fraud (also, see NOTICE, CLAIMS): voids acquisition of interest unless you are a BF3P. Purchaser with knowledge of fraud (“contaminated by fraud”) loses title regardless of what register says.

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Gibbs v. Messer (1891)(PC) 6-16) : Creswell is a solicitor of D, holds duplicate title. Forges D signature to transfer land to fictitious interest (“Mr. Cameron”), whom Creswell registered on the title. Creswell then transfers the land to McIntyre on behalf of “Cameron”; McIntyres hold mortgage on property. D wants land back. Court of Appeal: “McIntyre was BF3P, so mortgage was valid. Because a solicitor was involved, the lawyers’ assurance fund should compensate D; unfair to screw McIntyre or Messer. Registrar (P) appeals to JCPC:

JCPC: “Cameron” does not exist, ergo McIntyre could not be dealing with the registered owner (because that must be a real person) and the registry does not protect reliance on agents (Creswell). Ergo, he could not be a BF3P.

Frazer v. Walker [1967] NZPC (6-21) : Mrs. Frazer forges husband’s (P’s) signature to mortgage the property, sells to M. M registers the mortgage in good faith and sells property to D when he gets no payments. P knows nothing until D commences action as registered owner. P calls it a nullity because of forgery, ergo nemo dat quod non habet on part of M.

Courts: M was BF3P, so this transfer and mortgage are all valid. Tough shit, Mr. Frazer, but your wife forged YOUR signature – IE you’re a real person represented in a forgery, not a fake person represented with a real signature.

Freedom of Alienation (see FUTURE INTERESTS): Objective is to allow land to be freely alienated vs. people who want to control it beyond grave. Three requirements:

1) Owner for the time being of an estate must have technical freedom of disposition over estate; can only sell what you have (nemo dat quad non habet) (can only give life estate if you’ve got ~)

2) Cannot impose excessive restraints on disposal of property, freedom of alienation 3) Mechanics of transfer should be as simple as possible.

Interests (see CHARGES, FAILURE TO REGISTER, FREEDOM OF ALIENATION) (limited by Rule Against Perpetuities)

Contingent Future Interest: conditional, depends on something happening: “To A when he turns 21” (he may die etc). May vest no longer than 21 yrs after death of person alive when document takes effect: (Life in Being + 21 yrs after death: “Life in Being” includes people conceived & not born.) (If a will, my life is the Life In Being). Traditionally needed quantifiable time (“who knows when he’ll grad law school?!”); now “let’s wait and decide at the time”

Corporeal Interests (2-7): those interests you can possess (freehold, leasehold estates)Curtsey: right of widower to take interest in all wife’s lands, realty etc. (Abolished by Estate Admin Act)Dower: right of widow to get automatic 1/3 of estate, automatic life interest.Estate Pur Autre Vie: see LIFE ESTATE : life estate based on life of anotherFee Simple – see FEE SIMPLEIncorporeal Interests: not possessable – easements, right of use and enjoymentLife Estate – see LIFE ESTATEUnregistered Interest: S. 20 LTA: Unregistered interests does not pass estate except as against the

person making itVested Interest: fixed absolutely w/o contingency in one party (IE if B promises A property after death, A

has vested interest; not dependent on chance)

Land Title ActS. 22: Reg’d instrument based on date of registrationS. 23: Sets up indefeasible title.S. 25.1: even under void instruments, bona fide 3p purchaser gets immediate indefeasibility

Title subject at all times to leases, rights of way, escheat, tax, leins, etc.S. 154: Acquirer of land may register their interest to the registry

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S. 155: must register fee simple interest first, then mortgage etc.S. 231: mortgages act as charges for the purposes of LTAS. 287: registrar can only register another interest subject to caveat.

Abstract of Title: establishes good root of title to extent possible, proves it was legit.Assurance Fund: created by LTA to compensate whoso is deprived of an estate b/c of the registration

scheme and in cases of fraud. If A forges B to sell to C, C keeps title but B gets money.McKaig v. Reys et al (5-42) : unreg’d interest in land (option to purchase) lost b/c of fraud; reg of land w/o

option to bona fide 3p nulls option. No remedy available from fund b/c loss did not arise from operation of statute (IE 3p took property w/o notice of option), but can get damages for fraud.

Royal Bank v. BC (AG) (5-49) – Walsh the reg’d owner of blackacre, delivery of duplicate title not registered = takes to RBC to get equitable mortgage, then goes to Bank of NS and gets reg’d mortgage (clerk assumed no title = in L.T.O.) = RBC stops getting payment.LRO has no duties to 3p; RBC could’ve reg’d their interest in land; equitable mortgages have risks.

Gordon v. Hipwell: D came to CA, purchased blackacre w/ diamonds, leaves country and diamonds are seized by Crown. P files caveat, accidentally removed. In this case, P screwed by LRO screw-up

Indefeasible Title (see Registration):S. 23: describes indefeasible title; conclusive evidence the person is entitled to fee simpleS. 25.1: even under void instruments, bona fide 3p purchaser gets immediate indefeasibility

Title subject at all times to leases, rights of way, escheat, tax, leins, etc.Registrar: authority from LTA, responsible to confirm good title, make correctionsRe: Land Registry Act – Evans Application (5-28) : On death of husband, widow (joint tenant) wanted sole

ownership; refused by registrar b/c original title vague about boundaries. Courts frown upon corrections, but this is a clarification – perfectly valid exercise of duties.

Re: Land Registry Act & Shaw (5-31) : Father had mortgage interest, son assigned it to himself with his enduring power of attorney over father; registrar refuses until notified by father. PoA allows son to generally sell/assign mortgage, but not explicitly allowed to give it to himself. Court looks to equity, presumes this was unfair, ergo voidable. Son must show sufficient evidence of good faith; registrar not beyond powers in denying it.

Heller v. BC (Registrar, VI Registration District) (5-35) : P applied to have his wife’s registration cancelled and his own interest reinstated. “Registrar assumed duplicate certificate was in LRO, he should correct the mistake.” Courts: Registrar can make corrections with obvious errors, but not bullshit ones.

Unregistered Interests: (See UNREGISTERED INTERESTS)

Life Estate (see FEE SIMPLE, WILLS): (10-1) Lasts for life of taker (pour sa vie) or another life (pour autre vie), even life in being. Rest goes to remainderman.

Life Tenant Rights: can occupy/use/obtain benefits from property, transfer this life estate which lasts until life tenant dies. Theoretically escheats back to the state.

Life Tenant Obligations: to remainderman. Must avoid WASTE (10-5), of which there are four kinds1) Ameliorating Waste : enhances value of the land, transforms blackacre, gives something

different, might raise property taxes for remainderman2) Permissive Waste : damage from failure to preserve or repair property.3) Voluntary Waste : active conduct which diminishes the value of blackacre4) Equitable Waste : severe, malicious destruction.

Vane v. Lord Barnard (1716) (10-7) : D gave life interest to himself, then to kids. Kids piss him off, so he tears the castle down and sells the whole thing. This is an equitable offense.

Mayo v. Leitofski [1928] (MBKB) (10-8) : Life tenant responsible for paying taxes unless instruments say otherwise. Not allowed to default and then buy at tax sale. P is a remainderman suing for just this reason: D’s son conveyed land to P, subject to life estate for D. D’s son fails to pay taxes, Ms. Faust buys the land in a tax sale and she assigns assigns a life interest to D. This last bit proves it was

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inequitable, as it allows D to benefit from a wrong. Equity assumes we all fulfill our obligations, ergo it assumes D should protect P’s interest as remainderman

Power of Encroachment: Life estate holder has a right to encroach on the remainder.Power of Sale: A has a life estate and interest which turns to remainderman on A’s death, but A may also

sell to B to create an estate in fee simple.

NOTICE (see CLAIMS, FRAUD): In BC, it is fraudulent to act in spite of notice of unregistered interestsActual Notice: can prove you know for sure (subjective standard)

HBC v. Kearns and Rowling (1895)(BCCA)(6-30) : can’t say for sure that R knew about HBC’s unregistered interest per se, but he did know there was something odd about the deal and went ahead anyway.

Majority: “Only actual notice is required to constitute fraud”Dissent: “R was obviously willfully blind and we shouldn’t let Torrens protect his misconduct.”

Constructive Notice: ought to have known, based on the facts (objective standard). Look at the totality of circumstances and evidence of intention to help find fraud.

Woodwest v. Met-Tec [1982] [BCSC](6-36) : P purchased property knowing D had a five-year lease on it (was told about it, was given fact sheets, etc). P registered and tried to evict D. Can he still enforce?

Courts: “Fraud” requires an element of dishonesty, not just “mere notice”. Evidence of intention and totality of circumstances displace presumptions of honesty: P is clearly an asshole. He had actual notice, decided he didn’t give a shit, and registered to force D out. This is not why we have Torrens.

Mcrae v. McRae Estate (1994) (BCCA) (6-51): Fraser leaves property to wife for life on trust for kids. Wife the owner “on trust”, and she transfers to Farquhar (son) in 1949 for $1. He’s bound by the trust as long as he has knowledge. There are two ways to prove this

1) F knew or should have known about the trust because it was on the register2) $1 for the property means he’s most likely a “volunteer” and not PF3P.

BUTCentral Station v. Shangri-La (6-34)  : D became aware of an unregistered lease with P after concluding a

deal but before registering it. P wants to enforce the unregistered lease because D knew. Courts: look to S. 29 (2) LTA: D didn’t know until after he had concluded an irrevocable deal, ergo no

fraud.Re SaVille Row: App to register purchase option was five days late, plus the registrar could not contact Mr.

Frew (optionholder), plus Mr. Frew was unwilling to amend option contract with new property owner. Mr. Eldred was thus aware of the prior interest in his property but honestly believed it was unregisterable and therefore nonbinding. Small evidence of fraud is not enough to displace presumptions of honesty.

Power of Attorney: Property Law Act forbids attorneys (including POA) from selling to himself unless explicitly permitted.

Property, Personal (incl. fungibles) (AKA Personalty) in theory, based on allodial (absolute) ownership. But car leases like lease on blackacre – temporal interest in property.

Re: Fraser (2-25) : testator wanted to give wife a life interest in “estate and property”, then give Sr. Citizens’ Home the rest after she died. Can have equitable interest in personal property (shares, bonds, etc.); can also have life interest in ~.

Property, Real (Realty): may be transferred inter vivos or after death; transfer document must be specific and cover “lesser interests”. Restrictions in common law (nuisance, tort); agreements (contracts/wills, ~law); legislation (ALR act, etc.)

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4 Basic Principles (see 2-10): 1) Tenure (little importance today – knight service, socage, seargentry, frankalmoin) 2) (In)Corporeal Interests: cor = entitle possession of land; incor~=entitlement short of possession 3) Legal and Equitable Interests (basis for modern trusts) 4) Freedom of Alienation

Transfers of Real Property: Four MeansCrown Grant: straightforward – gov’t retains rights to resources, hwys, minerals, water w/o

compensation; right to “resume” any part of grant (but no more than 20%) necessary for “works” except where land has a building or a garden. Must pay reasonable compensation. Must be clear title, must be surveyed.

Inter Vivos Transfer: Final. Almost anyone can acquire property by gift, bargain, even mentally disabled and infants. (Disposal is different – based on intent of giver.) Restrictions in statutes (residency, statute of frauds, etc.) (BC Law and Equity Act requires transactions be in writing & show reasonable intent) Must follow standard provisions, but not necessary to use terms of art nor to execute under seal. Transfer not operative (except for transferor) until registered.Registration shows intent. Transferor must produce duplicate indefeasible title.Two ways: Bargains, and then Gifts (see TRUSTS, PRESUMPTION OF RESULTING ~)

McLeod v. Montgomery (4-20) : D gifts land to P; transfer document delivered as soon as executed, D did not turn over duplicate title = P could not register transfer, filed caveat on land. Incomplete gift b/c duplicate title is an essential element to proper transfer, must do everything you can to do so: D withheld duplicate title = D chose not to transfer; “equity will not force a volunteer to complete a gift”.

Ross v. Ross (4-18): Ms. Lynds conveyed property to grandson – witnessed & signed etc, but puts deed in purse w/o registering it, but signed & witness transfer is sufficient to infer intent to deliver, even if deed remained in her purse w/o grandson knowledge. Formal delivery not necessary to infer intent.

Proprietary EstoppelDefined by Denning in Crabb v. Arun District: P has N-S property; P has legit N access and D promised S access, but then denied ~ when N part of property sold. D liable.In “dealings” (anything short of binding contract), if A promises not to insist on legal rights, even if unenforceable, knowing that B will rely on and does act upon this promise, the court will force A to adhere to promise.Canadian Test: Martland in Canadian Superior Oil v. Paddon Hughes Development:1) P must have made a mistake viz legal rights; 2) P must have acted on this mistake; 3) D must have superior legal knowledge; 4) D must be aware of P’s mistake; 5) D must encourage P in 1 and 2.Zelmer v. Victor Projects Ltd (4-38) : D approves of P reservoir on his land, then gets cold feet – tough, b/c P relied on D insisting it was OK.

Testamentary Transfer: I might leave it to you but I can do what I want with it.Zwicker v. Dory (4-23) : P wife <1yr; D (stepson of deceased) w/good rel’p. Deceased conveyed property to D w/ clause “this deal not to be recorded until my death”; many yrs later transferred property to himself and P as joint tenants. “Until my death” = until then, deceased did not want to be bound, therefore transfer to D ineffective until that point, ergo P legitimately held property. (Plus deceased continued to treat land like his own; no evidence D had done work on land etc).

Registration: Torrens system based on giving notice, keep everything in one spot.Enough proof of title if name is on reg’d title. Not mandatory but good idea (Land Act).

R. v. Kessler (5-5): D dislikes zoning bylaw discovered after purchase, said bylaw needed to be reg’d: court refuses b/c bylaws not specifically about conveyance of interest.

Aboriginal Title – puts AB claimants outside of land registry system. Imposing Aboriginal rights screws with Torrens system.

Skeetshestn Indian Band v. BC (5-7): Kamlands Holdings purchased ranch despite P litigation over Ab title: Registrar refused b/c can only register registerable interests. To be registerable, title must be marketable.

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Adverse Possession: (see ADVERSE POSSESSION)Applications to Register (see APPLICATIONS TO REGISTER)Boundaries

Winrob v. Street [1959] (6-13): P buys home in Point Grey, D searched title office and found no maps. Lot turns out to be smaller, subject to city laws etc.

Courts: Lawyers are not surveyors; lawyers rely on title documents.Curtain Principle: Torrens system draws “curtain” over any past rights before imposition of Torrens

system.Creelman v. HBC [1920] (PC) (6-7): P purchasing fee simple from D, but P wants out of the deal. P points

out that thanks to legislation, D can’t legally hold property except for specific activities. Courts: “this does not make it void: the point of title is that anyone should be able to rely on it. To conclude otherwise would screw with our Torrens system.

Equitable Mortgages / Leins not registerable b/c title deeds deposited w/lender = presumption of mortgage in favour of lender BUT RBC v. Medda Estates: presumptions like this antiquated.

Failure to Register (see FAILURE TO REGISTER)Fraud (See FRAUD)Indefeasibility (S. 23 of LTA): (SEE FRAUD)

Deferred ~ (SEE FRAUD)Once you’ve registered, the next person who takes title gets indefeasible fee simple.Transfer via void instrument means you are not a purchaser, but the next person in line

will get titleImmediate ~: immediate title in fee simple: S. 25.1 LTA gives indefeasible title to bona fide 3p even

if a void instrument is used.Lis Pendens: title subject to outcome of pending litigation, regardless of notice. (Certificate of pending

litigation gives notice, though.)Notice (see NOTICE)Unregistered Interests: SEE UNREGISTERED INTERESTS

Registerable Interests:Legal Fee Simple (see FEE SIMPLE) –closest to absolute title, indefinite duration except dying w/o heirs.

Registered on 2 preconditions: sufficient description of boundaries, and good title.Charges: (see CHARGES)

Riparian Rights: (see WATER RIGHTS, ACCRETION) – describe a person’s property rights; incidental to ownership and can’t be severed therefrom; Allow you to access the shore &c. but NOT to build structures without license of Crown

Tenants (see CO-OWNERSHIP):Joint Tenants: A and B each have right to property; at A’s death, B takes remainder of this title.Tenants in Common: A and B are joint tenants, A dies, B keeps his half and A’s estate gets A’s half.

Trusts: Fiduciary obligation to hold blackacre for benefit of trustee. Can be filed against land.Alter Ego Trust: I can set myself (alter-ego) as the beneficiary of the trustConstructive Trust: created by law, imposed by equity, regardless of instructions, to prevent unjust

enrichment. (Say A lives with B Common Law for 20 yrs; B owned farm when they met, A does work but then they divorce. A has enriched land w/labour, B would be unjustly enriched w/o compensating A.) Requires no juristic (IE contractual, legal) reason for doing ~; enrichment must have caused corresponding loss to A. Gives A proprietary trust in farm.

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Discretionary Trust: It’s at your discretion how many payments you might make so it doesn’t violate potential income-based benefits etc.

Express Trust: created in documentResulting Trust (created by law): If A doesn’t create an effective trust, it results back to A

Created 2 ways: 1) Beneficial Entitlement not properly disposed of by settler = goes back to settler.2) Presumption of Resulting Trust: if A gives blackacre to B gratis, assumption that people don’t

just give away property = presume A keeps benefit, B gets title unless proved otherwise. Former exception: Presumption of Advancement – Fathers to children – “would give kids full property rights anyway” – no more as of Pecore case.

Trusts Against Land: (S. 197 LTA) must be registered as “in trust” in reference to the trust instrument (the document that carries the trust). Trust instrument must be filed with registrar so title can say “in trust to John Smith”, refer to trust document.

Unjust Enrichment (see PROPRIETARY ESTOPPEL): 1) Req’s that A has been enriched at cost to B; 2) Need causal connection; 3) Need no legal reason for why this happened.

Unregistered Interests (see CHARGES, FAILURE TO REGISTER, NOTICE): Except in cases of fraud or notice, only the following unregistered interests may burden your property:Adverse possession; Bad boundaries; Escheat; expropriation; fraud; leases under three years; pending

registration; rights of way; royalty agreements; taxes; title (another valid ~)S. 20 LTA: Unregistered interests does not pass estate except as against the person making it. (Only the

crook is affected by unregistered interests.)S. 23 LTA: Leases under 3 years need not be registered to be binding on purchaser

Protects small landlords, renters.S. 29 LTA: Anyone dealing with the registered owner will not be affected by unregistered interests

unless there is fraud.S. 197 LTA: Registrar must reg charge unless incapable of reg’n, unsafe title etc.

Void ab initio: void from the start, never came into being;

Voidable Transaction: possible to make it void

Water RightsCommon law: a) how much water in natural channel was part of nature’s plan (cannot interfere); b) private

ownership is supreme – cannot interfere with flow in neighbor’s property; May use for domestic purposes.

Riparian Rights: incidental to, inseparable from land ownership (can use water in function related to property, cannot pipe off/sell); right to have water on blackacre flow to you in its natural state whether or not you use it (Rocking-chair right) (cannot damage downstream water); can’t complain if upstream exhausted from reasonable use; rights to use water for domestic needs etc., plus emergencies, plus as much for agri as won’t hinder downstream flow.

Water Act (1-36): License trumps riparian rights, but must use it or lose it (contrast w/riparian Rocking chair right)

Cook v. Vancouver: P has riparian rights, D extracted water upstream, P sues on basis of riparian rights but D wins b/c city’s license trumps Riparian rights.

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Johnson v. Anderson (p. 1-45) : P tries to enforce his riparian rights b/c D diverted flow of stream going through P property. P using water prior to diversion. D has license to use, NOT to divert = P wins. Riparian rights not removed, only subject to valid licenses etc.

Schillinger v. H. Williamson Blacktop & Landscaping (p. 1-49) : P had licence to dam water from 2 creeks into fish farm; silt from D operation got into P tanks and killed fish. P loses: illegally diverting water, wouldn’t have happened had he followed rules. (Obiter dicta says riparian rights no longer exist – if they do, it’s where you use a license)

Steadman v. Erickson Gold Mining Corp (1-51) : P’s “small spring-fed dugout” connected to house; D contaminates & argues P has no rights to water; however, Groundwater: C.L. says it’s first-come first-serve, but you can’t foul it (Ballard v. Thomlinson); also, if Percolating Water (1-55) (S. 3 of Water Act only on percolating ~), use was legit domestic ~, even if need works to use for such. (Schillinger about illegal diversions; frowns upon Obiter Dicta therein)

Usufructory rights: right to use but not to own. Need to own land to use water by it. (Incidental to ownership; nontransferable) 1914 – licencing scheme started – Water Act: everything to gov’t unless otherwise stated/granted; Basically get to use water, not own it. Only time you can use water not yours is for emergencies, domestic purposes, unrecorded ~

Wills (see FEE SIMPLE, LIFE ESTATE): May change etc until death; last valid will is used.Hallsbury’s: overriding rule is to take it in the whole construction looking at surrounding circumstances.

Should avoid constructing wills contrary to wills’ character (Blackburn and McCowan)Adulthood: given to minors if married, in armed forces. Armchair Rule: If something is misnamed, ambiguous etc., put yourself in testator’s armchair (so to speak)

to find original desires of testator (Perrin v. Morgan)Land Spouse Protection Act: Homestead legis: family home is exempted from seizures by creditors; non-

owning spouse gets a life interestPresumption Against Intestacy: Read the will in a way which avoids intestacyRepugnancy: when you appear to want to control land though you’ve given it away. “To X in fee simple,

and then to Y in life estate.” Look at dominant intent.Re Walker (1925) (ONCA) (9-9) : “Remainder goes to the named others if my wife leaves anything”.

Courts: “She took the estate and could do what she wanted with it. Dominant intention was to give it all to wife, not bound by subordinate intention. Not necessary to find it repugnant because you can easily say the wife has power of sale and encroachment, which would give best effect to intentions.

Re Shamas (1967) (ONCA) (9-12) : Informal will: Courts: “remainder vested in kids subject to the life estate of the widow. Hallsbury’s says that the overriding rule of will construction is to consider will in entirety, whole construction, all circumstances (Lucastooth v. Lucastooth). Obviously a vested interest for kids after the life estate of the wife, because the wife could not raise eight kids on her income alone.

Cielein v. Tressider (1987 BCCA) (9-17) : Life interest for Mrs. Rich with the remainder to kids. Do the kids take absolutely?Courts: No! The deceased clearly wanted to benefit Ms. Rich and did not want to divest her of her interest. Her benefit was clearly the dominant intention.

Wills Variation Act: If you’ve been cut out of will as a woman/child, you may ask to have it varied to get a cut.

Tataryn v. Tataryn: unless you have a morally compelling reason against it, you should adequately vary the will to provide for the wife and kids.

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