ContentsABORIGINAL TITLE.......................................................................................................................................2

EQUITABLE INTERESTS.................................................................................................................................5

Origins of Equity......................................................................................................................................6

Trusts.......................................................................................................................................................7

CONDITIONAL GIFTS..................................................................................................................................10

Basic Concepts.......................................................................................................................................12

State Limitations on Private Power.......................................................................................................13

LEASES & LICENSES....................................................................................................................................15

The Nature of a Lease............................................................................................................................16

Obligations of Landlords & Tenants.......................................................................................................16

SHARED OWNERSHIP.................................................................................................................................18

Basic Concepts & Creating Shared Interests..........................................................................................18

Severing Joint Tenancies........................................................................................................................19

Alternative Conceptions of Shared Ownership......................................................................................20

SERVITUDES OVER PROPERTY...................................................................................................................20

Easements.............................................................................................................................................20

Profits a Prendre....................................................................................................................................21

Access to Public & Private Property.......................................................................................................22

Covenants..............................................................................................................................................22

COMMON LAW PRIORITIES.......................................................................................................................23

REGISTRATION...........................................................................................................................................25

Introduction...........................................................................................................................................25

Indefeasible Title & Fraud......................................................................................................................26

Registration of Charges..........................................................................................................................27

Notice....................................................................................................................................................29

Registering non-Proprietary Interests & Aboriginal Title.......................................................................30

ABORIGINAL TITLE

3 different types of Aboriginal property interests:1. Reserve lands2. Treaty lands (Nisga’a & Tsawwassen lands)3. Aboriginal title (doesn’t exist anywhere yet.. Tsilhqot’in Nation came close)

Pre-Delgamuukw – Some History1846: Washington Treatysets 49th parallel as boundary HBC gets bumped out of Oregon & sets up

shop in Victoria. No interest in the land, just wants a commercial relationship with Aboriginals1849: Colony of Vancouver Island is established - given to HBC as a proprietary - with a mandate to

settle. Now, interest in land1850-1854: Douglas, governor & head of HBC in BC, negotiates 14 treaties, “Douglas Treaties”. Simply 2

paragraphs marked by Chiefs with an X. End of treaty making until 1990’s.1858: Gold rush – colony of BC1864: Trutch replaces Douglas, is less generous with giving out land.1871: BC joins confederation & jurisdiction over Aboriginal issues shifts to Federal govt.1876: Indian Reserve Commission authorized to grant reserves for the benefit of aboriginals. No treaties

beyond Douglas treaties + commission postage stamp reserves1888: St Catharines Milling & Lumber Co v The Queen – Dominion grants timber lease to St. Catharine’s

Milling – Dominion purports to have acquired fee simple title to land via numbered treaty #3 from Salteaux Ojibway. Ontario objects because Constitution says Provinces retain land. JCPC agrees with Ont – Dominion doesn’t have fee simple because Aboriginals didn’t have fee simple – had personal and usufructuary rights (rights to use the land, but not a proprietary interest)

1973: Calder v BC (AG) –Calder, an elder of the Nisgaa band wanted a declaration that their rights/title had not been extinguished by the ordinances/proclamations of Douglas. SCC 3-3-1 split: 3 said title was extinguished by ordinances; 3 said no legal extinguishment; 1 dismissed action because Calder hadn’t received permission to sue the govt – so no declaration. BUT, 6 agreed that aboriginal title existed, & was not created by Royal Proclamation of 1763. Also, had title, not just a “personal usufructuary right”.

1990: R v Sparrow – Sparrow caught fishing with too long of a net. SCC sets out a test for s.35(1) rights:1) Is there an aboriginal right? (P's burden)2) Has the right been infringed? (P's burden)3) Is the infringement justified? (shifts to D's burden)

a. Compelling & substantial objectiveb. Fiduciary duty of the Crown

SCC creates a priority scheme (hierarchy) for the compelling & substantial objective:i. Conservation (s.219 Land title act)

ii. Aboriginal food, social, and ceremonial fisheryiii. Non-aboriginal commercial and sport fisheries

Unanswered: where does an aboriginal commercial fishery fit in?1996: R v Van Der Peet - woman sold fish to neighbour without commercial license

SCC: To be an aboriginal right, an activity must be an element of a practice/custom/tradition integral to the distinctive culture of the group (prior to contact with Europeans). Inherent limit to what one can do on aboriginal title land - whatever use the land is put to, those uses cannot destroy the rights that gave rise to the title in the first place.

1996: R v Gladstone – Hieltsuk band given commercial fishery rights – proved it was integral to culture

Delgamuukw v BC [1997] SCCWhat is the content of aboriginal title? How is it protected?

Crown argues: bundle of rights = aboriginal title. D argues: inalienable fee simple SCC: From St. Catharines Milling, Aboriginal title is a sui generis interest with 3 distinctive

characteristics:i. Inalienability (except to the Crown)

ii. Source – precedes European sovereignty – doesn’t flow from Crown’s title but rather is a burden on Crown title

iii. Communally held Content:

o The right to use the land for a variety of purposes, not necessarily to do with aboriginal practices

o Lands cannot be used in a manner that is irreconcilable with the nature of the attachment to the land – ie. recognizing a continuity in the relationship btwn Aboriginal community and their land - flowing from this, uses of the lands that would threaten the future of that relationship are not part of the content of the title

Protected by s. 35(1) – note: not created by s.35(1), but protection of existing rights were constitutionalized in 1982. Rights may be loosely or deeply connected to land (eg. right to hunt in a large area, right to ceremony on one site)

What is the test for the proof of title?1. Land must have been occupied prior to sovereignty

Why sovereignty and not point of contact? Because title is defined as being a burden on the Crown's title, so it doesn’t make sense to think of it before the Crown gets its title

What is “occupied? Take common law & aboriginal perspectives (ie aboriginal land law) into account.

2. If present occupation is relied on as proof of occupation pre-sovereignty, there must be a continuity between present and pre-sovereignty occupation

Doesn’t have to be an unbroken chain of occupation - may have disruptions by Europeans

Test is substantial maintenance of the connection btwn the ppl & the land3. At sovereignty, occupation must have been exclusive

Exclusivity: intention & capacity to retain exclusive control - so even if other groups were present or frequented the lands, can still have exclusivity

Without exclusivity, maybe can claim aboriginal rights to activity on that land, but not title

Infringement & Justification Aboriginal rights affirmed in s. 35(1) do not have an internal limit, but an inherent limit. Rights are

not absolute, may be infringed subject to justification:1) Infringement of the aboriginal right must be to further a legislative objective that is

compelling and substantial o Objective must be related to recognizing aboriginal rights & reconciling prior

occupation (aboriginal title) with sovereignty of the Crown2) Assessment of whether the infringement is consistent with the crown's fiduciary duty to

aboriginalso At minimum, Crown has a duty to consult with aboriginals. It may extend to needing

consent from the aboriginal group & maybe compensation

T. Flanagan, First Nations? Second ThoughtsCriticisms of the Delgamuukw decision:

Lamer CJ typecasts title as collective without consideration of other alternatives. In fact there is evidence that some property rights were held by families, even if not individually.

o This presents difficulties in ability to use land in market economy. Communal ownership deters prospective business partners

Inalienability – same problem. Also “inherent limit” prevents property from being put to most profitable use

To add to this, infringement justification essentially allows govt to do the things that aboriginal title holders cannot – as long as they consult & compensate

o As a Constitutionally protected property right – the only one – this ‘balancing’ of interests doesn’t seem right

Lamer CJ didn’t answer a lot of questions – how much of BC is subject to aboriginal title? How will aboriginal rights be proved? How much consultation/compensation?

R v Bernard; R v Marshall [2005]Facts: Bernard & Marshall charged with taking/cutting logs on Crown land.Issues: what is the standard of occupation required to prove title? Applied Delgamuukw.Discussion:

Both the common law perspective & aboriginal perspective should be taken into acct. o What does this mean? Taking a broad and generous view, examine the pre-sovereignty

practice and translate that practice into a modern legal right. Ie. Saying that the aboriginal perspective is important insofar as it corresponds to a common law right

Claimants have to prove exclusive occupationo What does this mean? Exclusivity to activities on the land such as hunting/fishing may

translate into exclusivity if these activities are regular.. Ie hunting seasonally, without regard to who uses the land pre or post season would not give rise to title - may give rise to a hunting right, but not a title right

o Title rights don't give rise to other rights & vice versao Need to demonstrate effective control of the land which infers that exclusion would

have been possible (no need for evidence of clashes; evidence that no other group has claimed the land may help)

o What about nomadic ppls? Depends on the evidence - if a degree of physical occupation & use equivalent to common law title is made out, then nomadic groups can claim title

o What is meant by continuity? Must show that group descended from the pre-sovereignty group whose practices are relied on for the right

Evidence? Oral evidence is admissible as long as conditions of usefulness & reasonable reliability are met (set out in Mitchel v MNR [2001])

Tsilhqot’in Nation v. British Columbia (2007) (B.C.S.C.)Tried to apply Delgamuukw. “Irregularity” in the pleadings, so Judge did not give declaration, but gives an ‘opinion’ that the land is aboriginal title “Claim Area … is an area that was occupied by Tsilhqot’in people at the time of sovereignty assertion to a degree sufficient to warrant a finding of Tsilhqot’in Aboriginal title land from three perspectives. First, there are village sites … Second, there are cultivated fields, .... Third, by a well defined network of trails and waterways, [they] occupied and used the land… for hunting, trapping, fishing and gathering. ”

Haida Nation v British Columbia (Minister of Forests) [2004]Facts: Haida nation was seeking an aboriginal title claim to lands of Haida Gwaii. Before it was resolved, BC approved a license to tsf these lands to Weyerhaeuser Co. Haida sought to have tsf set aside. Issue: Is the Crown entitled to use the resources at issue as it chooses, pending proof & resolution of the aboriginal claim? Did they have a duty to consult & accommodate Haida’s concerns?Discussion:

Haida could have tried for an injunction – but court would have weighed whether stopping Weyerhauser would have been more serious than allowing them to continue

o But inadequately expresses Crown’s honour/responsibility to Haida Duty to "treat aboriginal peoples fairly and honourably, and to protect them from exploitation"

(Mitchell v MNR) follows from s. 35 – so yes, duty to consult pending proof & resolution of claim Ultimate reconciliation will be best achieved by negotiations – so foster this kind of relationship What is the scope & content of the duty to consult and accommodate?

o Scope of the duty is proportionate to a preliminary assessment of the strength of the case for title, and to the seriousness of the potentially adverse effect on the title

o Duty to a meaningful process of consultation, not necessarily a duty to agree- good faith required on both sides.

o Spectrum of content: if the case for title is weak, or low risk of infringement, then mere notice might be enough. If a strong prima facie case is established, or infringement is of high significance, then deep consultation may be required

o Duty to accommodate may be required in strong prima facie cases - accommodation reached by consultation. Good faith consultation may lead to a duty to accommodate.

o This duty does not give rise to a right to veto - Delgamuukw's "consent required" is for cases of established rights, and even then not for every case

o Crown's obligation to consult does not extend to Weyerhaeuser Co What is the source of the duty to accommodate & consult?

o Grounded in the ‘honour’ of the crown. What’s that? A fiduciary duty – duty to act in the best interests of the beneficiaries (Articulated in R v Guerin –Musqueum & the lease of a golf course –breach of fiduciary duty found by the court)

But here, not a full blown trust relationship, so not complete fiduciary duty but there is a special relationship btwn crown & aboriginals – honour of the crown

When does the duty to consult arise? When the crown has knowledge (real or constructed – actually know or ought to know) of a claim to aboriginal title and contemplates activity that might adversely affect that title

EQUITABLE INTERESTS

Can divide property interest into legal & equitable interests. Equitable interest came from the “use”, and now arises in the forms of trusts.

If common law says one thing, & equity says another, equity prevails But equitable rules are always discretionary – the judge can decide whether or not to call on

equity – “so long as justice is served” Is this right? Is it more just to have hard fast rules that apply in the same way to everybody? Or

is it more just to have discretion to respond to particular circumstances?

Origins of EquityMaxims:

Bonafide purchaser for value Clean hands Equity regards that done which ought to be done Equity regards substance rather than form One who seeks equity must do equity Unified court structure

Common law courts: King's Bench, Exchequer, Common pleas Could choose which common law court to bring your action, but they were very rigid, inflexible &

strict - one word missing, plea was thrown out To remedy this, developed appeal court – Chancellor - heard the injustice of the court decision -

then Chancellor could overturn - Chancellor became court of equityEg. Under common law, if I stop paying my mortgage, the bank gets the property interest AND would still have a claim for the remainder of the loan

o Chancellor would grant: Equitable right of redemption (If I pay back the loan afterwards, can keep the title. Basically gives me some time)

o But how much time? Bank would get Equitable right of foreclosure after a certain time

P. Butt, Land Law Rigid land law in the middle ages: feudal tenure became a form of financial extortion; and

common law didn't allow devising of land So, landowner turned to the "use" Grantor (feoffor, or cestui que use) would give land to 2 joint tenants (feoffees). Then right of

survivorship allowed the owner to avoid tenurial incidents - taxes). If one tenant died, then the other would tsf to a new set of 2 tenants. Grantor/beneficiary would keep possession.

Advantages: o If the grantor died, there would be no incidents. (same if one of the tenants dies)o Uses could be disposed of by willo Overcame rigid rules in conveyancing

Since the "use" was not recognized in common law, some dishonest feoffees could get away with fraud and the feoffor would have no remedy - so they turned to the Chancellor courts o Unconscionable though not illegal, for feoffees to disregard the terms of use, so made rules:

A gifts land to B - A has a greater interest A buys land from B with knowledge, or ought to have knowledge, that there is a

beneficial interest to C - C has a greater interest than A But if A doesn’t have knowledge & acted honestly - A still has greatest interest

Since the cestui que use became enforceable against 3rd parties, it had acquired the characteristics of a proprietary interest

Then, Statute of Uses (1535) merged the legal & equitable interests again - and whoever held the equitable interest (the use) held both. Some other aspects:o Resulting uses: Same for reversionary interests - to F and his heirs to the use of A for life -

became a legal life estate for A, and remainder fee simple to the grantoro Active uses: if the feoffee had active duties to perform, then the legal & equitable interests

could still be separate - to F and his heirs to the use that F should collect the rents and profits and pay them to A and his heirs - F takes legal fee simple, A takes equitable fee simple

o Feoffee must be seised: if the feoffee doesn’t have title (eg in a leasehold situation), Statute doesn’t apply - but didn't matter whether the cestui que use was leasehold

o Use upon use: could recreate the separation - to F and his heirs to the use of A and her heirs to the use of B and her heirs - A gets legal fee simple & B gets equitable interest (Tyrrel's case)

Then, the Tenures Abolition Act - abolished feudal incidents in 1660 - Chancellor courts could allow a separate legal & equitable interest againo Language changed to "trust" with a trustee and beneficiary

M. Conway, “Equity’s Darling” Wives had no legal personhood according to the common law Equity alleviated this harshness by allowing others to hold in trust for the wife - so she could enjoy

the benefits of the property and her husband could not touch it

Trusts What are they used for?

o Allow property to be held in trust for a beneficiaryo Allows one person to have the benefit of the income and another to maintain the capitalo Allows a trustee to hold an estate to be distributedo Charitable trusts o Used in an attempt to shield property from taxation

Most trusts are express trusts (document establishes the trust – terms, parties, etc)Resulting trusts arise in 3 ways

1. Beneficial entitlement under a trust has not been properly disposed of Ex. Gift to A in fee simple, to B in trust for life

A receives legal interest - B receives equitable interest for life Then equitable interest reverts back to the transferor upon death of B

2. When property is tsfed in the form of a gift Equity presumes bargains not gifts: As a general rule for gifts, when the legal title

transfers, the person with the legal interest holds it in trust for the transferor But presumption can be rebutted when it can be shown that the donor intended to

tsf both the legal & equitable interest Also, an exception: presumption of advancement - when certain familial transfers

are presumed gratuitous (eg. parent to child because of obligs to take care of child; gifts between spouses)

3. Where there is evidence of a common intention to create a trust Usually in the form of one spouse holding legal title though both have contributed

Constructive trusts: Imposed when no express intention to create trust & no resulting trust b/c no property has tsfed. Used by equity, so no regard for intentions.

1. Institutional Constructive trust: Arises in discrete circumstances Eg. someone knowingly meddles with trust property Eg. Seller of property holds it in trust for buyer in btwn K of sale and closing date.

May get remedy of damages instead of constructive trust unless land is unique2. Remedial Constructive trust

Response to unjust enrichment – usually for unpaid household labour

Pecore v Pecore [2007] SCC- Resulting trustFacts: Father tsfs money into joint acct with daughter - but for tax purposes, expresses that he is owner, not gifted to the daughter. Father dies, leaving assets to daughter & son-in-law. Son in law divorces daughter and demands part of the acct, but daughter argues RoS.Issue: Presumption of advancement applies to tsfs btwn parents and young child - What about btwn parents and adult, independent children? Or parents & adult, dependent children?Discussion:

Independent adults: presumption of resulting trust applies, since justifications (obligs to take care of child, & parents commonly gift things to children) are no longer valid. Also elderly often add children to bank accounts so the child can assist with money issues

For dependent adults, dependency can be wide ranging - causes uncertainty. Should be a presumption of resulting trust (can rebut on a BoP)

For this case, found there to be a successful rebuttal of the presumption of a resulting trust (Father was closest and most concerned about daughter, lawyer drafting his will had gotten the impression that the accounts were taken care of, assertion of ownership of funds were for tax)

Murdoch v Murdoch [1975] SCC – Before remedial constructive trustsFacts: Murdoch & wife did work, saved money, bought ranch in Mr.'s title, sold, then bought another one using proceeds plus other $ that Mrs. Had brought into marriage from her mother, held in Mr.'s title. Mr. was away up to 5 months in the year, then Mrs. would run the ranch. They divorce.Issue: Did Mr. hold a portion of the land as a resulting trust for Mrs. Murdoch? Claimed interest in the land based on her direct contribution (mother's money) and indirect contribution (maintaining ranch)Discussion:

What sort of resulting trust? Common intention resulting trust Found no common intention - Mrs.'s labour was no more than regular labour of a farm wife Interpreted the direct contribution as a loan Laskin (famous dissent) would have held that a constructive trust based in equity should have

been found

Note: In between Murdoch & Peter v Beblow…Rathwell v Rathwell [1978] SCC

Similar facts to Murdoch. SCC overturned Murdoch, created remedial constructive trust Minority went further - endorsed a remedy for unjust enrichment when:

o There was an enrichmento The other party was deprivedo No legal basis for one party being enriched at the expense of the other

After this case, Matrimonial laws across the country were completely overhauled (only married couples)o Part of this overhaul was the assumption that all matrimonial property would be split 50/50

Becker v Pettkus [1980] SCC: not married but common law for 19 yrs - majority took on minority decision in Rathwell - Pettkus held a part of title in trust for Becker in proportion to her maintenance and contributionSorochan v Sorochan [1986] SCC: not married, but common law for 42 yrs. Mr brought all the property into the common law relationship - but Mrs took care of their 6 children - Held that her work over maintenance of farm & work of taking care of their children allowed her to have some interest in the property - awarded 1/3rd interest bc there was a clear connection btwn her work on the land and also that she had a reasonable expectation & length of relationship

Peter v Beblow [1993] SCC – Constructive TrustFacts: Wife (W) & Husband (H) get married - each bring kids to family. She did not work and took care of children & house - house was in H’s name. They divorce.Issue: W wanted a declaration that property was partially held in constructive trust on her behalf. Was H unjustly enriched at W’s expense? Discussion:

Unjust enrichment has 3 requirements:a. An enrichment/benefitb. Corresponding deprivationc. Absence of a juristic reason for the enrichment

Remedies available: payment for services on quantum meruit; constructive trust For this case, 3 requirements are met - arguments against it: W voluntarily assumed the role,

provided services out of care & affection (but abusive relationship.. no love/affection) What is the legitimate expectation of the parties?

o Did the P confer a benefit as a gift or out of a legal obligation? Court held that a common law spouse has no duty to perform work or services

for her partner (Sorochan v Sorochan)o Does public policy support the enrichment?

Court sees no value in differentiating btwn domestic work and $$ contributions So, there has been unjust enrichment. Remedy of constructive trust should only be available when monetary compensation is

inadequate & when there is a link btwn services rendered and the property How much contribution is required to give rise to a constructive trust?

o Minor or indirect contribution is not enough - once above this, then the amt of contribution determines extent of the trust

o In determining extent, be flexible to achieve a fair result, and use the "value survived" (what value has been added to the home?) rather than the "value received" (how much did the wife work?) approach

What is held in trust? Not just the home, but any other property obtained during marriage

Soulos v Korkontzilas [1997] – Constructive trustsFacts: K was a real estate broker - S was his client. K bought property that S was going to buy for $X. K was acting as S's agent, so had a fiduciary duty of loyalty to S. Breached this duty.Issue: What remedy is available? S wants title of property tsfed to him for the price that K paid. S argues for a broader view of constructive trusts - that they can be used to prevent unjust enrichment, but also be applied absent an established loss to condemn wrongful acts & maintain integrity of trust relationships. K argues a narrow view that constructive trusts can only be used in unjust enrichment.Discussion:

SCC prefers broad view - use "good conscience" to unify the different forms of constructive trust Constructive trusts have room to develop with broad categories of:

o Wrongful act, but no unjust enrichment & corresponding deprivationo Unconscionable unjust enrichment in the absence of a wrongful act

4 requirements of a constructive trust: i. D must have been under an equitable oblig

ii. D's assets must have resulted from agency activities of the D in breach of his oblig to Piii. P must show a legitimate reason for seeking a proprietary remedy

iv. No other factors rendering a constructive trust unjust Found in favour of S - constructive trust imposed

CONDITIONAL GIFTS Need to balance private controls with public policy considerations (efficiency, etc) Private controls have always been conditional, never absolute Transferring fee simple: current owner parts with everything - But transferor can also attach

conditions

Vested interest vs contingent interest Vested:

i. Vested in interest ii. Vested in possession

Contingent: where the vesting is delayed, pending the happening of some event (pending the outcome of some condition precedent) - which may or may not occuro The interest can't vest until the condition occurso Some reasons for this: the property isn't fully identified, or the recipient is not yet

established; interest depends on something elseo May be contingent if the individual shares are not ascertained (when it is a class gift)

Defeasible vs Determinable Defeasible if it may be ended on the occurrence of an event (subject to a condition subsequent)

o Transferor holds a right of re-entry - must act on this to get the property backo Right of re-entry is a contingent interest (contingent on the condition subsequent)o Language: On the condition that; but if; but when; provided that; if it happens that; if it

should occur that; if Courts have interpreted these words telling of an abrupt event

o The condition subsequent is external to the gift. They are not words of limitation - not controlling the quality of estate

Determinable if should the determinable even occur, the interest will end and revert back to the grantoro Transferor retains possibility of reverter - an automatic & immediate transfero Possibility of reverter is a vested interesto Language: While; whilst; during; so long as; until

Courts have interpreted these words as connoting the flow of time – o Determinable event is integral to the interest given – they are words of limitation (defining

the size of the estate) Note: right of re-entry & possibility of reverter can be assigned to someone other than the grantor How do we differentiate?

o What did the transferor intend?o Language is hard to differentiate

Rule against perpetuities: Rule against perpetuities only applied to contingent interests (ie. defeasible ones) Statutory fix – rule applies to right of re-entry & possibility of reverter equally

Duke of Norfolk’s Case (1681): An interest is valid if it must vest, if it is going to vest at all, within the perpetuity period. That period is calculated by taking the lives in being at the date the instrument takes effect, plus 21 years.

Worried about whether the contingent interest WILL vest within the perpetuity period Intent of the rule: to prevent a contingent interest from being contingent for too long

A condition may be found to be void: If it violates the Rule against perpetuities (only for contingent interests) – see above May be void if it contradicts an essential element of the estate (Only for condition subsequent. A

determining event CAN’T contradict an essential element of the estate, just defining it.) May be void if contrary to state or public policy

o Eg. Condition is criminal, or is a general restraint on marriage (Eg. Re Leonard Trust)o Considerations:

i. Efficiency/use of property: Promotion of alienability; Need for certaintyii. Public interest/ideology: social considerations

May be void for uncertainty (Hayes)o Person acquiring the property needs to know how to use it most efficientlyo How uncertain/clear?

Conditions subsequent & probably determinable conditions: donee must be able to see clearly and distinctively from the outset those actions which will lead to the loss of the interest

Conditions precedent – must be capable of given some plausible meaning (needs less clarity than conditions subsequent)

o Why this different standard? Diff effects of invalidity Effect of invalidity of the condition:

o Defeasible event (cond subs) is invalid transfer is absolute and condition is removedo Determining event is invalid the whole gift is invalid because you can’t define the estate

that is being transferred (determining event = words of limitation & integral to the estate)o Condition precedent is invalid real property: gift is invalid

Why these outcomes? Default interest is to leave property where it is vested

Rules of Construction (ie presumptions) for wills (McKeen Estate):1. Intention is paramount2. Presumption against intestacy3. Construction in favour of vesting

o Preference for vested vs contingent interests is particularly strong when it comes to lando This should agree with the rest of the will & of course, follow words in the will

4. Rule in Browne v Moodyo Gift is presumed vested if the postponement is to allow for a prior life estate

5. Rule in Re Franciso Where the reason for the postponement is personal to the donee, then presumed the gift is

contingent (eg. Donee must reach age of 21, or Donee must be married)6. Rule in Phipps v Ackers:

o Gift with conditions + a gift over if conditions are not met first gift is presumed vested.o Eg: “to A, if and when A attains the age of 19 years, but to C if A does not attain the age of

19 years”o A’s interest is presumed to vest even before A turns 19.o This rule is a modification on rule in Re Francis

Possession vs occupation? Possession is the legal right/entitlement; occupation is the physical description

Basic Concepts

Stuartburn (Municipality) v Kiansky [2001] Man QB – vested interestFacts: Kiansky held a remainder fee simple interest in a piece of land - life estate to his grandmother. Election Act stated that officers must own land ("is, in his own right, … an owner of land…")Issue: Was Kiansky entitled to hold office in the municipality? Discussion:

Act states that the person has to be a present owner of a freehold estate in land Kiansky's remainder fee simple interest is an freehold interest in land & he presently owns this

righto Common law requires that transfer of freehold interests must be immediate, can't be

suspended for a later time - so, Kiansky's interest has been vestedo Kiansky’s present right to future possession or enjoyment co-exists with the life estate

Comments At the federal level, a senator must be "seised of lands worth at least $.." - court found that this is

different, seisin means immediate possession - so a remainder fee simple is not sufficient to meet this requirement

McKeen Estate v McKeen Estate [1993] NB QB – Interpretation of willsFacts: McKeen's residual estate to be divided between sisters "if they are both alive at the time of the death" of himself and his wife. If one sister dies before me & wife, then that part of the estate goes to the other sister. But neither sisters survived his wife.Issue: Did the will mean to say:

a. Contingent on my wife's death, the sisters will get the property (ie. Since the sisters died first, they get nothing)

b. The property is given to the sisters vested in interest at the effective date of the will (ie. At the time of husband & wife's deaths, the property tsfs to the sisters, or their estates)

Discussion: McKeen did not want to die partially intestate, he intended to give his estate to his sisters. Reason

for the postponement was for life estate for wife Following Brown v Moody (reason = life estate) instead of Re Francis (reason = alive sisters) An example of how courts want to go against intestacy

Caroline (Village) v Roper [1987] Alta QB – Determinable & defeasibleFacts: Roper gives land to village trustees to be used for a community centre ("shall revert back to the.. Estate if used for other than a community centre"). Community centre burns down, village wants to sell the land for commercial use.Issue: What kind of vested interest did the Ropers give? (determinable or defeasible)Discussion:

Ropers gave a defeasible fee simple and so then the rule of perpetuities makes the condition void, so the transfer was absolute to the village

BUT rectified the deed to show the parties' common intention - land goes back to the Ropers – Intention is paramount

State Limitations on Private Power Balancing public policy against individual’s power to do what they wish with their property Blanket restrain on alienation is not acceptable b/c repugnant to one of the core aspects of a

private property interest - ie the transferability What restraints does the law allow? Where is the boundary? At what point does one intrude on

the core of the fee simple? We know the law allows for some conditions to lead to the property interest being forfeited

(Defeasible & determinable) Different constraints other than forfeiture can be placed on the property - capacity of owner to

transfer. Any combination of:o Mode of alienation may be restricted (can't be sold, can be leased, etc)o Class of ppl that the property can be alienated too Time of alienation - time of window in which the property may not be alienated

"Too severe when the restraint takes away the whole power of alienation substantially" - Ziff Courts are interested in the substance of the restraints and not the form - what is the effect?

Unger v Gossen [1996] BCSC – Intention paramount & impossible conditionsFacts: Testator left $ for 3 nephews living in the USSR, subject to a stipulation that the nephews become residents of Canada. Clear that main reason for the condition was because she did not want $ going to communist govt. When the testator died, no chance nephews could meet condition.Issue: Is the stipulation void?Discussion:

Cdn Law: o Conditions precedent impossible of performance (known to the testator) are void, gift

upheldo Conditions made impossible by act of the testator are void, gift upheldo Conditions impossible because contrary to law (known or unknown to the testator) are void,

gift upheld (but must be shown that the performance of the condition was not the sole motive for the bequest)

o Impossibility unknown, or became impossible, then both the gift & condition are void Concluded that nephews can't immigrate to Canada due to law, motive of testator was to avoid

giving $ to USSR, intent was to benefit nephews.. So allow the beneficiaries to distribute as needed

Where a gift is subject to impossible condition, the dominant intent is presumed to be the gift, thus the condition is void

HJ Hayes Co. v Meade [1987] NB QB - UncertaintyFacts: Piece of land disputed: Father bequeathed to son James property on the condition that James reside on land & cultivate the same. Should James desire not to reside on said property , it would be given to Harold upon him paying James $1000. James left home (possibly before father's death) & returned approx 30 yrs after father's death, built house. Harold never paid James $1000. Issue: Who owns the land? Were the provisos in the will conditions subsequent, or conditions precedent? Are the conditions void for uncertainty?

Discussion: If subsequent: immediate vesting to James, but interest is lost if condition not met If precedent: condition must be met before vesting occurs Presumption in early vesting (ie, prima facie, conditions subsequent) If we assume conditions precedent, then vesting to James did not occur (didn't work on land),

neither did vesting to Harold (didn't pay James)o This means partial intestacy, not a good result

Intentions appear to be benefiting sons in some waySo answer is: conditions subsequent

But are these conditions void for uncertainty?o Test by Clavering v Ellison

Court must be able to see from the beginning, precisely and distinctly what event will take away the interest

Uncertainty as to time period of residency on land & how long James had to be away to fail the condition → void for uncertainty absolute gift, condition removed

Re Leonard Foundation Trust [1990] Ont CA – Sources of Public PolicyFacts: Trust fund created in 1923 for scholarships - recitals indicate the monies must go to protestant, british, white, from a certain class, and more money must go to males than females. Ont Human rights commission files official complaintIssue: are the recitals of the trust conditions? And if so, are they void for public policy?Discussion:

Ont CA decided recitals could not be severed from rest of the trust doc - they give direction to the awarding of the funds

Also, the Foundation was privately created but has become a quasi-public institution - operates as a charitable trust for educational purposes

Court shouldn’t casually intervene under the purpose of public policy - have to be careful not to impose own values of the judge & legislature should deal with most of these matters - individuals have freedom to choose how to dispose of their propertyTarnopolsky JA – sources of Public Policy:

Look at case law: has discrimination of race been recognized in any action? Yes (Bhadauria) Look at regular statutes (Ontario Policy on Race Relations & Hansard on this statute) Look at Constitutional equality rights Look to world community - International conventions on anti-discrimination Anti-discrimination laws of every jurisdiction in Canada reflects public policy against discrimination Conclusion: this trust is void - not all trusts that give $ to a particular class of persons will be void -

must evaluate on a case by case basis (courts must balance the interests of freedom to dispose of property as individuals see fit, and public considerations)

Note: it may matter whether the Univ administers the trust – In Re Ramsden Estate [1996], scholarship to protestant students entering field of ministry was upheld so long as trustee wasn’t the Univ. Or it may not matter: UVic v BC [2000] – UVic allowed to be trustee to scholarship for Catholics in music.

Trinity College School v Lyons [1995] Facts: 1963: Bennetts sell some land to the school. Agreed that should they decide to sell the rest of their land, they would first offer it to the school for $12k. (Right of first refusal)

1965: School acquired an option to purchase, on the death of the Bennetts, the remaining lands for $9k Bennetts gift land to their daughters before they die.Issue: Did the gift to the daughters void these agreements? Was the 1965 option void or unenforceable as an improper restraint on alienation?

Discussion: 1963 option: Right of first refusal is valid

o Right of first refusal can’t be defeated by gift to daughters, so the gift is void. Re Rosher:

o Father left property to son granting right of first refusal to widow for $X.o This condition amounted to an absolute restraint on alienation during the testator's widow's

lifetime - so invalid 1965 option: was an improper restraint on alienation (fixed price doesn’t allow owner to profit

from property, and essentially made the fee simple a life estate since at the last Bennett’s death, the school could buy the property)

Rule: A condition that would take away the necessary incidents of the estate – such as profiting from the property or alienating it – is void as being repugnant to the estate created. (creates a concentrating of wealth)

LEASES & LICENSES 2 major categories of estates - leasehold & freehold estates (third – copyhold)

o Freehold: the quantity or the time frame of the property interest is unknown (eg life estate)o Leasehold: has a fixed endpoint - establishes a tenurial relationship btwn the landlord &

tenant. Is also a chattels real Can have:

i. Fixed term lease - eg 5 yr leaseii. Periodic tenants - (month to month, year to year) continues until terminated with notice

iii. Tenancy at will - no set term. Continues with mutual agreement btwn parties, until termination

iv. Tenancy at sufferance - tenant remains on the property without the landlord's permission - doesn't actually create a tenurial relationship

v. Perpetual lease - no fixed term and no right of termination on notice - is this even a lease then?

Essential elements of a lease: o Demise of lando Exclusive occupation is conferred by the landlord on the tenant

Lease agreement should contain:o Demise of land of exclusive occupational rightso Parties, property, term, date of commencement, and rent (if any)

Mostly CL presides over commercial leases & statute presides over residential leases

Lease LicenseGrantor gives Property interest & exclusive rights

to possession/occupationPermission to be on land, sometimes + permission to do something

Subsequent purchasers Bound by existing lease Can revoke existing licenseIn the event of a breach Lessee can bring action to recover No such thing as a breach, just

estate revocations of license

The Nature of a Lease

Factac Ltd (In liquidation) v Commissioner of Inland Revenue [2002] NZCAFacts: P granted A the right to operate a quarry on his land for 12 yearsIssue: Did P grant a lease or license to ADiscussion:

Tenancy/license distinction: if the effect of the instrument is to give the holder an exclusive right of occupation (or right of possession) of the land, then it is a tenancy

Why exclusive possession? o In tenancy, even the reversioner is excluded (except for certain instances given by statute).

Tenant temporarily has the fundamental rights of ownership stemming from exclusive possession.

o Licensee can only enter land & use it to the extent that permission has been given Refinements to the exclusive possession test

o Rent is a central feature of tenancy, but not criticalo Restrictions on what the tenant can do does not negate a tenancyo No tenancy where:

The owner is prevented from granting a tenancy by statute The owner's right of entry to provide services is inconsistent with exclusive possession The right to exclusive possession can be terminated pursuant to some legal

relationship outside of the landlord & tenant relationship Whenever the right to exclusive possession is undermined by the potential for termination for

reasons extraneous to the occupation of the area, there is a license In this case: A had a license because P (and the subsequent buyer of the land) had rights to access

the quarry land as long as they didn't disrupt A's activities.

Metro-matic Services Ltd v Hulman [1973] Ont CAFacts: Agreement btwn laundromat & building owner: Quiet enjoyment, 10 yr lease, rent, date of commencement .. but s. 6(e) - landlords must allow others in residents in building into laundromatIssue: Did this agreement amount to a lease or a license?Discussion:

CA deems it a lease - the parties have intended a lease. Restricted use makes sense because the business needs it. So these restrictions do not negate a lease. Covenants are to the benefit of the laundromat - is essential to the operation of the business and doesn’t derogate their property right.

Obligations of Landlords & Tenants In common law, terms of a lease are interpreted using principles of intention & freedom of

contract - very few terms are implied, and those that are can be negated in the K Tenant's right to quiet enjoyment is a central right (because it is critical for exclusive possession) -

issues may arise as to extent to the right & whether a breach has occurred Lease may contain provision ‘importing usual covenants’

o Covenants developed by common law

o “Quite enjoyment” covenant by landlord for tenantso “Maintain basic repair, pay taxes, and to allow landlord entrance” covenant by tenants for

landlords Implied terms will usually yield to express terms, but Legislation overrides both

Southwark LBC v Tanner [2001] HL – Defines right to quiet enjoymentFacts: Tenants complain of being able to hear everything through the walls of their flats - there is no sound insulation. The tenancy agreement doesn’t contain warranty regarding this. No statutory obligation for landlord to provide sound insulation. Tenant relies on covenant for "quiet enjoyment" Issue: What does “quiet enjoyment” mean?Discussion:

"Quiet" means without interference/interruption of the possession, doesn't refer to noise levels "Enjoy" refers to exercise & use of the right and having the full benefit of it, not deriving pleasure So the covenant gives the tenant ability to use the flat in an ordinary way - not for any special

purpose. Noise MIGHT be amount to interference… But the agreement says the tenants lawful possession "will" not be interfered… when tenant took

tenancy, should have reasonably contemplated that neighbours would make some noise.. So is nothing new

Lord Millet thinks interference must be direct and physical. Why? Probably required because of a desire to maintain a connection with securing possession

Conclusion: found for landlord, no breach of covenant of "quiet enjoyment"

Comments Canadian view of quiet enjoyment is broader - looks to English authorities to conclude that the

"peace and comfort" of a tenant was interfered with during renovations in her apt building, as a result of the noise, odours, & mess. (Pellatt v Monarch Investments Ltd (1981) Ont Co Ct)

Petra Investments Ltd v Jeffrey Rogers plc [2000] UK – Derogation from grant in a leaseFacts: T leased space in L’s shopping centre. Major renovations to create a mega music store. With some monetary compensation, T agreed not to take legal action for construction. But T’s business suffered. T argued derogation from grant (grantor of right to land can't then make the grant worthless) Issue: Did the renovation amount to a derogation from grant?Discussion:

Test: Did the construction render the premises unfit or materially less fit to be used for the particular purpose for which the demise was made?

In this case: can't say that the landlord had assumed responsibility not to do anything that might damage the business of a tenant - this wasn't written into the agreemento Probably a duty not to alter the common parts of the mall as to cause it to lose its character

as a shopping mallo So when the mall underwent construction to create a mega-store… it may have breached

this dutyo But T had agreed not to take legal action for the creation of the new unit - both T & L knew

that the new mega-store would be the new anchor store in the mall. Both hoped it would attract more customers. Now that it has had a detrimental effect on T only means that business forecasts are sometimes wrong. Landlord shouldn't be legally responsible for that.

Conclusion: held for landlord

SHARED OWNERSHIP

Basic Concepts & Creating Shared Interests

Ontario Law Reform Commission, Report on Basic Principles of Land Law [1996] Joint tenancy - aka Seised "per mie et per tout" - each tenant holds the whole together and

nothing separately Four unities

a. Unity of possession - Each tenant is entitled to possession of the landb. Unity of interest - The interest of each tenant is the same in extent, nature, & durationc. Unity of title - Each tenant's joint title must be derived from the same documentd. Unity of Time - Each tenant's interest must vest at the same time (exception: joint tenancy

created by will or by a conveyance employing a use). Not sure whether this is vesting in interest or possession

Joint Tenancy Tenancy in CommonUnities Possession, interest, title, time PossessionDeath of a tenant? Right of Survivorship. Can’t devise the interest.

Remaining tenants share ownership with one less person

Interest is devisable – becomes part of the estate.

Conversion? Severance will make it into a tenancy in common. (can’t be effected by tenant’s will)

Common law presumption of joint tenancy except for 3 circumstances where tenancy in common is presumed:

i. When 2+ ppl advance money on mortgage ii. Partnership property held by partners

iii. Purchase price for property is provided unequally - then each is presumed to hold tenancy in common for the percentage that they contribute

o What happens when A & B contribute equally - is it a joint tenancy or tenancy in common with equal shares? – Aus: tenants in common with equal shares

Statute: s. 13 of Conveyancing and Law of Property Act - presumption of tenants in common when land is given by letters patent, assurance, or will to 2+ persons unless the intention of the giver is for joint tenancy (not applicable if tenants are spouses)

o Rob v Rob: Co-op - each held shares in a corporation entitling them to live on a piece of the property. So this wasn't land and the presumption for joint tenancy holds

Re Bancroft Easter Trust Co v Calder [1936] NSSCFacts: Bancroft's will directed a part of the invested money of his estate to go to "the children of my deceased daughter Minnie Calder" while his wife was living. Children are P & J. P dies. Issue: Does his share go to J (joint tenancy) or to P’s children (tenancy in common)? Discussion:

Common Law says presumption of joint tenancy, but courts make it easy to rebut this presumption - anything indicating an intention for tenancy in common is sufficient

Use of the words "equally amongst them" or "equally to them" or "equally" etc.. Have been held to create a tenancy in common. None in testator’s will.

Counsel's argument is that a separate provision (6c) for the division of property after his wife's death clearly intended to benefit PC's children & gave them tenancy in common- but this cannot be enough to rebut the presumption - the provision is for a completely separate time (after wife's death)

So- joint tenancy & J gets P's share

Note: Per stirpes: if A leaves $ in equal shares to 4 children (1,2,3,4) and their children per stirpes - then if say 1 dies and 2 children (X,Y) - then X & Y split the one share of 1. It doesn’t get divided into 5 shares btwn X,Y,2,3,4

Severing Joint Tenancies Severance must precede the death of tenant. After death, too late – interest has gone to co-

owner. Eg. 3 co-owners, 1 co-owner tsfs interest away to a new person.

o How do they then hold their interests? - 2 original co-owners hold joint tenancy btwn each other, and new co-owner holds a tenancy in common against the 2 originals

Think of the ownership as relative to others - or in relation to otherso Then if one of the original owners dies, their interest tsfs to the other original owner - and

then the surviving original owner owns 66% and the new owner owns 33%o COULD make new owner a joint tenant - but would have to reconstruct the instrument (for

unity of title with the new owner)

Re Sorensen & Sorensen [1977] – How to sever a joint tenancyFacts: Matrimonial property held in joint tenancy - they separate but maintain co-ownership. Settlement included lease to wife of the family home for her life for a nominal rent. Wife was diagnosed with cancer. Executed a trust deed declaring that all 3 interests were held in trust for her mentally disabled son, & created will declaring daughters to be executors & trustees. Wife died before her motion to partition the lots was heard. Issue: Is the husband a surviving joint tenant (ie sole owner of lots), or was the joint tenancy severed?Discussion:

Williams v Hensman (1861) sets out ways to sever a joint-tenancy:1. One tenant acts on his own interest, losing his own RoS at the same time (tsf to 3 rd party or

to self, mortgaging the interest, granting a lesser estate)2. By mutual agreement (express)3. Can infer tenancy in common during course of dealings (must be mutual)

Did any of the wife's acts sever the joint tenancy? Settlement did not sever - the agreement described the interest as a joint tenancy Lease to one does not indicate severance (unless maybe if it was a lease for a term of years - this

one is for lifetime to the joint tenant) Using the matrimonial home as security for support pmts: doesn’t sever because it doesn't affect

the substance of the joint tenancy - upon death of either, the support pmts stop and the interest goes to the other.

Her declaration of severance in her trust deed is not severance because the husband didn't know of it (ie stated intent isn't sufficient - must act on it)

BUT in the deed, wife also declared "I hold the said lands upon trust for my son…" - gifted her beneficial interest to her son (gift of equitable title) & thus severs the joint tenancy

Note: How complete does the tenant's actions have to be to have severed the joint tenancy? Feinstein v Ashford: Lawyer hadn't acted on the tsf papers yet but person had done everything in their power

Alternative Conceptions of Shared Ownership

GNU General Public License GNU copyrights software in order to ensure people's freedom to access it - basically grants

everybody a license to use it & distribute it, subject to the conditions set out o Freedom to access doesn't necessarily mean "without payment" - can distribute and charge

ppl for it, but just can't keep others from using the code Conditions include terms such as being able to modify the work, but always clearly stating it has

been modified; each time a licensee conveys the software, the recipient must also follow the conditions etc..

SERVITUDES OVER PROPERTY Possessory rights of a freehold or leasehold estate owner may be burdened with non-possessory

rights - called servitudes "incorporeal hereditaments" in common law

Easements W.J. Byrne's def of Easement:

"When A, the owner of a piece of land, has the right of compelling B, the owner of an adjoining piece of land, either to refrain form doing something on his (B's) land, or to allow A to do something on his (B's) land, then A is said to have an easement over B's land.

o A is the dominant tenement (benefitted)o B is the servient tenement (burdened)o B's land has an easement over it

Holder of an easement is not seised – ie non possessory interest

Ontario Law Reform Commission, Report on Basic Principles of Land Law Defn from Anger & Honsberger:

1. an easement is a privilege without profit 2. annexed to land 3. to utilitze the land of a different owner (which does not involve the removal of any part of

the soil or the natural produce of the land)4. or to prevent the other owner from utilitzing his land in a particular matter5. for the advantage of the dominant owner

Re Ellenborough Park (houses around park claim a proprietary interest in park) easements:i. There must be a dominant and servient tenement

Ie. they must be different lands – don’t need to be adjoining, just proximate

Why can’t easements exist in gross? Policy considerations - law doesn't want to encumber one piece of land unless another is benefitted

How do we differentiate an easement and a license? Should look at the instrument granting the benefit - is it being given to a property or a person?

ii. An easement must "accommodate" the dominant tenement Ie. The easement is reasonably necessary for the better enjoyment of the dominant

tenement - or a broader view: it must make the dominant tenement a better & more convenient property

Value increase to the property is not determinative - not enough to establish an easement, but is one indication

Largely factual exercise… look at uses of the burdened property, etciii. The dominant & servient tenements must not be both owned & occupied by the same

person Modified by statute: Property Law Act 18 (7): Common ownership and possession

does not extinguish an easement Important modification because then a developer could put the easements in place

while they still owned the property and didn't need to await the sale of their lands before creating the legal structure

iv. A right over land cannot amount to an easement unless it is capable of forming the subject matter of a grant

Flows from the fact that easement is a non possessory right Rights must be granted by the servient tenement to the dominant tenement Grantor must carve out a section of their property rights to give to the grantee Some requirements:

o Rights must not be too vagueo Rights cannot establish mere rights of recreation – should give a benefito Rights cannot extinguish legal possessory rights of the owner to a part or all of

his property because to do so would effectively be transferring the whole property interest to the other - an easement should be an entitlement falling short of possession

2 types of easements:o Positive - a right for the dominant tenement to do something (eg rights of way, right to take

water, etc)o Negative - a right to stop the servient tenement from doing something (eg. Prevent

neighbour from creating smoke, gases, fluids)

Profits a Prendre A's right to enter the land of B and take some profit of the soil (eg minerals, oil, trees, fish, game)

for A's own useo May be held as a right in gross (attached to the person, not necessarily an estate like

easements) OR may be held appurtenant to land (ie attached to and increases the beneficial enjoyment of some land)

o A has a right to severance of the profitable thing - can take it from the land Profits a prendre in gross are extinguished by unity of seisin. Ie if:

i. Holder of the profit releases it to the burdened owner of the landii. Holder of the profit becomes the owner of the land

o In both of these situations, the holder of the profit & land owner are one person - so profit doesn't exist as a separate interest anymore.

British Columbia v Tener (1985) One of the few cases where a regulatory taking has been found Mining co held right to mine on a property that became part of a park (crown held the fee simple

ownership of the land) - mining abilities were greatly restricted Mining co couldn't mine anymore - this was a regulatory taking Wilson J: holder of the profit a prendre doesn’t own the minerals in situ - he owns mineral claims

& the right to exploit them through the process of severance

Access to Public & Private Property Public lands are burdened with rights of individuals to exercise free speech & public assembly -

can sort of treat this as a form of servitude Eg. Director of Public Prosecutions v Jones [1999] HL - use of a highway for protest? 3:2 majority

said that was legalo Cited Committee for the Commonwealth of Canada v Canada (1991) SCC - the right to

freedom of expression necessarily implies the use of a physical space to express Private lands are more controversial - right of exclusion is not absolute (eg human rights

legislation - can't discriminate in providing goods, services, & rental accommodations & other private commercial places)o Eg. Harrison v Carswell (pre-Charter)

Cie Generale des Etablissements Michelin - Michelin & CIE v CAW-Canada [1997] FCFacts: Canadian Auto Workers union used some Michelin symbols on leaflets/posters - held that there was a copyright infringement & didn't fit the "fair dealing" exception within the Copyright Act. Issue: But the reproduction constituted "expression" under 2(b) of the Charter.. Is it protected?Discussion:

In Committee for the Commonwealth of Canada v Canada (1991):o "2(b) confers no right to use private property as a forum for expression"o Lamer asserts a balancing of interests- public property rights & freedom of expression

Scope of protection under 2(b):o High threshold for prohibiting forms of expression - but not so high that use of another's

private property is a permissible form of expressiono Lamer's balancing can also be done with private property (but stricter)

Note: even if 2(b) had been violated, the Copyright Act would have been saved under s. 1

CovenantsFor a covenant to run with the land (Tulk v Moxay):

1. Negative in substance2. Intended that the burden was to run with the servient land3. For the protection or benefit of the dominant land (can't exist in gross)

a. Must enhance the dominant tenement

b. Must touch & concern the landi. A covenant that is only a restriction on alienation will not run

ii. Restraints on trade will be subject to a rule of "strict construction"4. General limitations on equitable principles apply (ie notice)

Discriminating covenants Re Drummond Wren (1945) (Ont HC)

o "land not be sold to Jews or person of objectionable nationality"o Void as against public policy

Noble and Wolf v Alley (1951) SCCo Holiday compound - set of summer homes - had a restrictive covenant - could not be sold to

anyone who wasn't a Caucasian o Not struck down as void against public policy, but it was found that it didn't run with the

land - so struck down - because it didn't touch & concern the land (only attaches to the person holding the interest in land, but doesn't actually have to do with the land)

Land Title Act: Discriminating covenants are void (s. 222) But can establish covenant that requires some building guidelines (eg must be worth more than

1mill) that looks neutral, but effectively creates a class (and sometimes racial) barriero A form of private zoningo Can have intended and unintended consequences that may or may not be quite malicious

P. Filion, The Impact of Restrictive Covenants on Affordable Housing & Non-Single Family Use of Homes: A Waterloo Region Case StudyAre restrictive covenants good instruments of land use control? Do we need more legislation in restrictive covenants? Should they replace zoning by-laws?Complaints with zoning:

Political nature can be seized by self-serving interests No reliable protection of property values over the long term – is too sensitive to political

pressures (restrictive covenants – economic nature, better at preserving values) Costs Excessive public sector involvement in the land development process

Concerns with restrictive covenants: Lack of flexibility – difficult to amend/remove them Enforceability difficulties – requires legal action by owners Those who adopt them are only concerned with their small territory, don’t care about broader

city & society needs/objectives

Covenants & Conservation Allows the land trust to enforce restrictions on land that aim to preserve environment, or heritage Statutory creatures that are freed up from some restrictions that CL covenants have

o Can be freestanding (not attached to land – benefit may be tsfed to anyone)o May be negative or positive

COMMON LAW PRIORITIES Property rights are divisible & manifold (legal vs equitable rights, future & present rights, etc)

To rank these - can use common law approach: first in time is first in right Essentially the ranking is an allocation of risk Nemo dat quod non habet - no one can give what they do not own Caveat emptor - buyer beware Common law favours static security - existing interest should stay where it is

S Levmore, "Variety and Uniformity in the Treatment of the Good-Faith Purchaser" (1987) If T (thief) steals from O (owner) and sells the item to B (buyer) - who has the greater property

interest (O or B) when T is judgment proof? Could argue that O should have taken steps (locks, alarm system) to protect his things Or that B should have taken greater care in purchasing things (B has more of a choice in this

situation - where to buy etc. whereas O had less choice) Or to view in light of their abilities to absorb or insure against the loss Could take analogy to tort law's multiple causal agents approach (did O or B contribute to the loss

by not having locks or not researching the seller?)o Tort law takes more of a case-by-case approach, but property law looks for a general rule,

not usually allowing for exceptional circumstances Perhaps this is because certainty of title is regarded as more important than potential

tort liability

Chippewas of Sarnia Band v Canada (AG) (2000) Ont CAFacts: Aboriginal leaders sold land to Cameron under the mistaken belief that the leaders had surrendered the land to the Crown - in fact, the formal surrender never happened. The Band disputed title to the grounds 150 yrs later - but lands had been since subdivided, sold, & resold to private owners (all of whom were unaware of this irregularity)Issue: Who has the greater interest? Aboriginal band, or current private owners?Discussion:

Not helpful to describe patent as void, voidable etc. More helpful to understand in terms of discretion to grant or withhold a remedy, and the factors to consider in discretion

Acts of govt may have errors - the rights of the party aggrieved by the error must be reconciled with the interests of third parties & interests of orderly administration

Chippewas argued:o nemo dat quod non habet principle - no one gives what he does not have

Fails – use doctrine of notice & concepts of modern registry systemso Aboriginal title is not subject to discretionary factors governing availability of equitable relief

b/c Aboriginal title is strictly legal rather than equitable in nature Fails because Chippewas are claiming remedies that are discretionary in nature, so

subject to discretionary defences Fails because the juridical character of aboriginal title has been shaped by equitable

principles - sui generis right should draw freely upon all relevant principles of our law And law & equity are merged

o Application of equitable doctrines would constitute an unauthorized extinguishment of aboriginal title in favour of private interests

Fails because Chippewas invoked equity by claiming their remedies, and though formal procedure of surrender never happened, Crown was involved in the transaction so the purpose of the surrender was met

Equitable defence of laches & acquiescence should apply here: Chippewas had facts to assert a claim by 1851, and had actively acquiesced in the transfer by seeking & receiving pmt

Defence of "good faith purchaser for value" also applies (Chippewas argues that this only applies when there is a prior equitable and subsequent legal interest - court did not accept this)o DH thinks the court is muddled. The CL rule actually only applies when there is a prior

equitable and subsequent legal interest. Also, Chippewas are actually asserting a legal interest.. Current owners have an equitable interest, not a legal interest..)

o Defence reflects a social value that protects the rights of innocent parties Based on delay in Chippewas asserting their claim & reliance of innocent third parties on the

apparent validity of the Cameron patent, Chippewas claim is dismissed

REGISTRATION Title registration system preferences dynamic security - seems to protect the bona fide purchaser

o Is a choice of allocation of risk again Tsf of interest in land has 2 stages:

o Equitable interest - is tsfed upon the agreement that the seller will sell to the purchasero Legal interest - is tsfed on closing date

Introduction First: Deeds registration systems allowed prospective purchasers to see who owned what But deed provides no guarantee that the seller has valid title (still common law rules for property

interest) - merely encourages registration of interests & makes process of searching title easier than before

3 main variations of deed registry:a. Race system: Priority given to which interest was registered (not created) first b. Notice system: first registerer can't have priority if they have notice of someone else's

interestc. Hybrid race-notice system: Priority given when registerer had no notice of the first interest,

& has registered first. Torrens is most useful where property is being shifted/tsfed a lot - (not a static security system -

more of a dynamic security system that protects a bona fide purchaser)o Shifts risk to holder of property

US has deeds registration + title insurance

Basic principles of the Title Registration system:1. Registration principle

s. 20: Nothing is tsfed until it is registered (except as against the person making the tsf) s. 37: It is registered at the date & time of application received by the registrar No requirement to register, but strong incentive (sometimes cost may outweigh benefits)

2. Indefeasibility principle - s. 23(2) Any defects are cured when title is registered. Past transactions cease to matter. This completely goes against the nemo dat principle Eg. Creelman v Hudson's Bay Insurance Co [1920] PC: Creelman agrees to buy land from

HBIC, then seeks to extricate itself from the K. Creelman argues that HBIC couldn't have held land because of its incorporation document - but PC didn't accept this because you can't look behind the registry - whoever is on title is the title holder.

Only for fee simple: Fee simple interest is the cornerstone of the title registration system - All other property interests are registered against the fee simple interest (charges)

3. Abolition of Notice Principle - s. 29(2) Notice is irrelevant, except in cases of fraud.

4. Assurance principle Compensates those who at CL would have been able to recover their interest in land

Harris, book review of Greg Taylor, The Law of the Land: The Advent of the Torrens System in Canada

Not like CL where the deed is still subject to other claims - title registration guarantees that whoever is registered as owner IS the owner - mirrors the existing state of title

1858: Torrens develops title registration system in South Australia 1860: Vancouver Island gets Torrens system

o Modification: rejected expensive land commission to validate each title upon registration. Instead, Land Registry Act gave title owner "absolute" title upon registration, and "absolute & indefeasible" title after 5 yrs – ie competing interests could challenge within 5 yrs

o Mainland of BC doesn't get Torrens system until 1870 because of the sparse population - would not justify the expense

Ontario adopts title registration - largely due to efforts of moneylenders who wanted to improve security of title & facilitate mtg loans

Regionalism in Canada contributed to sort of patchwork title registration btwn provinces Quebec - civil law & general lack of enthusiasm for English Canada & older history of European

settlement → no Torrens system Maritimes - also older history of European settlement, less urgency to simplify land tsf, legal

professions opposing title registration (belief that CL deeds are better) → late Torrens conversion.. Now, electronic age → converting to Torrens

Title registration part of the process of decoupling land from social bonds, & making it a commodity just like any other

Why doesn't the US have Torrens system but we do? Perhaps reflective of Cdn openness to state regulation rather than private enterprises

Indefeasible Title & FraudLand Title Act: s. 296(2) - test for recovery from assurance fund:

1. Deprived or any estate or interest in land?2. Because of the conclusiveness of the register?3. Would be entitled to recover absent a title registration system?4. In consequence of fraud or wrongful act?5. Barred from bringing an action to recover land?

Harris, "Indefeasible Title in BC: A Comment on the November 2005 Amendments to the Land Title Act" (2006)

Common law nemo dat quod non habet principle protected settled interests in land Title registration provides dynamic security – protects purchasers - But not rogues - the interest of

a purchaser participating in fraud is subject to the interest of the rightful owner Immediate vs Deferred indefeasibility system

o Immediate: Bona fide purchaser B registers a forged tsf (signed by rogue purporting to be owner O). B now holds indefeasible title & O can only claim compensation from registry.

o Deferred: B registers a forged tsf. Because the tsf doc is forged, B doesn’t have indefeasible title & is subject to O's interest.

BUT if B tsfs to C before the fraud is discovered, then C holds indefeasible title (because the tsf instrument is not forged)

Deferred indefeasibility encourages a purchaser to ensure they are dealing with the correct person on title - but is still very different from CL

Lawrence v Wright (2007) Ont CA – Ontario has a deferred indefeasibility systemFacts: Land title fraud - Lawrence (L) was frauded out of land title by Wright (W). W has registered title, obtains mtg from Maple Trust (MT). MT has done due diligence in ascertaining titleIssue: Who has the greater interest? Bona fide purchaser MT, or innocent true owner L?Discussion:

L's position: CL theory, nemo dat principle – Court rejects this. Go by statute. MT: immediate indefeasibility theory - W held indefeasible title even though tsf doc was

fraudulent. So MT holds interest over L. L should be compensated by Ont Statute?

o s. 155: if the title would be fraudulent & void if unregistered, then, despite registration, the title is still fraudulent & void … subject to the provisions of the act

o s. 78(4): instrument is deemed effective on registrationo s. 68(1): only the registered owner may dispose of an interest in land

Court: s.155 & 68(1) → deferred. s.78(4)→ immediate, but this section was supposed to be part of a minor administrative change to the act

Deferred is preferable for public policy reasons: real property is not fungible (can't be replaced with money) & L had no opportunity to discover that her home was being fraudulently sold whereas MT had an opportunity to avoid it

Ontario has a deferred indefeasibility system - W's (therefore, MT's) title is subject to L's interest, so L is owner. There was no unforged doc.

Registration of Charges

Harris, “Indefeasible Title in British Columbia” Before 2005 amendments to the Land Title Act (LTA), we weren't sure of whether BC had

immediate or deferred indefeasibility. Now, looks like immediate indefeasibility for fee simple What about charges against the fee simple interest? (eg. Mtgs are registered as charges)

o In the LTA s. 26(1): A registered owner of a charge is deemed to be entitled to the estate…o "deemed to be entitled" is not the same as "indefeasibly titled"o The charge holder's interest is subject to the claim of the person wrongfully deprivedo Not indefeasible - fraud anywhere in the chain = interest defeatedo Viewed as a whole, “deemed to be entitled” probably = a rebuttable presumption

What about the holder of a registered title, but the tsf doc is void?o s. 25.1: a good faith purchaser who registers a void transfer is deemed to have acquired that

estateo Probably stronger than a rebuttable presumption here, since 25.1 rules out evidence of a

void instrument as a rebuttal So BC is approaching immediate indefeasibility, but not quite there yet - courts may still be able to

defer indefeasibility of a good faith purchaser

Credit Foncier v Bennett (1963) BCCA – charges are subject to interest of rightful ownerFacts: Bennetts hold registered fee simple interest

Allen forged mtg to Todd Investments - registered Todd assigns mtg to Stuart - registered Stuart assigned mtg to Credit Foncier - registered Bennetts don't make pmts to Credit Foncier - CF seek foreclosure

Issue: Does Bennett (wrongfully deprived of interest) get clear title or CF (bona fide purchaser)?Discussion:

Bennett gets clear title s. 41 states:

o The registered owner of a charge shall be deemed to be entitled to the estate or interest… "deemed to be entitled" only raises a rebuttable presumption - the registered owner is deemed to

have the interest until proven otherwise. (here, proof is Bennett’s title)

Canadian Commercial Bank v Island Realty (1988) BCCA – to rebut the presumption that registered charge holders are actual interest holders, the fraud must be in the chain

Facts: Park Meadow (PM) holds registered fee simple 1st mtg to Imperial Life - registered 2nd mtg to Island Realty - registered 3rd mtg to Almont - registered Director of PM forges discharge of 2nd mtg & Almont takes position of 2nd mtg before discharging

funds to PM. When PM files for bankruptcy, Island Realty seeks to re-establish its 2nd mtgIssue: Who holds 2nd mtg? Island Realty, or Almont?Discussion:

Judge rejects the idea that Almont obtained their security from Island Realty - the forged discharge gave the security back to PM, and then PM gave that security to Almonto This is the difference btwn this case and Credit Foncier - in Credit Foncier, there was a

forgery in the route creating the interest– here, the forgery is to the side, in another mtg, not Almont’s.

o So, Almont holds 2nd mtg

Gill v Bucholtz [2009] BCCA – LTA preserves nemo dat rule for charges. Full protection of the Act is only given to bona fide holders of a fee simple interest

Facts: Gill owns property in fee simple John Doe, purporting to be Gill, signs a tsf to Jane Doe (who is working with John Doe) Jane Doe assigns mtg to Bucholtz & 4337 Investments (registered mtgs) Gill discovers fraud & tries to cancel mtgs against his property

Issue: Who has the greater interest? Gill (fee simple holder) or Bucholtz & 4337 (charge holders)? Discussion:

Must read s. 23(2)(i), 25.1, & 26(2) together:o Charges: Can rebut with evidence of a void instrument in the chain creating the interest -

even where the holder has relied on the register and dealt bona fide with a non-fictitious registered owner

o Fee simple: The only evidence that one could use to rebut is the void instrument, but s.25.1(3) starts with – even though instrument is void… - so it takes away the only possible evidence for rebutting the presumption … must mean the interest is indefeasible

Mtgs cancelled

Title registration doesn’t protect any one who registers any interest in land:o Only a bona fide purchaser of a fee simple interesto Charges are not protected if the instrument is void

Note: ramifications of Gill? Lenders have to go “behind the curtain”, so ours is not a perfect Torrens system - policy decision of who should bear the risks. Lenders may have to buy title ins.

NoticeIn common law for a subsequent legal interest & prior equitable interest:

First in time is first in right + nemo dat – bona fide purchaser without notice of the prior interestIn registration system :

Notice of a prior equitable interest doesn't matter, except in the case of fraud. When does notice amount to fraud? Ask:

i. What type of notice?ii. When did the purchaser have notice?

iii. Is notice alone sufficient to constitute fraud?

Is notice alone sufficient to constitute fraud? Hudson's Bay Co v Kearns & Rowling (1896) BCSC

o "a person who purchases with notice of the title of another is guilty of fraud” & court of equity will not such a party to use the registration system to his benefit

Jeager the Cleaner v Li's Investments (1979) BCSCo "Knowledge of an unregistered interest may be guilty of fraud if he were thereafter to seek

protection of the Land Registry Act"o Fraud can't be lightly inferred. Must be established by the particular facts.o Maybe notice + reasonable belief that the holder of the unregistered interest didn't plan on

asserting it = no fraudo Also maybe if discovery of the unregistered interest happened before closing but after

making substantial commitments = no fraud 2 types of fraud from

o CL courts (required a deceitful act – eg. intentional misrepresentation)o Courts of equity (broader understanding of fraud - notice is enough)

Holt Renfrew & Co v Henry Singer Ltd [1982] Alta CA – notice + additional elementFacts: Thompson & Dynes (TD) owned property, Holt Renfrew held a long term lease that wasn’t registered. TD was going to sell building to Henry Singer (HS) - lawyer for HS said the existing tenant would probably not deter them from the purchase & obtained a copy of the lease- he then realized it WOULD deter HS from purchasing, but also noticed that the lease was not registered, and proceeded with negotiations with TD without mentioning the lease again. When offers were made, HS sent TD a copy of the certificate of title which did not list the leasehold interest. HS purchased the property.Issue: Does this constitute fraud? Does knowledge & HS's attempt to defeat Holt's interest = fraud?Discussion:

Majority: there was fraud, but there was no reliance on the misrepresentation, so it doesn’t matter. Also TD had a chance to view the title certificate, and that is what the K was based on.

Dissent: There was fraud. There is a duty to correct a mistaken representation (that the lease would not deter HS)

What to consider when deciding on whether or not there is "fraud" that brings notice back:

1. The type of notice is actual (express) notice 2. When was the notice given? - before the K for purchase of sale was signed… 3. Was notice sufficient to amount to fraud or is additional action required?

Alta land title act is explicit about #3 - s.203 - knowledge by itself will not be imputed by fraudo McDermott J (dissent) says there was an additional element here - HS misrepresented to TD

that the lease would not deter HS from purchasing the property

Alberta (Ministry of Forestry, Lands and Wildlife) v McCullochFacts: Govt Dept had a covenant on a property that said they could buy back the land for $X. McCulloch (M) purchased the land knowing this. The land title office accidentally discharged the caveat. M found out and immediately tsfed the land to a company, of which he was a director & president.Issue: Was this fraud? Is M still bound by the terms of the covenant?Discussion:

Amounted to fraud - the tsf to the limited company was done to defeat the govt's interest Used defn from Union Bank of Can. V Boulter Waugh Ltd [1919] SCC:

Knowledge, of course, could not of itself constitute fraud. Fraud must always have consisted in the doing of something which that knowledge made it unjust or inequitable to do. The meaning of the statute must, therefore, be that the doing of that which mere knowledge of "any trust or unregistered interest" would make it inequitable to do shall nevertheless not be imputed as fraud.

Szabo v Janeil [2006] BCSCFacts: S and D are neighbours. D granted S an easement for a waterpipe running through his land serving S's property, in exchange for Hydro power. Before D completed the necessary forms & S could register the easement, D sold to H. H knew of negotiations btwn S & D for the easement, & knew of the water pipe's existence, but didn't know that there was part performance of registering the easementIssue: Can S enforce their non registered easement against H?Discussion:

H has fee simple title, acquired without fraud Most other jurisdictions have a provision in the LTA stating whether notice = fraud. BC doesn’t, but

recent cases say that mere notice of a prior unregistered interest is not fraud, unless there is additional dishonesty

Does this place a due diligence requirement on the purchaser?o If the purchasers suspicions are aroused, then they should investigate further. Can have

constructive notice H had constructive notice, but it wasn't coupled with any dishonesty → no fraud

Registering non-Proprietary Interests & Aboriginal Title

Caveats In BC, a caveat is not a property interest, but is a notice that there might be an interest in land Basically, a caveat freezes the title. Doesn’t allow anything to happen to it

o Though you can still register a claim that is subject to the caveator’s, so long as the caveator’s claim isn’t one that would (if successful) destroy the root of the fee simple title

2 month window – after that, the caveat is removed Moment of application is when the caveat is deemed to be registered

Certificate of pending litigation - open to someone who has commenced or is a party to a proceeding & is claiming an estate or interest in land

Skeetchestn Indian Band v Kamloops (Registrar of Land Titles) [2000] BCCAFacts: 6 mile ranch was subject to Aboriginal claims. Ranch was sold to Camlands - Camlands proposed to build golf resort. Skeetchetsn sued - their title could co-exist with the ranch, but not with the golf resort. Sought the right to file a certificate of pending litigation against the fee simple interest of the landIssue: Can a certificate of pending litigation on the basis of aboriginal title be registered as an interest against fee simple title? Can aboriginal title - if successful in litigation - be registered?Discussion:

Title registration is for property interestso But Aboriginal interest is sui generis - is this a property interest? o In Delgamuuk - aboriginal title is an interest in land..

If the honour of the crown is at stake with aboriginal title, should it also be seen as at stake with fee simple grants to purchasers?o Need to weigh these 2 interestso Also, ppl need to know if their title is unstable.

Is aboriginal title "upstream" or "downstream" from the title registration system? Downstream - it can be incorporated into the title registration system.. Upstream, stands independent of the title.

When the act was framed, would an interest in land have encompassed aboriginal title? No. Court used original intention in interpreting statute… but really.. Is it a policy decision? Court is

saying that this issue needs to be resolved.