1. THE NATURE OF PROPERTY1.1 What is property?

“To the world, keep off X unless you have my permission, which I may grant or withhold. Signed private citizen, endorsed the state.”

OWNERSHIP

THOMAS MERILL: POINTS OF CONSENSUS1. Relationships b/w people with respect to things

a. E.g. asserting property claim is asserting a particular relationship b/w you and someone else2. Tangible and intangible resources3. Property ≠ possession

a. Property interest = enforceable claim4. Institutional structure is needed to enforce (usually the state; community practices)5. At least 3 different forms: private/common/state

WHAT CONSTITUTES PROPERTY? Single variable essentialists: core of property = right to exclude Multi-variable essentialist: property is a bundle of rights including right to exclude; but other rights important e.g.

o Sell; admit; transfer; alter; destroy; use; collect income Nominalist: no core or essential element to property; without substance; bundle of rights that we define

Yanner v Eaton (1999) (HC): Property=more than the right to exclude [nominalist]

F: need license to harvest game; Yanner doesn’t kills 2 crocs L: Native Title Act protects native rights despite general laws; extinguished by granting of inconsistent right by Crown I: Queensland Fauna Act grant full property right in fauna to the state, thereby extinguishing Yanner’s? Maj. (Gleeson): no full beneficial/absolute ownership (nominalist)

1. Hard to define what fauna owned by Crown (e.g. migratory birds)2. Common law no absolute ownership of animals, and Act intends fauna to remain outside possession of humans (including state)3. Purpose = royalty for state4. Sections of Act imply forfeiture of fauna to state, implying that it doesn’t have full possession

Dis. (McHugh): right to exclude = necessary and sufficient (single/multi variable)

Harrison v Carswell (1976) (SCC) Mall owner has sufficient possession to exclude (modified by Statute in BC for picketing)

F: Carswell picketing in parking lot in front of workplace (shopping mall). Owner asks her to leave; charges under Petty Trespass Act

I: Can right to exclude extend to places where community invited? Deference to precedent or adapt? Maj (Dickson):

1. Bound by precedent (Peters – general invitation to public ≠ no right to exclude) 2. Legislature must change.

Dis. (Laskin)1. Distinguish boycott vs strike: this case is a labour dispute & right to strike (Peters = boycott)2. Trespass at mall ≠ trespass in home (at mall, no challenge to title, privacy, protection)

a. General public invited into mall: new type of private property3. Duty of judiciary to adapt common law to new social contexts

Post Harrison in BC:o Labour Relations Code s 66: no trespass on land to which public has normal access (common site picketing)

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1.2 Why Private Property?

JUSTIFICATIONS FOR PRIVATE PROPERTY (C. Lewis) Should we have private property?

o If yes, when appropriate? How and to whom distributed?

Personhood: Hagelo To exercise free will = to be humano Need property to impose our will on the world and become human/persono Laskin’s dissent in Carswell: home [property] tied up with self.

Labour: Lockeo Mix labour + land/things = right to appropriateo “Enough and as good for all”o Must make land productive ( farm labour; Eurocentric/no hunter-gatherers)o Property precedes the state

Utilitarian: Benthamo Maximize happiness; ppl most content to work if resources and means of production are owned by themo 4 factors: quality/security/subsistence/abundance (best promoted by private property)

Economic: most resonance for Western societyo Private property best enhances wealth

Occupancy/First Possession: justification for recognizing continuing right to property Liberty: need property to exercise freedom (Waldron)

o Property = platform to exercise autonomyo Without security, can’t exercise autonomy

PRIVATE VS. COMMON PROPERTY (Cole & Ostrom) State/public: duty to be managed for public welfare

o State right to determine access and useo Public duty to observe access and use set by stateo No public right to access

Private: right to exclude; duty to refrain from unacceptable useso Non-owners: duty to refrain from interfering with acceptable uses; right to prevent unacceptable uses

Common: members of group have right to access & exclude non-memberso Owners have duty to not violate access/use rules

Nonproperty/Open Access: no right to exclude, no duty to refrain from accessing Tragedy of the commons: where individual can see all the benefit from their action but do not bear any of the cost

o Solution : privatization; strong central control ( internalize cost)o D Harris : actually, tragedy of private & common property (cow = private)

Tragedy of anti-commons: private property = such fractionalization that would be hard to do anything (e.g. need permission of all owners)

o Contemporary example: biotech industry & patent Nozick & efficiency: exclusivity; transferability; universality First Nations Reserves:

o Fed. Holds legal interest; band holds beneficial interesto Certificates of possession : allows band member to occupy land on reserveo Debate over fee simple :

Pro = mortgages & credit; transfer to anybody (efficient per Nozick) Con = against notion of communal ownership; private interests take over/lose land

NISGA’A LAND Nisga’a Final Agreement, Village Entitlement Act, Naiton Entitlement Act, Landholding Transition Act: recognizes fee

simple interest; hunting/fishing/loggingo All separate reserves into oneo Recognizes sovereignty (parcel of land always Nisga’a no matter who owns)o Villages hold parcel in fee simple; may transfer to entitled recipient:

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Nisga’a citizen; member of band to which village is successor

1.3 Novel Claims to Property

Numerus Clausus: limits the number of rights that courts will recognize as propertyo Proliferation of property rights can compromise property system

Property difficult to reverse bad econ. consequences Purpose of property = make sure it’s not reversed

INS v Associated Press (1918) Quasi property: property interest that exists only between certain parties, rather than b/w party and public at large; judges’ theoretical understandings of property affect their decisions.

F: INS & AP gather news and sell it to newspapers; INS getting their news from AP new bulletin boards that are public. Don’t acknowledge AP or provide compensation.

o INS argues that property interest forfeited when published to public; AP argues labour theory I: (1) Whether there is property in news; (2) If there is property in news collected to be published, that interest survives

“the instant of its publication” (p 48) Maj (Pitney): Should the ‘bundle of rights’ include the present facts? Justifying using labour, utility, economic/profit, public interest

o No question that AP does not have property claim in published news against the public (public has right to news info)o But just b/c AP does not have property interest in published news ≠ all AP’s rights have been extinguished

Issue b/w AP and INS Quasi property (partially exclude, benefit, manage published news content)o AP has expended organization & labour, skill & money to create commercial profitable product [labour]o News services public purpose; if no incentive to gather news, profitless and no news [public interest, economic, utility]o (unfair competition by INS)

Dis (Holmes & Brandeis): SV nominalist: property = right to exclude all others ,as created by lawo Value ≠ property; these are distincto Property = legal creation, core of which is exclusiono Law only protect that which it labels as propertyo Brandeis: for Congress to fix, not the courts

Victoria Park Racing v Taylor (1937) (Aus HC) No property in spectacle; (nuisance = tort where one party’s actions prevent/limit other’s enjoyment of land)

F: Taylor builds raised platform to view horse races at Victoria Park. Broadcast to off track betting locations (reduce betting happening at the track). Victoria park brings action in (1) nuisance; (2) property in spectacle.

I: (1) Does Victoria Park have property in spectacle? (2) Does reducing the value of something legitimize property rights? (3) Nuisance – is Taylor reducing Victoria’s enjoyment of their land?

Maj (Latham): never any law whereby a person could not open their eyes and report what they saw no property (can’t exclude)o Just because Victoria mixed labour and made something of commercial value, ≠ property (link to Homes/Brandeis in INS)o No nuisance b/c unprecedented type of nuisance [looking at land from your own land]. Remedy: build a higher fence

Dis (Rich): building a tower is “unusual”, BUT looking at another’s property has never been nuisance. o Nuisance = impairment of enjoyment of land; prime purpose of land ownership = profitable enterpriseo Due to technology and D’s actions, interfere with right to enjoy profitable enterprise nuisance

Dis (Dixon): natural rights don’t include freedom from view of neighbourso Broadcasting rights and quasi-property from organization & labour (INS)o Can make out the nuisance claim (??)

Moore v Regents of UC (Calif. CA) Humans can’t be objects of property/no property in the cells used

F: Doctor uses Moore’s cells to make and patent cell line for leukemia. Moore brings claim in (1) breach of fiduciary duty and (2) wrongful conversion

I: (1) Are body parts property such that conversion would apply to them? (2) If not, should property in body be recognized so that conversion would apply to body parts?

Maj. (1): (1) No precedent; (2) Statute says body parts must be destroyed ASAP limits continued interest in body parts; (3) patented cell line can’t belong to Moore (not actually his cell…talking about the patent)

Dis. (1): (1) No precedent rejecting such a claim; role of courts to develop the common law; (2) property = bundle of rights, and if some are “pruned away” by Calif. statute, doesn’t mean that all of them are gone; (3) Patient’s cells played vital role in creation of patent, analogous to inventor whose collaboration is essential to a product, patent doesn’t eliminate preceding property interest

Maj. (2): 3 normative reasons to not extend conversion: (1) policy – discourage innovation/anti-commons, labour theory; (2) role of legislature to decide on novel property claim/institutional competence; (3) patients’ rights adequate protected by fiduciary duty

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Dis. (2): 3 normative reasons to extend: (1) Biotech industry already anti-commons since 1980 patents, proper record keeping could create system where researchers could obtain cells and not breach conversion; (2) court’s job to make decisions and can decide this issue in the interim before the legislature; (3) disclosure obligation of physician inadequate to b/e doesn’t allow patient to reap benefits from research

Pijak Estate v Abraham (2014) (ONSC) Hospital & medical system has property interest in excised tissue for purpose of diagnostic testing in Canada

F: Liver removed from dead person. Family brings property claim on liver. I: Is a tissue sample taken from human for purpose of diagnostic testing “personal property”? A: MV essentialist/bundle of rights. From CMAJ: possession and ownership transferred to institution, therefore owned by institution.

o Tissue subject to rights of ownership….

Assisted Human Reproduction Act, SC 2004, c 2 Risk of creating saleable property interest in body parts perverse incentive for poor women (surrogacy) No person shall pay a woman to be a surrogate mother

o Can pay for expenses, but not the act No person can purchase or offer to purchase sperm or ova No prohibition on giving, but prohibition on selling Property language not used in Act

2. Property in Perspective

2.1 Sources of Property Law

RECOVERING PROPERTY, (Borrows) Resources can exist without people, but people can’t exist without resources Indigenous concept of property takes into account distribution Property about relationship between people and natural world

o Where natural world is an actoro Less human-centric

PRINCIPLES OF THE LAW OF PROPERTY, (Cribbet & Johnson) History of English property law reveals tension b/w:

o Land as source of social stability & hierarchy as principle device for reproducing social ordero Land as commodity, part of market economy

2 concepts at heart of property law:o Tenure: quality of interest in land; vertical relationship b/w Crown and citizenso Estate: quantity of interest in land; temporal relationship

Feudalism: main social bond b/w lord and mano Lord provides protection and defence; man provides serviceo State doesn’t have infrastructure; Crown maintaining underlying ownership by parceling out interests

3 points about feudalism o 1. Land held “of the Crown” or “of a lord”; no allodial title to land (not owned outright)o 2. Free tenure: know in advance what you have to do to get the property interest; service to king/land title:

Security/knight service – 40 days Splendor/serjeantry – butlers, cooks Spirit/Frankalmoin – priest/religious body Subsistence/Socage – labour services

o 3. Seisin: someone who had rights and responsibilities in relation to the land Copyholder/villeins: unfree tenure; obligations not known in advance and could be arbitrarily imposed Escheat: process by which Crown/state inherits property from someone without heirs

o Only incident of tenure still relevant todayo Statute of Wills, 1540 gave tenants right to transfer upon death

Intestacy: if you die w/o a will, state takes over and divides property; if no heirs, escheats back to Crown Property Legislation of 1925: eliminated non-free tenures; copyhold converted to socage (free tenure) Incidents of tenure triggered on certain events, like death or marriage

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o E.g. homage/fealty (loyal to lord); aids ($); Fines; wardship (if transfer to minor, fees); marriage

GRADUAL ACCUMLATION OF BUNDLES OF RIGHTS Security of tenure (Statute of Tenures, 1660) Right to alienate or transfer freely an interest in property (Statute of Qui Emptores, 1290) Right to determine to whom the property should devolve on death (Statute of Wills, 1540)

COLONIAL LEGAL RECEPTION, (Ziff) Doctrine of reception:

o Settler colony: (no pre-existing law) receive laws as long as they’re suitable to the new colonyo Conquered: (existing law in place) – use existing law, but can be overturned by legislation (e.g. Quebec)

2 reasons why English law mostly adhered to:o Instrumental: uncertainty arises if doctrines not followed; convenient; “pointless to reinvent the wheel” (112)o Normative: thought English common law was the best

FEUDAL REMNENTS IN CANADIAN PROPERTY LAW Tenurial, not allodial title All land held in free and common socage Escheat

INTRODUCTION TO PROPERTY LAW IN AUS., (Chambers) Can distinguish b/w either:

o Things to which property rights can apply, OR Land/goods – res mobiles & res immobiles (Roman law - movable or not) Tangible/intangible – chose in possession (right to possession of goods); chose in action (right to

intangible thing)o Nature of property rights to which things can be subject

Real/personal (real = recover possession; personal = claim to compensation) In personam; In rem

Legal/Equitable (king’s court = legal; Chancery = equitable)

Law and Equity Act s 2: British laws applicable in BC, unless modified by statute or not inapplicable to local circumstances

Wills and Estates Act s 19: if dies w/o will and no descendent, land goes to spouse s 21: spouse entitled to household furnishings and “preferential share” of estate s 23(f): if no heirs, subject to Escheat Act s 24: if land left to descendents, must be shared equally s 60: court can mandate land go to spouse/children if not adequately provided for in will

Escheat Act s 1: if no heirs or forfeited, AG can take land in possession of gov’t

2.2 Property, Class, and Poverty

HOW IS PROPERTY CONNECTED TO FREEDOM? (Waldron) Premise: everything we do has to be done somewhere

o Private property interests determine where we’re allowed to do these things Enforced by state

Homeless people excluded from all places governed by private propertyo “Allowed to be in our society only to the extent that our society is communist” (121)

Conduct on public and private property generally seen as complementaryo But only for those who have access to botho Where are homeless people supposed to perform actions usually done in private? E.g. bathe, sleep, cook

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A person “who is not free to be in any place is not free to do anything; such a person is comprehensively unfree”

PUBLIC ZONING AND RIGHTS TO PUBLIC PROPERTY, (Ellickson) Central thesis: cities’ codes of conduct should be allowed to vary spatially Public spaces needed b/c market forces won’t supply them; also, democratic ideals Small street nuisances compound and aggregate

o Broken-windows syndrome; compassion fatigue Chronic street nuisance: “persistently acting in a public space in a manner that violates prevailing community standards

of behaviour, to the significant cumulative annoyance of persons of ordinary sensibility who use the same spaces” (127)o If this happens too much, citizens will retreat into private sphere and deprive society of meaningful pulic

interaction that contributes to democratic ideals; reference to Agora

Victoria (City) v Adams (2008) (BCSC) Public property must be governed according to public interest. Gov’t can’t put restrictions on use of public property if it infringes citizens’ Charter rights.

F: Victoria enacts law that restricts use of temporary shelters in parks. Then ~1500 homeless people, 340 shelter beds. I: Are defendant’s claiming property interest in public property? Does the bylaw infringe on defendant’s life/lib/s.p.? A: Not enough shelter beds will sleep outside. Erecting shelters at night does not diminish others’ ability to use public space during

the day. Public properties held for public benefit. o s 7 does not capture property rights, BUT defendants not making property claim: not claiming right to exclude all otherso Use expert testimony about survivability with or w/o shelter; data on shelter beds and homeless count social context

Followed by BC/Yukon Association of Drug War Survivors v City of Abbotsford (BCSC)

2.3 Protections for Property/de facto Expropriation De facto expropriation in Canada is governed strictly by common law; statutes do not address US 5th amendment: nor be deprived of life, liberty, or property without due process of law; nor shall private property be

taken for public use without just compensationo Kelo v City of New London: broad interpretation of public purpose, includes economic re-developmento Globalization of 5th amendment: FIPPAs and NAFTA article 1110

South Africa Constitution: land can be expropriated for public interesto S 25(4): public interest includes commitment to land reform to bring about equitable access to resourceso S 25(5): state must take reasonable measures to foster conditions that enable citizens to gain access to land

NAFTA: claim under article 1110 not in the hands of signatory state, but of investor against the other state (Ziff)o Signatory states have surrendered large amount of control over public policy initiativeso Imposition of takings regime could stifle Canadian public policy in relation to environmental protection

WHAT PROTECTIONS EXIST FOR PRIVATE PROPERTY IN CANADA? (Ziff) Constitutional debates: Alta, PEI, NDP oppose entrenching private property

o Alta: gas & oil; PEI: foreign ownership Constitutional protection: s 8 search/seizure; s 35; public property regs. can’t infringe guaranteed rights (Victoria Park) Non-Constitutional protection: Bill of Rights; Alberta Personal Property Bill of Rights (can be overridden by legislation) Regulatory takings: Manitoba Fisheries v The Queen company had property interest in goodwill that it had created in

doing business; Crown owed them compensation upon nationalization

Expropriation Act, RSBC 1996, c 125 s 1 defines expropriation; not appropriation b/c provide compensation 4: may not dispute 6: Notice 10: can ask for a hearing 14: Rights at a hearing (may not question necessity of project)

o ss 1 – 17: procedural protections 18: Decision of approving authority 30: right to compensation 31: compensation formula

Pennsylvania Coal Co v Mahon (1922) Overregulation can amount to regulatory taking; gov’t should not place burden of public interest on single individual.

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F: Act of Pennsylvania outlaws mining for coal when house overtop of mine. Coal Co had land, sold to homeowners with reservation of mineral rights; Act passed and eliminates Coal Co’s property interest.

I: Does the Act regulate property to such an extent that it amounts to a regulatory taking/expropriation [req’g $]? Maj: Taking profitable value out of coal akin to “appropriating or destroying it” (149). Public desire to improve conditions not

sufficient to take away property in this way unconstitutional. By rendering the interest not profitable, taking it away.o First ruling on regulatory takings

Dis.: Property remains in possession of owner; gov’t not doing anything with the land, only preventing owner from using it in a way that infringes on public’s right to use the land.

Lucas v South Carolina Coastal Council Regulation that removes all economically beneficial uses of land = regulatory taking, requires compensation.

F: Lucas buys 2 plots of land on S.C. coast with plan to develop them. City council passes motion prohibiting development, I: Does the prohibition on development amount to a regulatory taking? (couldn’t build permanent structure) A (Scalia): Two categories that are reg. takings and trigger compensation:

o (1) Where regulations force owner to suffer physical invasion of their propertyo (2) Where regulation denies all economically beneficial or productive use of the lando Must balance public/private interests: private owner should not bear cost of public burdeno This cases establishes the principles that govern regulatory takings

Mariner Real Estate Ltd v Nova Scotia (AG) (SCC) 2 part test for de facto expropriation: (1) removal of all possible incidents of ownership/reasonable uses; (2) loss of land by owner and corresponding acquisition of some sort of benefit by the Crown. Loss of value ≠ loss of property.

F: Beaches Act seeks to protect beaches and dune system. Any manipulation of public or private beach (e.g. path, structure, road), must be approved by the Minister. Respondents apply to build single family home and are denied. Bring claim that regulation amounts to de facto expropriation.

I: Does the effect of Beaches Act amount to de facto expropriation? Are respondents entitled to compensation under the Expropriation Act?

A: In this case, not the regulations per se that matter, but how they’re applied. Decline in market value may be evidence of incidents of ownership being taken away, but it does not itself amount to a de facto expropriation.

o No confiscation of “all reasonable private uses of the land” (155); the USE of the land, not the value. Respondents could have applied to build environmentally friendly structures, etc.

o Tener: de facto expropriation when Crown expropriates land for national park that has minerals underneath it proposition that expropriating authority must acquire some interest in the land (didn’t happen here)

o Neither element is made out: (1) does not extinguish all reasonable private uses; (2) province didn’t acquire interest

CPR v Vancouver (SCC) Confirms Mariner test: de facto expropriation = extinguish all reasonable uses + reciprocal gain by Crown.

F: COV by law stating that development on the corridor must pertain to either: transportation (rail, transit, cycle, excluding cars); or Greenways (pedestrian paths, cyclist paths, nature trails). Effect of bylaw is to freeze redevelopment. CPR brings claim saying entitled to compensation because de facto expropriation.

I: Does the COV bylaw amount to de facto expropriation, and is CPR entitled to compensation? A: (1) Bylaw does not eliminate all reasonable uses: CPR could still develop PPPs, lease it to individuals, or run a railway. (2) COV did

not acquire beneficial interest related to the land. “City has gained nothing more than some assurance that the land will be used…in accordance with its vision” (165).

Metalclad Corp v United Mexican States Representation by Mexican gov’t that US project was approved + state decree governing environmentally-harmful projects + local gov’t ‘stop work’ order = “measure tantamount to expropriation”.

F: US company building toxic waste plant. Mexican federal gov’t approved of the project; state enacts ecological decree affecting projects with adverse environmental effects; local authority issued “stop work” order because worried about environmental effects. US brings claim under article 1110.

I: Do the actions of the state and local government amount to something that is “tantamount to expropriation”? A: stop work order issued after significant construction had been done; environmental decree prohibits “the undertaking

of any potentially polluting activities”. Has an effect tantamount to expropriation.

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3. Boundaries3.1 Airspace

Maxim: cujus est solum ejus est usque ad coelom et ad inferos: whoever owns the soil also owns from heavens to hello Use this as starting point for issues on airspace

Trespass v nuisance:o If property in airspace, claim trespass (onto your property)

Only need to establish that it is there; no damages; permanent = trespasso If no property, claim of nuisance (affect enjoyment of land)

Need to establish that it bothers you; transient = nuisance Kelsen v Imperial Tobacco: invasion of airspace = trespass, not nuisance

o Sign over shop (permanent) Bernstein (Lord of Leigh) v Skyiews: Incursion into airspace at height which may interfere with ordinary use = trespass.

o Low flying aircraft/transient = nuisance US v Causby: Own “at least as much of the space above the ground as he can occupy or use in connection with the land…

the fact that he does not occupy it in any physical sense [i.e. with buildings] is not material”. Manitoba (Min. of Finance) v Air Canada: as far as taxation is concerned, Manitoba has no property right or legislative

jurisdiction in relation to airspace over its territoryo Airspace at that height is res opmuium communis

Land Title Act, RSBC 1996, c 250 s 138: airspace defined (volumetric); airspace plan defined s 139: airspace constitutes land and lies in grant s 141: subdivision of land into air space parcels s 145: taxation

Strata Property Act, SBC, c 43 s 239: land may be subdivided into into stratas; may devolve in same manner as land

United Nations Convention on the Law of the Sea Sovereignty extends to airspace over territorial sea

Coase theorem: “[I]f transactions are costless, the initial assignment of a property right will not affect the ultimate use of the property”

o apply to Didow: if transaction costs 0, then same outcome (cheaper for owner to pay power company to move)o BUT, transaction costs are not 0 normative claim that the law ought to mimic the efficient allocation of

resources

Didow v Alberta Power Ltd (QB) Permanent intrusion into airspace that could reasonably interfere with enjoyment or use of land = trespass. Proper remedy for interference of airspace is trespass, not nuisance.

F: Alberta constructs power lines. Centre of poles 2 feet away from land. Cross bars protrude 6 feet into airspace. I: has Alberta trespassed into the applicant’s land? A: (1) Kelsen: any intrusion of airspace is trespass; (2) Bernstein: intrusion at reasonable height is trespass; (3) Causby: if no

buildings/structures, doesn’t affect right to reasonable airspace; (4) Manitoba: intrusion at 35k feet not trespass.o (1) Courts will not apply Latin maxim outright; (2) proper remedy is trespass

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3.2 SubsurfaceLand Act, RSBC 1996, c 245

s 11: disposal of Crown land by Minister s 50: reservations under dispositions of Crown land (geothermal, petroleum, minerals, coal, etc.)

Mineral Tenure Act, RSBC 1996, c 292 s 19: Free miner or record holder must serve notice on property owner if exploring, and is liable to compensate owner of

surface rights to damage caused by occupation or use s 20 [repealed]: free miner must not interfere with operation of activity or construction on private land (Grant of land includes everything except gold and silver?)

Edward v Sims (1929) Property interest of a person who owns surface rights extends to subsurface as well.

F: Sims has cave entrance on his property [actually blew stuff up to create it]. Makes tourist attraction and $ off of the cave. Lee suspects cave extends under Lee’s property, brings claim in trespass. Judge Sims orders injunction, Edwards bring claim against Judge Sims.

I: How far does Lee’s property interest extend? Maj. (Stanley): Latin maxim is the rule. Common law and mining rights: can order inspection of mine to see if it extends under

another person’s property. Caves are analogous; Lee can bring trespass claim against Edwards. Dis. (Logan): Mining rights involve owner claiming property interest over valuable things under the surface; here, Edwards has

created the value in the cave [labour]. Edwards owns cave through “right of discovery, exploration, development advertising, exhibition, and conquest”; owns right to profit from cave [economic, utility].

3.3 Lateral Boundaries: LandTrespass Act, RSBC 1996, c 462

S 1: defines “enclosed land” S 3: duties of property owners (make and maintain fence; incur ½ cost with neighbor) S 4: offences for trespass (presumed to have permission to be on land if found in enclosed land) S 5: notice (signs)

Property Law Act, RSBC 1996, c 377 S 36: options for the court if one party encroaching on another (grant land with compensation; order to stop, etc.)

Right to support in Canada: (211)o Applies to land in natural state, does not extend to buildings

If subsidence not due to building weight loss of support is actionable Compensation only when damages occur

o Loss of support NOT actionable per se; must prove damage to lando Where A owns surface rights and B owns mineral rights and is mining:

Mineral exploration leading to subsidence is actionable; presumed causation absence evidence to the contrary

Robertson v Wallace (2000) (QB) Where no express agreement, use conduct of parties to establish boundary line: must clearly show parties intended and implicitly agreed the fence should be the boundary line. “Uneasy truce ≠ agreement”. Onus on party claiming ownership.

F: 1890 river marks boundary between Robertson (east) property and Wallace (west) property. River shifts east, increasing area of Wallace’s property. Surveyor says Wallace’s property increased by 20 acres; Wallace sells to third party. Cows generally divided east/west by a fence. Cows generally divided east/west by fence.No evidence of express boundary line.

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L: to prove conventional boundary: (1) adjoining landowners; (2) dispute/uncertainty about dividing line; (3) agree on division line; (4) recognize common boundary. If one party builds up to boundary line that has been agreed upon, other party estopped from denying that boundary line.

I: Is there evidence of conduct that can support the existence of a conventional boundary line at the fence? A: Both parties remember when kids that cows would wander over other side of the fence. Evidence of earlier agreement;

present evidence suggests “uneasy truce” but no actual agreement on the boundary.

Blewman v Wilkinson (NZ) In NZ: no absolute liability for subsidence, only law of negligence.

F: A owns property; excavates and subdivides. B purchases and sells to Wilkinson, who builds house. Land subsides. Wilkinson brings action against A (Blewman).

L: Right to benefit of support of physical land. Right to enjoy land unaffected by any act done by way of excavation by adjacent property owner.

I: Should above principles be extended to cover current situation: party excavating owned all the land at the time of excavation, but then subdivided it?

A: Law of negligence provides adequate protection for land owners; policy argument – lots of subdivisions on steep hills in NZ, don’t want to discourage development/punish developers.

3.4 Lateral Boundaries: WaterOcean’s Act, SC 1996, c 31

Ratified UNCLOS conventions on sea territory (how far from shore)

Water Act, RSBC 1996, c 483 s 2: right to use and flow of water vested in gov’t, unless otherwise specified s 42: offences (divert stream, e.g.)

Land Act, RSBC 1996, c 245 s 1: defines “natural boundary” s 55: water bodies must be coloured red to denote the granting of shore or bed rights

Riparian Rights (Common law presumptions) 1. Owner of property adjacent to body of water has right to water body’s natural flow

o Can use water as long as don’t diminish other land owner’s right to natural flow (e.g. no dams) 2. Ad Medium Filum Aquae: Owner of land adjacent to body of water also owns water bed to the midpoint

o In Canada: apply this maxim (own up to midpoint) ONLY to non-navigable bodies of water (In England, understood as “non-tidal” bodies of water”)

3. Fisheries: according to Latin Maxim, have right to fish (but don’t own fish until catch them)o In Canada, Crown held right to fish in tidal waters

Held right to fish in trust for public; could not allocate exclusive fisheries in tidal waters to anybody Connect all of these to Law and Equity Act s 2: reception of law so far as not inapplicable to local conditions

Law of accretion/avulsion (220-221) When land is bounded by water, changes to it are “gradual and imperceptible” due to water movement, law of accretion

o New boundary is where the natural boundary lieso Newly formed island will belong to owner of lakebed (most often the Crown)o For law of accretion to apply, land must come to the water’s edge (e.g. if thin strip reserved by Crown, Crown gets

any extra land from receding water) If change in water is rapid, i.e. avulsion, the old/original boundary between 2 properties applies

R v Nikal (1996) (SCC) Latin presumption does not apply to navigable rivers; test for navigability = assessment of entire length of river.

F: Indigenous person charged with fishing without a license. If on Band reserve lands, band bylaws apply and he would be fishing legally; if water not legally part of band reserve, would be fishing without a license. Must determine if river is legally part of the reserve land. Argues that Latin maxim applies part of band land; or Crown intended fishing rights.

I: Does the Bulkley River fall within the boundaries of Morcetown Reserve, making it subject to bylaws rather than federal laws?

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A: (1) Crown never intended to grant exclusive fishery: outside of prerogative powers because fisheries held in trust for general public (somewhat incorrect – would apply only to tidal waters); (2) Latin maxim must be adapted to Canadian conditions, so doesn’t apply to non-tidal waters, but rather non-navigable waters. Must determine if Bulkley river navigable: it is navigable above and below Moricetown, so legally the whole river is navigable. Therefore, Latin Maxim doesn’t apply. River not on reserve land, indigenous dude was fishing without license on Crown land.

3.5 Fixtures SUBJECTIVE INTENTION OF PARTIES DOES NOT MATTER

Tenant’s Fixtures AKA “Trade fixtures” Set out in Frank Georges Island Investments Ltd v Ocean Farmers Ltd Fixtures put up by tenant may be removed provided that article is:

o For the purpose of carrying out a trade, oro Ornamental in nature/for the purpose of domestic convenienceo AND, can be removed without material injury to the freehold

Possible distinction b/w La Salle and Re Davis: type of building? Hotel in La Salle could possibly ONLY be used as hotel, which needs carpet; building in Re Davis could have been generic building, in which many activities, apart from bowling, could have been carried out.

La Salle Recreations Ltd v Canadian Cambdex Investments Ltd (BCCA) (1969) Two part objective intention test to establish chattels vs. fixtures: (1) Degree of annexation/attachment; (2) purpose of annexation/attachment: enhancement of [land/building] or [chattel itself]?

F: Hotel goes bankrupt; in contract, La Salle retained title over carpets until paid off. Mortgagee (Camdex) claims title as part of the mortgage.

I: are the carpets fixtures or chattels? A: if chattel go to La Salle; if fixture and part of real property go to mortagee. (1) Annexation = slight b/c carpets

“smoothly and firmly in position”, but “removable with little difficulty and without causing more than trifling damage” (227). (2) Purpose = better use of hotel as hotel b/c wouldn’t have only plywood floors in hotel; undermatting of the carpet would not provide proper floor of hotel; in comparable hotels, carpeting replaced every 3-5 years; ready market exists for used carpeting after its removal.

Re Davis (1954) Different take on “enhancement” of building.

F: Husband dies, wife gets 1/3 dower on any real property of the husband. I: were bowling alleys in the building claimed by the wife fixtures or chattels? A: (1) Annexation = slight; attached with bolts and clips, fairly easily removable. (2) Purpose = “that bowling might be

more efficiently carried on”.

Diamond (Neon) Manufacturing Ltd v Toronto Dominion Realty (1976) (BCCA) Affirms test for chattels/fixtures is objective: doesn’t matter what parties intended. Dissent: test as applied to signs.

F: Lot owned by Western Canadian properties, made into car lot. Diamond neon makes signs for the properties, with agreement with Western Canadian that signs remain property of Diamond. Western Canadian sells lots to TD; TD has no knowledge of agreement about sign ownership. TD sells the signs when they take ownership.

I: Were the signs chattels or fixtures? If chattels, TD liable for wrongful conversion of Diamond’s property. Maj: “In my opinion, both the degree of annexation and the object of the annexation force the conclusion that the things

had become part of the realty before D bought the land” (230). Thus (1) strong attachment, and (2) to enhance the land. Dis. (Carrothers): Sign is unique in that it can speak for itself on the purpose of the sign as fixture or chattel. Analogy to

address sign compared to sign with doctor’s name and office hours. Doctor’s sign has information relative to the particular occupation of the particular tenant, which suggests that it is personal chattel. Also, that D sold the signs as chattels further suggests that they signs were viewed as chattels, not fixtures.

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4. Acquisition of Interests4.1 Concept of PossessionAdverse Possession

At common law, must establish:o (1) Actual possession; (2) open and notorious; (3) exclusive; (4) peaceful; (5) without permission; (6)

inconsistent with rights of owner Modified by Statute:

o Statute of Limitations, RSBC 1960, c 370: s 16: must make claim within 20 years?o Limitation Act, SBC 2012, c 13: s 28: no adverse possession; adverse possession only before July 1 1975o Land Title Act, RSBC 1996, c 250: s 23: can establish adverse possession only against first title holder of land?o Land Title Inquiry Act, RSBC 1996, c 251: SC can decide who has title to land, if one party wishes is

Pierson v Post (1805):o Post pursuing fox; Pierson intervenes, kills fox, and takes possession

At common law own wild animals when catch them

Popov v Harashi (2002) (Calif SC) When more than one party has valid claim to single piece of property, recognize undivided interest in it. When a person unlawfully prevented from establishing full possession, they may have ‘pre-possessory interest’.

F: P catches home run ball. Swarmed by mob, loses control. H picks it up, refuses to give it back. P sues in conversion. I: Did P have sufficient intent and physical control of the ball to establish possession? A: Possession here not the same as common law on hunting, can’t “wrap your arms around a fleeing fox”. Take Prof.

Gray’s def’n of possession for these purposes: once “the momentum of the ball and the momentum of the fan while attempting to catch the ball ceases” (297). (1) P didn’t have sufficient physical control of ball b/c didn’t stop momentum. (2) clearly had intent. On equitable grounds, can’t stop here. Only lost physical control because of unlawful acts of others had established a pre-possessory interest, which qualifies H’s possession claim. Both have a superior claim against the public. Cites Keron v Cashman to rely on principle of equitable division: each has unidivided interest “in proportion to the strength of the claim” (300).

4.2 Crown Grants Crown Grant to HBC in free and common socage, 1849…to trade with Indians Crown Grant:

o A. subject to any pre-existing water licences or leaseso B. Subject to existing mineral rightso C. subject to s 50 of Land Act

Land Act, RSBC 1996, c 245 S 50: Reservations

o Can retake up to 1/20 of land for roads, canals, bridges, public workso Reserve title to geothermal resources, fossils, minerals, gas…with compensationo Water privileges…with compensationo Gravel, sand, stone, lime, timber, without compensationo All Crown grants deemed to reserve the things contained in s 50, whether or not stated

4.3 Inter vivos Transfers Nowadays for Inter vivos transfer of land, need:

o Contract With PPP

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Enforceable once signed, prior to transfer Law and Equity Act

o Transfer Form A, signed by transferor Property Law Act Land Title Act

o Registration Common law:

o Written instrument (deed); Signed, sealed, delivered, whereby an interest passedo Statute of Frauds 1677: all land transfers must be in writing

ContractLaw and Equity Act s 59

For disposition of land to be enforceable:o A) Must be in writing, signed by party to be charged, oro B) Party enforcing contract has acted or approved of an act of transferor that indicates a contract formed

Act includes payment or acceptance, or deposit or part paymento C) Person enforcing contract has acted in reliance on it

Does not apply to leases of 3 years or less Party charged = party trying to enforce contract

TransferProperty Law Act s 16

Don’t need seal; only need transfer instrument; must be registrable

Land Title Act Act s 39, 185 Unless required by act, instrument to transfer land is registrable Transfer must be in prescribed form and on single page

o But doesn’t apply if another form is required by the Act or if registrar says its ok

Forms A = contract for land (with PPP; signed by transferor) B = transfer a mortgage C = transfer other than fee simple

4.4 Transfer of Title through Delivery: GiftsNolan v Nolan & Anor (2003) (Aus) Donative intent & delivery must coincide to complete inter vivos transfer through delivery.

F: P claims that D transferred 3 paintings to P’s mother (D’s wife), prior to mother/wife’s death. P is beneficiary of mother’s estate, and therefore claims that the 3 paintings should go to her rather than stay with D.

I: Was there intention to gift and delivery, to complete the transfer? L: In order to establish inter vivos transfer of chattel, need (1) intention to make a gift (usually explicit); (2) intention to

receive gift; (3) delivery. Can be retracted at any point before delivery. A: No donative intent to gift that is explicit enough to be sufficient: no statement of transfer, words, or explicit indication.

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5. Freehold Estates5.1 Fee Simple

Walsingham’s Case (1579)o Fee simple = “time in land without end”o Fee tail = “as long as he has issues of his body”

“to A and the heirs of his/her body”o Life estate = “no longer than for his own life”

D’Arundel’s Case :o Transfer made to Roger “and his heirs”

Son claims property Court says: “his heirs” denotes quantity, not that son gets anything

Defining features of freeholds:o Duration defined, but actual length is uncertain b/c end point not fixed; inheritable

Conditions that will cause freeholds to end are clear; but don’t know when Words of limitation/purchase

o To A and her heirs Words of purchase Describes recipient

o To A and her heirs Words of limitation Describes quantity

Property Law Act S 10: ends the fee tail S 19: sufficient to use words “in fee simple” without “and his heirs”

o If no words of limitation, assumed fee simple or greatest estate/interest

Land Title Act S 186: if no words of limitation fee simple

Wills, Estates and Succession Act s 41: gift in a will according to terms, and gives all legal or equitable interests that will-maker could legally give

Thomas v Murphy In wills, intention of the testator(s) is paramount and there is a relaxed requirement of words of limitation.

F: will grants property to Plaintiff, “their successors and assigns”. D gives legal opinion that it is fee simple; P unsure and pays extra for another opinion. Wants D to pay legal costs.

I: What type of interest granted in the will, absent “and his heirs”? A: “I am satisfied that the conveyance taken as a whole clearly explains the intention of the parties to the conveyance and

that the requirement of words of limitation in the grant should be seen to have been supplied by the clear intention in the deed to pass the fee simple interest of the grantors” (371).

5.2 Life Estates Property Law Act

S 19: If no words of limitation, assumed fee simple or greatest estate/interest

Law and Equity Act Life estate with power to encroach/permission of waste does not include equitable waste unless specified

Waste Permissive: failure to act e.g. dilapidated buildings; life tenant NOT liable Voluntary: positive, wrongful action; permanent changes; unless specified, life tenant LIABLE

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o (Timber, mines, buildings, change in use) Ameliorating: benefits the land; life tenant generally not liable Equitable: huge change, like clear cut

Curtsey: widower acquires life estate for wife’s property

Dower: wife gets 1/3 of dead husband’s real property during their marriage Reversion: when something reverts back to transferor Remainders: when interest passes to someone other than transferor at end of life estate Strict settlement: get around limitations in law that prevented fixing property in a family

o E.g. “to my child for life, remainder to my eldest grandchild and the heirs of his body” (1) Life estate to child; (2) remainder in fee tail to grandchild; family pressure to keep it (3) resettlement

Effect: constrain ability of each heir to do what they want with the property (legally & socially)

Re Walker (1924) 3 types of repugnancy: (1) Gift in fee simple, gift over void; (2) Life estate with gift over; (3) life estate with power to encroach, gift over.

Re Taylor (1982) Where intention is clear, must give effect to intent.

Christensen v Martini Estate (1999) Where intention vague, go to rest of the will, then surrounding context and relationships.

Powers v Powers Estate With life estate, who should pay for expenses related to household upkeep.

Nanabush v Deer, Wolf et al (Anishinabek Nation) (p84) obligations to natural world, NW as actorFacts: Nanabush tricks a deer and kills it. While eating it a tree branch screeched at him so he broke it but got stuck in the tree. Wolves that ran by ate his deer meat and the meat off the deer’s head. Nanabush got down from the tree, became a snake and ate the deer brains. The skull got stuck on his head when he transformed back, he tripped and the skull smashed. Issue: Do Nanabush’s actions violate the balance required by law in the relationship between humans and animals?Ratio: Resources exist without humans, but humans have no existence without resourcesAnalysis: Looks to precedent set in the Crow case (Anishinabek made a treaty with the deer to respect their lives, not to waste their flesh, and to leave a tobacco leaf where they are killed); distinct from Birch case because it is too narrow interpretation to say it was the deer’s vanity at fault;Conclusion: Nanabush violated the treaty established in Crow and created an imbalance in the relationship between humans and animals

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Legislatio1.2 Why Private Property?Nisga’a Final Agreement

s 3: On the effective date, the Nisga’a Nation owns Nisga’a Lands in fee simple, being the largest estate known in law. This estate is not subject to any condition, proviso, restriction, exception, or reservation set out in the Land Act, or any comparable limitation under any federal or provincial law. No estate or interest in Nisga’a Lands can be expropriated except as permitted by, and in accordance with, this Agreement.

Nisga’a Land Designation Act (2000) s 1: The Nisga’a Lands described

o (a) in Schedule A are designated as the Nisga’a Village Lands of the Nisga’a Village of New Aiyansh,o (b) in Schedule B are designated as the Nisga’a Village Lands of the Nisga’a Villageof Gitwinksihlkw,o (c) in Schedule C are designated as the Nisga’a Village Lands of the Nisga’a Villageof Laxgalt'sap, ando (d) in Schedule D are designated as the Nisga’a Village Lands of the Nisga’a Village of Gingolx.

Nisga’a Village Entitlement Act (2000) In this Act,

o “director” means the Director of Lands and Resources;o “eligible recipient” means, in respect of a NisÞa’a Village entitlement,

(a) a person who (i) is a NisÞa’a citizen, and (ii) immediately before the effective date, was a member of the Indian band to which the

particular NisÞa’a Village is a successor under paragraph 11 of the Indian Act Transition Chapter of the NisÞa’a Treaty,

(b) the NisÞa’a Nation, (c) a NisÞa’a settlement trust established by the NisÞa’a Nation, or (d) a NisÞa’a housing services provider;

“NisÞa’a housing services provider” means a housing services provider as defined in the NisÞa’a Programs and Services Delivery Act; “NisÞa’a settlement trust” means a NisÞa’a settlement trust as defined in the NisÞa’a Treaty; “NisÞa’a Village entitlement” means a right to possession of a particular parcel of NisÞa’a Village

Lands evidenced by a certificate in the prescribed form, and includes any interest of a tenant in common or joint tenant in that right;

“particular NisÞa’a Village” means, in respect of a NisÞa’a Village entitlement, the NisÞa’a Village whose NisÞa’a Village Lands include the parcel;

“registered holder” means, in respect of a NisÞa’a Village entitlement, the person registered under the NisÞa’a Land Title Act as the holder of the NisÞa’a Village entitlement;

“registrar” means the Registrar appointed under the NisÞa’a Land Title Act.

2(1) After the effective date, a NisÞa’a Village may grant to an eligible recipient a NisÞa’a Village entitlement for land within its NisÞa’a Village Lands in which the NisÞa’a Village owns the estate in fee simple.

o (2) No person may acquire a NisÞa’a Village entitlement by grant under subsection (1) except an eligible recipient.

o (3) A grant of a NisÞa’a Village entitlement under subsection (1) is not effective until the grant is approved by the registrar and registered under the NisÞa’a Land Title Act.

o (4) The registrar must not approve a grant of a NisÞa’a Village entitlement under subsection (1) or register the grant under the NisÞa’a Land Title Act unless the registrar is satisfied that the grantee is an eligible recipient.

Transfer by registered holder

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3(1) A person registered under the NisÞa’a Land Title Act as the holder of a NisÞa’a Village entitlement may transfer the NisÞa’a Village entitlement to an eligible recipient or the particular NisÞa’a Village.

o (2) No person may acquire a NisÞa’a Village entitlement by transfer under subsection (1) except an eligible recipient or the NisÞa’a Village.

o (3) A transfer of a NisÞa’a Village entitlement under subsection (1) is not effective until it is approved by the registrar and registered under the NisÞa’a Land Title Act.

o (4) The registrar must not approve a transfer of a NisÞa’a Village entitlement under subsection (1) or register the transfer under the NisÞa’a Land Title Act unless the registrar is satisfied that the transferee is an eligible recipient or the NisÞa’a Village.

Disposition from estate 4(1) No person may acquire a NisÞa’a Village entitlement by disposition under a will or by distribution from the estate of

an intestate except an eligible recipient or the particular NisÞa’a Village. o (2) The disposition of a NisÞa’a Village entitlement under a will or the distribution of a NisÞa’a Village

entitlement from the estate of an intestate is not effective until the disposition or distribution is approved by the registrar and registered under the NisÞa’a Land Title Act (

o 3) The registrar must not approve the disposition of a NisÞa’a Village entitlement under a will or the distribution of a NisÞa’a Village entitlement from the estate of an intestate, or register the disposition or distribution under the NisÞa’a Land Title Act, unless the registrar is satisfied that the beneficiary or heir is an eligible recipient or the NisÞa’a Village.

Nisga’a Nation Entitlement Act (2000) 1 In this Act,

o “director” means the Director of Lands and Resources;o “eligible recipient” means, in respect of a NisÞa’a Nation entitlement,

(a) a NisÞa’a citizen, (b) the NisÞa’a Nation, (c) a NisÞa’a settlement trust established by the NisÞa’a Nation, or (d) a NisÞa’a housing services provider;

o “NisÞa’a housing services provider” means a housing services provider as defined in the NisÞa’a Programs and Services Delivery Act;

o “NisÞa’a settlement trust” means a NisÞa’a settlement trust as defined in the NisÞa’a Treaty;o “NisÞa’a Nation entitlement” means a right to possession of a particular parcel of NisÞa’a Village Lands evidenced

by a certificate in the prescribed form, and includes any interest of a tenant in common or joint tenant in that right;

o “particular NisÞa’a Village” means, in respect of a NisÞa’a Nation entitlement, the NisÞa’a Village whose NisÞa’a Village Lands include the parcel;

o “registered holder” means, in respect of a NisÞa’a Nation entitlement, the person registered under the NisÞa’a Land Title Act as the holder of the NisÞa’a Nation entitlement;

o “registrar” means the Registrar appointed under the NisÞa’a Land Title Act;

Grant by NisÞa’a Village 2(1) After the effective date, a NisÞa’a Village may grant to an eligible recipient a NisÞa’a Nation entitlement for land

within its NisÞa’a Village Lands in which the NisÞa’a Village owns the estate in fee simple.o (2) No person may acquire a NisÞa’a Nation entitlement by grant under subsection (1) except an eligible

recipient. o (3) A grant of a NisÞa’a Nation entitlement under subsection (1) is not effective until the grant is approved by the

registrar and registered under the NisÞa’a Land Title Act.o (4) The registrar must not approve a grant of a NisÞa’a Nation entitlement under subsection (1) or register the

grant under the NisÞa’a Land Title Act unless the registrar is satisfied that the grantee is an eligible recipient.

Transfer by registered holder 4 (1) A person registered under the NisÞa’a Land Title Act as the holder of a NisÞa’a Nation entitlement may transfer the

NisÞa’a Nation entitlement to an eligible recipient or the particular NisÞa’a Village.o (2) No person may acquire a NisÞa’a Nation entitlement by transfer under subsection (1) except an eligible

recipient or the NisÞa’a Village.o (3) A transfer of a NisÞa’a Nation entitlement under subsection (1) is not effective until it is approved by the

registrar and registered under the NisÞa’a Land Title Act.

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o (4) The registrar must not approve a transfer of a NisÞa’a Nation entitlement under subsection (1) or register the transfer under the NisÞa’a Land Title Act unless the registrar is satisfied that the transferee is an eligible recipient or the NisÞa’a Village.

Disposition from estate 4(1) No person may acquire a NisÞa’a Nation entitlement by disposition under a will or by distribution from the estate of

an intestate except an eligible recipient or the particular NisÞa’a Village.o (2) The disposition of a NisÞa’a Nation entitlement under a will or the distribution of a NisÞa’a Nation

entitlement from the estate of an intestate is not effective until the disposition or distribution is approved by the registrar and registered under the NisÞa’a Land Title Act.

o (3) The registrar must not approve the disposition of a NisÞa’a Nation entitlement under a will or the distribution of a NisÞa’a Nation entitlement from the estate of an intestate, or register the disposition or distribution under the NisÞa’a Land Title Act, unless the registrar is satisfied that the beneficiary or heir is an eligible recipient or the NisÞa’a Village.

Nisga’a Landholding Transition Act (2000)NisÞa’a Village Governments may offer fee simple to entitlement holders

2(1) Subject to section 4, if (a) a NisÞa’a Village is registered as the owner of the estate in fee simple to a parcel of NisÞa’a Lands, and (b) a NisÞa’a citizen is registered as the holder of an entitlement to the parcel, the NisÞa’a Village

Government of the NisÞa’a Village may, by adopting a resolution in the prescribed form, offer the estate in fee simple to the parcel to the NisÞa’a citizen, without charge to the NisÞa’a citizen.

o (2) If (a) a NisÞa’a Village is registered as the owner of the estate in fee simple to a parcel of NisÞa’a Lands, and (b) the NisÞa’a Nation is registered as the holder of an entitlement to the] parcel

the NisÞa’a Village Government of the NisÞa’a Village may, by adopting a resolution in the prescribed form, offer the estate in fee simple to the parcel to the NisÞa’a Nation, without charge to the NisÞa’a Nation.

o (3) As soon as practicable after adopting a resolution under subsection (1) or (2) offering the estate in fee simple to a parcel of NisÞa’a Lands to the registered holder of an entitlement, a NisÞa’a Village Government must

(a) file a signed original of the resolution with the registrar, and (b) deliver a copy of the resolution to the registered holder.

Requirements for fee simple offers 4 The estate in fee simple to a parcel of NisÞa’a Lands may, under section 2(1), be offered to a NisÞa’a citizen who is the

registered holder of an entitlement to the parcel only if o (a) the entitlement is not subject to a registered mortgage, o (b) the parcel is not greater than 0.2 hectares in area, and o (c) the principal use of the parcel permitted under a zoning law enacted by the NisÞa’a Village Government

having jurisdiction over the parcel is residential.

1.3 Novel Claims to PropertyAssisted Reproduction Act, SC 2004, c 2

Risk of creating saleable property interest in body parts perverse incentive for poor women (surrogacy) No person shall pay a woman to be a surrogate mother

o Can pay for expenses, but not the act No person can purchase or offer to purchase sperm or ova No prohibition on giving, but prohibition on selling Property language not used in Act

2.1 Sources of Property LawLaw and Equity Act, RSBC 1996, c 25

s 2: Subject to section 3, the Civil and Criminal Laws of England, as they existed on November 19, 1858, so far as they are not from local circumstances inapplicable, are in force in British Columbia, but those laws must be held to be modified and altered by all legislation that has the force of law in British Columbia or in any former Colony comprised within its geographical limits.

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Wills and Estates Act s 19: if dies w/o will and no descendent, land goes to spouse s 21: spouse entitled to household furnishings and “preferential share” of estate s 23(f): if no heirs, subject to Escheat Act s 24: if land left to descendents, must be shared equally s 60: court can mandate land go to spouse/children if not adequately provided for in will

Escheat Act, RSBC 1996, c 120 s 1: If land in British Columbia escheats to the government because the person last seised or entitled to it dies intestate

and without lawful heirs, or forfeits to the government, the Attorney General may take possession of the land in the name of the government

2.3 Protections for PropertyExpropriation Act, RSBC 1996, c 125

1: Definitionso “Expropriate” means taking of land by an expropriating authority under and enactment without the consent of

the owner, but does not include the exercise by the government of any interest, right, privilege or title referred to in section 50 of the Land Act.

4: Approval of expropriation (2) A person may not, in any proceedings under this Act, dispute the right of an expropriating authority to have recourse to expropriation

6: Expropriation Notice  (1) An expropriating authority that intends to expropriate land musto (a) serve an expropriation notice on the approving authority and on each owner

(i) whose land is to be expropriated, and (ii) whose interest in that land is recorded in the land title office, other than persons having an interest

referred to in section 23 (2) (b) or (c)o (b) serve on each owner referred to in paragraph (a) a copy of this Act,o (c) post or erect, on the land to be expropriated, a sign containing a copy of the expropriation notice or a

summary of its contents, ando (d) file a copy of the expropriation notice in the land title office.

10: Request for Inquiry (2) An owner whose land is included in an expropriation notice, other than an expropriation notice in respect of an expropriation for the construction, extension or alteration of a linear development, may request an inquiry by serving the minister with a notice of request for an inquiry.

14: Inquiry (1) Subject to section 11, the inquiry officer must hold a public hearing for the purpose of inquiring into whether the proposed expropriation of the land is necessary to achieve the objectives of the expropriating authority with respect to the proposed project or work, or whether those objectives could be better achieved by

(a) an alternative site, or (b) varying the amount of land to be taken or the nature of the interest in the land to be taken.

o (2) The necessity for the project or work for which the expropriation is sought must not be considered at the inquiry.

o (3) The inquiry officer may combine 2 or more inquiries that are related and conduct them for all purposes as one inquiry.

o (4) A participant in the inquiry may (a) be represented by counsel or agent, (b) present evidence and argument, and (c) examine and cross examine witnesses and other participants in the inquiry.

18 – Decision of Approving Authority (1) After considering the report submitted under section 17, the approving authority must approve, approve with modifications or reject the expropriation, but an expropriation must not be modified so as to affect land of a person who was not a participant in the inquiry.

o (2) If (a) an inquiry is not requested or has been refused, or (b) an owner is not, under section 10 (2), entitled to request an inquiry, the approving authority must (c) approve the expropriation, and (d) notify the expropriating authority and each owner of the approval in writing.

o (3) If an inquiry was held, the approving authority must, not later than 30 days after receiving the report submitted under section 17, serve his or her decision, with written reasons, on every participant and every owner of the land expropriated.

o (4) If a request for an inquiry is withdrawn, the approving authority may proceed as though the request had not been made.

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o (5) If the approving authority modifies the expropriation under subsection (1), the expropriating authority must (a) file in the land title office an amended expropriation notice in accordance with the modification, and

section 6 (4) applies, and (b) notify each owner of the modified approval in writing and accompany the notice with a copy of the

amended expropriation notice.o (6) If the approving authority rejects the expropriation,

(a) the expropriating authority must file in the land title office a notice of cancellation in the prescribed form, and

(b) on receiving the notice of cancellation, the registrar must cancel the expropriation notice filed and endorsed under section 7 (1).

30: Right to Compensation  (1) Every owner of land that is expropriated is entitled to compensation, to be determined in accordance with this Act.

31: Basicl Formula  (1) The court must award as compensation to an owner the market value of the owner's estate or interest in the expropriated land plus reasonable damages for disturbance but, if the market value is based on a use of the land other than its use at the date of expropriation, the compensation payable is the greater of

o (a) the market value of the land based on its use at the date of expropriation plus reasonable damages under section 34, and

o (b) the market value of the land based on its highest and best use at the date of expropriation.

NAFTA Article 1110 No Party may directly or indirectly nationalize or expropriate an investment of an investor of another Party in its

territory or take a measure tantamount to nationalization or expropriation of such an investment (“expropriation”), except:

o (a)  for a public purpose;o (b)  on a non-discriminatory basis;o (c)  in accordance with due process of law and Article 1105(1); ando (d)  on payment of compensation in accordance with paragraphs 2 through 6.

3.1 AirspaceLand Title Act, RSBC 1996, c 250

138  In this Part: o "air space parcel" means a volumetric parcel, whether or not occupied in whole or in part by a building or other

structure, shown as such in an air space plan; o "air space plan" means a plan that

(a) is described in the title to it as an air space plan, (b) shows on it one or more air space parcels consisting of or including air space …

139 Air space constitutes land and lies in grant 141  (1)  An owner in fee simple whose title is registered under this Act may, by the deposit of an air space plan, create

one or more air space parcels separated by surfaces and obtain indefeasible titles for them. o (2)  The air space parcel created by the plan devolves and may be transferred, leased, mortgaged or otherwise

dealt with in the same manner and form as other land the title to which is registered under this Act. o (3)  An air space parcel may be subdivided in accordance with the Strata Property Act.

145 taxation:  An estate or interest in an air space parcel, if separately owned, must be separately assessed for taxation for all types of rates, assessments and taxes authorized to be assessed against land and improvements by any Act.

Strata Property Act, SBC, c 43 239  (1) Land may be subdivided into 2 or more strata lots by the deposit of a strata plan in a land title office.

o (2) The strata lots created by the deposit of a strata plan may, subject to this Act, devolve or be disposed of in the same manner and form as any land the title to which is registered in a land title office.

United Nations Convention on the Law of the Sea Article 2(2)

o 1. The sovereignty of a coastal State extends, beyond its land territory and internal waters and, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea, described as the territorial sea.

o 2. This sovereignty extends to the air space over the territorial sea as well as to its bed and subsoil.

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3.2 SubsurfaceLand Act, RSBC 1996, c 245

11  (1)  Subject to compliance with this Act and the regulations, the minister may dispose of surveyed or unsurveyed Crown land by any of the following means, as the minister considers advisable in the public interest, to a person entitled under this Act:

o (a) application;o (b) public auction;o (c) public notice of tender;o (d) public drawing of lots;o (e) public request for proposals;o (f) listing with a brokerage licensed under the Real Estate Services Act; o (g) land exchanges.

50  (1)  A disposition of Crown land under this or another Act o (a) excepts and reserves the following interests, rights, privileges and titles:

… (ii)  a right in the government, or any person acting for it or under its authority, to enter any part of the

land, and to raise and get out of it any geothermal resources, minerals, whether precious or base, as defined in section 1 of the Mineral Tenure Act, coal, petroleum and any gas or gases, that may be found in, on or under the land, and to use and enjoy any and every part of the land, and its easements and privileges, for the purpose of the raising and getting, and every other purpose connected with them, paying reasonable compensation for the raising, getting and use;

… (iv)  a right in any person authorized by the government to take from any part of the land granted,

without compensation, gravel, sand, stone, lime, timber or other material that may be required in the construction, maintenance or repair of a road, ferry, bridge or other public work,

50  (1)  A disposition of Crown land under this or another Act o (b) conveys no right, title or interest to

(i)  geothermal resources as defined in the Geothermal Resources Act, (ii)  minerals and placer minerals as defined in the Mineral Tenure Act, (iii)  coal, (iv)  petroleum as defined in the Petroleum and Natural Gas Act, or (v)  gas,

o that may be found in or under the land…

Mineral Tenure Act, RSBC 1996, c 292 19  (1)  A person must not commence a mining activity by a method using mechanical equipment that disturbs the

surface unless the recorded holder s(a) first serves written notice on the owner of every surface area on which the recorded holder

intends to work or intends to utilize a right of entry for that purpose…o (2)  A free miner or recorded holder, or any person acting under or with the authority of a free miner or recorded

holder, is liable to compensate the owner of a surface area for loss or damage caused by the entry, occupation or use of that area or right of way by or on behalf of the free miner or recorded holder for location, exploration and development, or production of minerals or placer minerals.

20  [Repealed 2002-48-53.] Before repeal… 20  A free miner or recorded holder must not interfere with an operation of activity, or the construction or maintenance

of a building, structure, improvement or work, on private land.

3.3 Lateral Boundaries: LandTrespass Act, RSBC 1996, c 462

1  In this Act:…

o "enclosed land" includes land that is (a) surrounded by a lawful fence defined under this Act, (b) surrounded by a lawful fence and a natural boundary or by a natural boundary alone, or (c) posted with signs prohibiting trespass in accordance with section 5 (1)

3 (1) Unless otherwise agreed, the owners of adjoining land in a rural area must make, keep up and repair the lawful fence and any natural boundary between their respective land.

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o (2) Each of the owners is liable to the other for 1/2 of any cost reasonably incurred for the purposes of subsection (1).

o (3) This section is not binding on the government. 4 (1) Subject to section 4.1, a person commits an offence if the person does any of the following:

(a) enters premises that are enclosed land; (b) enters premises after the person has had notice from an occupier of the premises or an authorized

person that the entry is prohibited; (c) engages in activity on or in premises after the person has had notice from an occupier of the premises

or an authorized person that the activity is prohibited.o (2) A person found on or in premises that are enclosed land is presumed not to have the consent of an occupier

or an authorized person to be there. … 5 (1) For the purposes of paragraph (c) of the definition of "enclosed land", signs must be posted so that, in daylight

and under normal weather conditions, from the approach to each ordinary point of access to the enclosed land, (a) a sign is clearly visible, (b) if a sign contains writing, the writing is clearly legible, and (c) if a sign uses graphic representation, the graphic representation is clearly visible.

Property Law Act, RSBC 1996, c 377 36 (2) If, on the survey of land, it is found that a building on it encroaches on adjoining land, or a fence has been

improperly located so as to enclose adjoining land, the Supreme Court may on application (a) declare that the owner of the land has for the period the court determines and on making the

compensation to the owner of the adjoining land that the court determines, an easement on the land encroached on or enclosed,

(b) vest title to the land encroached on or enclosed in the owner of the land encroaching or enclosing, on making the compensation that the court determines, or

(c) order the owner to remove the encroachment or the fence so that it no longer encroaches on or encloses any part of the adjoining land.

3.4 Lateral Boundaries: WaterOcean’s Act, SC 1996, c 31

Ratified UN Convention on the Law of the Sea ss 5&6: Internal waters s 4: Territorial sea = 12 miles out ss 10&11: contiguous zone = 12-24 miles ss 13&14: exclusive economic zone = 200 miles from shore

Water Act, RSBC 1996, c 483 (to be replaced by Water Sustainability Act 1 January 2016) 1 "unrecorded water" means water the right to the use of which is not held under a licence or under a special or private

Act 2 (1) The property in and the right to the use and flow of all the water at any time in a stream in British Columbia are for

all purposes vested in the government, except only in so far as private rights have been established under licences issued or approvals given under this or a former Act.

o (2) No right to divert or use water may be acquired by prescription. 42  (1) It is not an offence for a person to divert water from a stream for extinguishing a fire, but any flow so diverted

must be promptly restored to its original channel when the fire is extinguished.o (2) It is not an offence for a person to divert unrecorded water for domestic purpose or for prospecting for

mineral, but in a prosecution under this Act the person diverting the water must prove that the water is unrecorded.

Land Act, RSBC 1996, c 245 (1) "natural boundary" means the visible high water mark of any lake, river, stream or other body of water where the

presence and action of the water are so common and usual, and so long continued in all ordinary years, as to mark on the soil of the bed of the body of water a character distinct from that of its banks, in vegetation, as well as in the nature of the soil itself;

55  (1) If Crown land is or has, before March 27, 1961, been disposed of by the government by Crown grant, and the map or plan attached to the grant shows a lake, river, stream or other body of water coloured, outlined or designated in a colour other than red, no part of the bed or shore of the body of water below its natural boundary passes or is deemed to have passed to the person acquiring the grant unless

(a) there is express provision in the grant to the contrary, or (b) the minister endorses a declaration on the plan under section 58.

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o (2) Nothing in any Act or rule of law to the contrary is to be construed to vest or to have vested in any person the land that comprises the bed or shore of the body of water below the natural boundary, and despite an indefeasible or absolute title to land, the title must be construed accordingly.

4.1 Concept of PossessionStatute of Limitations, RSBC 1960, c 370

16. No person shall make an entry or distress or bring an action to recover any land or rent but within twenty years next after the time at which the right to make such entry or distress or to bring such action shall have first accrued…

Limitation Act, SBC 2012, c 13 28  (1) Except as specifically provided by this or any other Act, no right or title in or to land may be acquired by adverse

possession.o (2) Nothing in this Act interferes with any right or title to land acquired by adverse possession before July 1,

1975.

Land Title Act, RSBC 1996, c 250 23 (3) After an indefeasible title is registered, a title adverse to or in derogation of the title of the registered owner is not

acquired by length of possession.o (4) Despite subsection (3), in the case only of the first indefeasible title registered, it is void against the title of a

person adversely in actual possession of and rightly entitled to the land included in the indefeasible title at the time registration was applied for and who continues in possession.

Land Title Inquiry Act, RSBC 1996, c 251 1  On petition to the Supreme Court, a person claiming to be the owner of an estate in fee simple in land or a trustee for

the sale of the fee simple is entitled, whether the person has the legal estate or not, and whether the person's title is subject or not to any charges or encumbrances to have the title judicially investigated and its validity declared by the court.

4.2 Crown GrantsLand Act, RSBC 1996, c 245Exceptions and reservations

50  (1) A disposition of Crown land under this or another Act (a) excepts and reserves the following interests, rights, privileges and titles:

a right in the government, or any person acting for it, to resume any part of the land that is deemed to be necessary by the government for making roads, canals, bridges or other public works, but not more than 1/20 part of the whole of the land, and no resumption may be made of any land on which a building has been erected, or that may be in use as a garden or otherwise;

(ii)   a right in the government, or any person acting for it or under its authority, to enter any part of the land, and to raise and get out of it any geothermal resources, fossils, minerals, whether precious or base, as defined in section 1 of the Mineral Tenure Act, coal, petroleum and any gas or gases, that may be found in, on or under the land, and to use and enjoy any and every part of the land, and its easements and privileges, for the purpose of the raising and getting, and every other purpose connected with them, paying reasonable compensation for the raising, getting and use;

(iii)   a right in any person authorized by the government to take and occupy water privileges and to have and enjoy the rights of carrying water over, through or under any part of the land granted, as may be reasonably required for mining or agricultural purposes in the vicinity of the land, paying a reasonable compensation to the grantee, the grantee's successors and assigns;

(iv)   a right in any person authorized by the government to take from any part of the land granted, without compensation, gravel, sand, stone, lime, timber or other material that may be required in the construction, maintenance or repair of a road, ferry, bridge or other public work,

(b) conveys no right, title or interest to(i)   geothermal resources as defined in the Geothermal Resources Act,(ii)   minerals and placer minerals as defined in the Mineral Tenure Act,(iii)   coal,(iv)   petroleum as defined in the Petroleum and Natural Gas Act,

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(v)   gas, or(vi)   fossils

that may be found in or under the land, and

o (2) Subsection (1) applies whether or not express words are used in the disposition, but is subject to subsections (3) and (3.1).

o (3) A disposition of Crown land under another Act that expressly authorizes the disposition on terms different from those referred to in subsection (1) may be made on those terms, and in that case the disposition must refer to the Act that authorizes the different terms and state the terms on which the disposition is made.

(3.1) A disposition referred to in section 11 (2) (e) may be made, if express words are used in the disposition.

o (4) A disposition of Crown land may, by express words, except or reserve to the government rights and privileges more extensive than those referred to in subsection (1).

o (5) For all purposes, including section 23 of the Land Title Act, every disposition of Crown land is conclusively deemed to contain express words making the exceptions and reservations referred to in subsection (1) of this section, except to the extent that the disposition is made on different terms under subsection (3) or (3.1).

o (6) The power under subsection (4) to except and reserve rights and privileges includes a power to create a right of way, and if this is done

(a) the government is, with respect to the right of way, a grantee, (b) the right of way is conclusively deemed to be necessary for the operation and maintenance of the

government's undertaking, and (c) section 218 of the Land Title Act applies.

4.3 Crown GrantsLaw and Equity Act, RSBC 1996, c 25

59 (1) In this section, "disposition" does not includeo (a) the creation, assignment or renunciation of an interest under a trust, oro (b) a testamentary disposition.

(2) This section does not apply too (a) a contract to grant a lease of land for a term of 3 years or less …

(3) A contract respecting land or a disposition of land is not enforceable unlesso (a) there is, in a writing signed by the party to be charged or by that party's agent, both an indication that it

has been made and a reasonable indication of the subject matter,o (b) the party to be charged has done an act, or acquiesced in an act of the party alleging the contract or

disposition, that indicates that a contract or disposition not inconsistent with that alleged has been made, oro (c) the person alleging the contract or disposition has, in reasonable reliance on it, so changed the

person's position that an inequitable result, having regard to both parties' interests, can be avoided only by enforcing the contract or disposition.

(4) For the purposes of subsection (3) (b), an act of a party alleging a contract or disposition includes a payment or acceptance by that party or on that party's behalf of a deposit or part payment of a purchase price. …

(7) A writing can be sufficient for the purpose of this section even though a term is left out or is wrongly stated.

Property Law Act, RSBC 1996, c 377 4  A person making an agreement, or assignment of an agreement, for sale of land, if the purchase price is payable by

installments or at a future time, must deliver to the person buying the land an instrument in a form, executed by the parties, that allows the title of the purchaser under the instrument to be registrable under the Land Title Act.

15(1) Land may be transferred in freehold only by an instrument expressed to transfer the land … 16  (1) An instrument purporting to transfer, charge or otherwise deal with land or to transfer, release or otherwise deal

with a charge need not be executed under seal.

Land Title Act Act, RSBC 1996, c 250 39  Unless the use of a form approved by the director is required by this Act, an instrument sufficient to pass or create an

estate or interest in land is registrable, and for all purposes of registration effect must be given to the form of instrument according to its tenor.

185.(2) This section does not applyo a) if a form of transfer is prescribed by another enactment, oro b) if, in the opinion of the registrar, it would be proper to accept another form of transfer.

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5.1 Fee Simple Property Law Act

10 (1) An estate in fee simple must not be changed into a limited fee or fee tail, but the land, whatever form of words is used in an instrument, is and remains an estate in fee simple in the owner.

o (2) A limitation which, before June 1, 1921, would have created an estate tail transfers the fee simple or the greatest estate that the transferor had in the land.

19 (1) In the transfer of an estate in fee simple, it is sufficient to use the words “in fee simple” without the words “and his heirs”.

o (2) A transfer of land to a person without words limiting the interest transferred … passes the fee simple or the greatest estate or interest in the land that the transferor has power to transfer, unless the transfer expressly provides that a lesser estate or a particular interest is being transferred.

Land Title Act s. 186

o (5) … if the transfer does not contain express words of limitation, the transfer operates to transfer the freehold estate of the transferor in the land to the transferee in fee simple.

o (6) … if the transfer contains express words of limitation, the transfer operates to transfer the freehold estate … in accordance with the limitation.

o (8) Subsections (4) to (7) do not operate to transfer an estate greater than the estate in respect of which the transferor is the registered owner.

Wills, Estates and Succession Act 41. (3) A gift in a will

o (a) takes effect according to its terms, and o (b) subject to the terms of the gift, gives to the recipient of the gift every legal or equitable interest in the

property that the will-maker had the legal capacity to give.

5.2 Life EstatesLaw and Equity Act, RSBC 1996, c 25Equitable waste

11  An estate for life without impeachment of waste does not confer and is deemed not to have conferred on the tenant for life a legal right to commit equitable waste, unless an intention to confer that right expressly appears by the instrument creating the estate

Property Law Act 19 (1) In the transfer of an estate in fee simple, it is sufficient to use the words “in fee simple” without the words “and his

heirs”.

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