Issues in Aboriginal Title - UVic Web viewThe suis generis nature of ownership demands preservation,...

Table of ContentsIssues in Aboriginal Title........................................................................................................................................................5

Delgamuukw v. British Columbia (1997) SCC.....................................................................................................................5

Aboriginal Title OUTSIDE of the treaty process.............................................................................................................5

Key Facts.......................................................................................................................................................................5

Origin of Aboriginal Title...............................................................................................................................................5

Content of Aboriginal Title............................................................................................................................................5

Limits of Aboriginal Title................................................................................................................................................5

How to Establish Aboriginal Title...................................................................................................................................5

Infringement on Aboriginal Title...................................................................................................................................6

Other types of s.35 rights..............................................................................................................................................6

R. v. Marshall; R. v. Bernard (2005), 255 D.L.R. (4th) 1 (SCC)..............................................................................................7

Cultural Property or Traditional Knowledge......................................................................................................................8

Tangible Chattels: Artifacts............................................................................................................................................8

Intangible Chattels: Traditional Knowledge...................................................................................................................8

Issues of Indefeasibility (Casebook pp. 258-298)..................................................................................................................8

Land Title Act, RSBC 1996 c. 250.......................................................................................................................................8

s. 23(2) generally...........................................................................................................................................................8

General principle – Creelman v. Hudson Bay Insurance Company, [1920] AC 194 (PC).....................................................9

Exception: Fraud: Land Title Act s.23(2)(i).........................................................................................................................9

Gibbs v. Messer [1981] AC 248 (PC).............................................................................................................................10

Frazer v. Walker, [1967] 1 AC 569 (PC)........................................................................................................................10

NO Exception: Nullity: Land Title Act s.25.1....................................................................................................................11

Mortgages and Indefeasibility.........................................................................................................................................11

Pacific Savings and Mortgage Corp v. Can-Corp Developments Ltd. [1982] 4 WWR 239 (BCCA)................................11

Notice of Unregistered Interests: Section 29, Land Titles Act, R.S.B.C. 1996, c. 250.......................................................12

Central Station Enterprises Ltd. v. Shangri-La Estates Limited (1979), 14 B.C.L.R. 1 (BCSC).......................................12

Me-N-Ed's Pizza Parlour Ltd. v. Franterra Development Ltd., [1975] 6 W.W.R. 752 (B.C.S.C.)....................................13

Nicholson v. Riach (1997), 34 B.C.L.R. (3d) 381 (B.C.S.C.)............................................................................................13

The Fee Simple (Casebook pp. 299-302).............................................................................................................................14

"Words of Limitation" and "Words of Purchase"............................................................................................................14

Section 19, Property Law Act, R.S.B.C. 1996, c. 377........................................................................................................14

Section 24, Wills Act, R.S.B.C. 1996, c. 489......................................................................................................................14 of 60

Re Ottewell (1969), 9 D.L.R. (3d) 314 (S.C.C.)..................................................................................................................14

The Life Estate (Casebook pp. 303-353)..............................................................................................................................15

Repugnancy – A fee simple or a life estate?....................................................................................................................15

Re Walker (1925), 56 O.L.R. 517 (Ont. App. Div.)........................................................................................................15

Re Richer (1919), 50 D.L.R. 614 (Ont. App. Div.)..........................................................................................................16

Re Shamas (1967), 63 D.L.R. (2d) 300 (Ont. C.A.)........................................................................................................16

Intervivos: Re Tremblay and Township of Tay (1984), 45 O.R. (2d) 521 (On Reserve).....................................................17

Waste..............................................................................................................................................................................17

A. Legal Waste.............................................................................................................................................................17

B. Equitable Waste......................................................................................................................................................18

Liability for Taxes and Remainder Interests:...................................................................................................................19

Mayo v. Leitovski, [1928] W.W.R. 700 (Man. K.B.)......................................................................................................19

Morris v. Howe (1982), 31 R.P.R. 51 (Ont. H.C.) (Supp. Casebook, p. 155)..................................................................19

Chuckritz—Distinguished from Morris........................................................................................................................20

Family/Spousal Issues.........................................................................................................................................................20

History: Remember from Term One................................................................................................................................20

Modern Statutes and Case Law: Family Relations..........................................................................................................21

Land Spouse Protection Act: REQUIRED EVENT = Registration by the non-owning spouse........................................21

Family Relations/Family Law Act: REQUIRED EVENT = Marriage Breakdown..............................................................22

BC Estate Administration Act: REQUIRED EVENT = NO WILL.......................................................................................23

Wills Variation Act: REQUIRED EVENT = A WILL..........................................................................................................23

Co-Ownership.....................................................................................................................................................................26

Creation of Joint Tenancies and Tenancies in Common..................................................................................................28

Re Bancroft Eastern Trust Co. v. Calder, [1936] 4 D.L.R. 571 (N.S.S.C.)........................................................................28

Winchester v. McCullough (2000), 30 R.P.R. (3d) 5 (NBQB).........................................................................................29

Bull v. Bull [1955] 1 QB 234 (CA)..................................................................................................................................29

Robb v. Robb (1994), B.C.L.R. (2d) 7, at 12-13 (B.C.S.C.) (On Reserve)........................................................................30

Relations Between the Co-Owners..................................................................................................................................30

Share of Profits............................................................................................................................................................30

Share of Expenses.......................................................................................................................................................31

Severance of Joint Tenancies..........................................................................................................................................32

1) Destruction of one of the unities.............................................................................................................................32

2) Agreement between the parties.............................................................................................................................36

3) Unilateral Intention of a single joint tenant............................................................................................................36

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Partition and Sale............................................................................................................................................................37

General/History...........................................................................................................................................................37

Who may apply...........................................................................................................................................................38

Nature of the jurisdiction............................................................................................................................................38

Future Interests (Casebook pp. 451-485)............................................................................................................................39

Nature of Future Interests...............................................................................................................................................39

"Vested" and "Contingent" Interests...............................................................................................................................39

Requirements for Vesting............................................................................................................................................40

"Conditions Precedent" and "Conditions Subsequent"...............................................................................................40

Types of Future Interests................................................................................................................................................44

Common Law...............................................................................................................................................................44

Legal Executory Interests (Casebook, p. 478-484).......................................................................................................47

Equitable Future Interests...........................................................................................................................................47

Types and Validity of Conditions and Qualifications........................................................................................................48

Restraints on alienation...............................................................................................................................................48

Uncertainty:................................................................................................................................................................48

The Rule Against Perpetuities.............................................................................................................................................49

Common-law:..................................................................................................................................................................49

The Perpetuities Act........................................................................................................................................................50

Incorporeal Interests (Casebook pp. 491 - 532)..................................................................................................................52

Easements (Casebook pp. 491 - 500)..............................................................................................................................52

Phipps v Pears.............................................................................................................................................................52

Legal Requirements for an Easement..........................................................................................................................53

Statutory Easements (Casebook pp. 531-532)............................................................................................................53

Covenants (Casebook pp. 501-532).................................................................................................................................55

Licences (Casebook pp. 533-545)....................................................................................................................................56

Hounslow London Borough Council v. Twickenham Garden Developments Ltd. [1971] 1 Ch. 233.............................56

Errington v. Errington & Woods, [1952] 1 K.B. 290 (C.A.)............................................................................................57

Personal Property................................................................................................................................................................58

Finders (Casebook pp. 546 – 570)...................................................................................................................................58

General Rule................................................................................................................................................................58

Land Owner vs Finder..................................................................................................................................................58

Bailment (Casebook pp. 571 - 631).................................................................................................................................59

Definition of Bailment.................................................................................................................................................59

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Bailment versus Licence..............................................................................................................................................59

Sub-Bailment...............................................................................................................................................................60

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Issues in Aboriginal Title

Delgamuukw v. British Columbia (1997) SCC

Aboriginal Title OUTSIDE of the treaty process

Key Facts Gitksan and Wet’suwet’en claim 58,000 km2 in BC. Trial judge did not give independent weight to natives’ oral

history of their attachment to the land (since it includes subjective views and myth) and concluded plaintiffs had not proved their historical occupation, hence dismissing the claim.

Origin of Aboriginal Title S.35 did not create aboriginal title, just entrenched existing common-law title S.35 takes common-law title and applies it uniformly across the country (i.e. applies in Quebec where they have

civil law only) Flows from assertion of sovereignty as this is what validates the common-law At time of sovereignty (BC 1846), aboriginal allodial title became a burden on the crown’s allodial title. Aboriginal title existed in its own form before sovereignty.

Content of Aboriginal Title “Sui Generis” which means no estates, it is owned communally and inalienable except to the crown Existed before assertion of sovereignty and therefore is not completely common-law nor completely aboriginal

law, a mix of the two which s.35 attempts to reconcile (main purpose of s.35 is this reconciliation btwn prior occupancy and crown sovereignty).

Have exclusive right to occupy and use: more than just a right to engage in certain activities. Exists in the past, present and future NOT a ‘personal right’ in a way that means it isn’t a property right BUT rather it is a personal right in a sense that

it is inalienable except to the crown.

Limits of Aboriginal Title Cannot do anything to deprive future generations of their claim Basis of claim cannot be destroyed by present use ex. if claim based on hunting cannot use land for a strip mine

and destroy its purpose as hunting grounds. However courts have also said that aboriginal title is not locked into history and modern uses can be engaged in,

therefore it is a balancing process. Thus the concept of how the land may be used is similar to that of “equitable waste” (which means to destroy

interest for someone else) can’t be destructive but can engage in modern exploitation None of this blocks the ability of Aboriginal peoples to surrender land to the crown.

How to Establish Aboriginal Title1. Occupation at time of assertion of SOVEREIGNTY (BC ~1846). Occupation defined as both common law

‘possession’ and aboriginal concept of occupation which could be more like land use. A. CONTINUITY: If using present occupation as evidence of historical occupation at time of sovereignty,

must show continuity of occupation since that time. “Continuity” need not be an unbroken chain and nature of occupation can change. Just need “a substantial connection between the people and the land” to have been “maintained”. Substantial maintenance of the connection Test from Mabo. Allowance is made for periods of disruptions (ex. by European settlers).

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B. EXCLUSIVITY: Must have been exclusive occupation at time of sovereignty. If other groups were using the area, it would still be exclusive as long as the ability to exclude others existed. Equal weight is given to the common law, factual reality as encountered by Europeans (more literal—actual occupancy) and the Aboriginal perspective, the intention and capacity to retain exclusive control ex. by making treaties or implementing trespass laws. (*Note joint title can be given to two or more aboriginal groups if both had exclusive right to occupy)

C. INTEGRAL: need to show connection to land is of central significance to their culture. Usually simple to do b/c if you occupy exclusively it will clearly be significant. However if occupation was not completely exclusive, this factor can be used to override that requirement and grant title. “Central Significance Test” = substantial connection or sufficiently important. More than incidental.

2. Types of EvidenceA. ORAL HISTORY: is ok in this circumstance despite rule against hearsay. Must be considered. Otherwise

Aboriginal people would never be able to establish occupation as they have an oral culture. B. PHYSICAL EVIDENCE: archaeological, written historical accounts etc. C. ABORIGINAL LEGAL SYSTEM: can be used to establish the exclusive right to occupy

3. Factors to consider when establishing occupationA. DwellingsB. CultivationC. Enclosure of fieldsD. Regular use of defined tracts for: Hunting, fishing, other resourcesE. Consider: Group’s size, manner of life, material resources, technological abilities, character of land

claimed.

Infringement on Aboriginal TitleCan be justified if it is consistent with the fiduciary duty the crown owes Aboriginal peoples.

1. JUSTIFICATION: has to be a legislative object that is compelling and substantial Recognition of prior occupation which is reconciled with crown sovereignty Reconciliation= Aboriginal societies “are part of a broader social, political and economic community,

over which the Crown is sovereign”. 2. FIDUCIARY DUTY: must be consistent with the relationship

Link between justification and ‘priority’ of Aboriginal Interest As little infringement as possible Give fair compensation Duty to consult or gain full consent

3. EXAMPLES: Agriculture, forestry, mining, hydro-electric power, general economic development, protection of the environment and endangered species, settlement of foreign populations.

Other types of s.35 rights Title is just one of many rights protected by s.35 Appropriate time for establishing these rights are FIRST CONTACT rather than sovereignty which is the time for

establishing title. Freestanding rights are practices, customs and traditions integral to distinctive culture but not sufficient to

support title claim. Site specific rights are activities that necessarily take place on land, even a specific piece of land but these

activities are still not sufficient to support a title claim.

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R. v. Marshall; R. v. Bernard (2005), 255 D.L.R. (4th) 1 (SCC) In Marshall, the court re-affirmed (5-2) the Delgamuuk decision.

Facts: Aboriginal men claimed title, (no other aboriginal rights) in defence of a charge of logging without a license in Nova Scotia. Part of the Mi’kmaq Nation: logging area within the range of seasonal use.

Issue: How does the test for Aboriginal title function for nomadic peoples? (how is Delgamuuk applied?)

Majority: NO TITLE Translate the aboriginal practice at the time of sovereignty into a modern right—which could be title or a

different right. The test of occupation from delgamuuk still applies. A generous view of the aboriginal practice should be taken

and the court should not exist on exact conformity to the common-law perspective of occupation. Consider: group size, manner of life, material resources, technological abilities and character of the land

claimed. Seasonal or nomadic land use may be enough to satisfy the occupation test for title if they were regular and

exclusive. Look for the equivalent of European ownership in the Aboriginal culture—did they exercise it over the land in

question? Exclusivity of occupation is not a wholly common-law concept, but rather is a demonstration of effective control

of the land by the group—can draw a reasonable inference that they could exclude if they so chose (just because they didn’t choose to exclude, doesn’t mean that they didn’t have exclusive occupation).

In this case the appellants did not establish title: there was evidence they used seasonal grounds but didn’t always return to the same ground.

Also not enough people to occupy the whole area they were claiming. No evidence on where they were or how long they were there to conclude occupation. No clear of evidence of

use, let alone regular use, of area where the logging charges arose. Occasional forays for hunting and fishing not enough to establish title. There were many other occasional visitors to the area. Land area too large for the small population to retain the capacity to exclude (they did not in fact exclude but

shared).

DISSENT: The Delgamuuk test for Title practically excludes nomadic or semi-nomadic people A different standard or meaning of occupation should be used, which isn’t based on the common-law concept of

permanent or intensive physical land use but rather the cultural significance should evidence occupation. Aboriginal perspective must shape concept of title, which includes nomadic or semi-nomadic peoples. The fact that a group travels around their land and doesn’t cultivate it should not take away a claim to title. Pre-sovereignty patterns of use are highly relevant. Should be evidenced by the traditions and culture of the group that connect with the land—not by intessive or

regular use of the land. However in this case they concurred with the majority’s result to not award title based on this different

standard/test.

Howell’s Takeaway Point: If all you have is seasonal occupation, you have a much more difficult case to make out exclusivity and thus

aboriginal title—unless it is a very regular use and understood by other groups that they cannot use it while you are away. (i.e. like a summer cottage).

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Tangible Chattels: Artifacts Who is the rightful owner of Aboriginal artifacts? How should they be returned to the rightful owner? Museums have statutory mandate to preserve and display, but did donor have legal right to give/sell, should

they be returned to the original group, but which group if there are multiple claimaints? Conflict of laws if artifacts are held outside of Canada: Canadian law is not necessarily recognized or received

internationally (i.e. can’t apply Canadian law in Italy). Internationally this is problematic—ex. Greece has consistently called for the return of artifacts world-wide with limited success.

Human remains are particularly tricky because the common-law has not recognized property rights in the human body or human remains. Perhaps this could be dealt with through human-rights legislation more effectively.

Treaty process seeks the return of artificats ex. Nishka treaty. However the treaty just says that reasonable efforts will be made to ensure access of the Nishka to artifacts or remains at their REQUEST. Doesn’t go so far as to give them ownership.

Intangible Chattels: Traditional Knowledge Hard to fit traditional knowledge into this category because intellectual property is typically individually owned

and Aboriginal traditional knowledge is communally owned. There is also a time limit on intellectual property, which doesn’t fit as the Aboriginal culture demands perpetual ownership. IP also has an element of originality while Aboriginal practices or artwork derive value or importance from established themes. A notion of fixation is also required, which may not exist due to an oral tradition that is focused on memory.

Therefore, Aboriginal Traditional Knowledge is considered Suis Generis. Needs to be protected in order to:

1. Lessen the possibility of 3rd party acquisitions2. Potential revenue stream ex. drug developed from traditional medicine3. Integration of knowledge from different systems with appropriate compsenation.4. Reconciliation between colonists and colonized.

The suis generis nature of ownership demands preservation, while the economic exploitation of knowledge demands integration—some tension here.

Issues of Indefeasibility (Casebook pp. 258-298) Indefeasible: incapable of being defeated/altered.

Land Title Act, RSBC 1996 c. 250(as amended – in particular by the Miscellaneous Statutes Amendment (No. 2) 2005, SBC 2005, c. 35, s. 14 effective November 24, 2005 (RA))

s. 23(2) generally If you hold the registered title to the land and you own the land in fee simple, the title is indefeasible which

means “the curtain is drawn” i.e. they will not go back and correct mistakes in title in the past (as they do in a deeds system). No one can bring a law suit against you to try and take it away (unless the situation falls under one of the exceptions)

Does not extend to mortgages in Canada but it does in N.Z. and Australia. The titles have been digitized since 1983—indefeasability applies to titles before and after. Section 23(2) also lists a number of EXCEPTIONS

General principle – Creelman v. Hudson Bay Insurance Company, [1920] AC 194 (PC)

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Key Facts: Contract for sale of land owned by HBC, long-term purchase. Purchaser defaults. HBC sued purchaser to complete. Purchaser claimed there was a defect in HBC’s title (they weren’t using the land for the purpose that allowed them to buy land—corporate law before corporations were treated like people). Therefore, the purchaser claimed they shouldn’t have to buy b/c they wouldn’t get a good title.

ISSUE: Does a defect in the root of the title have any effect in a Torrens system which relies upon indefeasibility?

HELD: No.

RSNS: HBC registered the title under the BC Land Titles Act which effectively corrects any defect. So a 3 rd party could not challenge this title even if there was a defect in the root of title. Once it is registered, the defects are wiped clean. Therefore the purchaser would be getting a good title at law and this is not a good reason to void the contract.

RATIO: Once a title is registered under the BC Land Title Act, it becomes indefeasible which means that a defect in the root of the title is considered corrected and a 3rd party cannot apply to regain title due to the defect.

Exception: Fraud: Land Title Act s.23(2)(i) Very important exception to ability to get an indefeasible title. Indefeasible title is subject to: “the right of a person deprived of land to show fraud, including forgery, in which

the registered owner has participated in any degree”o This replaced “the right of a person to show fraud, including forgery, in which the registered owner, or

the person from or through whom the registered owner derived his or her right or title otherwise than in good faith and for value has participated in any degree”

o The omitted middle part meant that if someone participated in fraud to obtain land and then gave the land away, than the person who received it has no better claim that the person who obtained it by fraud.

o Now, with the amendment, the law protects even those who receive title via gift/will. However if the will itself is void then the amendment to 23(2)(i) may not give indefeasible title when receiving title based on a nullity (a forgery) because of s.25.1(2)(c) because there is no valuable consideration.

Fraud: something said/done/omitted with design of perpetuating what the person must know to be false Forgery: the act of fraudulently making false documents. Under common law, a forgery is a nullity, so a forged instrument purporting to transfer title should have no

effect and is considered void. However, if such a void instrument is then registered, does the newly named holder really become the owner of

indefeasible title? Under 23(2)(i), if the newly registered holder was involved in the fraud/forgery, the answer is no. But if they had no knowledge of the fraud/forgery (i.e. they are a ‘bona fide purchaser for value’) what then? Do

they get a good title? There are two ways to solve that problem. 1. Deferred indefeasibility—says no, that just provides a good ‘root of title’ and then the next bona fide

purchaser for value would receive a good title. (Gibbs v. Messer) Favoured by BC trial courts although never authoritatively.

2. Immediate Indefeasibility—says yes. (Frazer v. Walker). This is what the literal wording of s.23(2)(i) indicates, provided the owner did not participate in the fraud, and EVEN if they received the property as a gift/will.

Gibbs v. Messer [1981] AC 248 (PC)

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Key Facts: Australian Case. Mrs. Messer owns two parcels of land in Hamilton, gives her husband power of attorney and duplicates of her title. Her husband leaves colony and leaves these items in the keeping of his solicitor, Creswell. Creswell then forges Messer’s signature and transfers the land to a fictitious person named Hugh Cameron which he registers. Cresswell then takes out a mortgage, purporting to act as Cameron’s agent, with the McIntyre’s for £3000. Creswell the absconds. Note in Aus. indefesibility applies to mortgages as well, not in BC, but this just illustrates how the principle functions—pretend the mortgage is a property transfer.

ISSUE: With two innocent parties, both Messer and McIntyre, who should get the indefeasible title?HELD: Messer. (the original owner)RSNS: There are two principal reasons

1) McIntyre did not deal with the registered proprietor but rather dealt with an agent (who was also the forger).2) A false document was used, therefore it was a nullity. And nothing comes from what is essentially, nothing.

There is also a third reason, which is not express but just a hint, that the McIntyre’s were careless in their duty to confirm that Cresswell was actually the agent of the registered proprietor, they never actually met the fictitious person they just relied upon Cresswell’s ‘honesty’ that he really did represent the proprietor.

RATIO: Deferred indefeasibility. The FIRST innocent person does not get an indefeasible title, they only get the ‘root of a title’ and then the next innocent person would get the title.

Frazer v. Walker, [1967] 1 AC 569 (PC)KEY FACTS:

Wife and Husband (Frazer) co-owned a farm. Wife signed herself and forged her husband’s signature to borrow money from a mortgagee- mortgage was

registered (again just pretend that this was a property transfer). Wife made no payments to mortgagee, so mortgagee sold the farm to a purchaser and this transfer was

registered. Husband had no knowledge of these transactions—argues that the mortgagee never received good title b/c the

mortgage was a nullity. Mortgagee and purchaser acted in good faith with no knowledge of forgery.

ISSUE: Who should get indefeasible title? The husband or the new bona fide purchaser for value?

HELD: New purchaser.

RSNS: Distinguished Gibbs (did NOT overrule it) by saying that case was dealing with a fictitious person while here the

mortgagee was dealing with the registered proprietor albeit only one of them. Nullity can lead to a good title, because as soon as an instrument is registered it grants indefeasible title (subject

to the conditions)—if the instrument was void or not. Also indicated that the husband was free to claim compensation under the title registration legislation and could

also claim against the new owner ‘in personum’. An in personum claims allow a court to give title to one person, but then impose on them an in personum trust

to hold it for the benefit of another (like the courts of equity used to do).

RATIO: Once a land transfer is registered in someone’s name, even if it comes from a void instrument, gains indefeasible title immediately and only claims which are listed as exceptions are then allowed. Indefeasibility can be derived from a void instrument, generally (seems like that applies to forgery too, but this is not expressly stated).

NO Exception: Nullity: Land Title Act s.25.1 of 60

This eliminates the ground of ‘nullity’ as the husband argued in Frazer v. Walker: S.25.1 (2) Even though an instrument purporting to transfer a fee simple estate is void, a transferee who

(a) Is named in the instrument(b) In good faith and for valuable consideration, purported to acquire the estate, is deemed to have acquired

that estate on registration of that instrument. As section ‘b’ uses the wording ‘valuable consideration’, it intentionally does not protect those who receive the

property through gift/will from gaining an estate based on a nullity.

Mortgages and Indefeasibility

Pacific Savings and Mortgage Corp v. Can-Corp Developments Ltd. [1982] 4 WWR 239 (BCCA)KEY FACTS:

There is a dispute between a mortgagor (borrowing party) and mortgagee (lending party). The title of the property goes to mortgagee to hold title—at common law title is subject an equity of redemption

which means that the mortgagee cannot simply sell off the title. Mortgagor can redeem the property by paying off all the costs and the mortgagee would have to transfer the

title back. Foreclosure proceedings were commenced because the mortgagor did not pay installments. After a final order of foreclosure, a certificate of indefeasible title was issued to mortgagee. However the mortgagor filed a motion to re-open the order and obtained a certificate of lis pendens and

registered this lis pendens at the land registry office. A ‘lis pendens’ warns all people who deal with the land that someone before them is involved in court

proceedings and IS ONE OF THE EXCEPTIONS listed under s.23(2)(g). A KEY FACT is that the mortgagor filed this lis pendens BEFORE a bona fide purchaser for value came along and

offered to buy the property. Because this was filed before, and is one of the exceptions listed, there was no issue/debate with the new

purchaser—if it hadn’t been filed before the new purchaser would have gained indefeasible title.

ISSUE: Does the mortgagee have indefeasible title—they received the certificate of title from the foreclosure, but is it indefeasible?

HELD: No. Mortgagee does not have indefeasible title.

RSNS: The mortgagee did not become the owner by being a bona fide purchaser but rather by virtue of the antecedent

transaction. They are not a new party to the property, relying on the register but rather they are part of the original dispute

and not protected by indefeasibility. They cannot obtain indefeasibility until their dispute is resolved.

RATIO: Indefeasibility is to protect bona fide purchasers for value, not just registered owners. The Land Title Act does not bestow conclusive indefeasible title on the registered owner, but rather the courts may order that some other person is properly entitled to the title. However the court could not, with that type of order, prejudice the rights of a bona fide purchaser for value if this purchase is registered BEFORE the lis pendens is filed.

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Notice of Unregistered Interests: Section 29, Land Titles Act, R.S.B.C. 1996, c. 250(2) Except in the case of fraud in which he or she has participated, a person contracting or dealing with or proposing to take from a registered owner

(a) A transfer of land, or(b) A charge on land, or a transfer or assignment or subcharge of the charge

Is not, despite a rule of law or equity to the contrary, affected by a notice, express, implied, or constructive, of an unregistered interest affecting the land or charge Other than

(c) An interest, the registration of which is pending(d) A lease or agreement for lease for a period not exceeding 3 years if there is actual occupation under the lease or

agreement, or(e) The title of a person against which indefeasible is void under section 23(4)

This is an attempt to get rid of the equity “doctrine of notice” which said that only a bona fide purchaser for value without notice would NOT have to honour an equitable interest from an earlier time. i.e. if they were not bona fide, didn’t give value, or had notice, they would have to honour the equitable interest.

Essentially: Too bad for the person who has a non-registered interest. This can be tough because it denies the court the opportunity for individual justice where perhaps an

unregistered interest may be deserving. So courts focus on the EXCEPTION of fraud—and they state that if someone has notice of an unregistered

interest BEFORE they purchase, it is fraud to try and hurry up the deal so that you won’t have to honour it, and therefore those who had notice before purchase are NOT protected by s.29(2) and MUST honour the unregistered interest.

However this does not apply if you receive notice AFTER signing the contract to purchase. It’s only if you receive notice BEFORE you sign the contract that you will have to honour the unregistered interest.

Central Station Enterprises Ltd. v. Shangri-La Estates Limited (1979), 14 B.C.L.R. 1 (BCSC)KEY FACTS:

Registered land owner was subject to a registered mortgage from mortgagee. Owner leased the land to tenant, but did not register the lease. Owner defaulted on mortgage payments to mortgagee—foreclosure. Order of nisi (takes effect after a period of time to allow payment, and if not then order absolute). Mortgagee agrees to sell land to new purchaser if owner doesn’t pay up by a certain redemption date. After agreement was completed but before the redemption date, the purchaser became aware of the lease held

by the tenant. Owner did not pay up and purchaser became the registered owner.

ISSUE: Can the tenant enforce their lease? HELD: No.

RSNS: Actual notice after completion but before registration is not fraud—continuing to registration is just normal

course of business, and hence s.29 protection exists and the purchaser is not bound to honour the lease. The time of the transaction is what is important, not the time of registration, since once a contract is complete

that person is legally obligated to buy the property unregistered interest or no and would not be fair to impose doctrine of notice once they can’t get out of it.

It is only fraud if you enter the transaction knowing (actual or constructive) that there is an unregistered interest.

RATIO: s29 protects a purchaser from unregistered interests if they did not know of that interest at the time of completion of the transaction (i.e. signing the contract) even if they become aware of this interest prior to registration.

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Me-N-Ed's Pizza Parlour Ltd. v. Franterra Development Ltd., [1975] 6 W.W.R. 752 (B.C.S.C.)KEY FACTS:

Original owner had 20 year lease with tenant, but it was not registered. Owner sold the land to new purchaser which was registered. Purchaser new about lease when he bought the land and the purchase price was adjusted according to the rent

he would receive from the lease. Tenant continues to pay rent to new purchaser. Then it is discovered that the lease was never registered and the new owner wants to get out of the lease.

ISSUE: Does the new owner have to honour the lease (an unregistered interest)?

HELD: Yes. Through an equitable order of in personum.

RSNS: If the lease had been registered, then the purchaser would have been bound to honour it. But it wasn’t and because it was over 3 years (see s.29(2)(d)) the purchaser was not required to honour the

lease. However, the purchaser acknowledged, acted upon and benefited from the lease as if the lease had been

registered and so equity estopped the purchaser from denying the lease.

RATIO: If you acknowledge, act upon and benefit from an unregistered lease, you will be required to honour that lease by an in personum order.

Nicholson v. Riach (1997), 34 B.C.L.R. (3d) 381 (B.C.S.C.) KEY FACTS :

Mother and Son registered co-owners of property. Son assaults the plaintiff and the plaintiff is rewarded a huge damage which the Son doesn’t pay. So the court orders the son’s interest in the property to be sold to pay the damages. Tricky because it is co-owned, no one would want to buy half a house with a stranger, so the plaintiff needs the

property partitioned. Problem with this because partition can only be sought by someone who is entitled to possession and not by a

3rd party like a creditor (the plaintiff). So the creditor has to buy the son’s interest in the property and now they are entitled to possession and can

seek an order for partition. Mother argues that 20 years earlier when the property was bought, she paid for it all, and the son bullied his

way onto the title. Therefore she argues his title should be subject to a trust in favour of her, therefore the transfer of his interest to the plaintiff was in breach of trust and unlawful.

Plaintiff counters with the fact that the son’s transfer gave her an indefeasible title, as she had no notice of the “trust” and it wasn’t registered. The court should not fix the defect now b/c it isn’t one of the exceptions—even if the son had obtained his title by fraud, immediate indefeasibility protects the plaintiff unless they participated in the fraud themselves to some extent.

ISSUE: Did the plaintiff participate in fraud, as they had ‘Constructive Notice’ of the unregistered trust interest.

HELD: No.

RSNS: Failure to make further inquiries is not enough to equate constructive notice with actual notice and therefore

fraud in these situations.

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There needs to be something more than carelessness, there needs to be some hint of dishonesty or ‘willful blindness’ to call it fraud (i.e. you get a suspicion so you purposefully do not ask any more questions to avoid having notice).

RATIO: To show participation in fraud, it must be shown that the subsequent purchaser had either actual notice that the vendor did not have title or of an unregistered interest OR at least an arousal of suspicion must have been raised followed by an abstention from making enquiries for the purpose of avoiding notice. There must be an element of dishonesty in constructive notice in order to make it fraudulent. There is no general duty to make enquiries, so failing to do so on its own does not amount to fraud.

The Fee Simple (Casebook pp. 299-302)

"Words of Limitation" and "Words of Purchase" Purchase = “who” words—who the gift is being given to Limitation= “what” words—what the giftee receives Common-law presumes that if no words of limitation used, the estate given is a life-estate

Section 19, Property Law Act, R.S.B.C. 1996, c. 377 Property law act applies to INTER VIVOS transfers S.19 Words of transfer:

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”.

2. If no words of limitation, then fee simple OR the greatest estate possible would be transferred (i.e. if I only have a life estate, I can only transfer you an estate per autre vie—my life), unless of course the transfer expressly provides otherwise (i.e. there are words of limitation)

Section 24, Wills Act, R.S.B.C. 1996, c. 489 Applies to WILLS transfers S.24: If no words of limitation and without contrary intention in the will, fee simple or greatest estate possible

would be transferred This is a lower threshold than for inter-vivos transfers as the court will look for INTENTION rather than needing

express language. This also reverses the common-law presumption to only give a life-estate if no words of limitation used.

Re Ottewell (1969), 9 D.L.R. (3d) 314 (S.C.C.)KEY FACTS:

Frank, in his will, devised to his brother Fred his property “to hold unto him, his heirs, executors and administrators absolutely and forever” and had nothing in it to provide for the case if Fred died before Frank.

Fred has similar will leaving everything to Frank. Fred died first, and so all his estate went to Frank (Fred’s only daughter got nothing) Frank did not change his will and then died a year later. Fred’s daughter claimed she should get Frank’s property, but Frank’s next of kin claimed it should be shared

amongst all of them (which would include Fred’s daughter). When a will gives property to a dead person, at common-law it is said to have ‘lapsed’ and as this was the entire

will, the entire will ‘lapsed’ and is invalid—if a will is invalid it is administered according to the intestacy statute. The intestacy statute divided Frank’s property up between eight people.

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However Fred’s daughter argued that the reference to Fred “to hold unto him and his heirs” should not be interpreted as words of limitation but rather as words of substitution—i.e. words of purchase. Thus the will would read: To Fred, but if Fred is dead, to daughter of Fred as Fred’s heir in substitution.

ISSUE: Should the court adopt Fred’s daughter’s interpretation? HELD: No. RSNS:

Only if there is ambiguity in the will should the surrounding facts/circumstances when the will was executed be considered.

Frank’s will was not ambiguous so no interpretation is needed. “heirs” are historically words of limitation and not substitution.

RATIO: It is not necessary to use words of limitation but if the words are used then they are given the interpretation they technically mean.

DISSENT: Since you don’t have to use words of limitation, the words don’t have to be given the usual technical meaning. There are two presumptions when interpreting wills: presume against intestacy and presume every word has a

meaning. So therefore the words must be words of substitution and Fred’s daughter should get all of Frank’s estate.

The Life Estate (Casebook pp. 303-353) Both the property law Act and the Wills Act (s.19/s.24) indicate that if you want to give a life estate or a lesser

estate than what you have to give, you must indicate this (USE WORDS OF LIMITATION). Always identify the measuring line of any lesser estate that is given. La Ponte 1950 NB case: you don’t have to use the words “for life”, just words to that effect—i.e. there is no set

form of words required to give a life estate. You just have to say something. This may require interpreting the document. Interpretation is NOT based on stare decisis (i.e. if “spent” means X in one will, it has no bearing on what X may

mean in another will). Rather interpretation is based on the INTENT of the testator/testatrix. Problems arise when it is unclear if the transfer is in fee simple or in a lesser estate. You can’t give an estate in fee simple to one person (a ‘complete’ gift) and then say what happens to it after that

person dies—this type of added control would be ‘repugnant’ to the first gift. Although repugnancy doesn’t limit the testator’s ability to give defeasible property—i.e. subject to a condition. EXAMPLES: If the power of encroachment given is HUGE, then what is the giftor really doing? Are they just giving

an estate in fee simple? Or perhaps is the ultimate interest still with the second giftee, which then limits the first person’s interest.

Repugnancy – A fee simple or a life estate? If you give absolutely, you cannot control its destiny Wills- Look to intention. Deeds- more formal.

Re Walker (1925), 56 O.L.R. 517 (Ont. App. Div.)KEY FACTS:

Husband dies, his will gave his property to his wife but added that “should any portion of my estate still remain in the hands of my said wife at the time of her decesase indisposed of by her such remainder shall be divided as follows…”

Contest between beneficiaries under wife’s will (argued everything was given by wife absolutely) and the beneficiaries under her husband’s will (argued husband only gave life estate, wife is dead, now what is left goes to them).

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ISSUE: Did wife receive a life estate or an estate in fee simple? HELD: Fee simple.

RSNS: There are three possibilities for a gift of an estate that the court must choose between based on what they determine to be the DOMINANT INTENTION.

1. The first gift is dominant and the gift over repugnant.2. The gift-over is dominant, so the first named only gets a life estate.3. Middle ground: only a life estate is given, but it may be encroached upon (e.g. sold) during lifetime of the

tenant, with whatever remains as a gift over. **Keep in mind that if the power of encroachment is SO broad, it is hard to argue that it is anything but an absolute gift.

RATIO: It is legally impossible to give something absolutely (i.e. in fee simple) but then control its destiny. So an estate either must be given absolutely with no control of where it reverts to upon that persons death OR it MUST be some type of limited estate.

Re Richer (1919), 50 D.L.R. 614 (Ont. App. Div.)KEY FACTS:

Deceased’s will gave his widow the “free use” of all his property, with the balance “that will remain unspent… if any” on her death to their children.

ISSUE: Does the will give her an estate in fee simple or a life estate with remainder (and fee simple) to the children?

HELD: Life estate.

RSNS: Normally, “free use” is considered to give an absolute gift. But in this case the court held that there was an

intent or expectation that the balance remaining would go to her children Based on the idea that land cannot be spent, therefore there has to be a remainder “unspent” no matter what. However “unspent” clearly gives a power of encroachment on any monies or chattels. Thus life estate with power of encroachment on chattels and monies given to widow, with the remainder in free

simple to the children.

RATIO: Interpretation of a will is based upon the intention of the testator/testatrix and NOT upon precedent or what words in a will ‘usually’ mean.

Re Shamas (1967), 63 D.L.R. (2d) 300 (Ont. C.A.)KEY FACTS:

Deceased’s will was home drawn and horribly made Gave all his property to his wife to belong to her until all the children reached 21 and if she remarries and in that

case she just gets a share like all the children. However unclear what happens if she remains unmarried, as she did, does she have to split up the property

once the children reach 21? At his death, the widow thought everything belonged to her and didn’t keep any accounts. The children challenged this once they all reached 21.

ISSUE: Did the widow receive a life estate with power of encroachment, or merely a lease until all the children reached 21?

HELD: Life estate with power of encroachment, unless she married.

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RSNS: Relevant circumstances from when the will was made suggests that the testator was wanted to be sure his wife

would be looked after (they were rich now but not at the time the will was written). It is not the court’s job to rewrite the will just to be as true to the intention as possible.

RATIO: When you interpret a will you are supposed to look at the will in all of the circumstances to give effect to the intention of the testator i.e. “sit in the testator’s armchair”. Consider the legal expertise of the will writer as well.

Intervivos: Re Tremblay and Township of Tay (1984), 45 O.R. (2d) 521 (On Reserve) Example of the formal process of an intervivos deed. The granting clause in a deed takes priority over all other clauses To avoid statutory registration/planning requirements, an attempt was made to transfer 5 lots to 5 people, but it

was worded as if it would all be jointly owned. Court held that the intention must first be determined from the wording of the granting clause. In this case it was clear—joint ownership—so other clauses later were held to be invalid as they were repugnant

to the granting clause.

Waste With life estates there is a danger that the life tenant will exploit the property in a way that reduces the value

for successive takers (remainderman or reversioner—the person who holds the ‘ultimate interest’) To balance these two simultaneous interests, the law of waste controls the level of exploitation during the

currency of the life estate. Holder of a life interest has the right to exclusive possession, income from property, and can generally

use/occupy as if fee simple. BUT reversioner/remainderman has right to receive land in substantially (but not completely) the same form as

when granted to the life holder. Holder is entitled to income while ultimate taker is entitled to the capital. 2 categories: legal and equitable.

A. Legal Waste Focused solely on the relationship between a life holder and the ultimate taker.

1. Permissive Legal Waste: passive. - Damage resulting from failure to preserve or repair property. Generally the holder will not be liable

for this type of waste unless the grant put an obligation on them (which must be expressly stated)2. Voluntary Legal Waste: active.

- Damage resulting from a positive action that changes/diminishes the value of the land. - Life holder generally liable for voluntary legal waste, unless the grant contains an exemption

expressly permitting—saying ‘unimpeachable for waste’. - However even if ‘unimpeachable’ for legal waste, if what they do is really serious they can be liable

under equitable waste. - Note that failure to pay taxes is kind of in between permissive and voluntary waste—so they

aren’t water tight compartments. Life holder is obligated to pay taxes. 3. Ameliorating Legal Waste: active. Positive acts that enhance/increase value of the land but are not

wanted by the ultimate taker. - Difficult to get damages before b/c there is an increase in value. - Ultimate taker’s best bet is to try and prevent it from happening in the first place by getting an

equitable injunction—have to show that it is changing the character of the property and therefore will not be passed on in substantially the same form that it was received.

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Hiltz v. Langille (1959) 18 D.L.R. (2d) 464 (N.S.S.C.)KEY FACTS:

- Mother transfers property to her daughter, but keeps a life estate for herself- If daughter dies before mother, the property will resort back to the mother (this interest is based on a ‘condition

subsequent)- Mother authorizes sons to cut down trees on the property- The property is called a ‘timber estate’ b/c all its value is in the trees. Like a tree farm.

ISSUE: Can daughter bring an action against the brothers (she is a 3rd party) Can mother cut down all the trees?

HELD: Yes. Daughter can bring action similar to the action of waste. No.

RSNS: Daughter has no way to protect her property other than waste b/c she only has a future interest. Only those with an immediate right to possess can bring an action in trespass or nuisance. Legal waste= constitutes a permanent injury or material prejudice to the ultimate taker. Have to take into account the local circumstances and the nature of the land. Mother , as life holder is entitled to income but this means just taking the ‘fruits’ not cutting into the capital.

Example: as long as following reasonable forest practices, planting/selling/replanting then you are just taking income. Called “prudent use”.

Old English law of waste which allows only the timber necessary for repairs/fuel etc. not applicable here b/c cutting of timber is the main value in the land.

RATIO: A life holder has an income interest and can make ‘prudent use’ of the land so long as they preserve the capital (or corpus) for the ultimate taker. A life holder cannot act in a way that permanently injures the property.

B. Equitable Waste Where you completely destroy the property There are two categories:

1. Between life-holder and ultimate taker where life-holder is permitted to commit legal waste but goes too far (even if unimpeachable—but then they have to go really far, extreme waste beyond normal activities see section 11).

Vane v. Lord Barnard (1716) 23 E.R. 1082 Father gives himself life estate in castle and remainder to his son Gets angry with his son, starts to demolish castle and sell the materials. Court of equity granted an injunction against further pulling down of the castle and ordered repairs.

Section 11, Law and Equity Act, R.S.B.C. 1996, c. 253 An instrument granting an estate for life without impeachment of waste does not give a right to

commit equitable waste unless there is an express intention to the contrary. However if there is an express intention to the contrary—this brings up issues with repugnancy, b/c

if you give the right to destroy totally aren’t you actually just giving a fee simple?

2. Relationships where one party has possession but another has a simultaneous interest (i.e. tenants in common or joint tenants)

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City of New Westminster v. Kennedy, [1918] 1 W.W.R. 489 (B.C. Co. Ct.) Defendants fail to pay taxes so house was sold to City but defendants had one year in which to try to redeem

possession. During that year the defendants took everything out of the house that was removable. City complained this was waste. Court held that this was clearly equitable waste and there was no difference really compared to life estates (even

though different relationship) and ordered defendants to repair the house. Distinguished though b/c there is NO LEGAL RIGHT TO COMMIT ANY KIND OF WASTE. Unlike life holder situations

where they may be authorized to commit some waste. Therefore the test is at a lower threshold than it would be for the life holder/ultimate taker relationship. Something

less than wanton destruction can satisfy the equitable waste test in these types of situations. RATIO: Equitable waste is more encompassing for situations where the party in possession is not entitled to commit legal waste at all and something less than wanton destruction can be held to be equitable waste.

Liability for Taxes and Remainder Interests:

Mayo v. Leitovski, [1928] W.W.R. 700 (Man. K.B.)KEY FACTS:

Son gives his mother a life estate, which will revert back to him on her death. However he sells his interest in the reversion “assignment of reversion” to the Ptf. Mother is old and poor and doesn’t pay the taxes, so the municipality sells the land. Her daughter is nice and purchases the land for the mother from the city—pays the taxes and assigns the tax

sale back to the mother. The mother then applies for title to the land in fee simple. However if fee simple is granted, this would exclude the reversioner (the ptf)

ISSUE: Is it possible for a life-holder to exclude or cut out the reversioner/remainderman? HELD: No.

RSNS: If this were allowed, the life tenant would be benefiting from failing in her obligation (to pay taxes) Life tenant is obligated to pay the taxes. Note that had the daughter sold to someone else, or the municipality sold to someone else, it would be

perfectly OK for the PTF to lose out—but in this case it’s not okay b/c the mother has an OBLIGATION to preserve the property for the reversioner.

Two equitable maxims are applied (1) Equity looks on that as done which ought to have been done (2) Equity imputes an intention to fulfil an obligation

This means that as the mother should have paid the taxes, equity will consider that she did pay the taxes. However, equity will also imply that the mother intends to fulfil her obligation, so they say sure you can have fee simple but you must give it to the Ptf on your death.

RATIO: A life estate holder cannot benefit from a failure in their obligations to the reversioner. They hold the corpus of the estate in trust for the reversioner and therefore must take reasonable precautions to preserve it.

Morris v. Howe (1982), 31 R.P.R. 51 (Ont. H.C.) (Supp. Casebook, p. 155).KEY FACTS:

Man wants to keep farm in the family. So he wills it to his widow as a life estate and then to his sister in remainder (presumably his sister has children and he does not)

Wife is then placed in bad situation—she is 79 and stuck on a farm all alone. She claims the estate is providing her no income after maintenance and taxes.

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Asks court to allow her to sell under the Ontario Partition Act. Partition= ordered by Court under the Partition Act where there is co-ownership, co-reversioners or co-

remainders. Order for the property to be sold and then the court divides the profit accordingly.

ISSUE: Can a life-estate holder get an order of partition? HELD: No.

RSNS: Only applicable when two or more people own the same interest. Sale cannot be ordered against the wishes of either the life estate holder or the ultimate taker b/c then it would

be defeating one person’s interest. Remainderman’s opposition in this situation reasonable—they wanted the farm to stay in the family. It is important therefore when making a will to understand the consequences—in this case the husband

essentially sentenced the widow to prison. There is a possible solution under the Wills Variation Act—where a life holder can seek assistance in a similar

situation. This Act allows surviving spouse/child to contest a will on the basis that they have not been provided for.

Or the husband could have created a trust for the widow which would ensure she was looked after.

RATIO: Partition can only be used for co-interests, not in situations of successive interests.

Chuckritz—Distinguished from Morris Respondent had life estate plus 1/3 of remainder Appellant had 2/3s of the remainder Both parties wanted to sell Court facilitated this by ordering partition However to some extent they are co-owners, so likely decided on this basis.

Family/Spousal Issues

History: Remember from Term OneStage One:

- Historically, at law, women who married lost their property because of “marital unity”- Husband seizes all property and becomes entitled to all income from the land- Women could not contract or sue - Husband had obligation to support wife, and this survived into widowship - Wife considered under the “wing, protection and cover” of husband, hence the term coverture to describe the

marriage relationship- Curtesy – if wife died, husband automatically got life estate in all lands she brought into the marriage:

o Provided that she would have been entitled to those lands upon her death, and o That she had had a child capable of subsequently inheriting the land

- Abolished in B.C. in 1925 by the Administration Act Amendment Act- Dower – if husband dies, wife, provided certain conditions met (e.g. she was capable of producing a child who

would be capable of inheriting the land), was entitled to 1/3 of deceased husband’s realty- Designed to provide her with shelter, and overruled the rules of primogeniture i.e. that eldest son takes all

property on death of father- Husbands could insulate their property from dower through a form of conveyance called “deed to uses”- This was also abolished in B.C. in 1925 by the Administration Act Amendment Act-

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STAGE 2:- Historically in equity (increased married woman’s legal capacity considerably): - Usually through a marriage settlement, the “use” was used to allow wife to have property separate to her

husband (and keep it away from his creditors) – title was held by a third party trustee/feoffee for the use of the wife.

- Wife could dispose of this equitable property by deed or will, and could be her own trustee.- She could contract, sue and be sued in respect to this property. - Restraints on alienation (disallowing inter vivos transfer) could be added to avoid coercive husband from

pressuring her to transfer it to him - However, to set up such separate property required expensive lawyers, so practically only available to the

wealthy. STAGE 3:

- Late C19th: English Married Women’s Property Act 1882 adopted the equity approach to allow married women to have separate property as if they were femme sole (i.e. like unmarried women who could own property like men)

- Parties keep separate property – women disadvantaged, less property than husbands - With separate property, and now that marital unity, curtesy and dower are gone, need legislation to deal with

property during marriage, on marriage breakdown, and when one spouse diesSTAGE 4:

- Stage 4 – modern position – a mechanism is put in place to ameliorate the consequences of separate ownership in a marital situation (statutes and common law responses)

COMMON LAW: - Before the Family Relations Act, the constructive trusts became firmly entrenched in Canada to prevent unjust

enrichment by rewarding those involved in household labour, and enlarged over the years to include both common law and same sex relationships

- This is not so important now with Family Relations Act (except for people who do not fall within it) - It is a “remedial” equitable remedy recognized by SCC majority in Pettkus

Modern Statutes and Case Law: Family Relations

Land Spouse Protection Act: REQUIRED EVENT = Registration by the non-owning spouse- Requires a positive act of registration - The non-owning partner in formal marriage has to register their interest with the Land Title Office against a

‘homestead’- Homestead is land/interest in other spouse’s name on which there is a dwelling currently occupied by husband

and wife as their residence or so occupied within previous year.- Have to wait a full year of marriage before you can register- Once registered, owning spouse cannot dispose of the homestead inter vivos without other spouse’s consent in

writing- S.4 Upon land-owning spouse’s death, the surviving spouse is entitled to life estate DESPITE any testamentary

disposition- If the owning spouse gave the land to someone else, that person will be required to honour the life estate of the

surviving spouse. - Note the Family Law Act (coming into force March 18th) s.388 amends this Act to say “spouses” instead of

“husband and wife” and s.389 extends the scope of this act to cover ‘marriage-like’ relationships.

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Family Relations/Family Law Act: REQUIRED EVENT = Marriage Breakdown**Note these acts JUST deal with the division of PROPERTY—all other issues with divorce are dealt with under the divorce act (federal jurisdiction)***There is no overlap, except proceedings that have already started will continue under the old act. Family Relations Act (Current) Family Law Act (into force on March 18th 2013)Only applies automatically to ‘formally’ married couples, NOT marriage-like relationships. Marriage like relationships can ‘opt-in’ if they like (s.120.1)

Applies automatically to formally married couples AND those in marriage-like relationships. No definition of what a ‘marriage-like’ relationship is or when it starts.

s.56 upon marriage break down each spouse is entitled to one-half interest in EACH family asset.

s.81 equal entitlement and responsibility—includes family property AND family DEBT *new*s.81(b) Triggered by separation: the right to an undivided half interest in all family property as tenant in common and equal responsibility for debt—this means that the property ‘pool’ is closed on the date of separation (i.e. we separate Thursday I win the lottery on Friday—you don’t get any of my lottery money)

s.65 Court has discretion to vary this 50-50 proportion for fairness

s.95(1) provides for judicial discretion to order an unequal division of property/debt ONLY IF there is SIGNIFICANT unfairness—factors that make it ‘unfair’ listed under s.95(2). As this is a much higher standard, it makes it harder to justify litigating at all—which is what they want, to keep people out of the courts.

s.58 defines ‘property’ as anything ordinarily used by spouse or minor child for a family purpose. Lots of litigation over this issue.

s.84 defines ‘property’ as only property that was acquired from the date of the START of the relationship to the date of the SEPARATION. Property acquired BEFORE the relationship not included—except property that was acquired before and has appreciated in value, this extra value can be added to the ‘property pool’ of the family.

Gifts may be included in property—depending on the intention behind the gift—i.e. was it intended for the well-being/benefit of the family?

Gifts are EXCLUDED property—don’t count towards family pool.

Part 6deals with division of pension Part 6 carried over into Family Law Act

Walsh v. Bona (2002), 221 DLR (4th) 1 (SCC)KEY FACTS:

Couple split, had been living together for 10 years had two children but no formal marriage. As they weren’t formally married and hadn’t opted in, the law does not automatically split their property 50/50 The only option available to the woman (who was the one who didn’t own anything) was to sue under

constructive trust But this was time consuming and expensive She argues that the Act is discriminatory against non-traditional marriage-like relationships—makes them seem

like they are less worthy b/c they aren’t included.

ISSUE: Is it discriminatory against non-traditional marriage-like relationships to only give formal marriage a legislative regime to deal with property upon marriage breakdown?

HELD: No

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RSNS:

The couple could have chosen to marry if they wanted By allowing people a choice then they can decide to opt-out if that isn’t the type of relationship you want. Decision to marry involves decision to take part in legislative scheme to split property on dissolution of marriage Constructive trust is there to help anyone who isn’t in the regime

RATIO: It is not discriminatory to allow people the choice of whether they would like to take part in the regime.

NOTE: The Court essentially ignored the possibility that people may not be in an equitable position and always able to

marry if they want—i.e. partner won’t marry etc. Also this was before gay marriage was legal—court didn’t talk about how it may discriminate against same-sex

couples who were not able to formally marry.

BC Estate Administration Act: REQUIRED EVENT = NO WILL If a spouse dies intestate, the estate goes to the surviving spouse, subject to entitlement to the children. Automatically gives to a surviving spouse, in the case of intestacy, all of the “household furnishings” and a life

estate in the matrimonial home. DSAA (definition of spouse amendment) defines “spouse” to include common law spouse. “Common law Spouse” is a person who is united to another person by a marriage that although not a legal

marriage, is valid by common law OR a person who has lived/cohabitated in a marriage-like relationship for a period of at least 2 years.

The Wills Estates and Succession Act which is NOT yet in force, will amend this act to say: upon intestancy if there is a surviving spouse but not descendants, then everything goes to the spouse. BUT if there are surviving descendants, then “preferential” share given to the spouse, $300,000. (if estate is worth less they get it all). So the spouse can ask for the family home instead of their $300,000 share or they could buy from the other descendants the rest of the value of the home if it is worth more.

Austin v. Goerz (2007), 74 B.C.L.R. (4th) 39 at 45 to 57 (2007) Illustrates the difference between a common-law marriage and a marriage-like relationship.

KEY FACTS: Man married to woman A. They are separated for six years, he now lives with woman B. He dies intestate. There is an issue as to whom the Estate Administration Act should give to. A argues that he couldn’t enter into a common-law or marriage-like relationship because he did not have the

capacity to marry as they are still married.

HELD: For a common-law marriage, you must have the capacity to marry, as this is a legal marriage just a different type

(not under the Federal Marriage Act) However, don’t need the capacity to marry to enter into a marriage-like relationship.

Wills Variation Act: REQUIRED EVENT = A WILL S.2 a will which fails to make adequate provision for the “proper maintenance and support” of the surviving

spouse and children Gives broad discretion to the Court to limit the testamentary autonomy and vary the will as it thinks “adequate,

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Tataryn v. Tataryn Estate [1994] 2 SCR 807KEY FACTS:

A 350,000$ estate with a surviving wife and two independent adult sons. Gives life estate to the wife Nothing to the eldest son Everything else to the youngest son, including a second rental property

ISSUE: Should the will be varied?

HELD: Yes.

RSNS: “adequate just and equitable” may be interpreted many different ways The old way is based upon a Government interestsays that just the basic needs need to be met in order to

avoid the wife/children ending up on welfare. But NOW use a broader, marital/parental “moral duty” test which was developed in Walker v. McDermot Thus the Court can give an equitable share even in the absence of need. There are two things to consider:

1. Legal Rights/Obligations: there is a continuing legal duty to support spouse and children after death and avoid unjust enrichment by ignoring contributions during lengthy relationship, or an independent child’s contributions, or the ability of the survivors to support themselves.

2. Moral Obligations: this goes beyond need and is used mostly for large estates. Consider the size of the estate, preservation of the standard of living the spouse has grown accustom to etc. Subjective. Obligations of the testator after death.

While testator autonomy does exist, it is not absolute, it is limited by the Wills Variation Act. In this case: Gave the home to the wife in fee simple, the rest of the estate and a life interest in the rental

property. The youngest son received 2/3 of the rental property upon wife’s death and the eldest 1/3.

RATIO: A Court may vary a will even in the absence of a strong need, based on the size of the estate and contributions made by survivors, to ensure that it is “adequate, just and equitable”

Howard v. Howard Estate (1997), 32 B.C.L.R. (3d) 1 (BCCA) Example of wills variation being rejected There were 2 independent spouses who married later in life. They had a prenup that said their estates would go to their respective children from previous marriages. When the one spouse died, the other spouse brought an action for variation However they were held to have not been an ‘economic unit’ and they ‘had not entered into a relationship of

mutual benefit and contribution’ therefore variation denied.

Picketts v. Hall (Estate) (2009), 95 B.C.L.R. (4th) 83; 2009 BCCA 329 (July 16, 2009)KEY FACTS:

Hall died in 2002, age 96, with an 18 million dollar estate He had lived in marriage-like relationship with the ptf for 21 years His will left her a condo in Vancouver, personal household items, 2000$/month for the rest of her life (indexed

to inflation), a condo in Hawaii for three months of the year (or a 10% share if it was sold). The rest of the estate was split between his two grown sons. The sons voluntarily adjust the will and increase her monthly allowance to 6000$, with a cash payment of

96,000, plus 1,200$ for condo maintenance, 100,000$ to renovate the Hawaii condo, a car, and set up a trust fund for her future long term care should she need it.

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ISSUE: Should the will be varied?

HELD: Yes. She should also get 5 million and 100,000$ per year.

RSNS: Emphasized moral duty owed by testator to his partner She had cared for him for a long time—he had a slow death The court took into account the size of the estate. The court noted it can vary the will to be more than generous Marriage-like relationships are included by the wills variation act. Draws an analogy to the family relations act—what would have happened had they split when he was still

alive??? (HOWEVER, will this change now because of the new family law act which excludes property from before the marriage?? Unsure…)

Also draws an analogy as to what would have happened under intestancy, if there had been no will.

RATIO: A variation in a will is based upon many subjective factors, including the size of the estate and the contributions of the ptf to the testator (any moral obligation they have to provide or maintain the ptf’s standard of living). It can go far beyond ‘generous’. It is useful to compare to other acts which provide for the division of marriage property to determine what is appropriate (BUT NOT acts from other jurisdictions).

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Co-Ownership Two or more people have a property interest in the same slot in time—distinct from successive interests Real or personal property Can be created intervivos or by will Ex. A B + C in fee simple OR A X for life, remainder to B + C in fee simple Two types, Tenancy in Common and Joint Tenancy. All types of co-ownership have:

1) Unity of Possession- Each owner is entitled to possess the whole- Without this, there is no co-ownership

2) Destroyed by Partition or Agreement- Agreement is when parties all decide to split into individual lots- Partition is when there is no agreement, and so the court orders the property spilt up.

Tenancy in Common Joint Tenancy Each owns only a share, distinct and separate, and these

shares may be unequal in size. Each can dispose of their share as they wish: intervivos

or through intestacy Upon death of co-owner, their share passes to their

estate. NO SURVIVORSHIP.

Each co-owner owns the WHOLE, they own as a unit, each has an EQUAL share.

There are three additional unities: title, interest and time

Right of survivorship, not individual succession. Can transfer intervivos however. Severance converts to tenancy in common

(different than partition)

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Joint Tenancy in DetailSurvivorship There MUST be the possibility of survivorship in order to have a valid JT

This means that when one co-owner dies, they simply drop out and the whole property is now split between the remaining owners, until the final co-owner becomes the absolute fee simple owner.

Thus if the way the gift/transfer is worded precludes survivorship, then there cannot be a JT and it must be a TinC. Ex: to A and B for their joint lives—survivorship is impossible b/c as soon as one dies, the estate ends. Thus not a JT.

However, to A and B for A’s life would be ok as it is possible that B would die first and thus A would take survivorship. Just needs to be possible, not absolutely certain.

BC Surivorship Act s.2

If the last two die ‘simultaneously’—which means within 5 days of each other—states that the oldest one is deemed to have died first, so property will pass to the estate of the younger one.

Wills, Estates and Succession Act(not yet in force)

Will amend the survivorship act. If death is simultaneous (5 day rule), the property automatically becomes a tenancy in

common and thus each portion passes to each person’s heirs.Three Required Unities

1) Unity of Titleo Title of joint tenants MUST be derived from the same instrument (transfer or will). Thus

if one party to a JT transfers their share away intervivos, the new owner cannot be part of the JT b/c they received their title under a different instrument.

2) Unity of Interesto The interest of each joint tenant must be the same (size, type, duration).o Can’t have one holding leashold/one freeholdo Can’t have one for ten years and one for 20.

3) Unity of Timeo Unity of time must occur in common law terms (there is some kind of equitable

exception for transfer to uses or in a gift by will)o Vesting interest must occur for all joint tenants at the same time.

Severance Severance occurs when one of the three unities is destroyed The interest which has had one of its unities destroyed converts to a tenancy in common. Thus, if there were only 2 owners A + B and A sells their interest to C, C and B are now

tenants in common. If there were 3 owners, A + B +C, A sells their interest to D, D and ABC are now tenants in

common (so ABC have equal shares of 2/3 and D has a separate, distinct 1/3 that D can pass on through intestacy—survivorship still applies to ABC)

Transfers can happen unilaterally and in secret, without giving the other co-owners notice.BC Property Law Act s.18

s.18(1) You are allowed to transfer property to yourself. s.18(3) A JT property holder can transfer their interest to themselves, which has the effect

of severance (as this violates unity of title) s.18(4) A person with individual ownership can create co-ownership with themselves and

whoever else.BC company Act s.32

A corporation can be in a joint tenancy s.32(2) on dissolution of the corporation, this is the same as death—survivorship applies

and the other joint tenants will keep on or last remaining will get the fee simple.

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Creation of Joint Tenancies and Tenancies in CommonCommon Law Equity Statue: Property Law Act s.11 Historically, JT was presumed if

the 3 additional unities were present.

This was b/c the lord wanted to be certain as to who would provide tenure and to avoid the splitting of tenure.

In 1660, common law took on the equitable approach.

Disliked survivorship b/c it was like a lottery, chance who would die first, who would end up with the property.

Preferred tenancy in commonTWO ways to FIND TinC1. Interpretative

o If one of the three additional unities absent, interpret as TinC

o Even if all unities present, a TinC will still be interpreted if:

o Express terms i.e. To A and B in fee simple as TinC

o Implied terms: words of severance, anything that goes against JT conceptually i.e. “equal shares”

o See Bancroft and Winchester2. Substantive Equitable Remedy

o Co-owners remain joint tenants at law

o But equity can require co-owners to act in personum as TinCs without disturbing the legal underlying JT.

o See Bull v Bull

s.11(2) if an instrument executed after April 20, 1891—it will be a TinC UNLESS a contrary intention appears in the instrument.

A reference to survivorship will be taken as a contrary intention

Thus adopts equitable position HOWEVER it only applies to land

transferred or devised in fee simple.

Thus for life estates or personal property, the common law/equitable rules apply.

s.11(3) where the interests of the tenants are not stated, they are presumed to be equal.

See Robb v Robb

Re Bancroft Eastern Trust Co. v. Calder, [1936] 4 D.L.R. 571 (N.S.S.C.)KEY FACTS:

Testator left life estate in realty to his wife. Residue of his estate was to be converted into money and invested in two equal shares The income of one share was to be paid to his wife, while the other share’s income was to be divided into four

equal shares, one share to each of his 3 surviving children and the fourth to be paid to the 2 surviving children of his deceased 4th child.

Words ‘in equal shares’ were used to described the splitting of income between the children, but the grandchildren were just mentioned together in subsititution of the deceased 4 th child. No words of severance, no mention of shares for the grandchildren.

One of the grandchildren has now died. ISSUE: Where the grandchildren tenants in common or joint tenants? HELD: Joint tenants.

RSNS: Children are tenants in common because the word “equal shares is used” However no mention of this for grandchildren at all Statute does not apply because this is personal property not real property This was a “per stirpes” distribution, which basically means that children get more than grandchildren, who get

more than great grandchildren etc. It is distribution that follows the family tree as it spreads outwards.

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“per capita” distribution is when everyone gets equal shares. RATIO: Express or implied terms of severance, even ones that are very slight such as “equal shares” will indicate an intention to divide the property and thus will be held to be a tenancy in common.

NOTE: There is a sub-issue in this case about the meaning of the word “issue” problem b/c in modern times we think this refers to just children, but traditionally and in the Estate Administration Act it is defined as ‘lineal descendants’.

Winchester v. McCullough (2000), 30 R.P.R. (3d) 5 (NBQB)KEY FACTS:

Will gave “to the son and two daughters to be their jointly and in equal shares

ISSUE: Is this a joint tenancy or a tenancy in common? HELD: Tenancy in Common.

RSNS: If the situation is ambiguous, you need to err on the side of Tenancy in Common This was a NB case, so based on the NB legislation there needs to be an express declaration of joint tenancy—

slightly different than BC which just requires a contrary intention. In this will there was a substitution clause that gave the interest to a successor, so because the word successor

was used survivorship was precluded and thus had to be T in C. The word jointly could arguably mean concurrent or in common (shares)

RATIO: The word “jointly” is not conclusive indication of an intention to create a joint tenancy, rather there also needs to be an intent for survivorship as well.

Bull v. Bull [1955] 1 QB 234 (CA)KEY FACTS:

Son and mother jointly purchase a home, son pays greater portion but mother still makes a significant contribution.

But son is the sole owner on the deed, thus the sole owner at common law Son gets married, wife and mother have a dispute Son tells mother she has to leave. Mother won’t leave.

ISSUE: Can the Son kick the mother out? HELD: No

RSNS: The court can apply a tenancy in common as an equitable remedy, so now the son has no right to turn the

mother out b/c they are both entitled to possess the whole. Son would therefore have to resort to partition to kick her out This would likely mean the property would have to sold b/c a physical division is often not possible due to zoning

etc. If property sold, each would be reimbursed according to their contribution. A T in C can be imposed ‘in personum’ this DOES NOT change the law—legally son is still sole owner

RATIO: Where two people are in possession of a property to which they have both substantially contributed and there is a clear intention that both should have possession, even though only one name appears on the dead, they are equitable Tenants in Common.

SIDE NOTE: If there have been unequal contributions of money to the purchase of a property, even if legally they are Joint

tenants, equity will hold them to be tenants in common b/c they should equitable have unequal shares. Commercial transactions, such as a partnership, resulting in co-ownership are presumed to be TinCs in equity.

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Mortgagees (lenders on the security of land) are presumed to be TinCs in equity.

Robb v. Robb (1994), B.C.L.R. (2d) 7, at 12-13 (B.C.S.C.) (On Reserve) Not discussed in class. The principle of Tenancy in Common unless contrary intention only applies to land (NOT to leases or personalty

where old common law and equity rules will still apply At common law, when real or personal property is granted to 2 or more persons with no words of severance the

persons are JTs Equity exceptions: where purchase is in unequal shares, where property is a mortgage and co-owners are

mortgagees and business partners.

Relations Between the Co-Owners

Share of Profits 1705 Statute of Anne (now replicated by s.71 of the Estate Administration Act and soon to be re-enacted by the

Wills Estates and Succession Act not yet in force as s.13.1 of the Property Law Act) states that: pure rents should be divided equally between JTs or according to shares of TICs (or equally if equitable TIC

was imposed) Act states: “Actions against receiving more than comes from that person’s ‘just share or proportion’”. Co-owner can bring action to account against another JT or TIC to determine if they have been receiving more

than their just share or proportion of the profits—this is a statutory right, there is no common law way to do this.

Spelman v. Spelman, [1944] 2 D.L.R. 74 (B.C.C.A.)KEY FACTS:

Ptf and Def owned 2 properties as JTs and lived together for many years running a rooming house. Ptf left for 6 years and upon return demanded account of rents and profits so that she could sue for occupation

rents (Def had been running the B&B on the property the whole time she was gone)

One Two ThreeIssue Does the sole occupier of a property

owned via JT or TIC have to provide rent to other co-owners?

Does the sole occupier of a property owned via JT or TIC have to share the income received from ‘pure rent’?

Does the sole occupier of a property owned via JT or TIC have to share the income received from a business they carry on at the property?

Held No. Yes. No.Rule Each co-tenant has the right to

possess the whole of the property, so they don’t have to provide rent to the other co-owners.

Proclaimed by statute. (see above) Should be divided into the proportion of the share proportion. Each owns the property so each entitled to income from pure rent.

When one tenant is receiving a return for his own labour and capital, they are not receiving more than their ‘just share’ and the co-tenants have no right to it.

Exception If the occupying owner has ousted the other owner, either actively or constructively, then there will be an obligation to pay for rent—OR if there is an agreement in place that rent will be paid.

Court can try to divide up what income is coming from the labour and what is coming from a more ‘pure rent’ source—issue here b/c it was a boarding house BUT court treated whole thing as business anyway.

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Share of Expenses Sometimes, co-owners are jointly obligated for expenses to a third party i.e. a mortgage At common-law, the owners could not compel other co-owners to pay cost of repairs or recover voluntary

expenses.

Sections 13, 14 Property Law Act, R.S.B.C. 1996, c. 377 s.13 When a co-owner has to pay more than his proportionate share of martgage, money, rent, interest, taxes,

insurance, repairs because of the default of another registered owner, the can apply for relief under s.14 s.14 under application of s.13, the Court may order a lien or sale on the defaulting owner’s interest. The

applicant may purchase the defaulting owner’s interest in the case of a sale.

Leigh v. Dickeson (1884), 15 L.R.Q.B. 60 (C.A.)1. Obligation in Common

o Where an obligation is owed by the co-owners to a third party. o s.13 and s.14 of the property law act apply—they must share the expenses proportionally. o See Bernard v. Bernard

2. Other expenditure—like improvements or unnecessary renovations. A. Made At the Request of Co-Owner

o i.e. tenant A asks tenant B to put in a poolo Tenant B can now recover share of expenses from tenant A immediately.

B. Voluntary Payments: Where one co-owner unilaterally goes out and does something. I. Co-Owners are given the option to adopt

a) They adopt it: must contribute.b) They reject it: don’t have to contribute, BUT at partition, equity will require contribution

if the change results in a higher sale of the property. This is because it would be unjust for the other party to benefit from the increase in price without having contributed to those expenses.

II. No Option is given to co-owners. a) At common-law: they don’t have to contributeb) At equity: at partition ONLY, they will be required to contribute the change results in a

higher sale of the property. This is because it would be unjust for the other party to benefit from the increase in price without having contributed to those expenses.

Bernard v. Bernard (1987), 12 B.C.L.R. (2d) 75 (BCSC) How equity acts on partition.

KEY FACTS: Husband and wife are settling a JT and want to know who owes what to whom with regard to occupation rents,

percentage of partition etc. Wife has been living in the property and paying mortgage and taxes (obligations in common) Husband has been living away for six years. Action brought pursuant to s.13/14 Property Law Act by wife to re-coop expenses from obligations in common.

ISSUE: What should happen on partition? HELD: balance expenses with occupation rent.

RSNS:

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Statute of Anns and current statute law merely provides that income and rents from third parties are owed to the non-occupying party (except in cases of an ouster) and thus the non-occupying party has no right to collect rent directly from the occupying owner.

Each owner is entitled to possess the whole so don’t owe the others rent (unless they’ve ousted them) However, Partition is an equitable principle… so have to think about whether it would be just for one person to

have to pay all these expenses and get no benefit b/c they weren’t occupying. Thus equity requires on partition, when a claim is made by the occupying owner for expenses, they will be liable

for occupation rent.

RATIO: If the occupying owner makes a claim for allowance for expenses on partition, then equity will examine BOTH sides of the coin—and the occupying owner can be charge rent to the non-occupying owner as well. This is applicable under an application for sale under s.14 of the Property Law Act.

NOTE: Seems less fair when expenses owed are obligation in common b/c the absent party is obliged to pay these anyways—why should they get rent just because they’ve failed their obligations?

Severance of Joint Tenancies Converts a JT into a TIC—DIFFERENT than partition which destroys the co-ownership all together. Survivorship will only apply if there has been no severance. Often time survivorship is the issue of litigation—does the property go to the deceased heirs or does it go to the

surviving co-owner? 3 types of severance: destruction of one of the unities, agreement between the parties and unilateral intention

of a single joint tenant.

1) Destruction of one of the unities Focus on the consequences of the action and so intent is not directly relevant—just ask whether one of the

three additional unities was destroyed. Most commonly it is the unity of title that is destroyed. Example: by transfer of a legal title at law to self or

another (even if in secret and unregistered, so actual conveyance didn’t occur—but in that case the deed must be signed sealed and delivered so that it is completed)

Can occur in secret s.18(3) of the Property Law Act—can transfer a JT to yourself and this severs b/c destroys unity of title. There is no severance by adding a charge/encumberance i.e. a mortgage. No severance by a unilateral declaration by one party of an intention to sever,nor by execution of divorce

settlement—if parties still act as if JT nor by a will—unless cross-wills or mutual wills with intention to treat as TIC.

If one JT leases out their interest it is uncertain if severs since authorities are divided—likely that no severance if survivorship is not lost.

Stonehouse v. Attorney General of British Columbia, [1962] S.C.R. 103 (S.C.C.). (Not assigned)].KEY FACTS:

Husband and wife were registered owners in JT of land. Without telling husband, wife conveyed her interest in the property to her daughter inter vivos She didn’t want survivorship to apply but didn’t want to tell her husband—concerned about whether her

children from a previous marriage would be looked after. Wife died three years later, and the husband thought that he had gained complete title through survivorship However, the daughter registered the deed the day after the wife’s death (so three years after it was executed)

and registrar accepted this, at which time the husband became aware of it. Husband claims the registrar should not have registered the deed b/c wife was dead and it was three years old.

ISSUE: Does a deed have to be registered to complete severance by destroying unity of title? HELD: No.

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RSNS: Questions of how the title is registered is irrelevant to determination of severance. Once the mother executed the deed she was bound by it whether it was registered or not. A person who executes a deed cannot rely on it not being registered as a way to invalidate it. Focus is on the effect—was one of the unities destroyed. Although by not registering the deed holder runs the risk that a third party may get an indefeasible title which

they then won’t be able to challenge. RATIO: In BC, a secret transfer without registration performed inter vivos creates severance.

Mortgages: Do they destroy Unity of title? At common law there is a conveyance of legal title from mortgagor (owner/borrower) to a mortgagee

(bank/lender) subject to an equity of redemption. Equity would protect the redemption (transfer the title back to the mortgagor) so mortgagee couldn’t treat the

property as their own and could only take/sell the property after foreclosure. So a mortgage, at common-law, severed a JT since unity of title was broken, and when title was eventually

conveyed back JT was not revived because unity of time still destroyed. However in BC we have a torrens system, and the Land Registry Act refers to a mortgage as a “charge” (s.231(1)) A charge does not destroy unity of title, it merely sits on top of the interest. Most torrens systems then have a statutory system of foreclosure, but BC does not have this. Instead, BC has (under s.231(2) of the Land Registry Act) the old common-law system of foreclosure, the Act says

that the mortgagee has all the rights as if it were the common law system. So dichotomy between the wording of “charge” and then the use of the common-law system of foreclosure… it

is still unclear whether a mortgage destroys unity of title or not. Case Lyons v. Lyons (Australia) North Vancouver v CarlisleEx. How a mortgage functions as a charge How a mortgage could function in BCIssue Does a mortgage sever a JT under the torrens system of

Australia?Is a mortgage a charge or a transfer of title in BC?

Held No. It is just a charge. Unclear, could be either.Rsns o Under a torrens system, there is no conveyance of

title when one party gets a mortgage.o A mortgage is just a charge, and just sits on top of

the one party’s interest.o Therefore no unity is destroyed and thus JT is not

severed.o What happens when mortgagor dies?

1. Party A (mortgagor) dies, Party B gets survivorship subject to the mortgage on ½ of the property.

2. Party A dies and the encumbrance dies with them, so Party B gets survivorship with no charge.

o Choose option 2 as the charge is only on Party A’s interest, and Party A’s interest no longer exists as soon as they die, it doesn’t logically make sense to keep something that is attached to only their interest around.

o So the mortgagee loses out. However if it were opposite and party B died, then the mortgagee would gain an interest over the entire property.

A. One judge said by mortgage, the legal title passes to the mortgagee subject to an equity of redemption in the mortgagor (basically the common law approach, unaffected by the BC land registry act)

B. Another judge said mortgage was just a charge.

C. Another judge seemed to say that the common law position of severance upon mortgage applies, however this could be read narrowly as applying only to cases involving foreclosure—o so title only transfers once foreclosure

proceedings are started. Otherwise, the ‘charge’ approach would apply.

Note o This is how it works for any ‘charge’ in BC – the o Need to argue both solutions possible in of 60

debate is just whether a mortgage is a charge or not.

BC. Has never been expressly ruled on.

Public Trustee v. Mee: Severance in Equity via a TrustKEY FACTS:

Wife and husband divorced but still JTs of a property. After divorce, husband declared a trust for his infant son, with himself as the trustee. Thus the legal title did not move, and there was no destruction of the unity of title at law. Trust was never registered. Husband died.

ISSUE: Has there been a severance, or does survivorship apply? HELD: Severance.

RSNS: If you created a trust with someone else as a trustee this would totally sever at law because there would be a

transfer of title. However if a voluntary declaration of a trust has complied with the 3 certainties: intent, beneficiary and what

property is being conveyed, then equity will hold that this severs a JT. This is because it is inconsistent with the maintenance of a JT. However if the trust is not completely constituted (i.e. not all three certainties) equity will not enforce an

imperfect gift. In equity the declaration produces a binding effect and you cannot go back on such a declaration. However there is sometimes the problem of a revocation clause, because this might negate the intent certainty. So need to examine what the revocation clause says—if it is dependent on a condition that doesn’t occur, this

should be ok.

RATIO: If you have bound yourself to a trust in equity, this is the same in effect as a transfer to a 3 rd party at law—the JT is severed.

Foort v. Chapman: example of a ChargeKEY FACTS:

Mother conveyed her fee simple to herself and her sister (defendant) as JTs. They had a contract expressly agreeing the survivorship would apply. Without informing the sister, the mother entered into an agreement for sale and purchase with her son (ptf) and

registered this agreement. An agreement for sale and purchase is a long term arrangement where the seller is paid off over time during

which it is registered as a charge, and when paid in full the purchaser can execute it (ask for conveyance of the property, which the court would enforce). But they have to ask.

The son didn’t pay anything or perhaps paid only part, but the mother released the son from all obligations and declared the payment as complete.

However the mother dies before the property is conveyed to the son. After her death, the son tries to register but is refused.

ISSUE: Did the agreement for sale and purchase sever the JT?

HELD: No.

RSNS: By the time the son wanted to register his agreement the property had already gone by right of survivorship to

the sister.

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Since mother had forgiven the debt, you might think equity would come to the son’s aid but equity usually just protects people who are bona fide for value… not gifts.

Also there was the issue of the K for survivorship, if son had argued for an equitable transfer, he might be blocked by equity because this action by the mother constitutes fraud.

Purchaser has to get the property transferred after their payments are complete. Otherwise it just remains a charge and then dies with the person who’s interest the charge rests upon (like Lyons)

RATIO: An agreement for sale and purchase is not an actual conveyance, but rather only a charge/encumbrance on the one JT’s interest. It does not affect unity of title and does not sever the JT until it is executed.

NOTE: The law reform committee has recommended that an agreement for sale and purchase should sever a JT.

Re Sorensen and Sorensen: Many ways to try to sever. KEY FACTS: husband and wife were JTs on 3 properties as the result of their divorce settlement. The settlement also provided that the wife could live at one of the properties for a lease of 1$ per year for her entire life. (tricky b/c leases are supposed to be made certain and thus the measure of life is maybe inappropriate). Wife finds out she is dying and wants to sever in order to provide an estate for her son who is disabled. Tries a number of ways:Partition Divorce

AgreementWill Trust

(successful)Lease Transfer to son

o Wife filed for partition, but died the morning of the partition hearing.

o A unilateral intent to sever is not enough—needs to be mutual

o thus evidence that she started this process did not sever the JT.

o In this case, the execution of a divorce settlement did not amount to partition b/c the wife acted as if it hadn’t.

o By filing for partition she showed that she thought she needed to do something else to sever.

o She tried to put into her will that her son should inherit her interest.

o But this is impossible b/c a will can have no effect.

o Once the person dies, survivorship occurs and then the testator has nothing to give.

o The declaration of a trust by a JT (even with themselves as the trustee so they keep the legal title) severs a JT as long as all three certainties are present.

o In this case there was a revocation clause, which might negate certainty of intent.

o However it was ok, b/c revocation clause was based on the condition that she live, and she died.

o So revocation clause of no force and effect due to the failed condition.

o A lease gives the right to possess, so this could possible sever the unity of title or interest.

o Because the lease in this case was in terms of the wife’s life, it could not affect survivorship and therefore did not sever the JT.

o However it is possible that if a lease given for longer it might be the basis of severance.

o Lease doesn’t actually transfer title, just gives right to possession.

o Thus it could be a charge or a transfer, not

o Also certain transfers were passed.

o These were held by the wife’s lawyer and on her behalf.

o Thus while they were signed and sealed, they were not delivered (b/c wife’s lawyer was not son’s lawyer).

o Need all three to be considered executed (like in stonehouse)

o Therefore this did not sever title.

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really answered in this case.

2) Agreement between the parties Under this category, concerned with mutual intent. Mutual intent is evidenced by an agreement or a mutual intent evident by a course of dealings between the

parties. Have to find with the course of dealings that both parties in effect were treating and intending to treat the JT as

a TIC If that was mutual, then you could get a severance under this category. Cases here are factually focused.

Flannigan v. Wotherspoon, [1953] 1 D.L.R. 768 (B.C.S.C.)KEY FACTS:

Two brothers were JTs of several lots. They entered into an agreement for sale and purchase to a 3rd party an the proceeds from the sale were to be

equally divided and deposited in each brother’s account. However Brother A dies and leaves all his real and personal property to his daughter (ptf) On his death bed, brother A tells the daughter that the proceeds from the land would be hers—she will get the

interest in the income coming into the JT. Brother B (def) hears this and makes no opposition. Brother B then later talks to daughter about how the income was going to be quite small, but speaks as if she is

definitely getting it. But as soon as he dies, brother b argues it’s a JT and daughter doesn’t get anything.

ISSUE: Was there severance by agreement between the parties? HELD: Yes.

RSNS: By speaking to daughter as if it were a TinC brother B showed that he had a mutual intent as brother A to treat

the JT as a TinC. It counts as a mutual course of dealings. The fact that they were splitting the proceeds wasn’t helpful, b/c this is what would happen with a JT anyways. However having it deposited into two separate bank accounts did provide evidence of severance. Brother A’s statement to his daughter that she would receive the income was clear evidence of severance. The silence of Brother B, while not proof, was perhaps indicative of the intention to treat as a TIC—although this

is very weak evidence. There is no need for the parties to know the law or legally understand what a JT or a TIC is, it is just about how

they are treating the asset as if there is going to be survivorship or on the basis that there will be some devolution to their respective estates.

RATIO: A course of dealings which indicates mutual agreement to sever will do so.

3) Unilateral Intention of a single joint tenant The final method, that only works in the UK and not here as unilateral actions that fall short of breaking a unity

but shoes unilateral intent to sever. Legislation in the U.K. (1925 law of property Act) provided that by merely giving notice to the other parties

severance is possible. No similar legislation in BC However the U.K. legislation suggests that it was merely bringing real property in line with what already had

existed at common law in relation to personal property.

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This is confusing because, because although it implies case law before 1925 treated personal property as severable upon notice, no one has ever found a case that says this.

Therefore this probably cannot work in B.C. and unilateral intent short of destruction of a unity is insufficient to sever property.

Walker v. Dubord (1992), 67 B.C.L.R. (2d) 302 (B.C.C.A.)KEY FACTS:

Husband (Ptf) and wife were JTs Shortly before wife died, she transferred the JT land to herself and attempted to sever her JT in personalty by a

unilateral declaration (investment certificates and bonds) Wife didn’t want property going to husband’s family if he got survivorship b/c she had children from a previous

relationship. Wife summons a lawyer and orders instruments to be created that would sever the JT Various documents set up—were successful in severing the title to the real property However the solicitor had just written the bank and declared the personalty would be held as T in C—didn’t

actually transfer it or sever a unity, it was just a statement of intent.

ISSUE: Is a unilateral declaration of intent enough to sever a JT?

HELD: No.

RSNS: The rules for realty and personalty do not differ in Canada at common law If all you are dealing with is unilateral intent, it must go and destroy a unity Mere intent that falls short is insufficient to work a severance. The JT in personalty had not been severed as no unity was destroyed—while the realty was because she had

transferred it to herself and thus broke the unity of title.

RATIO: In B.C., a unilateral declaration of intent to sever, even if notice was given to other JT’s, does not sever unless carried through all the way.

Re Sorensen and Sorensen (1977), 90 D.L.R. (3d) 26 (Alta. App. Div.) Remember: the one party had filed for partition but then died on the day of the hearing. Therefore a unity was not destroyed, but an indication of intent to sever was clear. Unilateral intent was held to be insufficient to sever the JT.

Partition and Sale Partition destroys the unity of POSSESSION and therefore destroys co-ownership Different and completely distinct from severance (in severance, co-ownership is maintained just a different kind

of co-ownership). Arises only when the parties cannot agree, court orders co-owners to become owners in severalty.

General/History Equity traditionally had jurisdiction, but really only in respect to physical division. English Partition Act 1868: empowered the Court to order partition and sale BC adopted this Act in 1880: The B.C. Partition of Property Act This applies to land only, can bring action in a court of equity for personalty.

Partition of Property Act, R.S.B.C. 1996, c. 347 Modern version of the 1880 Act s.2 describes who may be compelled to partition (physical) or sell the land (discretion to court in terms of

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As s.2 only applies to Land, for personalty must look to equity—which can order partition. o All JTs, TinCs, mortgagees, creditors or other parties having liens on any property may be compelled

(note discretionary) to suffer a sale or physical partition of the land. o Partition may happen whether the estate is legal or equitable, although the action in personalty for sale

developed out of equity—you can’t cut a horse in half! s.3 proceedings for a partition can include a sale and distribution of the proceeds s.4 describes who can seek an order of partition—only those with a right to possession.

o Any person who, if this act had not been passed, might have maintained an action for partition may maintain such action against any one or more of the parties interested without serving the other or others (if any) of those parties.

o Basically: those who could, still can (but doesn’t indicate who could)ss.6-8 deals with sale of property rather than physical partition (note that equity has not yet replicated these ideas for personalty)

s.6 if applicant owns ½ or more of property and requests sale (rather than partition) then the court “must” order sale (unless there is a good reason not to)

s.7 but if applicant owns LESS than ½ then the court “may” order sale if sale is requested s.8 if the Court thinks fit parties can be bought out by other tenants.

Who may apply

Morrow v. Eakin and Eakin (1953) 8 W.W.R. (n.s.) 548 (B.C.S.C.). KEY FACTS:

Creditor received judgment against one of the co-owners in JT Creditor wanted to bring an action for partition and sale of D’s portion so that the judgment debt could be

satisfied out of the proceeds.

ISSUE: Who can apply for partition?

HELD: Those who have a right to possess.

RSNS: s.4 of the Partition Act says that those who could apply under case law can, and the equitable position is that those who have the right to possess can bring an action for partition.

RATIO: A creditor, a person with a remainder cannot seek partition as they do not have the right to possess the property. (A creditor therefore must become an owner by buying out the other party and then as an owner seek partition).

Nature of the jurisdiction

Rayner v. Rayner (1956) 3 D.L.R. (2d) 522 (B.C.S.C.)KEY FACTS:

Husband (ptf) was a JT of a cottage with his wife (def) Cottage was purchased with profits from a shop owned by wife, but in which husband had worked She owned the flower shop and they had employed someone Husband had persuaded wife to transfer flower shop to employee and then left wife for employee. Husband wanted partition on the cottage because he didn’t want his ex-wife to live there.

ISSUE: What jurisdiction is partition ordered under?

HELD: EQUITY

RSNS:

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The court merges in equity and the statutory discretion, says the discretion under the Act is the discretion of Equity and thus equitable principles apply

When dealing with property, an owner has a prima facie right to partition but the person seeking this before a court invokes the discretionary power of the court as a court of equity.

RATIO: He who comes to equity must have clean hands. Therefore, unworthy malice, spite or vindictive conduct means the court will not use their discretion to help!

Bradwell v. Scott (2000) 36 R.P.R. (3d) 70 (B.C.C.A.)This case backs off from the position of exercising equitable discretion FOR LAND (still applies to personalty).

HELD: The court has a statutory discretion to order partition and will use that discretion unless justice requires otherwise.

RSNS: Equitable principles may be considered but are not a pre-requisite or required. Main discretion is under s.2—deciding whether to order partition or sale or nothing. TEST: there is a prima facie

right to partition unless justice requires otherwise. Then s.6 is simply to order a sale unless the court sees a good reason to the contrary. If a person who owns half or more wants to sell, the court can’t order physical partition unless there is a good

reason to. What is a good reason to the contrary? Being old and retired doesn’t count, but Court suggests that having a

house fitted for disability might be sufficient reason not to order partition at all.

Sahlin v. Nature Trust of British Columbia Inc. (2011) 3 R.P.R. (5th) 258 (BCCA) (actual partition, not sale)HELD: s.6 does not set up a presumption or burden of proof on the party that does not want to sell.

ISSUE: What is a good reason not to order sale of land when an owner of ½ or more requests (under s.6)?

HELD: If it seems like the owner requesting sale is attempting to expropriate the land, then this is a good reason not to order sale.

Future Interests (Casebook pp. 451-485)

Nature of Future Interests A future interest is a present right by virtue of which possession will or may be obtained in the future. An estate in possession = A present interest = A present right to immediate possession. An estate in expectancy = A future interest = a present right to possession in the future Gift over = any transfer of property to take effect after the termination of an immediate estate.

"Vested" and "Contingent" InterestsVested ContingentA B for life, remainder to C in fee simple A B for life, reminder to C in fee simple at 21B is vested in possession (and therefore must also be vested in interest)

B is vested in possession (therefore must also be vested in interest)

C is vested in interest (no right to immediate possession) but has a present interest by virtue of which possession will be obtained in the future.

C is NOT vested, but rather contingent on a condition which may never be met—C has a present interest by virtue of which possession may be obtained in the future

Therefore, if you are just waiting for the passing of previous estates and nothing else, the donee’s interest is

Therefore, a contingency is when in addition to the passing of prior estates, there is some other factor/criteria or

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still vested. event ‘personal’ to the donee that must happen for the interest to vest.

Requirements for Vesting There are 3 elements which must be satisfied in order for an interest to vest. 1. Any event personal to the donee that is specified MUST be met (if none specified, then you are good)2. The donee must be ascertainable:

a) Grantee must be identified. For example, if you say ‘to the first child of A to reach 21’ the identity is NOT known b/c it isn’t certain which will reach 21 first (i.e. one child might die etc.)

b) Grantee must be in existence: For example, ‘to A for life, remainder to A’s first born child’. The child is identifiable, but A may not have a child so until A has a first born there is still a contingency.

3. In the case of a class gift (i.e. to a group of people), each group member must be ascertainable, the class must be closed and the exact share of each member must be known.

"Conditions Precedent" and "Conditions Subsequent"Conditions Precedent Conditions SubsequentCreates a contingency that MUST be met before the interest will be vested (i.e. from step one of the requirements for vesting). Simply delays vesting.

Works to divest a gift subsequent to vesting. The gift vests right away, and then if something happens, it divests.

Creates a contingency Not a contingency—a defeasible interest.If future interest expires before condition precedent is met, destruction occurs and the donee gets nothing. (i.e. if C doesn’t reach 21 by the time B dies, then C is out of luck the interest is destroyed)

A B in fee simple, BUT IF B marries C then it divests.

So B would get the interest right away, it would vest, but then if they ever married C it would immediately divest.

It is a matter of interpretation as to which type of condition a testator or testatrix has created – but becomes very important as they have such different consequences.

Illustrates Condition Subsequent: Brown v. Moody, [1936] A.C. 635 (P.C.)Key Facts:

Brown dies, in her will states that the ‘income is to be invested for my son for life’ and then on death of my son, my granddaughter (son’s daughter) and my 3 daughters shall take the estate.

½ of the income to granddaughter and 1/6 to each of the three daughters. Then had a clause: if any of daughters or granddaughter pre-decease her (the testatrix) or predecease her son,

leaving issue, directed that the child or children shall take that interest to which her mother would have been entitled had she not died.

No one died before that testatrix, but one of the daughters died without children before the son died.

ISSUE: Was this clause a condition precedent or a condition subsequent? If precedent, then it would require the daughter to survive both the testatrix and the son before the interest

would vest. Therefore, as the daughter died before the son her interest never vested and the interest would revert back to the estate—would NOT be distributed under the daughter’s will.

If subsequent, then the interest would have vested in the daughter right away subject to divesting IF she died before the testatrix or son AND she also left issue… both of the these conditions would have to be met in order for the interest to divest. As they were not, the interest would go according to the daughter’s will and NOT revert back.

HELD: Condition subsequent. RSNS:

The object of the postponement of interest, was simply to allow the son to enjoy the income for his life. Nothing about the son being able to use the capital, so there definitely would be something for the daughter’s

to receive after his death.

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That kind of situation has never led to an exclusion of the vesting of capital. Therefore it can’t be a condition precedent, so it must be a condition subsequent. It doesn’t prevent vesting, just prevents the vesting from being absolute.

RATIO: A condition precedent gives nothing until it is met, while a condition subsequent does give a vested interest, just not an absolute vested interest as it is subject to divestment if ALL the conditions subsequent are met. Determine the object of the testator/testatrix to determine which the condition should be.

Illustrates absolute vesting (no conditions at all): Re Squire (1962), 34 D.L.R. (2d) 481 (Ont. H.C.)KEY FACTS:

Testator left certain properties to trustees to hold for his grandsons until they reach 30 years at which time it was to be conveyed to them absolutely.

Income was to be accumulated and added to the inheritance, unless they wished to pursue higher education, in which case they could encroach on the capital up to a certain amount.

Each grandson’s gift was completely separated from the rest of the estate. NO gift overs were stipulated. The gifts were self-contained and absolute.

The Rule in Saunders: if you give someone something absolutely, you can only deny access to them if they are under the age of majority which was 21. Therefore to get around this rule, you must involve another person (i.e. have a gift over) or make the gift discretionary or get rid of trying to accumulate the interest and give that to someone else.

ISSUE: Grandson reaches 21, and claims rule in saunders and wants the property now. “until 30 years” is this a condition subsequent or precedent—this would cancel the rule in saunders—OR is it an absolute gift—rule in saunders applies.

HELD: It is an absolute gift—son can access the property at 21.

RSNS: The words ‘upon attaining’ are not conditions precedent (whereas ‘if you should attain’ would be a condition

precedent) Absolutely no gift over was specified, so it can’t be a condition precedent or subsequent because conditions can

always fail to be met.

RATIO: If the interest will definitely go to one person no matter what, then it must be an absolute interest given.

Illustration of Condition Precedent: Re Carlson (1975), 55 D.L.R. (3d) 616 (B.C.S.C.)KEY FACTS:

Testator devised the residue of his estate to be held in trust and invested, and stated that the income and capital be used for maintenance, education & advancement of his youngest son Chris until he reached 21.

When Chris turned 21 the remainder was to be divided between Chris (45%), Janis (daughter) 45% and Paul (other son) 10% to pay his debts.

He only left $1 to his widow So the daughter assigned her share to her mother.

ISSUE: Is there immediate vesting for Janis and Paul upon the testators death, or do they have a condition precedent that Chris must reach 21?

HELD: It is a condition precedent for Janis and Paul so interest does not vest until Chris reaches 21. (a condition subsequent for Chris b/c the gift divests when he reaches 21).

RSNS: Must sit in the arm chair of the testator to discover his intent

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In this case, clearly intended to keep the whole (both income and capital) for Chris’ use until he reached 21, and if there was nothing left when Chris reached 21 and his siblings got nothing that would be ok.

the will clearly directed the executor to use not only the income but also the capital of the estate residue for chris’ benefit.

Therefore inconsistent to have Janis and Paul’s shares vesting immediately b/c Chris could exhaust all of the capital leaving nothing.

This is because it is a ‘class gift’ (given to more than one person) and therefore the exact shares or amounts CANNOT be determined at the testator’s death b/c no one knows how much Chris will use. Therefore the interest cannot vest.

Always need to look at the provisions of the will in context. In this case, clear that the testator did not trust his wife and did not want her to have any influence over Chris. Words like “upon” “when” “if” “as” “as soon as” “provided usually are more likely to imply a condition

precedent, whereas “but if” is more likely to imply a condition subsequent. (NOT A RULE, just in general)

RATIO: When the whole of a gift, both income and capital, may be used for the benefit of one person until a stated age, and “then the residue” is to be divided between him and another, the residue is not vested in the other person until the first person reaches the stated age.

Illustration of condition subsequent: Phipps v. Ackers (1842), 8 E.R. 539 (H.L.) – HandoutKEY FACTS:

Testator devised land to his trustees to convey to his godson upon his reaching 21, but if godson doesn’t reach that age and he doesn’t leave issue, then shall divest and become part of the estate residue which goes to the ptf (the testator’s wife) as a gift-over.

At the time of testator’s death, the godson was 12 Godson DOES attain 21, but ptf claimed the income from the estate that accrued from the time of the testator’s

death to when the godson reached 21.

ISSUE: Who is entitled to the income that accrued over the years before the godson turned 21?

HELD: The Godson.

RSNS: The ptf argued that the Godson’s interest was contingent on a condition precedent, that he must reach 21.

Therefore his interest would not vest until 21 and he would not be entitled to the income before. However, could argue the same for the Ptf, she had a condition precedent that George die without issue before

21, and therefore her interest doesn’t vest until that happens. SOMEONE MUST GET THE INCOME By looking at what the 2nd person doesn’t get, you can determine what the 1st person does get. Ptf in this case could not get an immediate vested interest, b/c if George reaches 21 then she doesn’t get

anything (her interest is only possible, not for sure). Therefore, because the second person’s interest does not immediately vest, the first persons interest MUST.

(interest has to be vested in someone). This is contrasted to Re Squire where no gift over was specified.

RATIO: When a gift to a devisee upon attaining a certain age, with a gift over to some other ascertained person(s) if the devisee dies before reaching that stated age, the very existence of the gift over shoes that the first devisee is to take an immediate interest subject to a condition subsequent. The second devisee(s) have a condition precedent and therefore their interests ONLY vest if the first devisee’s interest divests.

Phipps v Ackers rule for PERSONAL property: In re Barton Estate, [1941] S.C.R. 426KEY FACTS:

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Testator left sum of money to his grandson when he ‘shall attain 25’, but allowed the income to be used for his maintenance and education prior to his attaining 25.

If the grandson did not attain 25, and left no wife or children, then it should fall back into the residue of the testator’s estate.

ISSUE: is the grandson entitled to the income generated during the intervening years until he reaches 25? The answer will be yes if the grandson’s interest vests immediately, but no if it is contingent (i.e. a condition

precedent).

HELD: Yes.

RSNS: The court applied the rule in Phipps v Ackers, which is a rule of interpretation. Grandson took a vested interest subject to it being divested should he not reach 25, because the 2nd interest

could NOT take a vested interest due to the fact that their interest was NOT certain to occur. Therefore grandson is entitled to the intermediate income upon reaching the stated age.

RATIO: If there is a gift over upon the death of the 1st donee under a stated age, the gift over shows that the first donee is to take whatever interest the second devisee is not entitled to—i.e. the immediate interest.

Limits Application of Phipps v Ackers Rule and illustrates the ‘rule of destruction’ : Festing v. Allen 1843 ExchKEY FACTS:

Testator left land to his granddaughter for life, and upon her death, to her children who shall attain 21, and if no such issue the land was to go into other trusts specified in the will.

On the granddaughter’s death she left 3 infant children all under 21. ISSUE: Do the grandchildren get anything?

HELD: No.

RSNS: Rule of destruction of contingent remainders applied: if a remainder was still contingent (i.e. an unmet condition

precedent) at the time when the prior particular estate ends, this would result in an unacceptable gap in seisin. Therefore on the passing of the prior estate, all unmet contingencies are destroyed.

This is to make sure someone always has a vested interest and nothing is left in limbo. If you applied Phipps v Ackers rule all the time, then you would literally interpret the rule of destruction out of

existence as there would be no condition precedents. Note the difference here that the beneficiaries were ascertained on the death of the testator, but they weren’t

in this case. The interest couldn’t vest upon the death of the testator here b/c the children were not ascertained: they didn’t

exist and their identities were unknown. Also, as it was a class gift, the class was not closed—uncertain which would reach 21. Therefore the interest could not vest, and must vest in the second beneficiary.

If upon the granddaughter’s death she had a single child over the age of 21, then the gift could have vested totally in that one child (and the rest of the children would get nothing).

RATIO: The rule in Phipps v Ackers will only apply in factually identical situations: an ascertained beneficiary with a gift over should that beneficiary fail to reach a certain age.

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Types of Future Interests There are three types of future interests: Common law, Legal executory interests, and equitable future interests.

Common LawInterest in the estate of the grantor

Reversions Always a vested interest i.e. something that MUST return NOT may. Part remains with the grantor who has not exhausted the whole by the transfer ex. A B for life possession leaves the grantor, but future interest of return of that possession

remains with the grantor. A can later assign reversion elsewhere ( by sale, gift or will) But the interest held by the new recipient is still treated as a reversion (although A

has disposed of it, it still retains the status it had when it first came into existence).Right of Re-Entry

This is not a vested interest Rather it is a defeasible grant with a condition subsequent that can occur after

vesting in a 3rd party. If the condition subsequent does occur, the grantor has the right to re-enter. Looking for words that indicate the grantor has given the whole, but maintained the

right of re-entry. A complete gift is given, but the condition subsequent operates so as to prematurely

terminate the estate by giving grantor right to re-enter and divest the grantee. The word “until” usually signifies reverter NOT re-entry, but ‘until’ signifies a natural

end to the estate rather than a premature ending of re-entry. Upon the condition subsequent occurring, the grantor can bring an action to recover

possession. Unless grantor exercises their right, the grantee continues to enjoy the property. Limitation period of 6 years in which the grantor must bring the action. ex. A B in fee simple BUT IF B marries C then property to return back to A. Common words used are: ‘provided that’ ‘on condition that’ ‘if it happens that’

although remember words must be read in context. The contingency can’t prevent vesting, but rather it divests an already vested

interest if and when the contingency occurs. Property law Act s.8(3): a right of entry affecting land, exercisable on breach of

condition may be made exercisable by any person and the persons claiming under him.

This has not been interpreted by the courts, but could be interpreted to allow a 3rd party to a right of entry.

At common law however, only with a remainder can a grant of a future interest be made to a third party.

Reverter Grantor creates a determinable gift in fee simple or life estate. It is determinable, NOT defeasible. Looking for words that place a condition into the definition of the slot in time – so

they haven’t given the whole property. These are words of limitation that indicate an event that may or may not occur will

define the estate. A B in fee simple UNTIL B marries C Other common words include “while” “whilst” “during” “so long as” “as long as”

although remember words will be read in context. A maintains the possibility of reverter, and if B dies without marrying then the fee

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simple goes to B’s estate as an absolute fee simple (since the determining even can never now occur that B is dead)

So the grant is subject to divestment Legal ownership will automatically revert back to grantor on determining event

occurring, if it occurs at all. This is NOT completely giving and taking back, as in right of entry, Rather it is giving something less. Thus the courts have decided that the possibility of reverter itself is vested, since

courts have considered the determining event to be a ‘natural’ termination as opposed to a condition subsequent which cuts short an otherwise completely given estate.

*** note that if the words of limitation are invalid, there is NO gift b/c the words of limitation define the estate. SO if the grantor puts a possibility of reverter on an invalid condition then no gift is given… whereas if it were to be the right of re-entry, as the whole is given, then the gift is just given absolutely should the condition turn out to be invalid.

Interest in a 3rd party

1. Remainder

A B for life, remainder to C in fee simple. A gives smaller estate than the complete interest to B, and so gives what is left

over (the remainder) to C. Future interest where possession is postponed until after the expiration of some

prior particular estate. The only way at common law to give a future interest to a third party. This can be vested OR contingent

ex. A B for life and then to C in fee simple.- C has a vested remainder (vested in interest, but not possession until B’s

life ends. ex. A B for life and then to C in fee simple if C marries D.

- C has a contingent remainder since a condition precedent has been added. Rule of destruction applies to contingent remainders—if the contingency is not met when B dies, there is destruction.

There are 4 rules for remainders at common law.

Four Rules of Remainders at Common LawRules against SHIFTING interests

Rule 3 - A remainder is void ab initio (from the beginning) if it designed to take effect in possession by defeating the prior particular freehold estate.

- This means the remainder is essentially void and the gift is treated as if it doesn’t exist.

- An estate is “defeated” if it comes to a premature termination.- Basically: You can’t use a condition subsequent to create interest in a 3 rd party—

whether the first interest is a life estate or a fee simple.- Example: A B in fee simple, but if B marries C, to D in fee simple NOT ALLOWED- Therefore, if you use a determinable interest, it passes rule 3 because the estate

comes to a ‘natural’ end and hasn’t ‘defeated’ the prior freehold estate.- Nothing in this rule prevents in any way a grantor being able to create a right of re-

entry for themselves… remember remainders are about creating interests in 3 rd parties

Rule 4 - A remainder after a fee simple is void- You can’t grant something after you have exhausted the whole.- This also captures the scenario in rule 3, so often just rule 4 is referred to and rule 3 is

forgotten about. But don’t you forget about it.- This applies to BOTH a transfer in fee simple with a condition subsequent and a

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determinable fee simple: No remainders after these types of clauses.- HOWEVER… that means, a determinable life interest with a remainder is good under

both rule 3 and 4.- Example: A B for life UNTIL B marries C and then to D in fee simple: ALLOWED- This is the ONLY way you can have a shift and remainder at common-law.

Rules against SPRINGING interests:

Can’t have a gap in SEISIN (possession)

Rule 1 - A remainder must be supported by a prior estate of freehold created by the same instrument as the remainder.

- This means that you can’t give a leasehold with a remainder.- Remember a leasehold is something that is calculated in years.- That’s because historically, ‘seisin’ only occurred with a freehold and not a leasehold.- Example: A B for 2 years and then to C & his heirs if C reaches 21: NOT ALLOWED- Example: A B in fee simple if B reaches 21: NOT ALLOWED- This offends the rule because there is no preceding estate of freehold to support the

contingent interest which A tried to confer on B.- Example: A B for life & then to C and his heirs if C reaches 21: ALLOWED- This is ok, because the remainder is based on a freehold which is created by the same

instrument.- However, the issue is that C might not reach 21—it is a condition precedent.- The common-law is prepared to “wait and see” if the contingency will be met.- If the contingency is not met at B’s death, the contingent remainder is destroyed and

the property would revert back to A.Rule 2 - A remainder must be limited so as to be capable of vesting, if it vests at all, before

or at the moment of termination of the prior freehold estate.- If this is NOT met, the remainder is void ‘ab initio’ from the beginning.- ex. A B for life then to C at age 200. Not possible for C to reach 200, so the

remainder is void.- However capable does not mean definite. A remainder that ‘may’ vest is considered

valid.- A B for life, remainder to the first son of B to reach 21- It is possible for a son of B to reach 21 on B’s death, or alternatively that no son of B

had reached 21 at B’s death but that one could do so after B’s death.- Therefore there may or may not be a gap in seisin.- The remainder is treated as prima facie good since it may be valid (common-law will

wait and see what happens on B’s death)- A remainder must in fact vest during the continuance of the prior particular estate

or at the moment of its termination or else it is destroyed upon the ending of the prior particular estate.

- Therefore, if in the previous example no son of B is 21 at B’s death, no interest will have vested either during B’s estate or at the moment of termination and the remainder will be destroyed.

- Rule of destruction of contingent remainders from Festing v Allen: Any condition precedent which is not met by the termination of the prior particular estate is destroyed.

- Therefore it always comes down to a matter of interpretation: can argue it is a condition subsequent to avoid destruction, or you could argue it is a delayed gift to avoid the gap in seisin.

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Legal Executory Interests (Casebook, p. 478-484) These are used to get around the four rules of remainders at common law. They arose from the Statute of Uses, which executed equitable interests after a single use, transferring the legal

title to the beneficiary. After a single use therefore, the beneficiary had a legal executory interest. Because this is not common law, and the Statute of Uses said that the interest of the beneficiary would

correspond to the equitable interest they held before the four common law remainder rules DO NOT apply to legal executory interests.

Thus springing and shifting interests can be valid at law as legal executory interests. EXAMPLE: A to B in fee simple when B reaches 21—this is invalid at law because there is a gap in seisin. BUT: A to X and his heirs to the use of B and his heirs when B reaches 21 IS VALID because the ‘use’ is executed

(so X actually gets nothing) and a legal executory interest is given to B called a ‘springing use’ because the interest springs up of its own accord without any prior supporting estate of freehold.

Essentially put “to X and his heirs to use of” in front of anything that would be restricted under the four common law remainder rules and you are golden.

If you do this in an intervivos conveyance, it is referred to as an executory limitation and if it is done in a will it is called an executory devise.

Therefore, now FOR WILLS ONLY the court will imply the words “to the use of” to save the gift by making it an executory devise.

For INTER VIVOS transfers, the words “to the use of” must be used to create an executory limitation.

Purefoy v Rogers The Court will ONLY imply the words “to the use of” to save an executory devise IF the gift was ab initio. If the remainder gift is initially valid at common-law (doesn’t break any of the four rules) it must STAY at

common-law. This arises when you have a situation where the common-law is prepared to ‘wait and see’ Ex. A B for life and then to the first of B’s sons to reach 21. Valid at common law: the remainder doesn’t defeat the prior particular freehold estate. The remainder is NOT

given after a fee simple. The remainder is supported by a prior particular freehold estate that was created by the same instrument. The remainder is capable of vesting—one of B’s sons MAY turn 21 either within B’s lifetime or at the moment of B’s death.

Therefore, in this scenario the court would NOT imply the words ‘to the use of’ but rather allow it to remain common-law.

This matters because then in situations where the gift may or may NOT vest, you run the risk of the rule of destruction of contingent remainders.

Equitable Future Interests This gets around everything EXCEPT the rule against perpetuities. Equitable future interests are not subject to the four common-law remainder rules and they are not subject to

the rule of destruction of contingent remainders and NOT subject to the rule in purefoy v. rogers. The only thing that binds equitable interests in the rule against perpetuities. Can have gaps in equity, since it is only the beneficiary that will have a gap and not the legal title (which always

remains with the trustee) and the benefit during that gap will simply go to the trustee. So not surprisingly trusts are used extensively today. Everything that can be done at common law can be done in equity Ex. “unto and to the use of X in trust for: A for life, remainder to B and his heairs” created in B a vested equitable

remainder

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Ex. “unto and to the use of X in trust for: A for life, remainder to be and his heair on B reaching 21” creates in B a contingent equitable remainder.

Ex “unto and to the use of X in trust for: A for life, but if B marries C then to B and his heirs” creates in B an equitable executory interest.

Re Robson Very unclear whether or not Re Robson is correct law in BC. Issue is that this was in England, where statutory reform shortly after replaced this case so never referred to, but

in BC we don’t have this type of statutory reform. The Court essentially held that EVERYTHING in a will is equitable, as the executor holds the estate in trust for

thee beneficiaries under the will. Therefore, NONE of the common-law remainder rules apply to gifts given via will. If this law is NOT correct, the only way to have an equitable interest is through the creation of a trust. At the end of a future interests analysis you MUST ALWAYS SAY: “If re Robson is correct then everything in a will

is equitable and what I have just discussed would be avoided”

Re Crow 1984 Ont HC

Types and Validity of Conditions and QualificationsThere are three ways in which a condition or qualification may be valid: (1) restraint on alienation (2) an undue restraint on marriage (pretty much historical and not dealt with in this class) (3) uncertain in its expression or intent.

Restraints on alienation The right to substitution flows from Quioa Emptores 1290 The right to alienate is part of what is given to a transferee by a transferor, so retraint on this is prima facie

repugnant. A condition subsequent is allowed because you are giving a defeasible estate… all you can control is when it

divests not what the person can do with it if it doesn’t divest. Therefore, an owner can give something away and then control what the person who received the property

does with it (applies to both real and personal property) A determinable interest is not a restraint on alienation because you are giving less than the whole, it defines a

natural end to the estate. Re: Leach Over the years many exceptions developed to the retraint on alienation. R v. Brown 1954 put a halt on the exceptions and laid down two tests:

(1) to determine if a particular retaint of alienation is valid, you must ask whether the condition takes away the whole power of alienation substantially—a question of substance not form.

(2) If restricted to alienating to a class, the restraint will be valid if the class is diminishing but invalid if the class is expanding.

Furthermore, a restraint on alienation may be valid if it is restricted to a certain type of disposition—i.e. a mortgage (Re Porter). This is ok b/c the property can still be disposed of by “will, lease or other manner”.

A total restraint on alienation cannot be made valid by time i.e. “twenty-five years from the date of my decease [you can sell]” (Blackburn and Cox v McCallum)

Uncertainty: If you have specified something in an uncertain way and the courts cannot give effect to it, it is invalid. If condition subsequent is uncertain—then you can just get rid of it and the gift becomes infeasible.

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Example: Re Messinger Estate the widow was given property ‘while she resides in the home’. This was very uncertain, and a condition subsequent… so the court just struck that clause down.

However if it is expressed as a determinable gift—then the whole gift is invalid b/c the words of limitation (i.e. what you are giving are unclear).

Also, if it expressed as a condition precedent the whole gift is also invalid. This is for policy reasons: circumstances of defeasement or determination should be clearly known from the

time of the disposition and should not come as a surprise to the holder. Uncertainty has also been used to find clauses which are racial or religious to be void… however see Re Tuck

where the testator gave his daughter a gift with a condition subsequent should she marry outside the Jewish faith… to avoid uncertainty the testator provided that the Rabbi of England shall define Jewish faith. The clause was upheld as valid.

The Rule Against Perpetuities

Common-law: The rule against perpetuities only applies to CONTIGENT interests… once an interest has vested, it no longer

applies. Legal executory interests and equitable interests cannot avoid the rule against perpetuities. Applies to any gift with a condition precedent i.e. any gift that is contingent. The Old Rule from Whitby v Mitchell (now abolished) said that you could not give a life estate to an unborn

person, and any remainder given afterwards was also invalid.

Modern Rule from Duke of Norfolk

This means that there is NO waiting and seeing. If there is a possibility that the interest will vest AFTER the perpetuity period, it is invalid.

Not concerned with whether it will or won’t actually end up vesting, just what the possibilities are for when it could possibly vest.

Lives in Being A life in being must be a human, not an animal or corporation. Must also be “effective” which means

ascertainable and have some bearing on the gift. A life in being may be expressly or impliedly mentioned. If expressly—use whoever they say. If impliedly—the life in being must be somehow connected or have some bearing on the gift. A life in being can be the beneficiary themselves (as long as they were in existence at the time of creation… so

won’t work for unborn beneficiaries). A life in being can be a class of persons… the only requirement is that they are alive at the date of the creation of

the interest and the class must be closed… i.e. ascertainable in order to be effective. Remember: Common-law deems that both women and men can have children right up until the day they die no

matter what age… so if you say ‘my children’ and you are still alive, the class isn’t closed b/c you could have more children.

An effective life in being can be ‘en ventre sa mere’ i.e. conceived but not yet born…. Just have to be actually conceived.

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An interest MUST vest, if it will vest at all, within 21 years after the expiry of a life in being in existence at the time of creation

Similarly, if the devisee/grantee/beneficiary is en ventre sa mere at the end of the perpetuity period, this is ok as 9 months can be added but ONLY where there is an ACTUAL unborn child in existence i.e. conceived. CAN’T just tack on 9 months wherever you like.

The Perpetuities ActSection What to do

Step One

2 WRITE THIS: “Section 2 of the perpetuities Act states that the Act applies to instruments taking effect after December 31, 1978, therefore as this ____ took effect after that date, the Act applies to it” Note that wills ‘take effect’ upon the death of the testator. Inter vivos transfers take effect on execution and delivery of the instrument, or at a date

specified in the instrument. If the instrument took effect prior to Dec. 31, 1978, you would perhaps have to look at the old

rule in Whitby.Step Two

6(1) “Section 6 (1) states that as except provided by this act, the modern common law rule against perpetuities continues to have effect” proceed to applying the common-law rule.A gift must vest, if at all, 21 years after a life in being in existence at the creation of the interest.(1) Divide the gift into its parts (the various interests being given)(2) Determine whether each interest is vested in interest or possession or contingent and say why.(3) The rule against perpetuities does not apply to any vested interestsyou are done with these.(4) For each contingent interest:

a. When does the perpetuity period start (on testator’s death, or on execution and delivery of deed, or on a date specified?)

b. Who are the lives in being (recall they must be alive/ascertainable when the instrument takes effect—CANNOT be an open class—they must be ‘effective’ i.e. have some bearing on the gift.)

c. When does the period end (21 years after the death of the last life in being)d. What contingencies/limitations does the gift depend on. Look at each contingency

independently.e. Can the contingency possibly happen AFTER the perpetuity period? If yes gift is invalid

due to the rule against perpetuities. If no OK

If the gift is valid, stop here you are done.If the gift is invalid… go to step three.

7 is NOT a remedial measure, just provides an alternate perpetuities period. Alternate perpetuity period = 80 years from the creation of the instrument. It is OK if the interest MUST vest within 80 years of its creation, either by the EXPRESS terms of

the gift OR by NECESSARY IMPLICATION. It ***needs*** to be linked to the terms. When using section 7, don’t need to go through s.6 b/c it is an ALTERNATIVE rule… but still need

to start with s.2. Only use s.7 where the gift will be saved by it. If it won’t work, don’t use it.

Ex. A B for life, remainder to the first of B’s children to marry, provided they do so within 60years of my death. this would be express terms. OR A B for life, remainder to the first of B’s children to marry, provided that they do so before Dec 31st 2040 this is necessary implication from the terms.

Step Three

3 “The remedial provisions of this Act must be applied in the following order:” 14, 9, 11, 12, 13.14 (1) presume men can only have children if they are older than 14 and women can only have

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children between the ages of 12 and 55. Therefore if you can use this to close a class and make it ascertainable.

Example: to A for life, then to A’s children for life, remainder to A’s grandchildren who shall attain 21. IF: A is a 60 year old woman we now presume she can’t have more children, therefore her children are now a closed class and ascertainable and can be used as effective lives in being for the gift to A’s grandchildren. As A’s grandchildren MUST turn 21, if at all, within 21 years of their parents death so the gift is VALID. You are done.

(2) If 14(1) doesn’t work, evidence can be shown that a living person is incapable of having children. If that evidence exists and you can use it to make the gift valid in the same way as above, do so.

(5) Note that the possibility that someone may have a child by adoption or legitimation must not be considered when dealing with s. 1 and 2.

If section 14 does not save the gift, go back to section 3 to see which remedial section to try next.9 wait and see—if it possible for the gift to vest within the perpetuities period, then it is presumed valid

and the law will ‘wait and see’ if it vests within the required time or not. However, in this scenario… must use the lives in being that are stipulated in s.10.

10 (1) If section 9 applies to a disposition and the duration of the perpetuity period is not determined under section 7, 21 or 22, the perpetuity period must be determined as follows:

(a) Have to use any people which EXIST at the time of CREATION under subsection 2(b) If there is NO ONE who is one of the ppl under subsection 2 – the period is 80 years (from

the creation of the instrument—doesn’t say this but you could infer)(2) The persons referred to in subsection (1) are as follows:

(a) The person who made the disposition. (this only works for intervivos transfers, b/c the person who made a will is dead at the time of commencement as a will commences when the testator dies. So a testator cannot be a statutory life in being under this section)

(b) a person to whom or in whose favour the disposition was made, that is to say,(i) can use an individual member of a class, or a potential individual member of a

class. (basically, can use someone who you previously couldn’t b/c they are part of an open class… but this is b/c we are waiting and seeing so the class doesn’t have to be closed at the time of creation. Note though this individual still MUST be in existence at the creation of the instrument)

(c) a person who is a beneficiary under s.10(2)(b)(i)—so an individual member of a class—one of their parents or grandparents can be used as the life in being, provided that they were in existence at the creation of the instrument. **It is possible to interpret a spouse as coming within this section—doesn’t seem likely but is possible so mention***

(e) IF(iii) The instrument created is made by reference to the death of a spouse of a person

—who is themselves alive and ascertainable at the commencement of the instrument… then you CAN use that SPOUSE as a life in being, REGARDLESS of whether that SPOUSE was in being or ascertainable at the commencement of the instrument.

EXAMPLE saves this scenario: Devise to A for life, remainder to his widow for life, remainder to such of his children as are alive at his widow’s death. In this scenario, would be void at common law because you cannot say for certainty who the widow will be (if there is one) so not ascertainable or even if they are a life in being at the commencement (b/c what if they aren’t even born yet when the

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testator died? A could marry a much younger person!)HOWEVER this provision says you can still use the widow as a life in being for the children, in which case the interest would certainly vest within 21 years of the widow’s death as the children will be alive, if at all, at her death and the interest will vest at that time.

11 Age Reduction—if the disposition creates an interest in property contingent upon attainment of an age over 21, (HAS TO BE A STIPULATION OF A CONDITION PRECEDENT OF AN AGE OVER 21) and actual events at the time of commencement OR any subsequent time (i.e. after waiting and seeing)

(a) that the age stipulation is what makes the gift violate the common-law rule, but(b) would not be void if the age stipulation had been 21,

then that age specification should be reduced to the nearest age to avoid the violation i.e. reduce by the minimum amount necessary.

12 (1) if the inclusion of any persons makes s.11 not work exclude those people and save the gift. i.e. if you could make the gift work by changing age to 23 for one person, but there are other potential members of the class, then just exclude all those other potential members, use s.11 and give the whole gift to that one person.

(2) In situations where you can’t use s.11 and therefore can’t use s.12(1)—so no age specification—then you can exclude all potential or unborn members of a class, effectively closing the class and the gift takes effect for whoever it can vest in right now.

13 “cy pres” power- The court can make a modification w/n the intention of the donor and save the gift- i.e. write in a limitation so it could work under s.7

Incorporeal Interests (Casebook pp. 491 - 532) an intangible right/obligation in relation to land but not the land itself and does not give a right to possession of

that land recognized and protected by law as ‘proprietary’ must distinguish purely contractual relationships, but things that start out as contracts between two land

owners can become attached to the land and start to affect third parties.

Easements (Casebook pp. 491 - 500)

Phipps v Pears The column on “negative easements” is from this case in general.

Positive Easements Negative Easements Restricted CovenantsIn general, requirements

Requires two lots of Land, a dominant tenement (DT) whose land is benefited and a servient tenement (ST) whose land is burdened.

What does it do

Gives the owner of the DT the right to enter the ST for some purpose

Restricts the owner of the ST in his/er use of the land in a way which benefits the DT

Example ex. A right of way to pass over another’s land

ex. Refrain from building structures that would interrupt the light or air from reaching the DT

How to get Can get through prescription:20 yrs uninterrupted peaceable use, received a ‘prescriptive right’ (although this has been abolished by statute in BC)

Can’t get through prescription, but rather through “notice” equity

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What kinds of things does it cover?

Broad –Many kinds Very limited—Cannot get for:

- obstruction of view- receive wind in an undefined channel- sun not in a ‘shaft’ and shade- protection from weather

Broader range of things, all the thing listed that you can’t get a negative easement for. Including new things as there are a number of safeguards.

Legal Requirements for an Easement

re Ellenborough Park, [1956] Ch. 131 (C.A.)FACTS: Homes are built around a park

Requirement Application1. There must be both a DT and an ST

- Distinguishes an easement from a public right where there is no DT

- An easement is in favour of some other land (the DT) and the owner of that land

- in this case, the surrounding houses were DTs and the park was the ST

2. An easement must objectively benefit (accommodate) the DT land itself- the right granted must inherently benefit the DT land itself- it must be more than a personal benefit to a particular DT

owner- It must be a benefit no matter WHO owns the land- Increasing the value of the land is a factor, but is NOT

determinative- TEST: Nature of the DT and nature of the benefit can it be

said the benefit accommodates the DT as land.- The benefit must also be sufficiently proximate to the DT (i.e.

locationally close)- Can’t accommodate it is super far away.

- In this case, the DT was a residential property and the benefit was an ornamental garden or pleasure ground.

- This objectively benefits a DT, as any garden benefits a house

- Sufficiently proximate, as the houses were close even if they all didn’t front the park.

3. At common-law, the DT and ST owners must be different persons- S.18(5) and 18(7) of the Property Law Act has abolished this

requirement4. Must be the proper subject matter to form an easement

1. Sufficient definition- Benefit can’t be too wide or vague.

2. Non-possessory right- No occupation right can be given by an easement- It must be consistent with the ST’s right of possession- So no storage or dumping, or cutting down trees.

3. Can be for mere recreation- No ‘utility’ requirement

1. “wander in the garden” seems vague, but it is limited to a few houses in a close and defined area shaped in a crescent around the park so not too vauge. Not just uncontrolled wandering for anyone.

2. Doesn’t conflict with ST’s possessory rights3. Parents walking children in prams is not

mere recreation, although it would be ok if it were just for recreation too.

5. There must have been an intention for the arrangement to run with the land itself and bind future parties- More than a private contractual arrangement, giving a personal

privilege for one of the original parties

Look for language like: “assigns” and “successors” etc.

Dukart v. Surrey (1978), 4 W.W.R. 1 (S.C.C.)

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Adopts Ellenborough in Canada ADDS: giving access rights to other people as well as the grantee (i.e. a private right that overlaps with a public

right) can still be ok as an easement, although a completely public right might not be allowed.

Statutory Easements (Casebook pp. 531-532) Easements in order to bind future owners must be registered as a charge on ST and noted on the DT BUT, just because registrar accepted them as easements doesn’t mean they are easements, that is up to the

Court. Although recall s.29 of the Land Titles Act concerning unregistered interests

Land Title Act, R.S.B.C. 1979, c. 219:s. 29: remember, people aren’t affected by unregistered interest except in the case of fraud!s. 221: Easements, in order to bind future owners must be registered as a charge on the ST and noted on the DT.

However, just b/c they are registered as easements doesn’t mean they are good to go. Court decides if they are easements or not.

Property Law Act, R.S.B.C. 1996, c. 340: Section 18(5) – 18(8)s.18(5)—the owner in fee simple (or owner of a registered lease or sublease), may grant to himself an easement or restrictive covenant over land that he owns for the benefit of other land that he owns. This grant must be consistent with the interests held by him as grantor and grantee at the time of the grant.

s.18(7)—common ownership of the DT and ST does not extinguish an easement; in other words they no longer have to be two separate owners of different lands.

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Covenants (Casebook pp. 501-532)An agreement that is akin to a K, historically required to be under seal, but s.16(1) of the Property Law Act says there is no need to use a seal in order to have a deed in the case of an individual or non-corporate entity. When to use:

1. Is it the original parties which made the covenant? If yes, then the covenant will be enforced as a K, under privity of K

2. Are you dealing with a lease? If yes, then privity of estate will be used. A covenant is enforceable to new sub-lease parties as long as the contractual terms “touch and concern” the land

3. If neither the original parties NOR a lease, then use covenants. at law, no consideration, at equity, need it. Case Issue Common-law: Don’t need consideration Equity: Need considerationSmith & Snipes 1949 CA

What are the common-law rules of covenants?

1. Intention: the original parties must have intended the benefit to run with the land

2. Only the benefit runs with the land, not the burden. So the benefit can be enforced by any subsequent coventee, but only against the original coventor.

3. Therefore, need a DT and the benefit must ‘touch and concern’ the DT. Don’t need an ST.

4. No notice is required for the benefit to run with the land.

Tulk v Moxhay 1848

First requirement of restrictive covenants

- In order to enforce a restrictive covenant, a subsequent owner MUST have had notice of the covenant before purchase.

Austerberry v Oldham 1885

What type of a burden can be enforced

- To enforce a benefit, it must touch and concern a ‘DT’

- A burden can be enforced through equity, but it MUST be negative.

- A negative burden is a restriction from doing something, it prevents.

- A positive burden imposes action.London County Council v Allen 1914

The requirements of restrictive covenants in equity

1. Intention: the original parties must have intended the covenant to run with the land.

2. There must be a DT who is touched and concerned

3. There must be an ST, and successive title holders of the ST must have had notice.

4. The covenant must impose a NEGATIVE burden on the ST and NOT positive (spending money is positive)

Halsall v What happens A positive burden does not run with the of 60

Brisell 1957 to the benefit that goes along with a positive burden

land and cannot be enforced.

However, if you want to take the benefits of such an unenforceable covenant, you have to take the burdens as well.

Licences (Casebook pp. 533-545) At common-law, a licence was a personal right—gave you permission to be present on the land—meant you

were not a trespasser It does not pass any interest nor does it alter or transfer property in any way The permission may be given gratuitously or for value A licence can give you permission to occupy (an easement, profit a prendre, incorporeal hereditament cannot) Therefore need to distinguish a licence from a lease:

Lease licenceA lease is not revocable except by its own terms and privity of estate applies

Revocable at any time

A lease confers an estate a licence merely gives permission to be presentEstate in land Personal right to be on the landCertainty of term No need of certainty of durationAlways gives exclusive possession Can give exclusive possession but doesn’t have toCan bring an action in trespass/nuisance b/c you have an interest in land

Cannot bring an action in trespass/nuisance b/c no interest in land.

The intention of the parties—did they intend to give an estate in land (lease) or just allow someone to be there (e.g. employer in lighthouse services—have exclusive occupation of light house, but it is not yours—you are occupying it as part of your employment)

Hounslow London Borough Council v. Twickenham Garden Developments Ltd. [1971] 1 Ch. 233Issue Case Ratio NotesLicence at common-law

Wood v Leadbitter

A licence at common-law can be revoked at any time and ejection from land can be enforced by reasonable force.

However, if there is a K involved where performance is dependent on the licence, then you could sue for breach of K.

Thompson v Park

Can use equity to enforce a revocation of a lease: injunction on re-entry

Likely equity used only b/c one party was violently trying to re-enter after licence revoked.

Licence coupled with an interest in the land

Generally (described in Hounslow)

Interest that is a recognized proprietary interest in the land (i.e. a profit-a-prendre which is the right to take produce from the land) creates an IRREVOCABLE licence, successors to the land are also bound by the licence for the term of the interest.

The courts try to fit things into this category in order to make the licence enforceable/ irrevocable.

Hurst v Picture Theatre

Movie goer kicked out of theatre before end, said that movie goer had a right to see a performance which amounted to an interest in the land, therefore entitled to damages for assault.

Vaughn v Hamson

Right to attend creditors meeting is an interest in the land

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Hounslow Critical of this approach of including a miscellaneous collection of rights under the term “interest” and therefore recognizes a middle ground.

Licence coupled with a contract NEW

Winder Garden

In obiter said: if the licence has been granted pursuant to the contract, need to first interpret the contract and ask if it gives the power to be revoked (if so, then so too can the licence)

Hounslow basis its decision and development of the law on this.

Hounslow In equity, you can restrain a breach of contract through injunction or specific performance. Therefore, while a licence connected with a K is revocable at common-law b/c you can then just sue for breach of K equity can restrain you from breaking the K in the first place which is essentially restraining you from revoking the licence.

1. Construe the K according to its ordinary principles- Is the K revocable (by both parties, or just one, is

it revocable immediately etc. )- By who on what terms2. If the k is irrevocable, equity can intervene for:

a. A threat to revoke: can get injunctionb. Revocation takes place but not entirely:

specific performance and stop the person from going further with the revocation

c. Revocation has been carried out: can get damages for battery/assault—b/c if the contract is irrevocable then the force was unjustified.

d. However CAN’T intervene and help with the breach of a K.

*none of this applies to 3rd parties (i.e. successors to a licensor) it just applies to the original licensee and licensor. See Errington when dealing with 3rd parties.

*If there is a reason why SP or injunction not possible (b/c it is an equitable principle, or personal service etc.) then can’t use equity so just have to get damages at common law for breach of K.

Errington v. Errington & Woods, [1952] 1 K.B. 290 (C.A.)Issue Ratio NotesCan a 3rd party successor be bound by a licence connected with a contract?

Contractual licences have a force of their own and cannot be revoked in breach of contract THEREFORE neither the licensor nor anyone who claims through them (i.e. successor) can disregard the contract & licence EXCEPT a bona fide purchaser for value without notice.

- Distinguishes the couple from tenants b/c tenants pay rent, they are also not purchasers b/c there was no obligation for them to continue paying the mortgage

- Unilateral K where acceptance is through performance, the licence cannot be revoked once performance has begun (it only ceases to bind if the act is left incomplete and unperformed)

- Mother had received by will and had notice so had to honour the licensee

- Otherwise would be unjust enrichment at the licensee’s expense (could prevent today with a constructive trust.

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Personal Property

Finders (Casebook pp. 546 – 570)Lost Abandoned MislaidPossession and custody of the item are gone through involuntary accident or negligence, the owner is ignorant of its whereabouts.

True owner has intent to get rid of possession and has in fact got rid of possession (surrenders, relinquishes, disposes of, or give up a chattel w/o reference to passing it on to someone else)

Owner deliberately put property in a cache and then forgotten where the cache is.

Subject to finders law Finder takes as bailee for true owner OR prior bailee

Finder just takes true ownership Goes to owner of land where it is deposited (unless gold/silver and then it goes to the King)ex. Cranbrook money found in couch, returned to true owner (the couch had been transferred many times) who had a known propensity for hiding money. That owner was dead so went to his estate.

General RuleParker v. British Airways 1982 Englando Man finds gold bracelet in airport executive loungeo Leaves it with a lounge official, and leaves instruction that if no one claims it he wants it, and he left his name and

address exercising a degree of control.o Lounge official sells the bracelet, and finder sues

Finder only get rights if item is lost/abandoned and they take it into their care and control: subject to the rights of a true owner or prior baileeFinder has obligation to reasonably try to find the true owner.Finder acquires very limited rights if they had dishonest intent or were trespassing (although doesn’t rule out the possibility of getting a right from trespassing)

Land Owner vs FinderChattels found on Private Property by someone other than landowner

Rights Approach Obligations Approacho A landowner is presumed to have property rights to

an item that is attached to, under, or in their land, regardless of knowledge.

o Still has a presumed property right when the item is

o If landowner doesn’t know it was there, the land owner has no obligation or liability to the true owner

o However if the landowner does know it is there, they become a bailee and owe a duty to take reasonable

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merely on the land –but weaker. steps to locate the true ownero A finder who takes possession of a lost item has an

obligation to the true owner (or some prior bailee) to take reasonable steps to have the item returned.

o A land owner that has knowledge it was there is a prior bailee.

Rule: Whoever had exerted/intended to exert the most control over the item should get it

Rule: Whoever owes an obligation to the true owner should get the item

Ex: Grafstein 1958 Ont CA Ex: Kowal v Ellis 1977 Man CAo Employee finds locked box in basement of store, takes

it to store owner and asks what to do with ito Store owner tells them to put it back, remains on shelf

for two yearso Another employee finds it, takes it and opens it

$38,000 in the boxo Who should get the money?

o P find pump lying on Ds lando P had permission to be on Ds land so no issue of

trespasso Land owner did not know pump was thereo Who should get the pump?

The question is: who has exercised the most control and is fact based.

The key criteria is whether the landowner knew the pump was there.

o Land owner had exercised control over it by having it left on the shelf for two years

o Thus land owner was a prior bailee b/c had taken possession by exercising control.

o For the finder to take the item, they must have exercised control with no else having a previous claim.

o No rights or obligations attached to a landowner who doesn’t know the item is there

o But rights and obligations do attach to a finder once they take possession

Land Owner gets the money Finder gets the pump

Bailment (Casebook pp. 571 - 631)

Definition of Bailment Bailment is the temporary, voluntary taking into custody of chattels which are the property of another.

Common-law proprietary relationship that comes about by the bailee voluntarily taking possession of the bailor’s property.

Possession: Determined by (1) intent and (2) fact Related to the tort of conversion and negligence, which is where the remedy comes from. A contract is not necessary, but if there is a contract associated then those terms might modify the relationship. The bailee gets property rights exercisable against everyone other than the owner or the prior bailee. Bailee may be liable to the bailor, and bears the burden of proof to demonstrate that they have met the

required standard should harm come to the chattels: i.e. must take steps to prevent harm.

Morris v. C.W. Martin & Sons Ltd., [1965] 2 All E.R. 725 (C.A.)First: establish whether there has been bailment or not—was there (1) intent and (2) factual taking of possession.

If yes, the bailee has obligations in tort (negligence, must take reasonable care of the goods) and for conversion if transferred to someone else etc.

Duty of care on the baileeSecond: did the bailee meet the required standard?

Determine if the bailment was (1) for the benefit of the bailor alone (2) bailee alone (3) mutual For benefit of bailor alone, standard is low –bailee only liable for gross negligence. For benefit of bailee alone, standard is high—bailee liable for the least neglect, the item can ONLY be used for

the purpose it was leant. For mutual benefit, ordinary standard of care.

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Burden of Proof is on the bailee to show they met the standard. If there is a K then exemption clauses limiting liability will apply.

Bailment versus Licence

Heffron v. Imperial Parking Co. (1974), 3 O.R. (2d) 722 (C.A.)Must differentiate a bailment from a mere licence, b/c if not bailment then the ‘bailee’ has no duty of care b/c they are not a bailee.

To find bailment, need bailment relationship. Factors:

Can proposed ‘bailee’ move chattels around at their own convenience? = bailment Means of control at bailee’s disposal, left in possession of bailee or at bailee’s request = bailment Ticket indicating mode of retrievement rather than just plain receipt = bailment People hired to look after the chattels = bailment Taking possession, delivery and receipt of items or merely allowing the items to be placed somewhere?

Onus rests with bailee once bailor proves non-delivery to show that they took reasonable care.

Bailee liable for possessions inside the bailment (in this case a car) if it would be reasonable to expect those types of things would be there.

Sub-BailmentWhen bailor gives item to bailee, and that bailee then gives it to a sub-bailee (1st bailee becomes a sub-bailer)If sub-bailee screws up, they can be sued directly by the bailor b/c this is not about contract so privity doesn’t apply.

Morris v. C.W. Martin & Sons Ltd., [1965] 2 All E.R. 725 (C.A.)HELD: When a sub-bailee

(1) voluntarily takes possession of property, (2) knowing it does not belong to the bailee (don’t have to know who exactly owns it, just that there is a distant

owner) they are liable to owner and no contractual terms between sub-bailee and bailee apply to the relationship btwn sub-bailee and owner.

If they want those conditions or contractual terms to apply to their relationship with the owner, they need to make these conditions known to the owner before they accept possession. If owner won’t accept, then sub-bailee free to refuse possession. Punch v Savoy

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