TOPIC SUMMARY CASE LAW

REMEDIES: REAL PROPERTY

REMEDIES: PERSONAL PROPERTY

REAL PROPERTYNuisance

● Remedy against someone, not on the land (otherwise it is trespass) interfering with one’s enjoyment of the land.

● Cause of action is available to possessor because it doesn’t challenge the title in the good.

● Remedy: damages for harm or injunction.Ejectment

● Right of title holder to eject the possessor.● Possessor 1 can eject possessor 2, proven on the strength of

plaintiff’s title.Trespass

● What? Mirror image of nuisance but on the land. Trespass “lie where an immediate injury is committed to the land, with force either actual or implied, and, though the door of the house through the trespasser entered was open” Roscoe p.225.

● Sections: 6, 8, 9: Merely stepping on land is not trespass. Real Property Limitations Act.

● Who can sue? Actual possessor in fact. *a person who only has possession in law, as the heir before entry, cannot bring trespass.

● Remedy: damages for harm.

PERSONAL PROPERTY (BC Law Reform Article)Remedies are used for: damage to property, damage to ownership, or damage to possession. Each remedy deals with an intentional harm, not negligence. Once the wrongdoer has intermeddled, he is responsible for any future harm.

Detinue (Interference with possession) *used rarely*● Remedy for wrongful (without justification) refusals of returning

property to person entitled to it● Who can sue? Person entitled to possession, not necessarily

owner● Holder may take reasonable time to verify right of requester● Remedy: Order for return of the goods, or damages● Value is determined at the date of trial● For tangibles and intangibles.

Trespass to chattels (Interference with possession OR damaging goods)● Wrongfully taking or damaging another’s property● Who can sue? Whoever had possession when wrong occurred,

only possessor (or owner with possession)● Direct interference only● Goods recovered: damages for loss due to trespass / Goods not

recoverable: value of goods.

Harrison v. Carswell (1975)F: Picketer picketing on shopping mall sidewalk in front of employer charged with trespass by owner of shopping mall, who claims that (following R v. Peters) an owner who grants a class of the public a right of entry to his property can withdraw invitation to public. He who refuses is in trespass.Q: Is there trespass?H: Yes.R: The Manitoba legislature has declared in The Petty Trespasses Act that any person who trespasses upon land, upon which he had been requested by the owner not to enter, was guilty of an offence. If there was to be any change in the law, it must, in the Court's opinion, be made by the legislature.-Laskin dissent: distinguishing with the Peter case: in the present case, it is not a general demonstration for a boycott, it involves a tenant of the premises.-Courts cannot mechanistically defer to precedents.-In the case of a shopping center, “the members of the public are privileged visitors whose privilege is revocable only upon misbehaviour or by reason of unlawful activity”.-“Owner cannot act as surrogate of tenant in labour dispute”.

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● For tangibles and intangibles.

Conversion (Trover) (Interference with dominion)● Serious interference with property, including destruction● Who can sue? Whoever has dominion (which can include

possession)● Property: Tangible personal property, including documents

evidencing rights, but not money.● Comparing with detinue or trespass: depends on severity of

interference with the right● Remedy: Conversion forces wrongdoer to pay the value, hence

buying the property● Value is determined at the date of conversion● Shared ownership: full value of the goods● Mitigation is necessary by claimant● If seller profits from the sale of converted property, he gets to keep

the profits according to the following rules:○ Shewish v. MacMillan Bloedel Ltd: “mild” rule for damages:

damages will deduct cost of transporting property to market and labour when person acts innocently (unknown conversion)

○ Knowing converter: all but getting property to market-- punitive component

● ONTARIO: Two-year ultimate limitation for good faith purchasers of converted chattel (ON Act, s. 15(3))

Unnamed Torts (Reversionary interest)

Intel Corporation v. Hamidi, US (I: 219-241)F: H hijacked email system of I. Sent an angry email to all employees.Q: Trespass to chattels?R: (MS) (1) Trespass to chattels requires harm to the plaintiff, the chattel, or another property interest; (2) What constitutes a violation of property rights depends in part on the purpose and function of the movable property; (3) Extension of the tort into new areas is governed by policy concerns.

ACQUIRING PROPERTY RIGHTS THROUGH SALE AND POSSESSION

Possession = intention to possess (objective standard) + exclusive control (contextual to the object).

Conveyancing and Law of Property Act- LANDS. 3: A feoffment, otherwise than by deed, is void and no feoffment shall have any tortious operation. (No more feudalism, hurrah!)S. 9: A partition of land, an exchange of land, an assignment of a chattel interest in land, and a surrender in writing of land not being an interest that might by law have been created without writing, are void at law, unless made by deed.S. 10: A contingent, an executory, and a future interest, and a possibility coupled with an interest in land, whether the object of the gift or limitation of such interest or possibility is or is not ascertained, also a right of entry, whether immediate or future, and whether vested or contingent, into or upon land, may be disposed of by deed, but no such disposition, by force only of this Act, defeats or enlarges an estate tail.

Pierson v. Post (I: 98-101)F: Fox hunted by two people in vacant land. One hunts the fox for a while, the other fatally wounds it and takes it.I: Whose property is the fox? “Trespass on the case”R: (Tompkins J [Maj]): Pursuit gave Post no legal right to the fox. The fox (ferae naturae) became the property of Pierson, who intercepted and killed him. Possession: unequivocal intention of appropriation, depriving of natural liberty, and bringing within certain control. (Livingston J [Dis]): Foxes are horrible, let’s kill them. Appealing to sub-community standard (huntsmen) and public good (killing foxes).Ratio: Possession: intention + certain control.NB: how you define the property factually will change the result.

The Tubantia (I: 102-105)F: There’s a hull of a sunken Dutch ship (The Tubantia) in the North Sea, and both parties believe it carries treasure. Plaintiffs assert possessory rights over the wreck and its contents and complain of the defendant's trespass and interference in business. Defendants deny plaintiff’s possession and their trespass. The plaintiffs had worked on the wreck 24 days in 1923, and their installation on the high sea was destroyable.I: Did the plaintiffs have possessory rights over the wreck?R: (Sir Henry Duke) The courts must follow Pollock’s lead in asking: What

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Sale of Goods Act- STUFF/PERSONALS. 2 A contract of sale of goods is a contract whereby the seller transfers or agrees to transfer the property in the goods to the buyer for a money consideration, called the price, and there may be a contract of sale between one part owner and another.S. 17 Where there is a contract for the sale of unascertained goods, no property in the goods is transferred to the buyer until the goods are ascertained.S. 18 (1) Where there is a contract for the sale of specific or ascertained goods, the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred. (2) For the purpose of ascertaining the intention of the parties, regard shall be had to the terms of the contract, the conduct of the parties and the circumstances of the case.S. 19 De facto rules for transferring property: (1) Where there is an unconditional contract for the sale of specific goods in a deliverable state, the property in the goods passes to the buyer when the contract is made and it is immaterial whether the time of payment or the time of delivery or both is postponed. (2) Where seller has to prep goods for deliverable state, property does not pass until such thing is done and the buyer has notice thereof. (3) If seller has to measure to figure out price of goods, property does not pass until such act or thing is done and the buyer has notice thereof. (4) When goods are delivered to the buyer on approval or “on sale or return” or other similar terms, the property therein passes to the buyer; (i) when the buyer signifies approval or acceptance; (ii) if the buyer does not signify approval or acceptance to the seller but retains the goods or within fixed or reasonable time. (5) (i) Where there is a contract for the sale of unascertained or future goods by description, and goods of that description and in a deliverable state are unconditionally appropriated to the contract, either by the seller with the assent of the buyer, or by the buyer with the assent of the seller, the property in the goods thereupon passes to the buyer, and such assent may be expressed or implied and may be given either before or after the appropriation is made. (ii) Where in pursuance of the contract the seller delivers the goods to the buyer or to a carrier or other bailee (whether named by the buyer or not) for the purpose of transmission to the buyer and does not reserve the right of disposal, the seller shall be deemed to have unconditionally appropriated the goods to the contract.S. 21 Unless otherwise agreed, the goods remain at the seller’s risk until the property therein is transferred to the buyer, but, when the property therein is transferred to the buyer, the goods are at the buyer’s risk whether delivery has been made or not, but, (a) where delivery has been delayed through the fault of either the buyer or seller, the goods are at the risk of the party in fault as regards any loss that might not have occurred but for such fault; and (b) nothing in this section affects the duties or liabilities of either seller or buyer as a bailee of the goods of the other party.

kind of physical control is the thing capable of? Was there a complete taking? Was there an intention to possess? Judge finds that the plaintiffs behaved like a prudent owner (prudent owner test), given the nature of the wreck and the level of control it admitted.F: Plaintiffs were in possession: they had use and occupation as capable, they could exclude strangers, and they had animus possidendi. Defendants are restrained from the Tubantia, but no title is given.Ratio: Physical control test must be tailored to the object.

Popov v. HayashiF: Popov catches famous baseball, gets knocked to the ground and then Hayashi takes it from the ground and has it. P claims possessory interest and that H has intentionally taken the ball from him: conversion. H argues that P did not have possession because he did not have complete control of the ball.I: Who has possessory interest in the baseball- P or H? Has P achieved possession as he attempted to catch the ball?R: (McCarthy J) The judge emphasizes that it is impossible to make the critical finding of control for Popov because of the crowd’s interference. Before the ball was hit, it was the property of Major League Baseball. Then, once hit, it became intentionally abandoned property. Whoever came in possession of the ball became its owner. Possession is a process that includes acts and thoughts of the possessor leading to the moment of possessor. Did P sufficiently control the ball? Some cases argue that complete control is necessary; others than the would-be possessor be engaged in efforts to establish control. The rules are contextual in nature.Rule: Court eventually decided that both parties had legal rights to the ball and neither could be deprived of it lawfully. The best solution was an equitable division.Ratio: Pre-possessory interests can have legal value, leading to divide possessory interest in proportion to the strength of each interest.Notes: Decision set a new precedent of qualified pre-possessory interest allowing for both Popov to claim his property had been converted and it was still his, while also allowing Hayashi to have legal rights over the ball.

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S. 22 Subject to this Act, where goods are sold by a person who is not the owner, the buyer acquires no better title to the goods than the seller had, but nothing in this Act affects, (a) the Factors Act; or (b) the validity of any contract of sale.S. 24 When the seller of goods has a voidable title but the seller’s title has not been avoided at the time of the sale, the buyer acquires a good title to the goods, if they are bought in good faith and without notice of the seller’s defective title (check out this gem: https://www.youtube.com/watch?v=VUoUCZSg7do)

Succession Law Reform ActS. 2 A person may by will devise, bequeath or dispose of all property (whether acquired before or after making his or her will) to which at the time of his or her death he or she is entitled either at law or in equity, including, (a) estates for another’s life, whether there is or is not a special occupant and whether they are corporeal or incorporeal hereditaments; (b) contingent, executory or other future interests in property, whether the testator is or is not ascertained as the person or one of the persons in whom those interests may respectively become vested, and whether he or she is entitled to them under the instrument by which they were respectively created or under a disposition of them by deed or will; and (c) rights of entry, whether for conditions broken or otherwise.S. 3 A will is valid only when it is in writing.

ACQUIRING PROPERTY RIGHTS THROUGH LABOUR

Understanding the subject of property rights is a key issue to understanding the dispute: public v. private in INS v. AP and Moore.INS v. AP USSC 1918 (I: 39-54)Facts: INS copied news from bulletin boards and early editions of AP’s newspapers and selling this, either bodily or after rewriting it, to INS’s customers.Issue: 1) Does AP have any rights in its news? 2) Was there unfair competition?Holding: 1) quasi-property rights; 2) yes.Reasoning: (Pitney J) Focuses on the commercial nature of the reappropriation of the information. Failure to give good credit amounts to misrepresentation. In determining the rights over the news, consideration needs to be whether an agency has property rights in the news it collected versus other collecting agencies, rather than against the public at large.(Holmes J dis. ) No applicable property regime here: “property depends upon exclusion by law from interference, and a person is not excluded from using any combination of words merely because someone has used it before, even if it took labor and genius to make it” p.46. INS should be permitted to publish unless they don’t credit the work.(Brandeis J Dis. ) Creating of quasi-property rights is dangerous as it opens the door to uncertainty and could harm the public interest in news information.Ratio: Creation of quasi-property rights only among competitors (based on commercial action put into producing the news).NB. Case decided by the majority under unfair competition.NB. the injunction as remedy is maintained.

Moore v. Regents of the U of California 1990 (I: 66-82)Facts: M’s spleen was removed by a doctor. The doctor then grew cells from the spleen that had value as research materials. M claims that the spleen and its cells were used without his consent for commercial purposes. M pleads conversion of the cell lines.Issue: Does M have a cause of action in conversion?Holding: No.Reasoning: Majority (Panelli): M’s claim in conversion amounts to asking for property rights in his own body, since he had no intention of retaining possession of his spleen after surgery. Such a right does not existing under current case law or statutes. The cell lines are “factually and legally distinct from what was taken from Moore’s body.” Although rights are granted over human tissues, they are either non-property rights or via patents, and M cannot lay claim to the inventive step in the defendant’s patents. Should the tort of conversion be extended? The strongest policy concern here is permitting

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researchers to use cell lines with confidence. Giving M property in the cell line itself would “threaten to destroy the economic incentive to conduct important medical research”, since conversion is a strict liability tort. No property rights. The best way to solve this problem is full enforcement of physicians’ fiduciary duties.Arabian (concurring): M “entreats us to regard the human vessel – the single most venerated and protected subject in any civilized society – as equal with the basest commercial commodity.” This is a weighty decision not susceptible to judicial resolution. Determination of property rights in the human body is a decision best left to the legislature.Broussard (dissenting): Believes that since the doctor’s wrong was perpetuated against M prior to removal of the spleen, M can claim a property right over the cells, as California law gives decision making power about organs to the patient while they are in his body.Mosk (dissenting): The cell lines are neither factually nor legally distinct from the cells taken from Moore’s body. Factually: Cell lines are intended to be identical to the originator cells, otherwise they would not be useful. Legally: Patents cannot retroactive immunize the university against infringing Moore’s rights. Furthermore, the majority’s policy arguments are not well-founded – researchers already take very good care to verify the source of their cells, so verifying ethical compliance would be easy. The university’s actions amount the unjust enrichment.Ratio: People do not have property rights in the biological products of their bodies after removal.NB: no deciding law on this in CanadaNB: the legislature can create new property rights

Diamond v. Chakrabarty (1980) (I: 82-90)F: C invents a bacteria that may prevent oil spill. She has 3 claims, 2 of which are granted. The 3rd claim relates to patent the bacteria itself. It was rejected and C appeals.I:R: BURGER: Here the patentee has produced a new bacterium with markedly different characteristics from any found in nature and one having the potential for significant utility. Broad and general language is not necessarily ambiguous when congressional objectives require broad terms.(Dissent) 4 justices: Focus on limiting statutory language that exclude the patenting of bacteria.Ratio: Certain lifeforms may be patented in the US if “manufactured.”

LOSING PROPERTY RIGHTS:ADVERSE POSSESSIONS

Abandonment

At common law, title to land is relative. The court is asked: Which of these two parties has the better title? Possession is a question of FACT (not right), but it remains possible to acquire title to land at common law, good against all the world, through long possession.

*Think to exclude the Torrens system vs Registry system

EXCLUDE EVERYBODY- BEAUDOIN

Adverse possessionUninterrupted enjoyment of land of the correct nature over a period of time stipulated by law by a non-owner (squatter) deprives the owner of his or her title and gives the squatter a title to the land, a title better than all others.

- Squatter acquires RIGHTS to land.- Claim of adverse possession is a defence to an action by

someone with “paper title”, if it meets the requirements. But can also be brought affirmatively, as in St-Clair.

Quality of possession- Continuous possession of the land for requisite time- Possession must be actual and exclusive in the manner of an

Re St Clair Beach Estates Ltd v. McDonald et al (1974) (I: 144-150)Ratio: Intent to exclude true owners is necessary to find animus possidendi, and thus adverse possession.Notes: Maintaining possession is not as hard as gaining possession. Discontinuous possession (in this case picking cherries) is still possession, depending on the nature of the thing. The fact that the appellants offered to buy the land goes against a finding of animus possidendi.

Beaudoin v. Aubin (1981) (I: 152-158)F: Strip of land mistakenly included in neighbour’s property, which was possessed from 1951- 1973. Plaintiffs argue that they possessed the land from 1951 (that the statute of limitations had begun running) even without knowing that the land was not theirs. Defendants argue that the statute of limitations began running when the plaintiffs found out about misplaced fence because animus possidendi requires specific intention to exclude true owner (to be “adverse”), and thus knowledge of true owner.I: Has neighbour acquired title through possession of mistakenly fenced strip?R: Ancient doctrine of adverse possession is abolished. Now, all possession without the direct authority of the owner will be considered adverse.Ratio: AP does not need to establish subjective intention to possess with knowledge of the rights of TO. “Open and notorious” is objective with relation to the possessed object, not the subjective knowledge of

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ordinary owner.- SEE LIST AT P. 150-151 of acts found to establish adverse

possession.

Possession must be:- Notorious- Constant- Continuous- Peaceful- Exclusive of the right of the TO

Claimant to possessory title must prove:(1) Had actual possession(2) Had the intention of excluding the true owner AND all others, from

possession (inconsistent use test: that he wishes to make from his property)

(3) Effectively excluded the true owner from possession

Real Property Limitations Act, RSO 1990 c. L-15S. 4 You can’t ask for your things back after 10 years, counting from 5(1).S. 5(1) The time starts to run at the first time at which the holder of an estate could have brought an action to expel the other person from the land or to claim the profits from the landSs. 6,8,9 - Say that merely stepping on land is not trespassS. 13 WRITTEN- look at notesS. 15- Right to sue possessor is extinguished at the end of lim. periodS. 16- Protects Crown land

Important- While the possession must be continuous for 10 years, the

possessor need not be the same person.- This “forming” right (over the 10 years) is called the “inchoate

possessory title” and can pass from one person to another, the last of which will gain title.

- If squatter abandons land before the limitation period, title holder regains rights.

- Expropriation compensates “inchoate possessory rights” even if limitation period is not reached.

- Doctrine of colour of title (Wood v Leblanc 1904 SCC): If a person enters land on a defective title and adversely possesses only part of it, APor will gain title to all land.

Theory of adverse possession- Loss of evidence/ memory creates the need for presumption of

possession: minimize costs of litigation- Punishes title owners who sleep on their rights, not in the sense of

not exploiting their land but in the sense of the necessity to exclude others

AP or TO. No need for a specific intent to exclude the true TO as TO.

Lundrigans Ltd v. Prosper (1981) (I: 158-162)F: L has title to a large land on which P has had a hunting cabin for 20 years, unknown to L. Trial judge found that P had acquired title through AP- not only of the cabin, but of some land around it.I: Did P adversely possess the cabin/land?R: Possession was exclusive and uninterrupted, but not open and notorious because no one could see the cabin. Visibility implies the opportunity of the TO to have knowledge (and claim rights).Ratio: Visibility to the TO is necessary for finding of AP.Note: This does not refer to the AP’s knowledge and thus his animus possidendi as in St Clair Beach or Beaudoin. It refers to the objective finding of open and notorious, not the subjective knowledge relating to land rights.

Masidon Investments v. Ham (1984) (I: 163-182)F: Airport case.I: Can H claim adverse possession?H: No. Fails inconsistent use test. Because the airport business was not inconsistent with the TO’s use of the land (speculation), possession was not adverse; that is, it did not effectively change the possession from the TO to the APor.Reasoning: “AP is established where the claimant’s use of the land is inconsistent with the owner’s enjoyment of the soil for the purposes for which he intended to use it”. A claimant to a possessory title must have throughout the statutory period: (1) actual possession; (2) the intention of excluding the true owner from possession; and (3) effectively excluded the true owner from possession. With respect to the third requirement, the Court agreed with the trial judge that the use made of the disputed lands by the appellant was not inconsistent with or in conflict with the respondents' purpose of holding it for sale. The use made by H wasn’t inconsistent with the speculation use of the soil by MI.Ratio: Creation of the inconsistent use test. The animus possidendi of the AP must be to exclude the TO from the uses that the TO wants to make of his property.Notes: Takes the tailoring to “object” question to a new level, beyond the objective capacity of an object to be possessed to the subjective use of the object as possessed by TO. Note also that “inconsistent” is not “intended”- which denotes future plans. The land was being used: it was accruing value; H’s occupation was not inconsistent with this use.

Teis v. Ancaster Town (1997)F: The Town legally owned the land, but the plaintiffs started farming it in 1970 and they created a laneway to move their farm equipment. The public also used the laneway for recreational walking and parking cars. In 1989 the Town built a clubhouse and contemplated asking the plaintiffs to stop using the land to avoid a claim for adverse possession. However, the Town did not tell the plaintiffs to move. The clubhouse's use by the public interfered with the plaintiffs' use of the land and they sued for possessory title.

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- Excluding others means making a market in the land- Preserving the peace by protecting the reliance interest of the

possessor, and the importance of the property to possessor’s personal identity (personality theory of property rights)

- At the same time, title owners and third parties have interests in maintaining stability of property entitlements

Canadian courts in recent years have appeared to restrict the ambit of AP by giving new meaning to what makes possession adverse:

● Traditional position: exclusive possession as an ordinary owner would possess for the statutory period of time is adverse to the TO.

● New approach (Masidon): requiring squatter’s use to be “inconsistent” with that of the title holder.

○ Keil v. 762098 Ontario: TO’s intention must relate to the time during which the limitation period is running. This may help APors when the title changes hands, because intent cannot be conveyed through sale and it might be hard to provide evidence on the intent of former title holder.

NB: BC is covered by land titles act so no AP thereNB: Mutual mistake is really the only way left to dispossess thanks to Masidon + Teis

Q: Whether a person claiming possessory title must show “inconsistent” use” when both the claimant and the paper title holder mistakenly believe that the claimant owns the land in dispute?H: No.Reasoning: Motive of appeal on basis that trial judge didn’t apply inconsistent use test. “The test of inconsistent use focuses on the intention of the owner or paper title holder, not on the intention of the claimant”. The Town failed to prove that it gave permission to the plaintiffs to use the land, so the trial judge did not err in holding that the possession was adverse. There was a finding that the plaintiffs planted fall wheat for harvesting in the spring, so the possession was continuous. The test of inconsistent use does not apply in cases of mutual mistake. “If it did apply, every adverse possession claim in which the parties were mistaken about title would fail [...] if the true owner mistakenly believes that the claimant owns the disputed land, then the owner can have no intended use for the land and [...] the claimant’s use cannot be inconsistent with the owner’s intended use”.Ratio: The test of inconsistent use does not apply in cases of mutual mistake. In cases of mutual mistake there inference that the claimants intended to exclude all others, including TO, allowing AP.

Gorman v. Gorman (1998) (I: 182)F: Husband and wife separated and W stayed in house. W claims AP.Q: Is it necessary to prove an animus possidendi (intention to exclude) to establish a claim for AP of a marital home by one party?R: W had actual possession for over 20 years, effectively excluded H from the intended use of property. She is found not to have the required animus possidendi however. The case is not one of mutual mistake, therefore animus possidendi cannot be inferred and must be proven. Marital relationship imposes higher onus.H: Yes.

REGULATORY TAKINGS: US

US takings from a 30k foot level are about balancing pub policy (i.e. not going "too far" with what is being said to be "taken"...especially in Federal Indian Law) with need to compensate people based on the statutory basis that the Constitution.

Then in Canada, takings are more about how Cromwell in Mariner discussed the property interest test rather than value with value as an indicator of interest. This was a CA decision but Gold assumes it is adopted in the SCC now because Cromwell is on the SCC. Otherwise in Canada there is a fight between whether finding a property that was taken is based on finding something of value (e.g. minerals underground, the value of goodwill) or having a specific and clear "property interest" in something that was taken. Public purpose is of far less importance.

Penn Coal Co v. Mahon 1922 SCOTUS (III: 576)Issue: Does regulation that deprives most of the value from a piece of land to benefit private owners constitute a federal taking?Rule: Yes, in order to not constitute taking must have public benefit such as to protect public health, safety, or moralsRatio: Regulation that confers a benefit on private property owners and does not focus on the general public, depriving them of value, will be considered a taking.Facts: Mine sells surface land to people and they build houses. Kohler Act passed that says you can’t mine if it will destroy houses above. Mining was going to destroy houses. Question of whether the regulation was a taking of the mining value from Penn Coal.Analysis:

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-Damage to homes is not common or public → no justification of public endangerment in the act-**all about weighing public interest vs. private interest

Keystone Bituminous Coal v. DeBenedictis (Penn Dept Envi Resources) 1987 SCOTUS (III: 581)Issue: Whether the restriction on the use of the petitioner’s property was an exercise of the Commonwealth’s police power justified by Pennsylvania’s interest in the health, safety, and general welfare of the public. (i.e. Did the Subsidence Act effectuate a TAKING?)Rule: State interests were pursued and the mines could still produce money so the mine loses.

-Support estate viewed as only one ‘strand’ in the plaintiff’s “bundle” of property rights, which also includes the mineral estate...The destruction of one “strand” is not a taking because the aggregate must be viewed in its entirety.

Ratio: A land use regulation will be deemed a taking IF:1. It does not substantially advance legitimate state interests; OR2. It denies an owner an economically viable use of his land.

Facts: Section 6 of Subsidence Act authorizes the DER to revoke a mining permit if the removal of coal causes damage to a structure or area protected by s.4 and the operator has not within six months either repaired the damage or satisfied any relevant claim. Intended to serve the public purpose of having a cleaner environment because subsidence is bad.Analysis:-Public purpose justifications cited. Comparisons made to zoning ordinances as well, which limit property owner’s right to make profitable use of some segments of the property.-District Court concluded that under PA law the support estate consists of a bundle of rights, including some that were not affected by the Act. That the right to cause damage to the surface may constitute the most valuable “strand” in the bundle of rights possessed by the owner of a support estate was not considered controlling.**-Court of Appeals affirmed; “PA Coal does not control because the Subsidence Act is a legitimate means of ‘protecting the environment of the Commonwealth, its economic future, and its well-being’”.-NB: major difference compared to Mahon was that in Mahon the people were disadvantaged by a private K. In Keystone, the entire act was about serving not private parties who had only taken surface rights, but the entire environment and fiscal integrity of the area.

Lucas v. South Carolina 1992 SCOTUS (III: 595)Issue: Whether the Act’s dramatic effect on the economic value of Lucas’s lots accomplished a taking of private property under the Fifth and Fourteenth Amendments requiring the payment of “just compensation”.Facts: Lucas was a land developer who bought beach front property. Legislation came into place that said you could not build on beach front property because it would ruin the dunes. Lucas brought suit claiming this was a regulatory taking.Rule: (Scalia) Taking away of ability to make money on property was a taking.Ratio: Taking away the entire value of land constitutes a taking UNLESS the government is regulating a nuisance that is consistent with that principle and CML property laws that exist.Analysis:-Court recognized that welfare didn’t exist at the time of the US Const signing. Therefore the situation had to be looked at based on analogous items at the time. Property was what was analogous.-SC of South Carolina has said that the Act was properly and validly designed to preserve the beaches which was a public purpose-NB: said that Mahon gave little guidance on when to decide a “taking” had happened-Blackmun (Diss) → concerned that expanding the CML like this will make “takings” law too broad-Two categories of clear situations where a regulatory taking has happened:

1. Where regulations compel the property owner to suggest a physical “invasion” of his property.

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2. Where regulation denies all economically beneficial or productive use of land (as here)

REGULATORY TAKINGS: CANADA

The Canadian Constitution and Charter do not enshrine property as a protected right. The government can expropriate property without compensation simply by declaring that it intends to do so. This power is rarely exercised. Absent an explicit declaration to the contrary, any expropriation will be held to require compensation.

Presumption of compensation at common law: Lord Atkinson in AG v DE Keyser’s Royal Hotel (quoted in Tener): “unless the words of the statute clearly so demand, a statute is not to be construed so as to take away the property of a subject without compensation”.Also in Manitoba Fisheries

You have expropriation when…1) De facto → CPR 1) an acquisition of a beneficial interest in the property or flowing from it, and 2) removal of all reasonable uses of the property (confiscation of all reasonable private uses)

(NB: removal of all reasonable uses of the property (this requirement must be assessed “not only in relation to the land’s potential highest and best use, but having regard to the nature of the land and the range of reasonable uses to which it has actually been put (Mariner)); OR

2) Explicit → if the government becomes the owner of all property interests in a property

NB. In Manitoba and Tener, the effect of the regulation was to deprive the holder of property from making any use of that property. By contrast, in Mariner and CPR, the regulations were not specifically directed to preventing a specific use of the, even if might have prevent economically valuable uses.

Manitoba Fisheries v Canada SCC 1979 (III: 647)F: Manitoba create a public monopoly over fisheries. MF received compensation for physical assets, but far less than the real value of the business. MF claims the balance.I: Did the Freshwater Fish Act amount to a form of expropriation?H: Yes. MF is entitled to an amount equal to the fair market value of its business.R: Putting MF out of business was not in itself expropriation, since there is no “property right” in running a fish exporting business. However, the legislation forced all of MF’s customers to purchase from the crown corporation, effectively transferring MF’s goodwill to the Crown. This is the expropriation, and since the statute did not clearly state that no compensation would be paid, the government must compensate MF.“Goodwill, although intangible in character is a part of the property of a business just as much as the premises, machinery and equipment employed in the production of the product whose quality engenders that goodwill”.Whether the state acquired the goodwill is to a certain extent a question of causality (eg. did the customers turn to the public company).RATIO: when the government transfers assets to itself, it expropriates those assets.

Queen BC v Tener SCC 1985 (III: 657)F: T was granted (subject to the laws in force) mineral rights that were superseded by the Park Act 1965. Under the new legislation, a permit would only be issued if it was necessary for the recreational purpose of the park, ie barely never.I: Did the prohibition amounted to expropriation?H: Yes.R: Similarly to Manitoba Fisheries (goodwill), T is left with the minerals. The value of the minerals in such a state depends upon one’s assessment of the chances of a reversal of executive policy in the issuance of a removal permit under the Park Act.Ratio: By acquiring title to the fee through permanent refusal of a permit to exploit the minerals the Crown expropriated the respondents' interest.Note: in that case, the taking occurred as a result of the denial of permit, not by the regulation under the Park Act.

Mariner Real Estate Ltd. v Nova Scotia NSCA 1999 (Facts: MRE owned land on a designated beach. Applied for permit to construct building with concrete foundations. Permit was denied and action brought for expropriation.Held: No acquisition, thus no expropriation.Reasoning (Cromwell): Scope of de facto expropriation is very limited in Can. In cases where de facto expropriation was granted (eg Tener) gvt action “went beyond drastically limiting use or reducing the value”. “The distinction

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between value of land and interests in land is [...] deeply imbedded in the scheme of compensation under the Expropriation Act [and] defines the line between cases in which the gvt interference with the enjoyment of land is compensable and cases in which it is not”.R: 2 governing principles for de facto expropriation: 1) legislation or action may very significantly restricts an owner’s enjoyment of private land (confiscation of all reasonable private uses); 2) courts may order compensation only when they are authorized to do so by legislation (state immunity).R: Both 1) the extinguishment of virtually all incidents of ownership and 2) an acquisition of land by the expropriating authority must be proved.R: Regulation of land use which has the effect of decreasing the value of the land is not expropriation.Note: Cromwell emphasizes on property interest rather than value. In Tener, it was the interest in the minerals that was deprived, the question of value of the remaining rights are only for computation of compensation, not the expropriation in itself.

CPR v Vancouver SCC 2006Para 30: “For a de facto taking requiring compensation at common law, two requirements must be met: 1) an acquisition of a beneficial interest in the property or flowing from it, and 2) removal of all reasonable uses of the property (this requirement must be assessed “not only in relation to the land’s potential highest and best use, but having regard to the nature of the land and the range of reasonable uses to which it has actually been put (Mariner)” para 34).

● In this case,○ Benefit: NO, the city (with the by-law) “gained nothing more

than some assurance that the land will be used or developed in accordance with its vision, without even precluding the historical or current use of the land”.

○ Removal: NO, CPR may still use its land to operate a railway or lease the land for use in conformity with the by-law.

REGULATORY TAKINGS: NAFTA

Article 1110: Expropriation and Compensation1. No Party may directly or indirectly nationalize or expropriate an investment of an investor of another Party in its territory or take a measure tantamount to nationalization or expropriation of such an investment ("expropriation"), except:

1. (a) for a public purpose;2. (b) on a non-discriminatory basis;3. (c) in accordance with due process of law and Article 1105(1); and4. (d) on payment of compensation in accordance with paragraphs 2 through 6.

2. Compensation shall be equivalent to the fair market value of the expropriated investment immediately before the expropriation took place ("date of expropriation"), and shall not reflect any change in value occurring because the intended expropriation had become known earlier. Valuation criteria shall include going concern value, asset value including declared tax value of tangible property, and other criteria, as appropriate, to determine fair market value.3. Compensation shall be paid without delay and be fully realizable.4. If payment is made in a G7 currency, compensation shall include interest at a commercially reasonable rate for that currency from the date of expropriation until the date of actual payment.

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5. If a Party elects to pay in a currency other than a G7 currency, the amount paid on the date of payment, if converted into a G7 currency at the market rate of exchange prevailing on that date, shall be no less than if the amount of compensation owed on the date of expropriation had been converted into that G7 currency at the market rate of exchange prevailing on that date, and interest had accrued at a commercially reasonable rate for that G7 currency from the date of expropriation until the date of payment.6. On payment, compensation shall be freely transferable as provided in Article 1109.7. This Article does not apply to the issuance of compulsory licenses granted in relation to intellectual property rights, or to the revocation, limitation or creation of intellectual property rights, to the extent that such issuance, revocation, limitation or creation is consistent with Chapter Seventeen (Intellectual Property).8. For purposes of this Article and for greater certainty, a non-discriminatory measure of general application shall not be considered a measure tantamount to an expropriation of a debt security or loan covered by this Chapter solely on the ground that the measure imposes costs on the debtor that cause it to default on the debt.

Metalclad v. Mexico 2000 ICSIDIssue: Whether municipal refusal to grant right constitutes a “taking.”Rule: Yes because of lack of transparency in process and it was reasonable for Metalclad to expect an economic benefit.Facts: Corporation based in US suing Mexico government. US corporation invested into hazardous waste landfill in SLP (the municipality). Original company bought land and made some use of it. Then ordered closed in 1991 by federal government of Mexico due to non-compliance. The new company (Metal-Clad) applied for a new permit. IT was refused. Then they applied to the Mexican Federal Government and got permission so they built on the site. The municipality issued a stop work order to Metal Clad and Metal Clad applied again to municipality but was refused yet again. Thus Metal Clad had permission from the federal government but not from the municipality. Metal Clad claimed that due process was not present and that compensation should have been made. They claimed this under the FET clause of NAFTA. They said that they were regulated so much that it was tantamount to expropriation.Ratio: Takings under NAFTA concentrate more on taking of value than on the taking of a right.

-**Expropriation under NAFTA includes not only open, deliberate and acknowledged takings of property (such as outright seizure or formal or obligatory transfer of title in favour of the host State), but also covert or incidental interference with the use of property which has the effect of depriving the owner, in whole or in significant part, of the use or reasonably-to-be-expected economic benefit of property even if not necessarily to the obvious benefit of the host State.

Analysis:-Court said:

1. Municipality was unfair under 1105 (power to deny was ultra vires municipal government)2. Metal Clad had been deprived of reasonably expected benefit from investment (though not a property right per se).

a. Compensation was relevant because it’s about the-NAFTA Art 1110 on Expropriation...no expropriation except for:

1. Public purpose2. On a non-discriminatory basis3. In accordance with due process under 1105(1); AND4. On payment of compensation

-Metal Clad not only spent money on regulatory compliance, but also on building up land, which changed the nature and gravity of the claim-“These measures [the Municipality repeatedly saying no], taken together with the representations of the Mexican federal government, on which Metalclad relied, and the absence of a timely, orderly or substantive basis for the denial by the Municipality of the local construction permit, amount to an indirect expropriation.”

Eli Lilly (not yet heard)

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Issue: If you don’t have a right to remedy then do you have property?Facts: Pharma company in the US. Patent given after a series of cases in Canada was ruled invalid. Eli Lilly says removal of patent was a taking of reasonably expected profits. Courts had changed the law. Big question about whether court action can be “state action” for expropriation.Rule: Undecided.Analysis:-NB: courts in patent cases give no deference to patent offices findings. They apply the tests de novo with each patent.-Question if courts can be the state or if they’re exempt. Contradictory that courts create law and lay it down via cases.-The argument that you don’t want “bad” courts making arbitrary decisions to not be accountable for “bad” decisions.-Question of role of judiciary in actions of this kind (i.e. is court action state action?)-So what do patents give a right to? → Prof. believes that patents give you a right to get due process to argue about a patent, but not a right to the invention-It’s always been that courts are last word and give no deference to patent office.-About questioning and justifying when the right in property exists.-Ethics questions: Eli Lilly had applied for 96 patents on 3 drugs hoping they would get a winner...but this is normal...but Eli Lilly was speculative which was problematic-Can gov’t says that requesting patents isn’t even a property claim at all...also says that if there is no property by domestic law then there is nothing that can be taken.-Can gov’t concerned that if allowed, Eli would be making arbitration tribunals a supranational court of appeal for NAFTA

REAL PROPERTY: ESTATES

“Each estate as a slice of time”

EstateNot the land itself, but the “conceptual land” (l’assiette) to which ownership refers. Owner owns not the land itself, but an “estate” in the land which confers specific rights and powers according to the nature of the “estate”.Each “estate” = temporal “slice” of the bundle of rights and powers exercisable in respect of land (Walsingham’s Case). Different classifications of estates.Each estate denotes the duration of a grant of land from a superior owner, all the way back to the Crown; no man can grant another a greater estate than he himself owned.

Professor Lawson [252]: the solution arrived at in English law was to create an abstract entity called the estate in land and to interpose it between the tenant and the land.

Freehold Estate: Fee SimpleTenure of land for an estate in fee simple = closest thing to absolute ownership of the land.Largest possible bundle of rights-- time in the land without end. Right of tenure endures indefinitely.Like in England, land owners in Canada are tenants in fee simple of the Crown.Nothing inevitable about the eventual shape of modern land law, which is imbued with ancient legal and intellectual constructs.

Freehold Estate: Life EstateLife estates are not inheritable- the estate does not descend to the tenant’s heir but reverts to the heir of the underlying fee simple.Further classified by the identity of the measuring life: life estate pur sa vie v. pur autre vie: to A for life v. to A for B’s life.Always following the principle of nemo dat quod non habet: if A has land for life, and grants it to B, the life estate becomes pur autre vie: to B for A’s life.Today, a life estate pur autre vie may be disposed of by will: Succession Law Reform Act, s. 2(a) or it will descend to next of kin: Estate Administration Act s. 2

Freehold Estate: Fee TailNo longer exists.

CONVEYANCING Conveyancing and Law of Property Act, s. 5

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(1) Not necessary to use “heirs”(2) Sufficient to use “in fee simple”(3) Where no limitation is used, it will be assumed that the conveyance passes all bundle that P1 has to P2(4) Section (3) only if no contrary intention(5) Only to conveyances made after July 1, 1886.

Wills should be interpreted according to the true intention of the testator(trix).

FUTURE INTERESTS IN LAND: REMAINDERS & REVERSION

When an estate less than a fee simple has been given out, past and future interests remain. These are interests recognized by law.

ReversionInterest retained by the grantor. For example: to A for life, the grantor has not disposed of her full interest, she has a reversion in fee simple, which will automatically occur when A dies.

RemainderInterest created in a third party which follows the granting of an estate less than the fee simple absolute. For example: to A for life then to B. Here B has a remainder in fee simple but no right to possess the land until A dies. When A dies, B will have a fee simple absolute. Here there is no reversion, because the grantor has given away the fee absolute to B, to be possessed when A dies.

Waste Doctrine *a grand may give specific exemption by declaring the tenant for life “unimpeachable for waste”.[262] Because the doctrine of estates recognised the feasibility of successive estates in the same land, rules were developed to restrain the current estate owner from prejudicing the value of the land in the hands of any successor.Waste = Any action or inaction on the part of the estate holder which altered the physical character of the land.“Ameliorating waste” has the effect of improving the land and augmenting its value. - No remedy in law“Permissive waste” is defaults of maintenance and repair leading to the dilapidation of buildings situated on the land. - No remedy in law unless stipulated in the grant“Voluntary waste” is includes a positive diminution of the value of the land. - Remedy in law unless grant exempts by declaring tenant “unimpeachable for waste”

CONDITIONAL GRANTS (ESTATES)

Conditions Precedent or of eligibilityCondition for eligibility, must be satisfied before the grantee has any right of enjoyment at all.For example: to A at 21, or to B if she marries. Until A turns 21 or B marries C, they have only contingent interests. If the condition becomes impossible to meet (A dies or C dies) then the interest is extinguished and the grant does not occur. Once A turns 21 or B marries C, the interest is vested.A vested interest does not result in an immediate right of possession.The courts prefer early vesting, so that interests intended by the grantor are deemed vested as soon as possible (MacKay v. Nagle et al).

Conditions Subsequent or of defeasanceFee simple defeasible on condition subsequent. For example: to A in fee simple, but if he becomes a lawyer, to B. If the condition is met after acquisition of grant, A is divested and the grant goes to B. If A does not become a lawyer, the estate goes to her heirs. This means the condition of defeasance is personal.

These conditions can be added to any kind of freehold estate (above).

Re McColgan, [1969] 2 O:R. 152 (H.C.J.)FACTS: M and K are unmarried couple and live most of the year long-distance. The trust company executing M’s will seek guidance on the interpretation of his will. M bequeathed a house in Ontario to K “until her death or until she is not residing therein personally, whichever shall first occur, and thereafter to L [on the same conditions].”Issue: What interest does K have in the home?Holding: A life estate subject to conditions subsequent.Reasoning: The rule of construction for wills is to achieve the “expressed intention” of the testator. The question here is whether M intended to convey a mere license on K (to use the home), or a life estate. Court says its a life estate; but then what kind of condition? The condition, which starts with “until” nevertheless seems to be external to that grant and is thus a condition subsequent rather than a determinable estate.Ratio: Limitations which are “a divided clause from the grant” create defeasible conditions subsequent, not determinable estates, even if the language is typically recognized otherwise.NB: context will be more important than any particular wording.

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DETERMINABLE FEE (also called fee subject to a limitation)

Ab initio

Defeasible Condition Subsequent v. Determinable FeeDefeasible estate (conditions subsequent) is based on the idea that the estate is given, with a possibility for termination via the condition. The determinable estate (determinable fee) is considered less than a full fee simple estate. The condition is part of the fee simple, not a separate condition that may terminate it.

Consequences of the difference:(1) Different rights in reversion for the grantor. In a defeasible fee, the

grantor has a right of re-entry if the condition is met but the estate is not automatically terminated (possibility of reverter). In a determinable fee, the estate is automatically ended.

(2) Consequences of inadmissibility. If uncertain or contrary to public policy, a condition in a defeasible fee is deemed invalid and the estate becomes a fee simple estate. In a determinable fee, the estate itself is void and returns to the grantor.

Courts will intervene and declare a condition to be void on the basis of two main reasons:

(1) Uncertainty(2) Contrary to Public Policy:

(a) Social(b) Economic

If the law were to allow grantors to impose any conditions they wished, that would have the effect of increasing the number of strands in every land owner’s bundle of rights.

Defeasible Condition Subsequent (grant w/ possibility that you will lose pending a happening)

(1) But if(2) Provided that(3) On condition that(4) If it happen that

Determinable Fee (grant w/ condition upon which automatic reversion and grantee is in trespass)

(1) While(2) During(3) As long as(4) Until

A devise to a school in fee simple “until it ceases to publish its accounts” creates a determinable fee, whereas a devise in fee simple “on condition that the accounts are published annually” creates a fee simple defeasible on condition subsequent.

CONDITIONS AND UNCERTAINTY

(voidable under uncertainty)

Sifton v. Sifton, [1938] 3 All E.R. 435 (P.C. - Ont. ) (II: 275)FACTS: Sc and Sw (“trustees”) want to know how to interpret a provision in a will which reads “Payments to my daughter [Sm] shall be made only so long as she shall continue to reside in Canada.” Sm wants to study abroad and wants to know under what conditions she can do so without violating the will. She also alleges the clause is an uncertain condition subsequent and should be void.ISSUES: (1) What kind of condition is the clause? (2) Is it void for uncertainty?HOLDING: (1) Condition subsequent (2) YesReasoning: (1) The PC invokes the presumption in favour of early vesting to make the condition a condition subsequent, rather than determinable; (2) It has long been the rule that conditional transfers must precisely and clearly define the conditions under which they revoked. The disparity of judicial opinions in the lower courts, and the fact that none of the Appeal judges attempted to define precisely what actions would violate the clause, both suggest that precise definition is impossible. Hence the clause is invalid.RATIO: (1) A clause is void for uncertainty unless “the court… and…the parties…can see from the beginning precisely and distinctly upon the happening of what events it is that the payments to the appellant are to case.”

Clayton v. Ramsden, [1943] A.C. 320 (H.L.)FACTS: B left his daughter a large inheritance, but attached the condition that if she “shall at any time…contract a marriage with a person who is not of Jewish parentage and of the Jewish faith then as from the date of such a marriage” her interest would “cease and determine.” She married C, who not Jewish in any sense. The Cs attack the validity of the clause.ISSUE: (1) What kind of condition is this? (2) Is it void for uncertainty?HOLDING: (1) Condition subsequent (2) Yes.REASONING: Lord Killowen: Believes both “Jewish parentage” and “Jewish faith” are too vague.Lord Romer: “It is the duty of the court to solve the [definitional] problem if it be possible to do so.” Romer believes the “Jewish parentage” part is void for

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vagueness. This invalidates the entire condition, not just the “Jewish parentage” part (which would leave the “Jewish religion” requirement intact): “His intention cannot be given effect to because he has not chosen to express it in sufficiently unambiguous terms, but that does not justify the court in making a new will for him and treating him as if he had expressed a different intention altogether.”RATIO: (1) Courts will police restraints on marriage very closely for vagueness; (2) If part of a condition is vague the entire condition is void for vagueness (i.e. vagueness is not severable within the condition).

CONDITIONS AND PUBLIC POLICY(DISCRIMINATION)

(voidable under public policy)

Public PolicyBeyond the straight illegal (Re Machu), conditions deemed contrary to public policy are best understood through example. Examples: restraints on marriage, conditions encouraging divorce or separation, parental duties, restraints on alienation. In broad strokes, these are social, familial and economic conditions.

Re Noble and Wolf, [1949] 4 D.L.R. 375 (Ont. C.A.)FACTS: The owners of property in an area joined together in to the Beach O’Pines Protective Association. The company that sold the lake-front property to these owners placed a limitation clause in their deeds which prevented sale of the land to Jews or Blacks before 1962. W attempted to buy N’s cottage and is Jewish. He asks the clause to be declared invalid.ISSUE: (1) Is the discriminatory condition void due to public policy? (2) Is it void for uncertainty?HOLDING: (1) No (2) No.REASONING Robertson: Distinguishes from Drummond Wren (where a “No Jews” clause was struck down) on the grounds that this clause is temporary and that the lands here have a “special purpose” not present in Wren. Claims that this purpose is ensuring that vacation homeowners get along. Claims there is no public policy argument in play since a “Blacks only” or “Jews only” clause would not be against public policy. Plus this clause doesn’t fit in the conventional categories of public policy. Argues that racial harmony is valuable only if it is genuine, and not forced, so invalidating the clause on moral grounds is counterproductive.Henderson: Discrimination is not a ground of public policy. Nor should a new ground of public policy be created here, since this covenant is in no way oppressive to the public. Thus not invalid. As to uncertainty, the existence of racial categories on the census shows that ascertaining the race of a person is not impossible.Hogg: Says the same things as Henderson.RATIO: None – both holdings overturned either by statute, Re Canada Trust (below), or the SCC on appeal at the time.

Re Canada Trust Co. and Ontario Human Rights Commission (1990), 69 D.L.R. (4th) 321 (Ont. C.A.)FACTS: CT was administering a scholarship fund for a rich, dead, racist guy. He set up scholarships restricted to white male Protestants of British nationality. The requirements to qualify for the scholarship were set out in explicitly racist tones.ISSUE: Is the grant void for: (1) uncertainty? (2) public policy?HOLDING: (1) No (2) Yes.REASONING: Tarnopolsky: (1) The trust is clearly a valid charity at Common Law. The definition of the class of beneficiaries is a condition precedent. Such conditions must be certain, in the sense that any proposed beneficiary can clearly be classed as eligible or ineligible. “In this case there has been no difficulty over some six decades in ascertaining whether students qualify.” (2) Public policy must be expanded to cover non-discrimination. The judge cites a variety of important statutes forbidding discrimination, notes that human rights codes have been given special status by the SCC, and the international community.Robins: Public policy is “an unruly horse” but agrees substantially with Tarnopolsky. Puts emphasis on the explicitly racist wording of the trust’s purpose. This implies that a scholarship for male Protestants would not be invalid as long as it didn’t say they were better than Catholics/atheists/women.RATIO: (1) Non-discrimination is a ground of public policy in Ontario; (2) Conditions precedent of charitable gifts are policed loosely and invalidate only the condition, rather than the trust as a whole; (3) Evidence of smooth operation of an eligibility criterion may be used to establish that it is certain; (4) The discriminatory nature of trusts will be evaluated on a case by case and statements of purpose will play an important role in addition to mere eligibility criteria.

RESTRAINTS ON ALIENATION

(ie. CONDITIONS

Restraint on AlienationCondition that limits the ability of the grantee to alienate the land.Forfeiture restraint: land given in a will for a certain purpose or person; if this restraint substantially affects the selling price, it will be voided

Laurin v. Iron Ore Company of Canada (1977), 82 D.L.R. (3d) 634 (Nfld. S.C.T.D.)Issue: Is there restrictive covenant part of the fee (condition)? Or is it something else?

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AND ECONOMIC POLICY)

(Thibodeau v. Thibodeau)Not about “repugnancy” to the principle of free alienation: Partial restraints on alienation are allowed

Ruling: For workers. Restrictions were the trade-off for mortgages and subsidization, but that the workers would not have agreed to them except as a condition for getting the house. Thus they are conditions. They clearly lower the value of the house, thus they are invalid.Ratio: Test for alienation restriction and covenants’ reasonableness:(1) Restrictions on alienation which are reasonable and might have been granted as part of an independent business transaction are covenants;(2) Restrictions which are unreasonable are conditions, and if they absolutely or substantially restrain trade they are void;(3) These rules apply only to restrictions contained in a conveyance or that are created immediately thereafter.Facts: No one wanted to move to a mining site so a company built housing and made it available to employees. The employees were allowed to live there if they worked at the site. Eventually the mining company made a scheme where you could buy the house but would have to sell it back to the company if you left (because purchase price was subsidized). But the owners once they had houses wanted to capture accrued equity so the mine said they could sell to newcomers and recover the difference.Analysis:-Mine argued that they needed this condition to make sure that the housing went to the target audience BUT court said the CML would not allow a restriction from holding of property to receive FMV

SHARED TITLE Joint Tenancy (British Columbia Law Institute)- Right of survivorship: the interest held by the deceased does not form part of his estate, the surviving joint tenant are now sole owners (without tax)- Four unities:

- Title: Must acquire their interest in the same document- Time: Created at the same time- Interest: Equal interests (nature, size and duration)- Possession: Equal right to possession of the whole of the land, no exclusion of any part of it.

- If one of these unities are missing, the joint tenancy is severed and it is converted to a tenancy in common.- 3 ways of severing a JT and converting to TC:

- An act or transaction by one JT with respect to that JT’s individual interest:- May be unilateral (but not through a will because not part of the estate).- May be voluntary (e.g. put up a fence) OR involuntary (e.g. bankruptcy, court order).- A mere declaration of intent is not sufficient; one of the 4 unities must be formally destroyed.- Context is important...can’t pretend to be in JT when acting like “tenancy in common.”

- Mutual agreement of the JTs:- Common intention- Eg: Agreement to sell to the other.

- A course of dealing that indicates the JTs are treating their respective interests as if they were TCs:- Common intention

- Right of survivorship: if a JT dies, his interest comes to an end rather than belonging to the estate, and other JT enjoys whole interest in land.

Tenancy in Common (British Columbia Law Institute)- No right of survivorship: when one tenant dies, the part goes to his estate

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- Tenants in common may hold unequal shares, which can be sold to another- JTs are treated in law as a unitary owner, not TC.- If the holder of a tenancy in common desires, either to sell or mortgage their interest in the property, that can be done by them without the consent

of the other tenants.- It is also possible for a tenant in common to apply to the courts to “partition” the property or to sell the entire property and distribute the net

proceeds of sale proportionately.

REGISTRATION VS. TITLE SYSTEMS

Registry System- Permits registration of documents pertaining to land in the local registry office, but does not require registration or guarantee title- Prospective purchasers must search the title by checking documents- By registering, the owner protects his title against all unregistered documents but not against unregistered claims such as as adverse possession- Registration does not cure a defective instrument.

Land Titles or Torrens System- Government guarantees title as shown on the record- Indefeasibility of title: each registration is a clean title- Official fund compensates for errors

LEASES & LICENSES Licenses (NON POSSESSORY RIGHT)Definition: A license is a contract, specifically a contract promising not to sue for something that would otherwise be an actionable/tortuous act. Another way to think of a license is “giving legal permission to do something.” Driving without a license is illegal; with a license it is not. Other conditions, terms and requirements can be attached to a license, but the core is a promise not to sue.

A license is a defence against someone suing you for doing the thing that the license authorizes you to do. A license does not come with a right to exclude others (if someone sits in your seat in the arena, you could sue the arena for breach of contract, but not the individual who stole your seat, since you personally have no rights in the seat).

*if an agreement is uncertain as to its duration it will be a licence. But certainty of duration is only a necessary, not a sufficient condition for a lease.

Leases (POSSESSORY RIGHT)A lease at Common Law transfers a property right (estate) in the land to the tenant. This estate includes the right to exclusive possession (though covenants, ancillary terms, will often serve to limit that right), which is the most fundamental stick in the property bundle. Certainty of duration is necessary.A lease is not a contract, it is an estate. Though this has been challenged in Highway Properties.NB: Residential Tenancies Acts have replaced Common Law for personal dwellings in all provinces, but these rules still apply to commercial leases.NB: “Independance of covenants” means that failure by either party to perform an obligation does not give a right to the other to terminate the

British American Oil and Depass ONCA 1959 (II: 464)F: BA, as landlord, has an agreement with D to operate a service station. There were various limitations.I: Is it a license or a lease?H: Lease.Reasoning: There is nothing in the lease or the retail dealers' agreements which suggest that the lessor intended to retain possession of and control of the service station premises in a manner which would be inconsistent with the grant of a right of exclusive possession to the lessees.R1: A license is “mere permission to occupy the land for some particular purpose”.R2: The central element in a lease is the grant of exclusive occupation of the land and this alone distinguishes it from a license.R3: Adoption of the “exclusive possession” test (determines if something is a license or lease. If you don’t have exclusive possession and there is a lease, then courts under this approach will call is a license).

Metro-Magic Services v Hulmann ONCA 1973F: Laundromat case. Building bought up by a trust representing all of the tenants. They move in a new laundry company in the basement.I: Was the agreement a lease or a license?H: Lease.Reasoning: There clearly wasn’t exclusive possession. “While it is true that H restricted the use to which it will put the premises, the covenant does not affect the demise any more than would be the case when a tenant covenants to use his apartment as a dwelling place only” [473]. Nevertheless, language says lease, therefore it’s a lease.R: Language approach to determining whether it is a lease OR license used. Language will determine (more recent and courts tend to favor

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lease. Performance of an ancillary obligation is independent of the duty to perform corresponding ones and/or the principal one. (UNLESS specific term that makes the lease conditional to a certain performance. Falleson v Spruce “a lessor cannot re-enter for mere breach of covenant”.)

Assumptions about leases once they exist:1. That you pay rent2. That there is a fixed end date where maximum length is fixed

(without which you do not have a lease…)3. The lessor cannot interfere with the quiet enjoyment of the tenant

Approaches2 jurisprudential approaches to deciding whether an agreement is a licence or lease:

1. If agreement grants or intends to grant exclusive possession for a fixed time it is a lease.

a. British American Oil, 1959 ONCA: (1) A license is “mere permission to occupy the land for some particular purpose;” (2) The central element in a lease is the grant of exclusive occupation of the land and this alone distinguishes it from a license.

2. (More recent/Favored) it is the intentions of parties that matters. Importance to language, choice of words (licence or lease). Does not focus on exclusivity.

a. Metro-Magic Services v Hulmann, 1973 ONCA: Weight should be given to the words used by the party to describe the lease, and to the global impression of the document.

Property v ContractsLaskin (Cases and Notes on Land Law): “The pertinent question is to what extent is the transaction regarded as the transfer of an interest in land (property) vs a business dealing (k)”. Bargain before entry in possession tends to emphasize on contracts; once tenure is established, property dominates.

Ending the leasehold relationship1. Surrender ⇒ ends the leasehold relationship. Cannot

be unilateral, has to come from agreement btwn landlord and tenant.

2. Abandonment ⇒ is unilateral.

MitigationThe discussion of mitigation, a creature of k, comes from the expanding of remedies in HP.But it is not clear whether it is a duty of a “mitigation in fact”. Highway Properties: “under the present case law the landlord is not under a duty of mitigation, but mitigation is in fact involved where there is a re-letting on the

this).

Goldhar v Universal Sections and Mouldings ONCA 1962F: G rented to U. U left and G let her husband use part of the space while she looked for tenants. She eventually found someone.*Over ruled by Highway Properties

Highway Properties SCC 1971F: Defendant (major tenant in shopping mall) broke their lease with H after taking possession of the property. H seeks damage via anticipatory breach (A statement by either party to a contract that he will not live up to the contract's terms).I: Can HP obtain damages for prospective loss?H: Yes.R: 4 mutually exclusive courses of action for landlord in event of tenant abandonment:s

1) Do nothing and sue for rent or damages on the footing that lease remains in force.

2) Elect to terminate the lease, retaining right to sue for past unpaid rent or damages to the date of termination. Landlord accepts abandonment, converting it to surrender.

3) Advise tenant intention to re-let on account of tenant (who has abandoned) and enter possession. Landlord retains right to sue for past unpaid rent and difference in rent. Owe excess with any new tenant to former tenant.

4) (New) Terminate the lease but give notice to the defaulting tenant that damages will be claimed on the footing of a present recovery for losing the benefit of the lease over the unexpired period. You can sublease the property on your own account. Do not have to give excess rent (if any) to old tenant under this option.

R: It is no longer sensible to pretend that a commercial lease is simply conveyance and not also a contract.**NB: unclear if this case enforces a duty to give notice under #4 (see North Bay)NB. The case involved a precise covenant that provided for prospective loss.

Windmill Place v Apeco 1976F: Part of a very large building was rented by A. A abandoned the lease and their space was later re-rented, but the building remained largely empty. The building’s space was fungible and one location was as good as any other.I: Did the rental of A’s space constitute mitigation?H: No.R: Where a multiple-tenant building is materially vacant and is likely to remain so, and where subdivisions are fungible, renting out a tenant’s old space does not constitute mitigation.

North Bay v Nova Electronics ONHC 1983 (II: 498)F: NBTV was the landlord to NE, which had trouble paying rent for several months. NE realized that they would soon be locked out of their store due to

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tenant’s account”.Toronto Housing v Postal Promotions: after breach, if the landlord subsequently leased the same premises at a higher rent, the difference in value is to be deducted as a mitigational factor against the landlord’s claim.

Landlord’s ObligationsQuiet enjoyment ⇒ Owen v Gadd: Landlord and those acting for him are prohibited of any direct, physical interference with the tenants’ ability to use the premises for the purposes for which they were demised.Non-derogation from grant ⇒ relates to the use the landlord makes, directly or indirectly, of land that is both owned by the landlord and adjacent to the demised premises. The landlord has transferred right to use land in fashion anticipated by tenant (assuming landlord knew about this use), which takes his right to do so away.Fitness for use ⇒ no implied warranty at common law that the rented commercial premises are fit for any particular use, except for furnished premises.Smith v Marrable “a man who lets [rents] a ready-furnished house surely does so under the implied condition that the house is in a fit state to be inhabited”.Sutton v Temple : the warranty of fitness for use applies only to mixed contracts of land and chattels.Hart v Windsor: No mere lease of estate contains an implied warranty of fitness for use.

failure to pay rent, and so they began removing inventory.. NBTV showed up while this was happening. Harsh words were exchanged. NBTV wanted to benefit from Highway Properties by being able to terminate the lease and sue NE. NBTV had the locks changed and placed a notice that anyone entering the store would be prosecuted/sued. Some of the goods left in the store were sold by NBTV to make up the arrears of rent.I: Did NBTV give the appropriate notice to invoke Highway Properties?H: Yes.Reasoning: NE abandoned the premises. In changing the locks, NB converted the abandonment to surrender and terminated the lease.R1: Notice to pursue the HP remedy need not be given at the same time as the landlord takes back possession.R2: Notice by statement of claim (i.e. suing tenant) is sufficient.

Toronto Housing v Postal Promotions ONHC 1981 (II: 505)F: P entered a 20-year lease with T. P repudiated the lease, and after 9 months, proposed to reassign lease to RCS. RCS didn’t want possession but would pay rent and honour all covenants. T refused, was afraid of vandalism if empty. Eventually T leased to new tenant at much higher price. T seeks arrears of rent from date of repudiation to date of new lease. P couterclaims the excess of rent alleging that T made a sub-lease on its account.I: 1) Was is reasonable for T to refuse the assignment? 2) What happens with excess money?H: 1) Yes. 2) Surplus mitigates P’s damages but cannot benefit from its breach by receiving a share.Reasoning: On facts, the lease to new tenant was fresh, not a sub-lease. T doesn’t want to suffer the mitigation factor of HP, therefore doesn’t claim for future loss rent. “A plaintiff cannot recover for any part of its loss which it has successfully avoided by its subsequent action” BUT “the subsequent transaction, if to be taken into account, must be one arising out of the consequences of the breach in the ordinary course of business Apeco.R1: Because the subsequent transaction arose out of the consequences of the breach, the difference in value of the two leases is to be deducted as a mitigational factor against the landlord’s claim.R2: One cannot benefit from its own breach.

Toronto Housing v Postal Promotions ONCA 1982I: Can T benefit from subsequent rent increase without having to mitigate the damages?H: No.Reasoning: T claims that options 1 and 2 do not contain any obligation to mitigate. T claims it used 2.Judge treats mitigation as a question of fact, not duty or obligation.“HP needs to be expanded only to the extent of giving the tenant the same access as was given to the landlord to the full range of contractual remedies and defences”. “The abandonment of a claim for prospective rent should not have the effect of limiting the common law defences based on the fact of mitigation whereby any loss has been successfully avoided”.R1: Seems to push for a single principle for all remedies, whether

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property or contracts (1 to 3 or 4): “placing the plaintiff in the same position as he would have been if all the covenants had been performed”.**R2: Any subsequent profits made mitigate the claim by the landlord against the former tenant who abandoned.Note: it is still pretty much a contractual approach.NB: does not overturn trial level decision

EASEMENTS DefinitionRight of landowner (not personal- based on tenement) to go onto the land of another and make some limited use of a portion of another’s property. Dominant tenement (land in need of using other property) and servient tenement (land being used). It is not a right that comes with the fee simple; it must be created as part of the relationship between the two landowners.

Creation of easementsEasements can be created in many ways, usually by express agreement of the parties. This agreement is a property right because it becomes part of the title, part of the fee simple that each successor owner has, independent of the identity of the owner of the land at any time.

Conditions for Establishing ALL Easements1) Must fulfill the 4 Ellenborough characteristics .

(1) there must be a dominant and a servient tenement(2) an easement must “accommodate” the dominant tenement(3) dominant and servient owners must be different persons(4) right over land cannot amount to an easement, unless it is capable of forming the subject-matter of a grant

- Too wide and vague? Must be well defined and commonly understood. Not jus spatiandi (right to space).

- Not joint occupation. Cannot deprive servient owner of proprietorship or legal possession

- Cannot constitute mere rights of recreation- must have utility or benefit

NB: 2) Must be continuous: assessed on the nature of the right being asserted. Axler.NB: 3) User as of right (similar to quality of possession in adverse possession law)

- No violence: without brushing aside significant protest by the owner. The less acquiescence by the owner of servient land, the more violence.

- No secrecy : so that owner of servient land knows (actual or constructive knowledge) and can acquiesce. Axler v Chisholm the intermittence of use meant that servient owner

In Re Ellenborough Park (1956) (II: 328)Facts: Park surrounded by housing development, English style. When built, purchasers were granted “the full enjoyment at all times hereafter in common with the other persons to whom such easements may be granted of the pleasure ground… subject to the payment of a fair and just portion of keeping.” The original grantors and grantees have gone- is the right still in effect?I: Is the right to use the park an easement?Reasoning: Four characteristics for an easement:(1) there must be a dominant and a servient tenement(2) an easement must “accommodate” the dominant tenement(3) dominant and servient owners must be different persons(4) right over land cannot amount to an easement, unless it is capable of forming the subject-matter of a grantThe case turns on conditions (2) and (4).(2) Accommodation: sufficient connexion between dominant and servient tenement. Servient tenement must subserve some use of the dominant property in order to exist as an easement. If there is no sufficient connexion but it just makes ownership more valuable, it is not an easement but a contractual personal right. We must look at the nature of the dominant and servient tenements. Court defines the park as a communal garden in order to find the required nexus between the enjoyment of the park and the use of the house.(4) Three tests:

- Not too vague: Use of the park was not jus spatiandi.- Not joint occupation, depriving owner of proprietorship. Servient

owner retained position of shrubs and trees and could sell them.- Not needed mere recreation or amusement (need to be for normal

use of dominant tenement): The rule in this case was developed in reference to horse races and cannot be used in this case. Although gardens are enjoyable, they are beneficial attributes of residence used for many purposes, not mere recreation.

Ratio: Gives four conditions for easements. Narrows the recreation test to games or horse racing.

Phipps v. Pears (1965)F: Two houses, one is torn down, exposing the standing house to weather because of a shoddy wall built against the destroyed house’s wall.

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couldn’t know ⇒ no prescriptive easement.- No permission : toleration/acquiescence ≠ permission,

but permission will make a grant impossible.

Positive v. Negative Easements- Positive easements: Right to tunnel under land, maintain power

lines and towers, discharge water onto somebody else’s land, have underground drainage pipes, string a clothes line, use a neighbour’s washroom.

- Negative easements: Right to light, right to air by a defined channel, right to lateral support for buildings, right to obtain water

Express Grants v. Express Reservations- Express grant: seller parts with land and gives the buyer an

easement to his land- Express reservation: seller sells land and keeps an easement to

sold land.- Construction in favour of grantee, making it easier to argue for an

express grant than for an express reservation in case the words are unclear (Sandom v. Webb)

- Must conform to rules of transfer in land.

Implied Grants v. Implied Reservations- Implied easements- implied grant- Prescriptive easements- presumed grant- Implied grants most commonly created when there is a severance

of possessory interest in land into two or more interests: owner of two lots sells one, homeowner leases a floor, etc.

Implied EasementExceptions to recognize implied easements 1) Ways of necessity: rights of way to land that would otherwise be landlocked. Roads Access Act provides for statutory easements of necessity. Note the possibility of explicit disclaimer ⇒ even necessary rights of way can be derogated from explicitly in the grant.2) Mutual easements: Richards v Rose 1853 ⇒ support enjoyed by two houses built touching each other.3) Implied easement when it is necessary in order to permit a grantor to fulfill his obligations to a grantee in a simultaneous sale of two pieces of land.4) Pwllbach Colliery Company v Woodman : “the law will readily imply the grant or reservation of such easements as may be necessary to give effect to the common intention of the parties to a grant of real property, with

I: Does the plaintiff (standing house) have an easement?Reasoning: Judge interprets the easement as a negative easement, and “the law is wary of creating any new negative easements.”H: No easement of protection found.R: The only way to protect yourself is to make a covenant.

Wong v. Beaumont Property Trust Ltd (1965)F: W owns a restaurant in the basement of B’s building. Health inspectors require that W expand the ventilation duct for the kitchen. B refuses to allow W to expand the duct. W bought out a previous restaurant’s lease on the building, which stipulated that the lease was for the running of a restaurant business.I: Does W have an implied positive easement to put up an expanded duct?H: Yes.Reasoning: Application of Pwllbach: intent was the running of a restaurant.R1: “A man who has a right to an easement may use it in any proper way, so long as he does not substantially increase the burden on the servient tenement”R2: Implicit easements giving effect to the intent of the parties to a land grant requires that the original parties intended a very specific purpose.R3: A request for an implied easement that is both “reasonable” AND “necessary” will be granted.

Nelson v. Stelter (2011)F: Single road leading to 2 facilities. Over 25 years of common usage. N now claims it is private. The road is the only access. Involves water ski and winter ski places. Water ski place needed to cross winter ski place to get to property, except via water.R1: Where the circumstances are such that the part of a parcel granted or the part retained is land-locked and cannot be approached except over land originally belonging to the grantor, a way of necessity is created upon the severance of title.R2: Affirms the use of the “reasonable” AND “necessary” test from Wong.

Barton v. Raine (1980)F: House 1 was acquired by B’s father in 1921, who bought the neighbouring House 2 in 1924. These two houses shared a driveway on House 1’s property. In 1952 B’s father sold House 2 to his son and daughter-in- law. They inherited House 1 after the father’s death in 1968. In 1971 they sold House 1 to R. After an argument, R erected a fence across his property, blocking the driveway’s access to House 2’s garage. None of the property transfers mentioned an easement over the driveway.I: Does B have an implicit easement to use the driveway?H: Yes.Reasoning: Based on case law, the “common intent of the parties” exception for implied easements should be interpreted fairly generously, and not as restrictively as earlier cases, like Sandom v Webb applied it. The passage of

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reference to the manner or purposes in and for which the land granted or some land retained by the grantor is to be used”.

Wheeldon v Burrows: 2 principal rules governing implied easements:1) When granting a part of a tenement as it is then used and enjoyed, there will pass to the grantee all those continuous and apparent easements which are necessary to the reasonable enjoyment of the property granted, and which have been and are at the time of the grant used by the owners of the entirety for the benefit of the part granted.”2) If grantor intends to reserve any right over tenement granted, he must reserve it expressly in the grant. If follows from the maxim which states “ that a grantor shall not derogate from his grant”.

Presumed easement (prescription)Not the same as adverse possession, because adverse possession only applies to possession, an easement is a non-possessory right. Prescription applies only to non-possessory rights and requires lesser acts than possessory titles does, and it is not even formally cast as a defence.Prescription must operate for and against a fee simple estate.To exist, a prescriptive grant must be brought to court.

Real Property Limitations ActS31 → 20 years with oral or written permission to defeat it ; 40 years if written permission to defeat ; based on habitual action with evidenceS32 → Litigation is start of lookback period ; Interruption is 1 year or moreS33 → Exceptions: light and air...cannot be acq by prescriptionS34 → Exception: watercourses...cannot be acq by prescriptionS35 → Exception: wires and cables over ground and/or attached to buildings cannot be acq by prescription

Doctrine of “lost modern grant”Same conditions as statutory prescriptive easements. Henderson doctrine continues to exist in Ontario.Kaminskas: “Uninterrupted user as of right at any point in time will create the prescriptive right under this doctrine, provided it was for at least 20

time between the original property transfer and disputes about implied easements, means that the “affirmative evidence” of Webb will generally not exist. Here it is clear that in 1952, there was not question between the parties that both sides would have access to their respective garages. Thus there was an implied easement of access.R1: Exception #4 to Pwllbach (common intent of parties) should be interpreted generously.R2: Lowers evidentiary barrier.

Garfinkel v. Kleinberg ONCA (1955)F: The parties’ houses are built upon a common wall, and G’s fireplace uses K’s chimney, which is entirely on K’s side of thewall. The chimney has been shared since 1912, as found by the trial judge.I:Does G have a prescriptive right to use K’s chimney?H: Yes.Reasoning: K pleads the defence of secrecy. He had no actual knowledge but he had constructive knowledge, “the means of knowledge”.R1: There are some things which every man ought to be presumed to know.R2: Where an ordinary owner of land, diligent in the protection of his interests, would have a reasonable opportunity of becoming aware of the enjoyment by another person of a right over his land, he cannot allege that it was secret.

Kaminskas v. Storm ONCA (2009) (II: 328)F: K and S are neighbours. K’s driveway encroaches 3 feet on to S’s property. K parks his car in the driveway, as all precedingoccupants of his home have done for the past 56 years. S objects. K became the owner of his house in 1991, and received a written letter guaranteeing his use of the driveway from S’s predecessors in title.I:1) Was a 40-year prescriptive easement already in effect at the time of the 1991 letter? 2) Was K a “user as of right”?H:1) No – thus letter defeats K’s claim; 2) No – there was permission.Reasoning: (1) The 40-year period is a statutory creation and must immediately precede the action. Thus the written permission in1991 broke any statutory prescription that would date from 2009. Thus K has recourse only to the doctrine of the lost modern grant.(2) However, the letter of 1991 shows that the K’s predecessor’s use of the driveway was not “as of right” – instead it was with the explicit permission of S’s predecessors in title. This comes out in the letter and testimony. Thus no “lost grant” prescription either.R: Confirms existence of recovery of lost grant’s existence in parallel of statutory regime.

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years”.

Differences with statutory prescription:- Calculation of duration doesn’t need to start backwards from the

commencement of the action.- 40 year statutory claim may only be defeated by written

permission, whereas the LMG doctrine and 20 year statutory claim may be defeated by oral or written permission.

- No equivalent of 40 year claim in LMG.

Scope of Easements- An easement granted for one purpose cannot be used for another.

Malden Farms a grant to cross land (to a farmer) for person, animals and vehicles was used to develop a beach resort.

Termination of Easements- Statutory application. Only BC has such legislation.- If purpose for which it is granted comes to an end, or the right is

abused. Malden Farms (see above).- If a person comes to own both tenements (but if

person comes of possession of the two tenements on two different estates ⇒ easement is merely suspended).

- By release, express or implied.The burden of proof is very high if the owner of the servient tenement is the one arguing for implicit release. Stoppage must amount to abandonment.

ABORIGINAL RIGHTS/ TITLE

Issue of “different” property-Tribal law in scale of social organization...does not reconcile with the institutional of legal societies (In re Sentin Rhodesia 1919 AC)

Prior to Delgamuukw (1997)Royal Proclamation of 1763 → nations should not be disturbed and land should be reserved to them if not given by treaty to UK governmentSt. Catherine Milling 1888 → tenure of Indians was a personal and usufructuary right dependent on the goodwill of the sovereignCalder 1973 → when settlers came the Indians were there, organized in societies and occupying the land as their forefathers had done for centuries.Guerin 1984 → “the sui generis interest...is personal...but gives rise on surrender to a distinctive fiduciary obligation of the crown.

Delgamuukw 1982 SCCFacts: Claim of absolute fee simple by band of aboriginals. Used oral history to demonstrate.Rule: Court says there is a sui generis right to the land. Establishes that there is a duty to consult thanks to fiduciary duty.Analysis:

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-Statement by claimants made in large part by song-Problems with translation because their law was not necessarily relatable to the existing state Fr/Br CML/CVL systems-Ruling said there was a sui generis right to the land with the following characteristics:

-was neither fee simple NOR merely a right to engage in traditional practices-content is a broad occupation and possessory right-inalienable to third parties-communal-inherent limit (if land is significantly destroyed then so is the foundation for the right...e.g. Asking to put a strip mine in)

-Source of sui generis right is in the prior occupation and relationship between the CML and pre-existing systems of aboriginal law → to be understood in reference to both perspectives

-Proof of sui generis right:1. Historical occupation2. Present occupation (if continuous)3. Consistent with the fiduciary duty of the crown → minimal infringement of aboriginal interests, duty

to consult, compensation -s. 35(1) post 1982…

1. Compelling and substantial objective2. Consistent with fiduciary duty with minimum infringement of aboriginal right...a duty to consult exists and compensation must be

made for any taking

Gitkson v. Mi’kmaq-Date of sovereignty/context-Different geographical terrain-Different ways of life and legal orders-Sui generis v. translation → says that aboriginal idea of title should be translated into the CML but it’s either title or it’s not at the end of the day...not sui generisTest:1. Sufficiently regular and exclusive use to engage care nations of CML title2. “Inclusion” vs. “regular” use of definite tracts of land (Tsilhqot’n)3. Demonstration of effective control ANd inference of exclusivity4. Occupation communicating that land held for purposes of group, under exclusive stewardship5. NB: duty of consultation is important

Tsilhqot’in v. BCRule: Reiterates the duty to consultRatio: TEST: Occupation must be…sufficient, continuous, exclusiveAnalysis:-Nation bears the onus of proving title-common law test for possession...must be considered alongside the perspective of the aboriginal group, which, depending on its size and manner of living might conceive of the possession of land in a somewhat different way than CML.-regular and exclusive use of territory...not intensive use of specific kind-**When Crown is trying to give away rights to land the Crown has a duty to get the permission and agreement from the aboriginals...because the title claims all arise out of the idea that the Crown failed to consult-The nature of Aboriginal title is that it confers on the group that holds it the exclusive right to decide how the land is used and the right to benefit from those uses, subject to the restriction that the uses must be consistent with the group nature of the interest and the enjoyment of the land by future generations.-S. 35 of Constitution Act 1982 provides the right for title to Aboriginals

FINDERS ≠ as Pierson and Post ⇒ in a finders case, there is Armory v Delamire 1722 UK (I: 109)

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somebody, other than the finder, that has a better possessory interest, ie the true owner and/or possibly the owner of the land on which it was found.

“All but true owner”.

A finder is a bailee.

Finders Generally (from Parker)1) Finders rights are acquires if: (1) property is abandoned or lost,

and (2) taken into the care and control of finder.2) Limited finder’s rights if finder is dishonest or trespassing.3) Acquires right to keep property against all but true owner4) Employee = Employer5) Obligation to try to find true owner and keep chattel meanwhile

Rights/Obligations of occupier (from Parker)1) Occupier’s rights > finder rights if chattel is attached to land,

whether he knows the chattel is there or not2) … If he has manifested the intent to control the building/land and

the things upon or in it.3) Obligation to find true owner.4) Occupier of chattel (car, ship, van) is treated as occupier of

building.

NB: If trespassing then TO has better title. If not trespassing, then finder has better title. (Bird)

F: Chimney sweeper case. Jewel found. Boy presents it to goldsmith to know the value. G offers money, but boy refuses. G gives back jewel without precious stones. Action in conversion (trover).I: Who has better title? The Boy.R: The finder, though he does not by such finding acquire an absolute property or ownership, yet has such a property as will enable him to keep it against all but the owner.

Keron v Cashman 1896 USF: A group of 5 boys find a stocking that contained money. At first they didn’t know that there was money, they discovered it only when the stocking broke. One boy claims all the money as the first finder, the others claim equal division.R: Intention AND physical control must be concurrent to establish possession.

Bird v Fort Frances 1949 ONF: B found money under a building whose owner was deceased. The police asked for the money and when they stopped retrieving the true owner, they gave it to the town. B is suing town.R1: Bird was not a true finder (he was a wrongful taker), money was found on private property and was put there with intention to hide it.R2: “A taker upon a loss and finding may, like any other possessor, maintain trespass and theft and trover or detinue against a stranger”. Pollock and Wright.R3: Finder or taker must have taken possession of the thing in order to sue for recovery. It is not necessary for effective control to be maintained.R4: Independently of how it was obtained, possession is a valid source of rights. The fact that possession was interrupted does not eliminate acquired rights.R5: Forgetting something is not abandoning the thing.

Moffatt (*R estate*) v Kazana 1969 UKF: R left money in a tin that was hidden in a house sold to K and R wanted the tin after the sale. K claims that he is the finder and has better interest.Reasoning: “The true owners of this money [...] must remain the true owners of the money unless R had divested himself of the ownership by one of the recognised methods, abandonment, gift, or sale. [...] One does not abandon property merely because one has forgotten where one put it”.S. 63 of the Law of Property Act does not provide that a conveyance of property implies a sale of chattel.R: The owner of land on which lost chattels are found has a lower claim than the true owner (here, the R estate).

Parker v British Airways UK 1982F: Gold bracelet found by a passenger P on the floor of the BA executive lounge at Heathrow. P brings it to BA in case the original owner comes looking for it. When no one comes looking for it, BA sells the bracelet. P sues

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BA. BA claims that it owned the lounge and therefore had a legal right to the bracelet.I: Who has rights to keep the bracelet?H: P.Reasoning: P was not a trespasser in the lounge and, in taking the bracelet into his care and control, he was acting with honesty ⇒ full finders rights and obligations. BA did not manifest intention to exercise control over the lounge and all things in it. This depends on signage, effort made to look for things, and the level of openness of the space.[131] test for rights and obligations of finder and occupier.

BAILMENT Bailment occurs whenever an owner parts with possession of a chattel (personal property) for a specified purpose. Bailment can be contractual or gratuitous. Bailee will have obligations with respect to chattel, subject to the negligence standard. If property is lost or damaged, onus flips and bailee must prove he wasn’t negligent.

Re S. Davis: Bailment = “a delivery of personal chattels in trust, on a contract, express or implied, that the trust shall be duly executed, and the chattels redelivered in either their original or an altered form, as soon as the time or use for, or condition on which they were bailed, shall have elapsed or been performed”.

Punch: “the legal relationship of b-b can exist independently of a k. It is created by the voluntary taking into custody of goods which are the property of another”.

Example Bailments: Pawnshops, dry cleaners, rental cars, some parking lots, grocery deliveries.

Criteria for bailment:(1) Dispossession of chattel by owner for a specified purpose(2) Possession of chattel by bailee by delivery.(3) Mutual intention that the chattel will be redelivered to the owner by the bailee after a period of time

Gratuitous Bailment (Gross negligence std)Owner (bailor) hands property to bailee for no consideration, benefiting only the bailor. When bailment obligations are not met, the burden of proof shifts to the bailee who must disprove negligence.

Mutual Bailment- Contract Bailment (Negligence std)

Martin v. Town N’ Country Delicatessen Ltd (1963) MBCA (II: 426)Facts: M parked his car at D’s lot, which had attendants, exceptionally, because it was a busy night. Someone who was presumably an attendant asked him to leave his keys in the car so that it could be moved if necessary, as the lot was quite full. M left his keys in the car and his car was subsequently stolen and recovered in a damaged state.Issue: Was D the bailee of M’s car?Holding: No, there was merely a license to use the parking..Reasoning: Majority (4): The parking lot was a courtesy offered by the restaurant and not a commercial venture. Thus even if there was bailment it was gratuitous and there was no gross negligence here. More importantly, there was no change of possession of the vehicle. The keys were not given to the attendant, but merely left in the car. Discussion of possession [430-433]. Finishes with unfairness of imposing liability on courtesy lots.Dissent (2): “Delivery can be actual or constructive, but to constitute a bailment such delivery must exclude the owner’s possession of his property and give the bailee custody and control over such property for the period of bailment.” Leaving the keys in the car at the attendant’s suggestion clearly constitutes transfer of possession. This was also bailment for reward, since consideration was the additional business brought in by valet parking [435]. He then surveys a bunch of bailment cases [435-436]. Since D never led evidence to prove that it showed any care at all, they should be held guilty.Ratio:(1) Delivery and possession can be actual or constructive;(2) Gratuitous bailments impose a gross negligence standard;(3) Once damage or loss while in the possession of the bailee is proved, the burden is on the bailee to disprove negligence;(4) Fairly high bar for possession of automobiles.Comment: An example of constructive delivery is parking a rental car in the lot of the rental company after hours and putting the keys in their return slot. They could take full possession if they wanted to/had an attendant, so even if

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Owner (bailor) hands property to bailee for a consideration. If both parties receive instrumental benefit, it is a mutual benefit (dissent in Martin). If there is a contract and bailee receives payment for benefit of bailor, the bailment is contractual. When bailment obligations are not met, the burden of proof shifts to the bailee who must disprove negligence.

Bailment v. LicenseLicense does not impose obligation on bailee to safeguard the chattel unless contract says so. In bailment, bailee has obligations to treat the property as a careful owner, subject to the negligence standard.

Sub-bailment v. sub-licenseSub-bailment will allow the bailor to claim against either bailee, whereas sub-license will not.In Punch v. Savoy, Savoy was a bailee for reward and both Walker and CN were sub-bailees for reward. If a sub-bailee aware of the owner not party to the contract between itself and bailee, it will owe this owner a duty of care. If the owner did not consent to the terms, then the owner may not be bound by exemption clauses.

Fundamental breach no longer existsTercon kors Ltd v British Columbia- 2010 [call for tender exclusion clause]® Death of fundamental breach® Test for exclusion clauses is unconscionabilityCourt sets up a test, but disagrees on the application to the facts! Test is : (1) did the parties intend for the clause to apply to the factual situation of the breach? (2) If yes, was the clause unconscionable at the time the k was made? Harry v Kreutziger (3) If no, should the clause still be held invalid due to public policy concerns?

Harry v Kreutziger [Ab. man’s boat] P® Two steps for giving rise to a presumption of fraud: The party pleading unconscionability must prove (1) inequality in bargaining power “due to the need, ignorance or distress of the weaker party” and (2) substantial unfairness of the bargain.® The test for unconscionability in Canada is “whether the transaction…is sufficiently divergent from community standards of morality that it should be rescinded.”

Bailment vs. License-Bailment → the bailee assumes obligations vis à vis the goods that are more extensive than those applicable to a licensor. CONTROL + SUPERVISION = BAILMENT. Bailee has more responsibility.-Licenses → typically no system of supervision. Licensor assumes no obligations except those given

they don’t take possession until the next day, the law will hold the car to have been returned to them.

Heffron v. Imperial Parking Co (1974) ONCAFacts: H parked his car at IP’s lot. He gave the keys to the attendant and received a numbered ticket. Normal practice was for the keys to be taken to IP’s parking garage across the street after the lot closed. The keys were not found at the garage, and IP did not call the attendant on duty as a witness. H’s car disappeared while he was away and was found 3 days later in a damaged condition and without the items H left in it. IP claims H was a mere licensee and it has no duty of care over his car. As a final line of defence, IP points to the exclusionary clause on their ticket that absolves them of all liability whatsoever. H pleads fundamental breach, which would not allow IP to take advantage of this clause.Issue: (1) Was there a bailment relationship? (2) Did IP violate its duties as a bailee? (3) Are they saved by their exclusionary clause? (4) Can H recover for the contents of the car?Holding: (1) Yes (2) Yes (3) No – doctrine of fundamental breach (4) Yes.Reasoning: There was a clear transfer of control. The keys were left with the attendant, and the attendant was empowered to remove the keys to another building owned by IP. Discussion of bailment vs license cases at [442-444]. This was accordingly a bailment. Thus the burden of proof shifts to the bailee [445-446] and IP has completely failed to disprove the charge of negligence. Furthermore, taking reasonable care of chattels is at the heart of the bailment relationship, so the doctrine of fundamental breach will not allow IP to hide behind their limitation of liability clause.Ratio:(1) Bailment relationships must be identified according to the entire circumstances surrounding the parties’ interaction [“While no single factor…” 444];(2) The bailee must disprove fundamental breach in order to make use of its exclusionary clause;(3) Actual or constructive knowledge of the contents of a chattel will make the bailee responsible for the contents of the chattel, unless the parties contract otherwise.

Allison Concrete v Canadian Pacific BCSC 1973F: Hiring K where AC would provide CP against payment with a payloader. AC’s operators would control the machine under CP’s commands. Damage to the payloader.I: Was there a bailment relationship?H: Yes.R: Exclusive possession is stronger than “immediate control” of the item in determining whether a bailment relationship exists. If there is possession without control, possession is a sufficient indicator of control.

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by general law or in the K. Punch v. Savoy’s Jewellers Ltd. (1986) ONCAF: P had an $11,000 heirloom ring. She gave it to S in Sault Ste Marie to repair. S shipped it via mail to W in Toronto for repair. W repaired it, but could not return it by post, which was the standard industry method, due to a postal strike. W contacted CN, notified S that it would use CN, but no details were discussed, nor was P informed. When a CN employee arrived to take the ring, he helped W’s employee fill in the bill of lading and in so doing, wrongly accepted the ring despite a CN policy not to transfer jewellery worth more than $300. There is no record that the ring ever entered CN’s possession and it is clear that the driver probably stole it, as CN refused to call the driver as a witness and apparently did not follow up on the matter internally. CN claims that the bill of lading limits its liability to $50 per item.I: (1) What was W’s duty to P? (2) What was S’s duty to P? (3) What was CN’s duty to P? (4) Does CN’s limitation clause apply?H: (1) Bailment – breached; (2) Bailment – breached; (3) Bailment – breached; (4) No.R: Chain of bailment and sub-bailment: P-S- W-CN. Note that S-W and W-CN are also in bailment relations with each otherindependent of P. The transfer of the ring between all parties was via bailment for reward.(1) W had to treat the ring in the same manner as prudent owner. A family heirloom worth $11,000 would be treated with exceptional care by its owner. W failed to obtain P’s consent for sending the ring by a new and untried method, rather than simply waiting. It also should have purchased insurance. W breached its duty to P.(2) S accepted W’s transport method without informing or consulting P, which was wrong. S’s failure to insist on insurance was also a breach of bailment. (3) “Bailment combines elements of both contract and tort.” If the ring was lost, damaged or stolen by CN’s employee, it is up to CN to disprove negligence on its part. This it failed to do. Furthermore, P cannot be bound by CN’s limitation clause since she was unaware of it and would not have authorized S or W to make such a contract. S and W owe P the value of the ring, and CN must pay them for their losses.R1: Bailment can arise independently of a contract between the bailor and the bailee;R2: The sub-bailee’s contracts bind the owner only if the owner expressly or implicitly authorized the bailee to make such contracts;R3: “The unexplained disappearance of a bailed chattel constitutes a fundamental breach” of bailment contracts;R4: The burden of proof in bailment cases rests on the bailee once damage has been found to disprove bailment relationship.

WHAT IS PROPERTY?

Labour- Locke: individuals have a natural right to their own labour.- INS ⇒ relation between labour and news.

Occupancy or Possession- First person who controls or occupies is allocated property rights.- Overlap with labour theory.

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- Not a general justification of private property, it is a justification for the assignment of a particular rights to particular persos.- Pierson ⇒ fox.- Adverse possession.

Utility- Bentham and utilitarianism.- More of a standard against which to measure and evaluate property rules.- INS ⇒ dissent on news as res communi.

Law & Economics- Version #1: stress on “market efficiency”. Maximum levels of exclusivity, maximum uses, maximum transferability.- Version #2: Describe rather than prescribe. Asks what people are likely to do in response to a given rule and suggests that courts and legislatures

take into account such likely responses in formulating the rules.

Freedom and Personality- Seeks to enhance human freedom and moral development.- Version #1: Freedom from state intervention.- Version #2: (Hegel) Private property allows humans to exert their will over the external environment and in the process to demonstrate their

individuality.

Radical Theories- Property as power.

Bell and Parchomovsky, “Reconfiguring Property in Three Dimensions”- Blackstone’s original 3 dimensions in all property problems: Number of owners, Scope of each owner’s dominion, Asset design.

- Difficulty of analyzing property through silos, authors propose (thesis) to conceptualize property as a 3-dimensional balancing act ⇒ “as property rights fall out of sync on one dimension, the law must adjust its protections on other dimensions in order to maximize property rights”.

- Property theory is still searching for an accurate means of conveying the “thingness of private property”- May think of the concept of “estate” as a particular solution to “thingness”.

- Private ordering of property:- “Private actors will naturally develop property rights that tend to maximize the value as a function of the 3 dimensions.- The private ordering of property acts as means of reducing transaction costs (Coase).

- Public ordering of property:- Defines and redefines (in the case of k) property rights.- Establishes rights beyond the scope of parties to bargain with another - that is where transactions costs bar effective bargaining between

relevant parties.- Merrill and Smith: because property deals with an indefinitely large class of individuals who may encounter a given asset, property law is

essential for managing the costs of conveying information about rights. That is why the government definition of property rights is the important one.

Merrill, “Property and the Right to Exclude”- Thesis: right to exclude is more than “one of the most essential sticks in the bundle”, it is sine qua non (necessary and sufficient condition of

identifying the existence of property).- 3 schools of thought regarding the right to exclude:

- Single-variable essentialism: the right to exclude others is the irreducible core attribute of property. Not a very popular view but endorsed by the author.

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- Multiple-variable essentialism: the essence of property lies not just in the right to exclude others, but in a larger set of attributes or incidents, of which the right to exclude is just one. Those attributes are the rights of “free use, enjoyment and disposal”. Note: similar to cvl: usus, fructus, abusus.

- Nominalism: views property as a purely conventional concept with no fixed meaning. Nominalism is more or less the orthodox understanding in the American legal community.

- Arguments in support of single-variable essentialism:- Logic argument: It is possible to derive most of the other attributes associated with property by minor clarifications about the domain of the

exclusion right.- Historical argument: the right to exclude is the first to emerge in primitive property rights systems.- Practice argument: by and large, where the law recognizes a right to property, it confers a right to exclude.

Dred Scott, 1856- Decision: slaves are not, and have never been recognized as citizens under the Constitution.- “The right of property in a slave is distinctly and expressly affirmed in the Constitution”.- “[The English] not only seized them on the coast of Africa, and sold them or held them in slavery for their own use; but they took them as ordinary

articles of merchandise to every country where they could make a profit on them”.- The only two provisions of the Constitution to mention slaves treat them as property.- “[The State] has no power over the person or property of a citizen but what the citizens of the US have granted. And no laws or usages of other

nations, or reasoning of statesmen or jurists upon the relations of master and slave , can enlarge the powers of the Government or take the rights of the citizens”.

PROPERTY AND ECONOMICS

Demsetz, “Toward a Theory of Property Rights” 1967- A primary function of property rights it that of guiding incentives to internalize externalities.- The emergence of property rights takes place in response to the desires of the interacting persons for adjustment to new benefit-cost possibilities.

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