Property Mcneil w06 1

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Chapter 1Concepts of Property in Law .......................................................................................................................... 3

Victoria Park Racing and Recreation Grounds Co. Ltd v Taylor1937, Australia................................................... 4Pettkus v Becker 1980 .................................................................................................................................................... 4

International News Service v Associated PressUS 1918 .......................................................................................... 5Chapter 2The Concept of Possession ............................................................................................................................... 5

US Supreme Court Mitchell v U.S. ............................................................................................................................... 7

Tee-Hit-Ton ................................................................................................................................................................... 7The nature of the thing being possessed ......................................................................................................................... 7

Pierson v Poste ............................................................................................................................................................... 7

Armory v Delamory ....................................................................................................................................................... 7Parker v British Airways (Court of Appeal, 1992) ....................................................................................................... 8

Joint finding....................................................................................................................................................................... 9Keron v Cashman .......................................................................................................................................................... 9

Edmonds v Ronella ........................................................................................................................................................ 9Bird v Fort Frances ....................................................................................................................................................... 9

Buckley v Gross (English decision) ............................................................................................................................ 10Irving v National Provincial Bank (English Court of Appeal 1961) ......................................................................... 10Clark v Maloney........................................................................................................................................................... 10

R v Christie................................................................................................................................................................... 10Moffat v Kazanza ......................................................................................................................................................... 11

AG of Canada v Brock ................................................................................................................................................. 11

Law of finders and treasure trove ................................................................................................................................. 11Extinguishment of the Rights of the True Owner ........................................................................................................ 11

Possession in relation to land ......................................................................................................................................... 11Asher v Whitlock .......................................................................................................................................................... 12

Perry v Clissold (1907) ................................................................................................................................................ 12Mabo v Queensland ..................................................................................................................................................... 12McPhail v Persons Unknown ...................................................................................................................................... 12City of New York v Utsey ............................................................................................................................................. 13

Statute of limitations in relation to land ....................................................................................................................... 13

Piper v Stevenson ......................................................................................................................................................... 13St. Clair Beach Estates v MacDonald ......................................................................................................................... 13

Lutz v Kawa .................................................................................................................................................................. 14

Possessory claims among co-owners .............................................................................................................................. 14MacLean v Reid ........................................................................................................................................................... 14Spectrum Investments .................................................................................................................................................. 14Giouroukos v Cadillac Fairview ................................................................................................................................. 15

Keefer v Arillotta .......................................................................................................................................................... 15Meridian Investments v How ...................................................................................................................................... 15Beaudoin v Aubin (from the Bucknall article) ........................................................................................................... 15Wood v Gateway ........................................................................................................................................................... 15

Pye v Graham (2003 House of Lords) ........................................................................................................................ 16

Chapter 3Fundamental Principles Governing Property Interests in Land ............................................................... 16

The Doctrine of Tenure .................................................................................................................................................. 16

Incidents of tenure .......................................................................................................................................................... 17

The Statute of Quia Emptores (1290) ............................................................................................................................ 18The Doctrine of Estates .................................................................................................................................................. 18

Life Estate .................................................................................................................................................................... 18Fee simple .................................................................................................................................................................... 19Fee tail ......................................................................................................................................................................... 19

Who could hold land ....................................................................................................................................................... 19Conveyancing and Law of Property Act ..................................................................................................................... 20

Qualified estates .............................................................................................................................................................. 20Void Conditions ........................................................................................................................................................... 21

Re Essex County Roman Catholic Separate School Board and Antaya ................................................................... 21


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Re Tucks Settlement................................................................................................................................................... 22Re Down ....................................................................................................................................................................... 22

Life Estates ...................................................................................................................................................................... 22

Re Waters ..................................................................................................................................................................... 22Re McColgan ............................................................................................................................................................... 23

Life estates and successive interests in land.................................................................................................................. 23

The Rule in Shelleys Case ............................................................................................................................................. 23Re Rynard .................................................................................................................................................................... 24

Present and future interests ........................................................................................................................................... 24

Future interests at common law .................................................................................................................................... 25Vested and contingent remainders ................................................................................................................................ 25

The Common Law Remainder Rules ............................................................................................................................ 26

The Rules ......................................................................................................................................................................... 26

No remainders after a fee simple ................................................................................................................................ 26No springing freeholds ................................................................................................................................................ 26

Timely vesting .............................................................................................................................................................. 26No shifting freeholds ................................................................................................................................................... 27

Equitable estates ............................................................................................................................................................. 27

The Use and Remainder Rules....................................................................................................................................... 28Rule 1 ........................................................................................................................................................................... 28

Rule 2 ........................................................................................................................................................................... 28

Rule 3 ........................................................................................................................................................................... 29Rule 4 ........................................................................................................................................................................... 29

The Statute of Uses ......................................................................................................................................................... 29

Rule in Purefoy v Rogers ................................................................................................................................................ 30

The Statute of Uses and Testamentary Dispositions .................................................................................................... 30Way to use the Statute of Uses to get around the legal remainder rules .................................................................... 3

Rule 1 ........................................................................................................................................................................... 31Rule 2 ........................................................................................................................................................................... 31Rule 3 ........................................................................................................................................................................... 31

Future interests under wills ........................................................................................................................................... 31

The Modern Trust .......................................................................................................................................................... 31Rule Against Perpetuities ............................................................................................................................................... 32

Rule against Perpetuities ............................................................................................................................................. 32Issues with the rule ...................................................................................................................................................... 32Statutory reform of rule against perpetuities .............................................................................................................. 33Re Gaites Will Trusts (1949) ...................................................................................................................................... 33

Re Frost (1889) ............................................................................................................................................................ 33Chapter 7Concurrent Interests in Property ................................................................................................................. 33

Types of Concurrent Interests ....................................................................................................................................... 34

Joint tenancy ................................................................................................................................................................ 34Tenants in common ..................................................................................................................................................... 34

Co-parcenary ............................................................................................................................................................... 34Tenancy by entireties ................................................................................................................................................... 34

McEwen v Ewers and Ferguson ................................................................................................................................. 35

Severance of a joint tenancy........................................................................................................................................... 35Aboriginal ............................................................................................................................................................................ 35

R v Sparrow .................................................................................................................................................................. 36Van der Peet ................................................................................................................................................................. 37Gladstone ..................................................................................................................................................................... 37

Marshall ....................................................................................................................................................................... 37Mikisew Cree2005 .................................................................................................................................................... 38

Delgamuukw ................................................................................................................................................................ 38Marshall and Bernard ................................................................................................................................................. 39


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Chapter 1Concepts of Property in Law

What is property law about?o Rights, rights to things, things may be intangible or tangible intangible = IP

Property involves ownershipgenerally in some cases less than ownership will be okay Property rights are legal rights One such right is the right to possession

o Preclude others from taking something Law of property involves a relationship between people and things More importantly it involves relationships between people If you lose something the law will not help you find it The law will enforce your rights if you know where it is In common law systems property rights are held by persons Who can have property rights in common law

o Any entity that has legal personalityo People (natural persons)o Artificial personcorporations

Because only persons can have property rights a group of persons cannot have themthey are not a legalperson

Clubs and associations that are not incorporated for exampleappoint someone to hold the property for them In common law systems animals cannot have property rights Minors can own property but there are some restrictions on their ability to transfer property Property rights in rem are rights against the whole world In contrast contract rights are in personamrights related to a specific person not the whole world Can have contracts in relation to things that are property rights Whenever land is sold there is a gap in time between agreement and transfer Contracts may involve a transfer of rights but it may not occur at the same time Property still belongs to the vendor until the actual transfer occurs But sometimes contracts will be enforced by the courts so after the deal is struck the seller usually cannot back

out This is seen in cases of housing and other unique goods In real estate the purchaser gets an equitable interest in the property when the deal is struck A major issue with property rights is proof proof of ownership Possession leads to a presumption of ownershipmust be property capable of possession The common law of property goes further than that

o Protects possession for its own sakeo Possession gives someone a right against everyone elseo If remain in possession for 10 years you get titlein Ontarioo Also cannot claim possession for a third party

In squatting statute extinguishes rights to land and creates a new right of possession vested in the squatter If someone owns something what does that mean

o In law may mean that one has a bundle of rightso Entitled to the use and enjoyment of the land

But it is not unlimited Limited by the rights of others and such things as zoning laws etc.

o Entitled to the right to derive income from the property Can lease or rent the property

Give up some rights during the term of the leaseo Right to alienate the land

To sell or transfer it to anothero Right of inheritance

Convey property upon death if it is an inheritable property right Some interests in land are only life interests Property law is a social construct The different rights under ownership are not exclusive


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There can be public rights that impact possession Aboriginal title to land cannot be alienated In some aboriginal cultures they may be inalienable Personal property vs. Real property

o Real propertyland and anything attached to it with some degree of permanenceo Personal propertyeverything else

Real property may be corporeal or incorporealtangible or intangible Incorporeal rights are such things as easementsright of way over anothers land Profits a prendreright to go on someone elses land and take something from it Personal property can also be corporeal or incorporeal Choses in actioncan only recover something through legal action Property right is an enforceable interest Once something is detached from the land it is no longer real propertybecomes personal propertyVictoria Park Racing and Recreation Grounds Co. Ltd v Taylor1937, Australia Many grounds upon which he attempted to establish claim Nuisance

o Two kinds of nuisance Public nuisanceinterference with or harm to public in general Private nuisanceinterfere with the use and enjoyment of land

o Nuisance is a tort actionnot the same as trespass which is interference with possessiono Problem with nuisance for plaintiff is that the actions of the defendant did not interfere with his use or

enjoyment of his propertyjust made it less profitableo Categories of nuisance are never closed must be substantial interferencemajority found none

Rich and Evettdissentedo There is no all inclusive definition of nuisanceo Defendants use of its land was not a natural use of its lando Would have upheld that there was a nuisance hereo Defendants actions made the track less profitable

Differences between majority and minorityo Majorityfor nuisance must interfere with use and enjoymento Minorityit did interfere made it less profitableo Second major difference was that the dissenters found the defendants use of his property was

unnaturalo Dissenters seemed to look more at the purpose and effect of his actionso Municipal authority is delegated from the province

Plaintiff also contended that he had a right to privacyo Majority rejected thisno common law authority for privacyo Had the remedy of self helpbuild a higher fenceo Minorityit is not just interference with privacy since if something prevents the use and enjoyment

of land then there is an interference with privacy and a nuisance Plaintiff also contended that he spent money to create a spectacle

o This spectacle then became his propertyo Majority rejected this by saying that it was difficult to view a spectacle as being owned

Common law system is about judge made law In Victoria the judges of the majority were unwilling to extend that law Today the debate focuses on judicial activismbut that is what the common law is all about Every issue that goes to appeal involves some uncertainty about what the law truly is or means In Victoria the information being transmitted was not confidential information In Canada there may be an opportunity to proceed in this type of case on the basis of unjust enrichment

Pettkus v Becker 1980 He accumulated property while she paid the bills

o There elements


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Person receives a benefit Other party suffered a corresponding loss No juristic reason (legal explanation) for this to occur

International News Service v Associated PressUS 1918 As with Victoria the case is about the limits of property rights Has to do with whether there can be property rights in news Appellant had been denied access to certain countries in order to cover the war Used respondents news in their own papers USSC held that when two businesses are in competition as these two were there is a principle of fair business

practiceo It is wrong to take the news from the other and incorporate it into your own paper

Justice Pitneyo Also relied on the argument that there can be property in news

Content cannot be copyrighted Can copyright the written word Would not be a copyright violation to write report based on news in another paper But would be quasi-property right that was interfered with Quasi-property right was only good against competing news services Gain this quasi-property right through the process of gathering news and expending money

Property is in rem right is good against all others Brandeisdissent

o Emphasized that an essential element of legal private property is the right to exclude otherso But in this case there is no right to exclude otherso Also questions the use of copyright should be for artistic creations etc.

Majority decision protects private property right of news service Brandeis protects rights of the public to information

o Brandeis is famous for introducing briefsin Canada factumsthat incorporate policy argumentswhen he was a lawyer

Chapter 2The Concept of Possession

Concept of possessiono What is the relationship between possession and ownershipo Ownership involves a right to propertyo Personal property involves absolute ownershipo Only Crown can own land absolutelyo Can divide possession from ownershipo Possession can be either rightful or wrongfulo When two people assert ownership of land the dispute is over who has better title to the lando Possession in fact involves actual possession of the thingo There is also a mental element to possession intention to possess the thing

Possession in fact does not depend on a legal distinction Possession in law is possession in fact that is recognized by the legal system

o There are exceptions Most important is employeeemployer relationship

Possession in fact can be with an employee but possession in law is with employero Possession in law does not mean it is lawful possession

E.g. if someone steals something and possesses it then they have possession in law that iswrongful

Possession is single and exclusiveo Two people cannot have possession at the same timeo In cases of co-ownership there is a single shared possessiono Possession, once acquired, is assumed to continue until you give up possession

E.g. car in parking lot you have not given up possession of it


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Ownership is presumed from possession in lawo Subject to rebuttal of ownership

Most property is acquired by a transfer from someone else sale, gift, transfer etc. But every property right has an origin

o Should be able to find out who had the original property righto For land it is easier to trace the title back than for other things

In England the basis of land ownership is that the Crown owns all of the land Comes from the feudal system

o All land rights derived from Crown grant In British colonies

o In Australia and others it was deemed that the land was terra nulliisvacant lando In Canada this was not the case

Recognized aboriginal title to land In Canada it is theoretically possible to trace land rights back to the original Crown grants

In common law systems the main way that property rights arise is through possession The first to take possession becomes the owner of the thing When a statute of limitations extinguishes the right of an owner in adverse possession cases a new right is

created in the name of the adverse possessoro It is not a transfer of rights

Other property rights can be created by making new things Can sometimes involve the use of things that were previously owned Also applies to domestic animalsif a cow gives birth the owner of the cow owns the calf Why is it a rule that the first to take possession becomes the owner

o Difficult questiono One explanation is based on Lockes labour theory mixing labour with a thing makes you the owner

But assumes that one owns ones labour Also issue of how much labour is involved in producing something Also why should the taking of possession give one the right of ownership forever

o Another theory is the contract theory People generally agree with the assumption that when one takes possession they own that

thing Is an agreement between people Ownership gives one person freedom and limits the freedom of everyone else

Distinction between saying that there is private property and justifying it on a political, moral or economicbasis

Justification for having these property rights protected by legal system is not a legal question and is based onsocial, political, and cultural orders and interests.

From a legal perspective: what amounts to taking of possession, that is, what is necessary for the thing to betaken so those rights arise, both in terms of land and objects or things

Choses in action: recover through court action: shares, stocks, bondsthe paper itself is notin the thing itself, which can be possessed, but value is in something else.

Choses in possession: recover through retaking How can one take possession of land in order to attain rights? In Common law, land was rarely, originally unowned

o However, if land is unowned in the common law, land can become owed by way ofoccupancy. Thisrequires:

Must have intent to be in occupation: do something the owner would do on the land,something natural to occupation per se.

Actual physical occupation In Canada, this has been addressed only through Aboriginal Land Claims:

Marshall / Bernard(2005) (unowned land and original title) what kind of occupation is necessary to determine aboriginal title (original title) at the

time of colonial intrusion?

This case answer the questions: common law recognizing original title at time ofEuropean arrival


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o Person received possession from someone else, that person can not deny the giving persons previouspossession, especially in the case of the sweeper who did not intent to give away rights.

At time, damages were only available, not get it back.o Boy succeeded, was entitled to highest value of the stone.o Boys rights came from his possession.

Finders rights in rem, are good against most with exceptionso Owner has better rightso If in the employment of someone, then employer might have better rights.

Parker v British Airways (Court of Appeal, 1992)

Facts: Plaintiff found gold bracelet at airport, handed it to an official and asked for the bracelet to be returnedto him if not claimed by the owner. Owner never claimed it and it was not returned, but sold it and kept theproceeds.

Result: Court finds for the plaintiff and awards him damages.o The rights and obligations of the finder are as follows:

The finder of a chattel acquires no rights over it unless: a) it has been abandoned or lost, or b)he takes it into his care and control [not entirely true as a thief does acquire some rights incivil law that arise from possession].

Abandonment requires a clear intention to give up his rights. The first possessor afterabandonment has taken place will become an owner. Note that there are exceptionsto this, such as the abandonment of dangerous items.

The finder of a chattel acquires very limited rights over it if he takes it into his care andcontrol with dishonest intent or in the course of trespassing.

Dishonest intent can consist of someone finding something and immediatelyconverting it to their own use, without making an attempt to find the owner

Trespassers automatically have a less right as a wrongdoer cannot profit fromwrongdoing

A finder of chattel, while not acquiring any absolute property or ownership in the chattel,acquires a right to keep it against all but the true owner

Reaffirmation ofArmory v. Delamirie Any servant or agent who finds a chattel in the course of his employment or agency does so

on behalf of his employer or principal who acquires a finders rights to t the exclusion ofthose of the actual finder.

A person having a finders rights has an obligation to take such measures as in all thecircumstances are reasonable to acquaint the true owner of the finding and presentwhereabouts of the chattel and to care for it in the meantime.

Cost v. benefits analysiso The rights of the occupier are as follows:

An occupier of land has rights superior to those of a finder over chattels in or attached to thatland and an occupier of a building has similar rights in respect of chattels attached to thatbuilding, whether in either case the occupier is aware of the presence of the chattel.

Occupier has a better right for items attached to the land and the building becausesuch items are viewed as part of the land the occupier is in possession of.

Noteentering to detach an item means that trespass has occurred! An occupier of a building has rights superior to those of a finder over chattels upon or in, but

not attached to, that building only if (before the chattel is found), he has manifested anintention to exercise control over the building and the things which may be upon it or in it.

The case turned upon this point. The D failed to manifest the intention to exercisecontrol in the area in which the bracelet was found. Court discusses instances wherethis might be demonstrated such as the existence of a bank vault.

An occupier that does the above is under an obligation to take such reasonable measures toensure that lost chattels are found and, upon being found, to acquaint the true owner of thefinding and to care for the chattels in the meanwhile.

An occupier of a chattel (i.e. ship, car etc.) is to be treated as if he were the occupier of abuilding for the purposes of the foregoing rules.


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Noted that the D did not own the area of the airport in which the transaction occurred.In this case, it is likely that D is a lessee and in the case of finder v. lesseewhoserights are superior?

o For example, the lessee is precluded from carrying out activities that willdiminish the land with respect to the owner. A lessee can take some thingsfrom the landbut not others.

From Parker There is a common law dealing with finding but the court is not bound by it Court has the right and duty to extend and adapt the common law in light of established principles and current

needs of the community Common law has ready made solutions for every problem

o Is just a theory, a fictiono Asserts that the common law just discovers the answers to problems

Supposedly judges rely on the community to aid in creating judicial rules Another reason is that judges are uncomfortable with making up laws and therefore assert that they are just

discovering them A further reason is to prevent retroactive application of the laws

o If a law is undiscovered then no one can be expected to abide by ito To get around retroactivity judges say that they discover laws that already existed an then how can the

law be retroactive if it already exists

Joint finding

Keron v Cashman Kids find a stocking with money in it One of them found it and they all began playing with it and then the money came out There was no intention on behalf of the first to possess the money Intention only arose later when they realized that there was money in the stocking Court divided it up between themonly fair way of doing things

Edmonds v Ronella Boys found an envelope with money in it A girl came along and together they took it to her house

Police came and gave her a receipt as the finder Court found possession occurred when they left the parking lot together and therefore they shared possession

of the money What if she had taken the money from them?

o For boys to take possession they must have the money and the intention to possess ito If they did not have the intention to possess it they would not have a caseo But most likely the court would find a way for the boys to win because what she had done was wrong

Do these cases violate the rule that possession is a single and exclusive thingo In these cases there is only a single possession but it is sharedo Could have shared possession of a single object one would need to pay the other for their share or

sell it and split the proceeds

Bird v Fort Frances Boy found money in a can under a billiard hall Brought it home to mother who hid it in the couch He was spending some and police became suspicious of him and asked him where he got it He told them, mother gave over cash, police handed it over to the city, put in trust, could not find true owner,

boy sues for it back Court said that there are only three ways he could have gotten possession

o True finding no trespass, had an intention to return it etc.o His taking of the money was wrongful taking

Probably a trespasser who could not claim anything found on anothers property


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Also made no effort to find the true ownero Took the money with felonious intent

Intended to take it, knew he had no right to do so, and intended to spend it Judge said the boy was not a true and honest finder Was either a civil or a criminal wrong But judge said he did not have to decide which because in either case he would have the same rights This is because he had taken possession of the money and thus had a better right to it than anyone else Town had no rights but the real owner or occupier would have had a stronger claim to possession What about the taking of the money by the police officer

o Was most likely not wrongful because mother handed it overo But police officer had no right to ask for the moneyo Judge said he took it as a bailee in order to find the true owner and when he could not he was obliged

to return it to the boyo The town had no greater right than the police officer to the money

There is a further issue in this caseo When the police officer took the money the boy did not have possession, the mother dido Mother willingly gave over the moneyo Question is in what circumstances does possession continue after actual possession is given upo Could treat mother as agent of the son and then the mother could not deny that the son had rights to

the money

Buckley v Gross (English decision)o Police arrested a many in London who had tallow on himo There had been a fire at a candle factory and tallow had run into the sewer and into the Thames, the

tallow had hardened in the rivero He was charged with theft and acquittedo Sued for tallow back and denied recovery

Court said his possession was wrongful because there was a magistrates order for the police totake possession of the tallow from the factory

o Ruling was that if wrongful possession is rightfully taken away then there is no longer any right ofownership

Irving v National Provincial Bank (English Court of Appeal 1961)

o Relied on Buckley v Grosso There had been a robbery, man was caught with money on him, arrested and tried but acquitted

could not prove the money was from the banko He sued police for the money back but as in Buckley there was a magistrates order and therefore he

no longer had possession because it had rightfully been taken from him by the policeo Court probably felt that he had stolen it just could not be proven beyond a reasonable doubt

Clark v Maloney (page 131 notes) Logs were lost, another found them who lost them to be found by yet another

o Case is between the two finderso Do rights of the first finder continue after he loses them yes because he was not in dishonest

possessiono The finders possession may be interrupted without taking away all rights to the items found

R v Christie Marijuana in the trunk of the car, says she found it and thought her kids were into drugs, was driving around

trying to find friends, got in an accident and charged with possession of marijuana She was acquitted court said she had no intention to possess the drugs Appeal court said that she may have had possession in the civil sense but not in the criminal sense


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Moffat v Kazanza Kazanza found money that previous owners had secreted in the house Former owners were claiming it Had not abandoned money nor really lost it But purchaser said that the money went with the sale of the house said that once the house was sold the

former owners could no longer access the house to get money back The case illustrates that an owners rights continued and are stronger than those of the finder Per KM, the remedy to a legal claim for the initial owner lies in the fact that an owner has a right to reacquire

property unless barred by the Statute of limitations.o In the case, the court held that the true owners claim was stronger than the finders claim

concluding that there had been no gift or sale of the tin or abandonment by the initial owners.

AG of Canada v Brock Man pulled over by police, had $300,000 in the car, claims he did not know about it, next day says it was from

offshore investors of his, he died later of a drug overdose, The estate seeks the money backwin at trial lose on appeal Case shows that possessory rights are inheritable and can be passed on but he had no intention to possess

had said he did not know about the money Court of appeal overruled on the basis of a different set of factsLaw of finders and treasure trove

Crown has a prerogative right to treasure trove Applies when treasure has been buried or hidden May also arise via statute

o NS has oneo Also Canada Shipping Act Crown has right to shipwrecks

Extinguishment of the Rights of the True Owner

True owner can abandon their rights Can also be extinguished by statute

o In Ontario the limitation is 2 yearso When a finder finds something the limitation does not begin until the finder begins to use the thing for

his or her own benefito Statute does not extinguish the title of the true ownerlimits legal rights to a thingo But if the true owner could get back possession he would have a stronger case

Possession in relation to land

Rules are very much the same as for personal property But land cannot be found Have adverse possession instead Person in possession is presumed to be the owner Much of possession relates to evidenceproof

Even if someone can rebut possession that is not allo If one can prove they have title they will get possession of the lando But you cannot rely on a third persons title to claim possession

Called jus tertiio Even if you can prove that another has title you cannot use that to overcome possessiono In order to dispossess someone you need to prove that you have a better title than they do

The title that arises from possession is one that can be passed onsold, inherited or otherwise passed Title from possession is good against all the world except those that can show a better title


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Asher v Whitlock Manorlarge landholding owned by a lord where others had small portions that they owned as tenantshad

to pay services to the lord Waste of the manor land not actively being farmed Williamson in 1842 enclosed a part of the waste and approximately 1850 enclosed more and built a cottage He died in 1860 leaving it to his wife until she remarried and then to his daughter Wife remarried in 1861, in February 1863 daughter dies, May 1863 wife dies New husband wants the land, daughters heir at law sues for it Court held that Williamson though in wrongful possession could pass on his title Court said that the daughters heir wins because Williamson had the ability to pass on his estate The daughters interest arose as soon as the mother got remarried therefore the new husband had no rights As far as the statute of limitations is concerned the time does not begin unless there is a break in the adverse

possession in this case possession was continuous and was just passed on All of these matters are now governed by statute Another judge in the case says that possession is evidence of seisen Also says that if the defendant could prove that the testator did not have an estate he could pass on then he

would be able to show better title since he lived there For example if Williamson was only a tenant at will of the lord Only points this out to show how the defendant may have won but it does not apply to this case Seisen is an old term for possession

o Someone who had possession by freeholdo Williamson had diseised the lord of the land

Perry v Clissold (1907) Deals with jus tertii Crown expropriates land for school from a squatter who had not been there long enough to have title (10

years) but did have possession in law The government has to compensate the squatter for the land. Compensation is required because the squatter had possession of the land which, despite not being the owner,

demonstrates a good interest in the land.o Possession in law is not lost until someone shows better possession.o The government could not dismiss squatters claim b/c someone else had better title (jus tertii). Noted

that if true owner wants to be compensated now must get it from squatter Crown had exercised its authority under statute to seize land But even the government cannot take land from an adverse possessor without paying compensation Crown also had to pay the full value of the land in question

Mabo v Queensland Crown grants of land extinguish rights of indigenous people because indigenous rights are not granted by the

Crown Perry v Clissold is against this

o Clissold had no Crown grant yet he got compensation Self help is also an option in matters involving squatters A landowner can retake possession without having to go to the courts Simple reentry is not enough it must be something more

McPhail v Persons Unknown Court said it was ot up to it to enforce a court order to retake possession Was not at the courts leisure to allow people to live in anothers house against the law Court found it was not appropriate to delay enforcement of a court order even though self-help was available


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City of New York v Utsey Squatters did not claim possession of the place where they were staying City wanted to do reconstruction and evicted them Court said that they were tenants at will and that the city had to give them notice to moveStatute of limitations in relation to land

Different limitations in different areas Ontario in 2002 introduced a new statute with a uniform 2 year period but did not affect land Also passed the Real Property Limitations Act did not change anything S.15 of the Act after limitation has passed the right to reclaim land is extinguished Act does not transfer title it extinguishes it and creates a new one in the adverse possessor on application for a

declaration of title Courts today are not very sympathetic to adverse possessors except maybe in cases of innocence such as a

fence that is in the wrong place etc. Justification for statute of limitations

o Bar claims after a period of time due to loss of evidenceo Economic incentive

To provide for people to develop land If the person in adverse possession is not interfering with the intentions of the true owner then

no adverse possession is found to have arisen It is also less of an issue in systems where there is a land registry system in place such as the Torrens system

o Every transaction is recorded, adverse possessor must file a claim to be protected In Canada some land is TorrensNorth and Westwhile some is notsouthern Ontario

o This is because the Torrens system did not arise until the late 19th century One of the major issues with Real Property Limitations Act is when does the right of action accrue

o Usually at the time of dispossession or discontinuance of possession Need an adverse possessor for dispossession

Therefore the twodiscontinuance of possession and dispossession are not the sameo Need to have someone to launch an action against

If the true owner has no current use for the land other than speculation it is extremely difficult for an adversepossessor to gain possession

Piper v Stevenson This is an early case Woman bought 6 plots of land but enclosed 8 Did everything that would normally be done on the land True owner brought an action but limitation had expired No luckSt. Clair Beach Estates v MacDonald MacDonalds claimed they had rights to some of the land which the company had purchased and wished to

register St. Clair had purchase land in 1969 but MacDonalds had purchased their in 1961

oThey had used the land for various purposes in the interim

o But did not have permission of the owners to do so If they had possession they would have not been in adverse possession Instead would have been tenants at will

But a tenancy at will will become adverse after one year would have added a yearto the term for adverse possession

Other possibility would have been that they were licensees who could access the land forlimited purposes

Licensee is generally not in possession of the land But the owners of the farm had continued to use the disputed property for picking cherries, and used as much

as possible for farming as well


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Judge also found that there had to be an intention to be the true ownerMacDonalds had tried to purchase itat one point indicating that they knew they did not own the land

Lutz v Kawa Mistake of property line, a fence put in the wrong place Court held that adverse possession arose even though there was no intention Would be incongruous to allow one with conscious intent to take land while not allowing one who did so

honestly to not get it But new purchaser of land was able to defend the title because of the Torrens system the adverse

possession had not been registered

There is a section in the Ontario Real Property Limitations Act saying that if the adverse possessor at any timeacknowledges the title of the true owner in writing that the 10 year period begins from that date

Possessory claims among co-owners

Co-ownership arises in two wayso Joint tenancyif one of them dies the other gets it automatically cannot be passed on by willo Tenancy in common

With respect to adverse possession the issue is can the possession of one living on the land be adverse to theother(s)

o

Yes s.11 of the Real Property Limitations Acto Does there have to be intent to exclude the other(s)

Not necessaryPC said in Paradise Beach (p.172) OReilly (p.173) Ontario Court of Appeal

Brother and sister had maintained a farm for 33 yearsgot possession against theirsiblings

Parents had left the farm to all of them Court also applied the equitable doctrine of laches

o When you had not exercised rights for a long period you could not exercisethem later

Tenancies at willo One form of leaseholdo Leasehold can be for a fixed termsome are 99 years or moreo Can be terminated at any time by either party

MacLean v Reid Man living on his brothers farm for a long period Brother sold the land to another who wanted the other brother out Court found that the brother living on the land was in adverse possession Other brother could not sell what he did not have Limitation period in relation to legal disability

o S.36-39 of the Acto Gives them an extra five years after the time the disability ceases to existo 20 years maximum When the disposesed individual is a leaseholdero With leases the period for adverse possession against the true owner does not begin until the lease is

overo Fair-weather caseEngland

Lease is over when the leaseholder surrenders it New limitation begins Question is how can the leaseholder surrender something that he no longer has

Spectrum Investments Squatter registered his title and therefore the leaseholder had nothing to surrender


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Giouroukos v Cadillac Fairview There were successive short-term leasescourt treated them as one long lease Plaintiff wanted limitation to run from the end of the first short term lease Shows courts unwillingness to support the motives of adverse possessors

Keefer v Arillotta 8ft strip of land between two properties in question must have an intention to exclude the true owners from the use of the property which they wished to make of

it Respondents failed to prove an intention to dispossess the true owner and had done nothing that was counter

to the wishes of the true owner A person claiming possessory title must establish the following:

o Actual possession for the statutory period by themselves and those through whom they claim;o That such possession was with the intention of excluding from possession the owner or persons

entitled to possession [per Pye v. Grahamis this an intention to possession rather than an intentionto own?]

o Discontinuance of possession for the statutory period by the owner and all others, if any, entitled tothe possession.

Dissento Owner did nothing that would stop the limitation period from runningmere reentry is not enough to

reacquire or maintain possession

Meridian Investments v How How rented a 100 acre parcel of land Owner lost it but got half back How had been using part of the land as an airstripthe part the owner lost Meridian wanted its half back and prosecuted for it If they sought possession back they would be acknowledging that How had possession

o Instead prosecuted under trespass Court held that Hows use of the land was not against the wishes of the owner who only wanted the land for

speculative purposes Case extremely limits the ability of adverse possessors to gain possession of land This kind of decision supports speculation in land What would Hows position be vis--vis 3rd partied

o Not answered in this caseBeaudoin v Aubin (from the Bucknall article) Piece of land between neighbours where one (Beaudoins) had used a part of the others land even after

finding out that it was not their own land When the new purchaser bought the land they wanted to claim it back Held that intention is just needed to possess the land and not necessarily to possess it against the true owner of

the land

Old law was simply that adverse possessor had to get possession without the owners consentWood v Gateway Deals with what happens in cases of mistake Neighbours and one had used some land of the other with neither knowing it was the others land. Had constructed a fence and run a business on part of the disputed land When the land was sold the developer sought to reclaim the disputed portion of property Do not need explicit intention to exclude true owner Both parties had the mistaken belief that it belonged to the applicants When sold the respondents sought the land Introduced a key consideration into adverse possession debate


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o Where neither knew of the mistake is it possible to come up with the requisite intent to possess theland

Yesbecause you have an intention to exclude all others including the ownero Is it possible to establish exclusion of the true owner

Yes if you exclude them it is a question of facto Question of using it against the wishes of the true owner

Frustrate their intentions regarding the land Said that this did not apply in honest mistake cases

How can their be a requirement of use against the intention of the true owner whenthe true owner had no intention because he did not know the land was his

Says that the inconsistent use test arose to prevent injustice to rightful owners and to prevent unjustenrichment of wanton trespassers

Question was, in Wood, whether they had excluded the true owner Yes they had so therefore was adverse possession and all was okay This decision was approved of by the Court of Apeal in Teis v Town of Ancaster giving it more weight and

authority

Pye v Graham (2003 House of Lords) Grahams had permission to use four fields for their herds to graze The agreement had expired in 1984, limitation period was 12 years In 1997 Pye took them to court House said that Pye had no use for the land but speculation but that did not save him b/c his intention made no

difference This is directly contradictory to the Wood decision

Chapter 3Fundamental Principles Governing Property Interests in Land

Of the various ways to fracture interests in land the most common are leases and co-ownershipThe Doctrine of Tenure

In 1066 William the Conqueror conquered England and introduced feudalism Under the feudal system the aristocracy only maintained land so long as they remained loyal to the King In theory the Crown always maintained ownership of the landan underlying title Tenants in chiefwere the lords who owned huge parcels of land They in turn entered into agreements with other tenants

o These tenants would get interests in land on condition they rendered certain services and remainedloyal to the lord

There could be numerous people with an interest in any one portion of lando First was the Crown with ultimate ownershipo Second was the tenant in chief who held immediately of the Crown

Tenant in chief would render certain services to the Crown and would in turn parcel out hisland to various persons

o Third were the mesne lords Held of the tenants in chief and rendered services to them

o Fourth was the actual holder of the landthe tenant in demesne Would render services to the mesne lord in return for having the land

The feudal system of landholding effectively created the social, political and constitutional order of feudalsociety in England

Feudal services provided the Crown and aristocracy with the resources it needed to operate The evolution of property law was greatly influenced by the ongoing struggle between landholders seeking to

enforce these services and others seeking to avoid them Tenures came in one of two forms

o Free tenureshad specified services required of themallowed for certainty and could not beincreased by the lord or terminated without cause


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o Unfree tenureshad no specified services and were thereby subject to the lords discretion There were different types of free tenures as well

o Tenures of chivalrymost frequently held by tenants in chief Knights service provision of knights for the sovereigns army Grand sergeantypersonal service to the sovereign

o Spiritual tenuresheld church lands in return for spiritual serviceso Tenure in socagerender agricultural services to the lord

Incidents of tenure Wardship and marriage

o If an heir was a male under 21 or female under 14 the lord could manage the land for his own profituntil they reached the age of majority

o Lord could select a spouse for any tenant in wardship and fine the tenant for declining a suitablespouse or for marrying under age without the lords license

o Wardship and marriage were of great value and could be bought, sold and bequeathed by the lord tothird parties and became known as chattels real

Reliefo An amount of one years income from the land was payable upon descent of the land to an heir

following the death of the tenant Aids

o

Lord had the right to call for financial contributions for such things as ransom Escheat

o Has remained in existence todayo When a tenancy came to an end the land escheated back to the lord

Would do so if the tenant died without an heir Also could happen if the tenant was convicted of a serious crime

Seisinsomeone seised of the land was the one against whom the feudal services could be enforced Someone always had to be seised of the landthe common law abhorred an abeyance of seisin It was essential to know who was seised of the land at any given time since this determined the distribution of

the burdens and benefits of the feudal system From the concept of seisin arose the practice of livery of seisin

oFormal ceremony whereby a person seised of the land, the feoffer, could convey it to another, thefeoffee

o The feoffer entered on the land and, in the presence of witnesses, delivered seisin to the feoffee eitherby some symbolic act, such as handing him a twig or a sod of earth, or by uttering some words such asenter into this land and God give you joy

Tenants were not permitted to alienate their interest in land without the consent of the lord This limited the ability of tenants to alienate their land There were two types of alienation available to tenants

o Substitution Could convey land to anotherand the other would then be responsible for all incidents of

tenure Although initially the lords consent was required it appears that by the 13 th century alienation

by substitution was allowed without the lords consento Subinfeudation

The tenant could become a lord themselves by alienating an interest in land in such a way thatthe new holder of the land would assume tenurial duties to the one who previously had it

Lords disliked subinfeudation since it interfered with their incidents of tenure If the one who initially held the land dies without heirs the lord gets the land but since

the tenant had subinfeudated the land all the lord got was the services from the newowner and not the land itself


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The Statute of Quia Emptores (1290)

Abolished subinfeudation Also confirmed the right to alienate land without the consent of the lord Also provided that all alienation of land was to be done by substitution and not subinfeudation Therefore only the Crown could create new tenures This began the flattening of the feudal system since when land escheated back to the lord he could no longer

subinfeudate the land to another tenant However the Crown could still do so and receive valuable incidents of tenure

This upset other lords and in 1660 the Crown, in exchange for other sources of tax revenue relinquished itsclaim to incidents of tenure

Escheat is the sole remaining incident of tenure in Canadao When one dies without heirs the land escheats back to the Crown

Aboriginal title to lands is not tenurial because it does not originate from Crown grant but rather arises byoperation of law from a pre-existing right based on historical occupation and possession of land

The question of sovereignty over aboriginal lands is often taken to be a matter of international law and notdeterminable by domestic courts

The Royal Proclamation established the fundamental principle that no aboriginal lands in America were to betaken without the consent of the aboriginal occupants

In Calder the SCC accepted that aboriginal title is recognized at common law and was not extinguishedmerely by the acquisition of Crown sovereignty

Although some form of pre-existing and continuing aboriginal interest in the land was recognized by theRoyal Proclamation Canadian courts were slow to articulate the precise nature of the interest

If aboriginal title were read narrowly, limited only to a right to occupy the land for certain traditional purposesit would be of small economic value

However if aboriginal title is read more broadly to include wide rights to develop and exploit the fulleconomic potential of the land it is of much greater value

The Doctrine of Estates

The doctrine of estates in land is another method by which interests in land can be divided among a variety ofpeople

Tenure fragmented interests along the lines of exploitation and alienation Estates fragments interests over time Doctrine of estates permits any number of people to hold interests in the same piece of land The holders of estates in land will enjoy possession of the land in succession The tenure by which one holds land determines the quality of the property interest

o By what terms or tenurial services and incidents the land is held The doctrine of estates determines the quantity of the interest

o The period of time during which one holds the interest Estates permits one person to be in possession of land while another may have an estate in land that will

entitle him to possession at some point in the future Freehold estates

o Two parts to a land transfer: words of purchase and words of limitationType of freehold estate Words of purchase Words of limitation

Fee simple To A And his heirsFee tail To A And to heirs of her body

Life estate To A For life

o Words of limitation tell us the nature of the estateo Words of purchase tell us who the estate transfers to

There are two principal types of estates in land in existence todaythe life estate and the fee simpleLife Estate X to A for life, and then to B

o A is the life tenant, B acquires what is known as a remainder interest, X retains nothing


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X to A for lifeo A is the life tenant, X retains the remaining interest called a reversionary interest and is known as the

reversionero The reversion interest reverts back to X when A dies

In the first example both A and B acquire what is known as a present interesto Both have a property interest in the same piece of land, B can convey his interest to another who will

acquire it at the time of As deatho If B predeceases A his interest will pass to his heirs

Fee simple Originally the fee simple estate was created by a grant of land to A and his heirs

o The estate continued so long as A had lineal descendants, if not it would escheato This even occurred if A alienated his interest to Bthe estate continued only so long as there were

lineal descendants of Ao By 1306 it was established that if A alienated his lands to B the estate continued so long as B had

lineal descendantso After this the estate in fee simple was essentially unendingo Heirs was later broadened to include collaterals such as cousins, aunts, nephews etco With the passage of the Statute of Wills in 1540 it became possible to leave estates by will

Due to this escheat became rare and the fee simple essentially eternal The fee simple is the largest estate possiblecan potentially last forever Fee simple estate in free and common socage is today the most common interest in land It is this interest which most closely approaches ownership

o It is the largest bundle of rights that one person can hold in land under common lawo It is not strictly speaking ownership since the Crown retains ultimate title

Rights to use and enjoy land are not unlimitedcan be limited by statute or regulation such as noise by-laws,zoning regulations etc.

Fee tail Is now obsolete in all the provinces except Manitoba Created by a grant to A and the heirs of her bodylasts so long as there are lineal descendants A only acquired a life estateupon her death it passed to her descendants If a wanted to convey her interest to B it would only last so long as A was alive Fee tail was of interest to wealthy families who wanted to maintain ownership of land in the family Big disadvantage is that the land is essentially inalienablewho wants to buy land when the estate could

terminate unexpectedly at any time

Who could hold land

Legal persons could hold landindividuals and corporations Some had restrictions on land ownership

o Minors had a restricted power of dispositiono Women had many restrictionso Mentally incompetent also had restrictions on disposition of landso Foreign citizens at common law were not allowed to hold landhas bee abolished by statuteo Since corporations can exist indefinitely they were effectively immune from many of the incidents of

tenure such as relief and escheat Many statutes were passed limiting the ability of corporations to gain estates in land For freehold estates the duration is uncertain, whereas leaseholds are certain in duration In feudal history freehold estates were regarded as the higher estates because the freeholder was seised of the

land and subject to any applicable tenurial services or incidents The creation of a leasehold estate is a common method to divide interest in land over time The one who grants a lease holds a right known as the reversionwhen the leasehold ends the grantor gets it

back Historically leases were not viewed as ownership of the land but rather as contractual situations In leases the tenant was not regarded as being seised of the land


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The common law developed strict rules regarding the precise words required to create an estate and these ruleshave now been modified by statute

To create an estate in land larger than the life estate the use of certain precise words was essential At common law a freehold estate of inheritance could only be created in an inter vivos transfer only by a

phrase that included the word heirs To X and his heirs conveyed a fee simple estate any other word usage created a life estate and nothing more In wills a different approach was taken In wills the courts were more willing to give a broader interpretation to the words but absent some evidence to

create a fee simple courts still opted for life estates

Words of limitation words that define or delimit the size of the estate conveyed fee simple or life estate Words of purchase indicate to whom the interest is being conveyed Legislation has changed the strict common law requirements effectively reversing the presumption in favour

of a life estate

Conveyancing and Law of Property Acts.5. (1) In a conveyance, it is not necessary, in the limitation of an estate in fee simple, to use the wordheirs.

(2) For the purpose of such limitation, it is sufficient in a conveyance to use the words in feesimple or any other words sufficiently indicating the limitation intended.(3) Where no words of limitation are used, the conveyance passes all the estate, right, title,interest, claim and demand that the conveying parties have in, to, or on the property conveyed, or

expressed or intended so to be, or that they have power to convey in, to, or on the same.(4) Subsection (3) applies only if and as far as a contrary intention does not appear from theconveyance, and has effect subject to the terms of the conveyance and to the provisions thereincontained.(5) This section applies only to conveyances made after the 1st day of July, 1886.

If a grantor intends to grant only a life estate they must expressly specify this In wills courts tried to give effect to a testators wishes even when the precise words had not been used Unless there is evidence to the contrary the law now presumes an intention to convey a fee simple or the

whole interest held by the testator Estates in fee simple may be either absolute or qualified estates Qualified fee simple estates can terminate not only on the death of the tenant without an heir but also at an

earlier time in certain circumstances Qualified estates arise when the grantor or testator wishes to grant a fee simple estate that will terminate on

the happening of some event An absolute fee simple will terminate only if the holder dies without an heir Qualified estates are of less value than absolute estates because the qualified estates may terminate if the

condition on which the land is held is violated The law attempts to balance the competing interests of the original landholder who seeks ongoing control and

the current occupant who may be dispossessed Consequently the law permits the creation and enforcement of some types of qualified fee simple estatesQualified estates

There are two types of qualified estates Determinable fee simple

o Will automatically determine on the occurrence of some specified event, which may never occuro The grantors interest is called a possibility of revertero If the occurrence of the determining event becomes impossible the determinable fee simple becomes

absoluteo X to A in fee simple until B marries

If B dies the event cannot occur If B marries then X gets the estate back

o Words such as so long as, during, while, and until typically create a determinable fee simple Fee simple subject to a condition subsequent
http://www.e-laws.gov.on.ca/DBLaws/Statutes/French/90c34_f.htm#5.(1)http://www.e-laws.gov.on.ca/DBLaws/Statutes/French/90c34_f.htm#5.(1)http://www.e-laws.gov.on.ca/DBLaws/Statutes/French/90c34_f.htm#5.(1)http://www.e-laws.gov.on.ca/DBLaws/Statutes/French/90c34_f.htm#5.(2)http://www.e-laws.gov.on.ca/DBLaws/Statutes/French/90c34_f.htm#5.(2)http://www.e-laws.gov.on.ca/DBLaws/Statutes/French/90c34_f.htm#5.(3)http://www.e-laws.gov.on.ca/DBLaws/Statutes/French/90c34_f.htm#5.(3)http://www.e-laws.gov.on.ca/DBLaws/Statutes/French/90c34_f.htm#5.(4)http://www.e-laws.gov.on.ca/DBLaws/Statutes/French/90c34_f.htm#5.(4)http://www.e-laws.gov.on.ca/DBLaws/Statutes/French/90c34_f.htm#5.(5)http://www.e-laws.gov.on.ca/DBLaws/Statutes/French/90c34_f.htm#5.(5)http://www.e-laws.gov.on.ca/DBLaws/Statutes/French/90c34_f.htm#5.(5)http://www.e-laws.gov.on.ca/DBLaws/Statutes/French/90c34_f.htm#5.(4)http://www.e-laws.gov.on.ca/DBLaws/Statutes/French/90c34_f.htm#5.(3)http://www.e-laws.gov.on.ca/DBLaws/Statutes/French/90c34_f.htm#5.(2)http://www.e-laws.gov.on.ca/DBLaws/Statutes/French/90c34_f.htm#5.(1)


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o There is an addition of a condition on a grant in fee simple which may terminate the estate at theinstance of the grantor

o X to A in fee simple on condition that A does not marry Bo The purpose of a fee simple subject to a condition subsequent is to compel compliance with the

condition on the pain of forfeitureo The grantor retains a right of reentryalso called right of reentry for condition brokeno The grantor must reenter to bring the estate to an endo If the grantor fails to do so the estate continues and A will acquire a fee simple absolute once the

limitation period expireso A condition subsequent may defeat an estate that has already been granted

Is called a condition of retention Fee simple subject to a condition precedent

o The grantee will receive nothing unless the condition is satisfiedo A condition precedent is a condition of acquisitionmust meet to acquire the estate in the first place

X to A on condition that she marry B It is sometimes difficult to determine whether a particular grant creates a fee simple subject to a condition

precedent, a fee subject to a condition subsequent or a determinable fee The characterization of the grant or devise is often crucial to the basic question of whether or not the grant wil

take effect

Void Conditions Conditions may be void for a number of reasons

o A condition may be repugnant to the interest granted if it is inconsistent with the use and enjoyment ofthe property

Most common type is a restraint on alienation of land A partial restraint may be upheld but a complete restraint will not be

o A condition may be contrary to public policy A complete ban on marriage Conditions that incite one to commit a crime Conditions based on race or religion

o Condition may also be too uncertain If a condition precedent is void for some reason then the condition cannot be satisfied and the entire grant or

devise will fail The common law is generally in favour of an interpretation that will allow the grant or devise to take effect or

vest As a result courts are generally reluctant to find a condition precedent void and will strain to uphold these

conditions If a condition subsequent is void then only the condition fails and the grant still takes effect giving the grantee

an absolute fee simple Since the courts favour a vesting construction they will be strict in interpreting conditions subsequent since

they give rise to a possibility of forfeiturethey want the estate to be maintained if possiblecourts willtherefore be willing to find them void

A determinable fee operates similarly to a condition precedent If the condition is void the entire grant fails since the determining event is void In these cases the courts will sometimes attempt to construe such a grant as a condition subsequent in order to

avoid this result

Re Essex County Roman Catholic Separate School Board and Antaya Deed contained a covenant that the property was to be used for school purposes only The grantor reserves to himself the preference to buy the property at market value if it is no longer used for

school purposes Court determined it to be a condition subsequent and not a determinable feesince the condition did not

occur in the perpetuities period the school board keeps the property


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The restriction in the present case is a superadded condition upon a grant of a fee simple rather than anintegral part of the very limitation of the estate created in the School Board

Re Tucks Settlement Made a trust provided that his descendants got access to the trust so long as they married an approved wife Also provided for who an approved wife would beJewish and a means of resolving disputesrabbi Speak of conceptual uncertaintyuse of vague words in the grant Evidential uncertaintydifficult to apply the words of the grant due to the facts of the case Since the testator allowed for a means by which any dispute could be settledthe rabbithen there is no

reason to worry about it and the grant stands

Re Down Testator left land to his sons, one of whom was older than the other, the younger was to get his share upon

attaining the age of 30 so long as he remained on the farm Issue was if it was a condition precedent, or subsequent If precedent his interest would fail and the court did not like this option Court held that the condition so long as he remains on the farm was a condition subsequent and void for

uncertainty There also may be some consideration here that to find a condition precedent would disentitle the one son to

any share in the estate and that would not have been the grantors wish at any time

Life Estates

Like an estate in fee simple a life estate could also be qualified A life estate can be subject to a condition precedent, condition subsequent or determinable interest X to my widow so long as she remains unmarried

o Widow would acquire a determinable life estate with two natural termination pointsdeath orremarriage

o The grantors estate would retain a possibility of reverter and a reversion in fee simple X to my widow for life provided that she does not remarry

o The natural termination point of this estate is deatho If she remarries the executor of the grantors estate can exercise the right of re-entry which would also

terminate the estate

A license is merely a contractual right gratned by the owner permitting another to enter onto the land for aspecified purpose A license does not create an estate in land that will bind subsequent purchasers of the land

o Because it is a contract privity of contract applies It is therefore important to determine whether a particular grant or devise creates a qualified life estate or

merely a license As with fee simple estates the characterization of the conditions is important

o If a condition precedent the grant or devise will fail, same rules for condition subsequent anddeterminable life estate as with a fee simple estate

Re Waters Ontario 1978 HCJ

Testator gave to the use of a woman a residence so long as she lives or until she remarries She to pay all repairs and upkeep, and when she no longer needs or uses it the residence becomes part of theresidue of his estate

Issue was whether it was a life estate or a license Court determined that it was a life estate with provisions for losing the life estateremarriage Another issue was repairs that needed to be done The clause states that she shall pay for all repairs and other upkeep expenses and she is therefore responsible

for the necessary repairs It is repairs necessary to keep the house in a reasonably fit condition that she is responsible for


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Re McColgan Ontario1969 HCJ Doctor was good friends with a woman to whom he left a house until her death or until she is not residing

therein personally She had left for a while to obtain medical care but returned in a matter of months Court held that it was similar to going on a vacationwould that mean she lost the house The interest is a life interest said the courtto be a home for the woman Issue was whether the until she is not residing therein is a determinable interest or condition subsequent Court found the condition to be external to the grant and therefore a condition subsequent

o Said that if the event occurs it will defeat an estate already grantedo This is one of the hallmarks of a condition subsequentcondition of retention

Court says that the condition is vaguedifficult to define residing and therefore fails for uncertaintyo If the condition had been a determinable interest then the whole grant would have failed and they do

not like to do this

Life estates pur autre vieo A life estate can be alienated to third partieso X to A for life and then to C, A to Bo The life tenant can alienate the interest they have and no more B gets an estate that lasts only so

long as A is aliveo If A is absent for seven years and cannot be located A is deemed to be dead

Life estates and successive interests in land

After the life tenant dies the estate will revert to the grantor or pass to the remainder person The life tenant may exclude the grantor or remainder person so long as the life tenant is alive They can take possession only on the death of the life tenant The life tenants interest is to enjoy the property to the maximum during his or her life The remainderperson or reversioners interest is to preserve the property for the future The concern of the law is to prevent the property from falling into disuse and disrepair The life tenant then has gained significant abilities to manage the land Doctrine of waste governs what the life tenant can do to alter the physicality of the property

oAmeliorating wasteenhances the value of the land Will generally not be held liable for ameliorating waste

o Permissive wastedamage resulting from failure to preserve or repair the property Unless the instrument which granted the estate expressly imposes liability for permissive

waste the life tenant is not required to maintain the property in good repairo Voluntary wasteconduct that diminishes the value of the freehold

Imposes the greatest obligations on the life tenant Cutting too much timber, destroying buildings, opening mines etc. The donor may make the life tenant unimpeachable for voluntary waste

o Equitable wastesevere and malicious destruction Life tenant is always liable for this, even with a grant making them unimpeachable

Life tenant is responsible for all current expenses on the estateo

For example the interest on a mortgage but not the principalo Also responsible for property taxes

The Rule in Shelleys Case

Relief to the lord only arose when one took the land by inheritance not be inter vivos grant Landholders invented the following grant to get around relief

o X to A for life, remainder to the heirs of A in fee simple As heirs would take their interest from this grant remainderpersonand this would be an inter vivos grant

and therefore when A died they would inherit without having to pay relief The law developed to get rid of this because the lords did not like it


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o If a freehold estate is granted or devised to a person and, by the same instrument, an estate is limitedby way of remainder to his heirs or the heirs of his body, whether the remainder immediately followshis estate or follows an intermediate remainder, the word heirs is construed as a word of limitationand not purchase

As a result the word heirs indicates the size of the estate fee simple Also as a result the heirs take nothing and in the above example A would get a fee simple estate The rule in Shelleys Case was only triggered when heirs was taken to mean the whole line of inheritance and

not a single individual If it could be established that a single individual was in mind then the grant was okay The Rule in Shelleys Case is a rule of law and not of construction and therefore it applies regardless of the

manifest intent of the grantor The rule applied even if there was an intermediate interest

o X to A for life, then to B for life, remainder to the heirs of A A acquired two estateslife estate and an estate of inheritance in remainder following Bs

life estate, As heirs get nothing Where there is no intermediate estate A will acquire an immediate fee simple absolute by operation of the rule

and the doctrine of merger Doctrine of merger

o When one has two estates in the same piece of propertya life estate and fee simplethe lesserestate merges into the greater creating only a fee simple absolute

Re Rynardo Ontario1980, CAo Woman granted her estate to her son, also granted that after his death his heirs would get the estateo Issue was whether the rule in Shelleys case applied giving her son absolute fee simpleo There is a threshold question in determining whether the rule applies

Whether or not the word heirs was intended to be the whole line of succession or a singleperson

o Court determined that she meant his next of kin, not the whole line of successiono Especially since she had another clause in her will which states that notwithstanding anything else in

the will she wants her son to have the use of the property and he is not able to sell, mortgage or dootherwise with it

o Court said his estate was a life estate limited by a determinable interestif any creditor attempted toseize it he would lose it and that Shelleys rule did not therefore apply

Present and future interests

A future interest is an interest in property in which the right to possession and

Property Mcneil w06 1

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