Property – Final Outline

Table of ContentsIssues of Indefeasibility................................................................................................................................................. 3

Land Title Act.....................................................................................................................................................................................3Additional Notes...............................................................................................................................................................................3Creelman v. Hudson Bay Insurance Company (1920, PC)....................................................................................................3Exceptions to Indefeasibility, S.23(2) is subject to:.............................................................................................................4

Fraud and Forgery.........................................................................................................................................................................4Gibbs v. Messer (1891, Australia)................................................................................................................................................4Frazer v. Walker and Radomski (NZ PC)....................................................................................................................................4Pacific Savings and Principal Savings v. Can-Corp, etc. (1982, BCCA)..............................................................................5Notice of Unregistered Interests.................................................................................................................................................5

Central Station Enterprises Ltd. v. Shangri-La Estates Ltd. (BCSC, 1979)...............................................................5Me-N-Eds Pizza Parlour Ltd. v. Franterra Development Ltd. (1975, BCSC)............................................................5Nicholson v. Riach (1997, BCSC)...............................................................................................................................................6

Fee Simple........................................................................................................................................................................... 65 Types of Estates.............................................................................................................................................................................6Fee Simple: Granting Phrase........................................................................................................................................................6Statute..................................................................................................................................................................................................6RE: Ottewell (1969, SCC).................................................................................................................................................................7

The Life Estate................................................................................................................................................................... 7Repugnancy........................................................................................................................................................................................7

RE: Walker (1925, Ont)................................................................................................................................................................ 7RE: Richer (1919, Ont SC)............................................................................................................................................................7RE: Shamas (1967, Ont CA).........................................................................................................................................................8

Creation...............................................................................................................................................................................................8Waste....................................................................................................................................................................................................9

Hiltz v. Langille (NSSC, 1959)....................................................................................................................................................9Vane v. Lord Barnard (1716)..................................................................................................................................................10City of New Westminster v. Kennedy (1918).....................................................................................................................10Mayo v. Leitovski (1928, Man KB).........................................................................................................................................10Morris v. Howe (1982, Ont HC)...............................................................................................................................................10

Co-Ownership – Concurrent Estates........................................................................................................................ 11Types of Co-Ownership................................................................................................................................................................11Creation of Concurrent Interests.............................................................................................................................................11

RE: Bancroft Eastern Trust Co v. Calder (1936, NSSC)..................................................................................................12Winchester v. McCullough (2000, NBQB)...........................................................................................................................13Bull v. Bull (1955, QBCA)...........................................................................................................................................................13Robb v. Robb (1994, BCSC).......................................................................................................................................................13

Relations Between the Co-Owners..........................................................................................................................................14Share of Profits............................................................................................................................................................................. 14Spelman v. Spelman (1994, BCCA)........................................................................................................................................14Share of Expenses.......................................................................................................................................................................14Leigh v. Dickeson (1881)...........................................................................................................................................................15Bernard v. Bernard (1997).......................................................................................................................................................15BCLI Recommendations...........................................................................................................................................................16

Severance of Joint Tenancies.....................................................................................................................................................16Sheldon Stonehouse v. AG BC (1962, SCC)..........................................................................................................................16Mortgages....................................................................................................................................................................................... 17North Vancouver v. Carlisle (1922, BCCA).........................................................................................................................17Trusts............................................................................................................................................................................................... 18Public Trustee v. Mee (1972, BCCA)......................................................................................................................................18Foort v. Chapman (1973, BCSC).............................................................................................................................................18

RE: Sorensen and Sorensen (1997, AB App. Div).............................................................................................................18Agreement between the parties...........................................................................................................................................19Flannigan v. Wotherspoon (1953, BCSC)............................................................................................................................19Walker v. Dubord (1992, BCCA).............................................................................................................................................19

Partition and Sale..........................................................................................................................................................................19Morrow v. Eakin and Eakin (1953, BCSC)..........................................................................................................................20Rayner v. Rayner (1956, BCSC)...............................................................................................................................................20Bradwell v. Scott (2000, BCCA)...............................................................................................................................................20Mowat (2012)................................................................................................................................................................................ 21Sahlin (2011)................................................................................................................................................................................. 21

Future Interests.............................................................................................................................................................. 21Review – Fee Simple + Transfer...............................................................................................................................................21“Vested” and “Contingent” Interests.......................................................................................................................................21

Vested Interests...........................................................................................................................................................................22Contingent Interests..................................................................................................................................................................22Vested vs. Contingent Interests............................................................................................................................................22Classification................................................................................................................................................................................. 23Browne v. Moody (1936, PC)....................................................................................................................................................23RE: Squire (1962, Ont HC)........................................................................................................................................................ 24RE: Carlson (1975, BCSC)..........................................................................................................................................................24Phipps v. Ackers (1842, HL).....................................................................................................................................................25Barton Estate.................................................................................................................................................................................25Festing v. Allen (1843, Exch)................................................................................................................................................... 25

Types of Future Interests............................................................................................................................................................25Reversions......................................................................................................................................................................................26Rights of Entry..............................................................................................................................................................................26Possibilities of Reverter........................................................................................................................................................... 26Remainders.................................................................................................................................................................................... 26

Validity of Conditions and Qualifications.............................................................................................................................27Uncertainty.................................................................................................................................................................................... 28Restraints on Alienation..........................................................................................................................................................29

Incorporeal Interests................................................................................................................................................... 29Nature of Incorporeal Interests................................................................................................................................................30Easements........................................................................................................................................................................................30

Phipps v. Pear (1965, CA)..........................................................................................................................................................30What constitutes a valid easement?...................................................................................................................................30RE: Ellenborough Park (1956, Eng. CA)..............................................................................................................................31

Covenants.........................................................................................................................................................................................32Tulk v. Moxhay (1848)............................................................................................................................................................... 32Development of Doctrine........................................................................................................................................................ 33Modification/Cancellation......................................................................................................................................................33

Personal Property......................................................................................................................................................... 33Finders..............................................................................................................................................................................................33

Parker v. British Airways Board (1982, Eng. CA)............................................................................................................34

Marital Property............................................................................................................................................................ 35Fundamental Change in Division of Property.....................................................................................................................35

Aboriginal Property...................................................................................................................................................... 37Delgamuukw (SCC)........................................................................................................................................................................37Tsilhqot’in (2014, SCC)..................................................................................................................................................................37

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Issues of Indefeasibility

Land Title Act S.23(2) “An indefeasible title, as long as it remains in force and uncancelled, is conclusive

evidence at law and in equity, as against the Crown and all other persons, that the person named in the title is indefeasibly entitled to an estate in fee simple to the land described in the indefeasible title, subject to the following:

o (i) The right of a person deprived of land to show fraud, including forgery, in which the registered owner has participated in any degree.

o This section, 23(2), is guaranteeing title. There is a clear desire to make title indefeasible once it is registered (curtain between the register and anything before).

S. 25.1(1) Subject to this section, a person who purports to acquire land or an estate or interest in land by registration of a void instrument does not acquire any estate or interest in the land on registration of the instrument.

o S.25.1(2) Even though an instrument purporting to transfer a fee simple is void, a transferee who (a) is named in the instrument, and (b) in good faith and for valuable consideration, purports to acquire the estate, is deemed to have acquired that estate on registration of that instrument.

o S.25(1) is not applicable to a gift/will, only available to bona fide purchasers. Note s. 297(3) A person taking under a void instrument is not a purchaser and acquires no

interest in the land by registration of the instrument.o This section was repealed in 2005

Insurance fund exists to compensate persons injured by this land title act. If a person is deprived of their title in land and under common law they would have been able to bring a suit but can’t now because of indefeasibility, they could be compensated out of this fund

o If there was a mistakeo Under s.296(2)o Deprivation must have been because of fraud or a wrongful act for which they did not

participate.

Additional Notes The owner of any other interest in that property, anything other than a fee simple (such as a

mortgage), is entitled to register that charge in the registry.o This is an incumbranceo In this system, the state is guaranteeing the indefeasibility of the fee simple

When a title is registered for the first time, the applicant must satisfy the register that there is good marketable title in fee simple

o Once satisfied, the register will issue a duplicate copy of the certificate of title.o The role of the registrar is to look at all of the documentation and make sure that it is a

registerable interest.

Creelman v. Hudson Bay Insurance Company (1920, PC) Appellants are bound to accept HBC’s certificate and consequently comply with all their

obligations under the contract. The fact that HBC acquired title in a way that did not comply with their own statute was

irrelevant, all the matters is that they had title.

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Exceptions to Indefeasibility, S.23(2) is subject to: The certificate of title mirrors the exact state of the title, even those exceptions which are not

listed on the title continue to have validity. Indefeasible title is subject to the terms of the original crown grant – any conditions that

applied to that land under the original crown grant would be an exception.o Outlined in s.50 of the Land Act.

(D) A lease or an agreement for a lease for a term not exceeding 3 years if there is occupation. If a lease is less than 3 years, it doesn’t need to be registered but it still stands (you should ask if there are any tenants/if they are in possession)

o Any lease over 3 years is required to be registered by law (E) Public highways, etc. (G) Various charges such as pending applications for a charge on the property, if there is

anyone making a claim that is likely to be pending litigation, etc.o Charges that are in motion but not yet on the certificate

(I) Fraud and forgery, the right of a person deprived of land to show fraud, including forgery, in which the registered owner has participated in any degree

Fraud and Forgery No indefeasibility if the registrar or the person has acted fraudulently. Under common law the principle is nemo dat you can’t transfer what you don’t have.

o It is a nullity and the transaction is voido Think of an innocent third party – what would happen to them?? Reason why s.25.1

was enacted – to protect bona fide purchasers for value and allow them to hold valid title.

Torrens system puts indefeasibility front and centreo Immediate indefeasibility once the purchaser, regardless of what has happened, if

there is no fraud, had registered their title, they have indefeasibility. Needs to be one away from fraud

o Deferred indefeasibility Principle means that the “curtain” here does not fall at the first registration, but at the second

Needs to be two away from fraud

Gibbs v. Messer (1891, Australia) This case deals with fraud and forgery. There is a transfer created fraudulently to a fake

person. There is then a subsequent transfer to an innocent third party. Follows the deferred indefeasibility principle HOWEVER, this is an anomalous case and courts are trying to move away from this decision.

Frazer v. Walker and Radomski (NZ PC) Follows immediate indefeasibility

o The fact that the forged mortgage is registered means that indefeasibility applies (Torrens System)

General principle registration under the Land Transfer Act, 1952, confers upon a registered proprietor a title to the interest in respect of which he is registered which is immune from adverse claims, other that those specifically expected.

o Once a person’s name is registered in the register, even though it came from a void instrument, that person gets immediate indefeasibility

Except for it they fall under the exceptions listed in s.23(2)

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Protection is limited to fee simple, no other interests will be protected.

Pacific Savings and Principal Savings v. Can-Corp, etc. (1982, BCCA) Facts The financial corporation was issued a certificate of title since the owners defaulted

on their mortgage. After, the mortgagors filed a lis pendens (so that they could redeem their mortgage – this was registered).

Mortgagors argued that any indefeasibility is subject to s.23(2)(g) – a caveat charge claim or a pending court proceedings.

Conclusion Even though a certificate of title has been issued, somebody else may be properly entitled to that title.

o The mortgagee’s (financial corporation) title had not claimed indefeasibility until their dispute had been finally resolved.

Notice of Unregistered Interests S.29(2) A person dealing with a registered owner is not, despite any rule of law to the

contrary, affected by notice of unregistered interests affecting land (title is not affected)o This provision is an attempt to get rid of a rule in equity, the doctrine of noticeo Idea is that you don’t have to look behind the registero Effect All interests must be registered and if they are not registered, they will not

affect title.o Exceptions 29(2)(c), (d), and (e)

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

is actual occupation under the lease or agreement, or (e) The title of a person against which the indefeasible title is void under

s.23(4)

Central Station Enterprises Ltd. v. Shangri-La Estates Ltd. (BCSC, 1979) Facts There was a 5 year lease, not registered on the property. There is a default on a

mortgage and the property goes into foreclosure, Shangri-La buys it. Shangri-la finds out about the lease after the purchase has been executed, but before the title

is registered and before the redemption period is up.o Plaintiffs argue that since SL found out about the lease before they became registered,

SL is unable to rely on s.29 Conclusion It is from the date that you have entered into a binding contract, not the date

that you registered title.o At the time SL entered into a binding contract, they did not know about the lease

therefore they can rely on s.29. (Their title is not affected by the unregistered lease) Under special circumstances only can a person become disentitled from relying on s.29

o Had SL known about the lease they might not have been protected.

Me-N-Eds Pizza Parlour Ltd. v. Franterra Development Ltd. (1975, BCSC) Facts Pizza had a 20 year lease with Franterra. Pizza had thought the lease was registered,

but due to an incompetent lawyer it wasn’t. Meanwhile F sold the property to Hanson. Pizza now pays rent to Hanson, Hanson even assigns the lease to RBC. Pizza then tries to register their lease and Hanson disagrees, claims s.29 protection.

Court Doesn’t accept Hanson’s argument. H acknowledged the lease, acted upon it, and benefitted from it as if it were a charge. They were estopped from relying on s.29 protection.

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Take Away S.29 protects against an unregistered interest unless it is acknowledged and acted on, then you can’t claim protection of s.29.

Nicholson v. Riach (1997, BCSC) Facts Riach and his mother each owned 50% of a property. Riach had a judgment against

him to the petitioner. The petitioner registered the judgment she received against his half-interest in the property. She then made an order for partition and sale of the property. The mother is arguing that the property was never her son’s to give, since she was pressured into adding his name to the certificate.

o The mom had a potential claim against her son Conclusion Even though the son obtained her title by fraud, this will not subject the

subsequent purchaser/register unless that person participated in that fraud.o To prove fraud there must be an element of dishonesty combined with constructive

knowledge or notice.o The petitioner did not participate in any fraud, no dishonesty.

Take Away If there is notice and dishonesty, you can’t rely on s.29

Fee Simple

5 Types of Estates Fee Simple Potentially without end

o “Fee” indicates inheritabilityo “Simple” indicates heirs may be of any type

Fee Tail As long as there are descendants Life Estate An interest for one’s lifetime Estate Pur Autre Vie An interest for the life of another Estate for a fixed period of time

Fee Simple: Granting Phrase To A and his/her heirs

o Word of purchase To A and his/her heirs

o Words of limitation, a measuring device (does not indicate that anything is going to the heirs)

Statute At common law, default position was that a transfer created a life estate; in order to rebut that

presumption, one had to use the formulation “To A and his/her heirs” Property Law Act Applies to inter vivos transfers

o S.19 reverses the common law approach. The words of limitation are no longer necessary to confer a fee simple.

o S.19(2) There is a presumption that you transfer in fee simple, unless it says otherwise.

Wills, Estates and Succession Acto S.41(3) Applies a similar rule to will (a transfer in fee simple)

Formerly was s.24 of the Wills Act

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RE: Ottewell (1969, SCC) Facts Court is asked to assist in construing a will. Frank Ottewell left in his will both real

and personal property to his brother, “to hold unto him, his heirs, executors and administrators absolutely and forever.” The brother predeceased the testator

Court finds these words to be words of limitation (not conveying a fee simple).o Only conveying a life estate

In construing a will, the court will only look at the surrounding circumstances if there is an ambiguity.

o In this case, the court holds that there are no ambiguities. Take Away Even though the statue says that you don’t need to write the words to convey a

fee simple, if you do write the words the court will try to give meaning to them.o The court will only interpret a will if there is ambiguity.o The words of purchase and the words of limitation are separate and indicate separate

things. **However, s.46 of the WES now provides for what happens when a beneficiary of a will dies

before the testator.

The Life Estate

Repugnancy Cases fall into 2/3 categories:

o First, in which the gift to the person first named prevails and the gift over fails as repugnant;

o Second, the first named takes a life-estate only and so the gift over prevails,o Third (exception), all that is given to the first taker is a life estate, but the life-tenant is

given a power of sale which may be exercised at any time during the currency of his estate

RE: Walker (1925, Ont) Facts John Walker’s will included “also should any portion of my estate still remain in the

hands of my said wife at the time of her decease undisposed of by her such remainder shall be divided as follows…”

By an executory devise testators succeed in many cases in attaining that which would have otherwise been impossible – creating a future right which would on the happening of certain events come into existence and terminate a pre-existing estate in fee simple.

o You can’t give something to someone absolutely and then try to govern those interests. Conclusion The gift to the wife must prevail and the attempted gift over must be declared

repugnant and void.o In this case the court emphasizes looking at the words of the will and not at the

surrounding circumstances. Rigid approacho These cases need to be determined on a case-by-case basis, looking at each instrument

RE: Richer (1919, Ont SC) Facts The testator gave his widow the free use of all his property, real and personal, for her

lifetime; and he gave to his four children, to be divided among them in equal shares, the balance of his said property “that will remain unspent”, after his widow’s death, “if any”.

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If the testator meant to give the widow power to do anything with the estate, he would have said that.

o The testator shows a clear contemplation or even expectation that there will be a balance remaining of the estate.

Conclusion The wife gets a life interest, the gift-over to the children prevails.

RE: Shamas (1967, Ont CA) Facts Husband leaves his estate vested in his children, subject to a life interest to his

widow and her right to encroach in her discretion upon the capital of the said estate until his youngest child attained the age of 21.

The testator’s intentions need to be considered by looking at the whole will and surrounding circumstances:

o When the husband died, there wasn’t enough income from the property and business to support the wife and children.

Conclusion When the will is read as a whole, in light of the circumstances, there is the intention that the widow should also have he right to encroach on capital if necessary.

o In this case, the court said that we needed to look at the surrounding circumstances.

Creation By the parties:

o Because of the presumption in statute that a transfer is a transfer in fee simple, the creation of a life estate requires express language “To B for life” or equivalent.

o The term life estate can refer to either an estate for the lifetime of the transferee or an estate for the lifetime of a third party.

o A life estate can be sold/leased but only for the interest that that party has (either their life or someone else’s).

Note S.19 of the Property Law Act and s. 41(3) of the WES Act still apply to life estates created by the parties; presumptions still apply.

By operation of law:o Common law dower and curtesyo Statute:

Former Estate Administration Act, s.96 when one spouse died, not leaving a will, the other was automatically entitled to a life estate in the matrimonial home.

WESA s. 26(2) eliminated EAA. Replacing it by the possibility of the surviving spouse acquiring the spousal home “to satisfy, in whole or in part, the surviving spouse’s interest in the estate.”

Land (Spouse Protection) Act s.4 provides that on the death of the spouse who is the owner, a life estate in favour of the non-owning spouse automatically arises.

o **See pg. 89-90 of coursespack Rights of a life tenant:

o Occupation, use and profitso Transfer inter vivos (to transfer while they are still alive)

When the life estate does this, they are creating a life estate pur autre vieo Devolution on death

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Ordinary tenancy would come to an end (pur sa vie), but as long as a measuring life is alive, the estate is alive

Obligations of a life tenant:o A transfers Blackacre “to B for life”

B has a life estate; A (or his/her estate) has the reversion in fee simpleo A transfers Blackacre “to B for life, then to C”

B has a life estate; C (or his/her estate) has the remainder in fee simpleo In either case, the law has to strike a balance between the interests of the life tenant

and the person who is entitled to the fee simple.o The law relating to life estates provides a default set of rules and principles that apply

with regard to the balancing of the interests between life tenants and those entitled in remainder.

Now frequently set up as trusts, trustees are suppose to balance those rights

Waste A set of rules and principles that have developed in order to address the limits on what the

life tenant can do to the property. Ameliorating Waste there is no damage that is involved in the change that is done to the

property.o Often is an act that enhances the value of the property.o Courts are reluctant to interfere and award damages in these situationso The party in remainder is not really losing anything

Permissive waste damage that results from a failure to maintain the property (not active)o Life tenant is not responsible for upkeep unless expressly made so by the document

creating his/her interest.o Problematic since people can do nothing, allow the property to deteriorate so that the

remainderman loses out Voluntary waste damage that results from the activities of the life tenant (positive action)

o Basic rule is that the life tenant is not entitled to commit voluntary waste.o If they do, may be required to pay damages to those entitled in reversion or remainder.

Equitable waste In theory, “unimpeachable for waste” would leave the life tenant with a lot of leeway, but courts have stepped in to impose some limitations, reflected in the doctrine of equitable waste.

o Being “unimpeachable for waste” removes the restrictions that would be imposed by the doctrine of voluntary waste

o Doctrine of equitable waste equity will not allow individuals to make unfair use of their legal rights

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

Hiltz v. Langille (NSSC, 1959) Facts The wife has a life estate, the remainder to her daughter. The wife/mom allows her

sons to cut down trees on the property Issue Can the daughter recover?

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Arguments What if the daughter dies before the mother, then she would be unjustly enriched if she were to get damages now.

Court Agrees that there is waste, but no immediate recovery.o An injunction is granted to prevent more trees from being cut down.o Defendants need to deposit damage money into an account for the daughter, which she

will receive if the mother dies first. They can cut down timber to use to repair the property or to sell to repair/for upkeep. Just

can’t sell for a commercial purpose.

Vane v. Lord Barnard (1716) Facts Father leaves castle to his son, but then he gets mad at his son and begins to remove

everything from the castle – doors, metal, everything. Court Steps in and disallows this, even the father was unimpeachable for waste (equitable

waste doctrine)

City of New Westminster v. Kennedy (1918) Facts Defendants had failed to pay taxes so there was a statutory sale of the property, the

purchaser being the city. Defendant’s given a year to pay back property, allowed to stay for that year. Just before the redemption period was up, the defendants stripped the house of everything.

o These acts clearly constitute waste – there is a permanent reduction of the property in value.

Issue Does this qualify as waste even though it is not a typical life estate case? Court The principle of waste can apply to other areas (not just life estate), if there are

multiple interests in the property. Conclusion Defendants had to restore the property to what it was before.

Mayo v. Leitovski (1928, Man KB) Facts Elderly women (defendant) not able to pay taxes (she has a life estate), municipality

sells the property, daughter of the defendant buys the property and assigns it back to her mother. Mother tries to register this interest (if this is allowed, she would have a fee simple and the remainderman/plaintiff would be cut out).

o Notice was mailed to the plaintiff, requiring him to redeem the land from the tax sale and reciting that in default of such redemption certificate of title to the land would issue to the applicant (the defendant).

Court Constructs a trust, the life tenant in situations like this is like a trustee, they are holding that property that will eventually go to the remainderman. They must take reasonable precautions to prevent the forfeiture of the property.

Held it is the responsibility of the life tenant to pay the annual taxes of the property up to the annual value of the property.

o The interest you are liable to pay because you are living on the property, liable for current expenses. But, the principal is the liability of the remainderman.

Morris v. Howe (1982, Ont HC) Facts Applicant holds the life estate, the respondent is the sister of the decease who holds

the fee simple in remainder. There was an intention in the will that the property remain in the family.

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o The life tenant wants to sell the property since it is too big for her to manage, she can’t live there anymore. Seeks permission from the sister and is denied.

o A sole tenant for life cannot apply under the Partition Act for the sale of the estate. Court Refuses to issue a sale. The sale can’t be ordered against the wishes of either the life

estate holder or the remainderman.o The court focuses on reasonable opposition to the sale – the sister’s opposition seems

reasonable to the court

Co-Ownership – Concurrent Estates When two or more persons are simultaneously entitled to possession of the same interest in

the property, present or expectant Parties owning in co-ownership can convert their respective interests to individual or

separate ownership – ownership in severalty – by agreement or by Partition proceedingso When this happens, the unity of possession is destroyed.

Types of Co-Ownership Joint Tenancy Unlike tenancy in common, there is a right of survivorship.

o On the death of one joint tenant, the surviving joint tenant automatically becomes owner of the undivided interest (the survivor gets all of it)

o Each co-owner owns the whole and ownership must be equal. Tenancy in Common Two or more people are simultaneously entitled to possession, but

interests in the property are otherwise treated as separate; on the death of one, interest passes by will or on intestacy.

o No right of survivorshipo Shares may be unequal in sizeo Shares may be transferred inter vivos and will pass in a will or intestacy

Tenancy by Entireties The kind of situation where in marital relationships, the husband and wife were treated as one unit

o Has become obsoleteo S.12 of the Property Law Act

Coparcenary Has become obsolete

The 4 Unities1. Unity of Possession Each owner has an equal right to posses the whole ownership of the

property.o Neither co-owner has the right to exclude the other co-owner(s)o Not exercising a right doesn’t destroy ito Need this unity for both a tenancy in common and a joint tenancy.

Joint Tenancy also needs 3 additional unities2. Unity of Interest The interest of each of the owner’s is the same. Each has an equal share

and has an equal type of interest (same size, type, duration)3. Unity of title Each of the joint tenant’s interest arose from the same document4. Unity of time The tenant’s interests arose at the same time

o This has been modified by exceptions, such as by a will A joint tenancy needs to have all 4 unities; tenancy in common only needs to have unity of

possession.

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o However, a tenancy in common can have all 4 unities without becoming a joint tenancy.

Creation of Concurrent Interests Common law At common law, if the 4 unities were present, there was a presumption that a

joint tenancy was created.o If the grantor wanted to create a tenancy in common, she/he could do so expressly or

through the use of “words of severance”.o Early common law preferred a joint tenancy as it avoided splitting the rendering of

tenure. Statute S.11 of the Property Law Act (1996) provides that where land is “transferred or

devised in fee simple, charged or contracted to be sold as a valid agreement for sale…to two or more persons…they are tenants in common unless a contrary intention appears in the instrument.”

o Statute reverses common lawo Any transaction that does not fall into this provision would still be covered by common

law (the common law presumption would apply).o Statute only applies to ownership of land, not to anything less than that (such as

leasehold interest)o S.45 of the Will, Estates and Succession Act Covers bequests and gifts

Creates a similar presumption in favour of tenancy in common.o S. 177 of the Land Title Act The certificate must say that it is a Joint Tenancy. If the

certificate doesn’t say that, it is a Tenancy in Common. **See page 112

o S.173 of the LTA General provision relating to registration by co-owners; dealing with registration of the fee simple.

Equity Had to start with the same presumption as the common law, but preferred the tenancy in common and tried to give effect to this preference in two ways:

o In interpreting documents, courts of equity were more included to find a tenancy in common

o Certain situations were deemed to reverse the common law presumption so that Equity would treat the co-owners as tenants in common in equity even if they were joint tenants in law:

Unequal contribution to purchase price Commercial setting where partners purchased property Joint mortgage where 2 or more persons lent money and borrower transferred

title to lenders. Transfer to self and co-ownership At common law, one could not transfer property to

oneself.o S.18 of the Property Law Act now provides that a person may transfer land to

him/herself in the same way as another. S.18(4) Specifies that a registered owner may transfer to him/herself jointly

with another person.

RE: Bancroft Eastern Trust Co v. Calder (1936, NSSC) Facts Bancroft dies, part of his estate is divided; one half to his wife and the other to his 3

surviving children and the 2 children of the deceased child.

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o Dispute is about the share the 2 grandchildren received – did they receive it as joint tenants or as a tenancy in common. Jean (surviving grandchild) argues that it is a joint tenant – therefore she would get it all, and Paul’s children (Paul is the other grandchild, now deceased) argues that it was a tenancy in common and therefore they can inherit Paul’s portion.

Conclusion It was a joint tenancy; Jean gets it all. Reasoning The will is divided into two time periods; the time before the wife died and after

the wife died. (*See pg. 106, line 32)o First Clause “Into 4 equal shares” (indicates a tenancy in common)

In this case the words of division only apply to the division of the property to the children (not grandchildren)

The grandchildren were given “one share”o Second clause No words of severance

The grandchildren received the share as one, joint tenants Rule A bequest to two or more persons without accompany of explanatory words, then it

would be a joint tenancy.o If there was the slightest degree of an intention to divide the income then it would be a

tenancy in common, but in this case there are no such words.

Winchester v. McCullough (2000, NBQB) Facts Property given by will to a son and two daughters. If any of the children died before

the testator, the residue to become the property of the successor or successors of them.o Son predeceases mom – no kids; daughter dies shortly after mom – 3 kids; daughter

alive – gave share to Sherman McCullough. Issue Is this a joint tenancy or a tenancy in common? Conclusion Tenancy in Common Reasoning Presumption is tenancy in common

o Court needs to first ascertain the intention of the testator – look at the text itselfo The use of the word “successors” favours a tenancy in common

Additionally the words “jointly in equal shares” created a tenancy in commono If there is ambiguity the court must favour a construction that favours the tenancy in

common.

Bull v. Bull (1955, QBCA) Facts This case involves an action for trespass, brought by the son against his mother. The

parties had both purchased a house together, the son paying more with the conveyance made out in his name. The intention was that they would both live there. Following a dispute with the daughter-in-law, sons asks his mother to leave, she refuses.

Conclusion Equity treats this as a tenancy in common. The Mother can stay.o Equity steps in and creates a co-ownership

Reasoning They both owned the property, there will be unity of possession. Therefore, one cannot turn the other out.

o If two or more people are in possession of a property to which they both contributed and there is clear intention that both parties should be in possession, even though there is only one name on the title, they will be equitable tenants in common.

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Robb v. Robb (1994, BCSC) Facts Deceased left everything to his widow, the second wife. Children from the first

marriage are challenging the will. Widow argues that she and her late husband were joint tenants and therefore when he died she got everything.

Conclusion This was a joint tenancy Reasoning Presumption was that this was a joint tenancy. When there are no words of

severance, the presumption will be Joint Tenancy. o S.11 of the Property Law Act wouldn’t apply since it doesn’t apply to less than freehold

interests, doesn’t apply to leasehold interests.o Exception of unequal contributions to the purchase price doesn’t apply since the court

found that the contribution between the parties was pretty equal. Therefore there was no need for an equitable tenancy in common.

Relations Between the Co-Owners Co-owners have the common right to possession of the property.

o A co-owner who has not been in possession will generally not be entitled to claim “occupation rent” against the co-owner in possession except in a case of ouster.

o BUT, an agreement between co-owners may make one liable to accounto Additionally, at partition, a claim can be made to offset expenses incurred.

The law of waste applies to co-owners, however, it is applied less stringently to a co-owner than to a life tenant. .

Share of Profits Co-owners are entitled to a share of the profits arising from property, which will normally be

determined in proportion to their share in the property. o However, this does not apply where the profit derives from the use and occupation

(and work) of another co-owner. S.13.1 of the Property Law Act:

o 13.1 (1) Actions in the nature of the common law action of account may be brought and maintained by one joint tenant or tenant in common against the other as bailiff for receiving more than comes to that person’s just share or proportion, and against the executor or administrator of the joint tenant or tenant in common.

o (2) The registrar or other person appointed by the court to inquire into the account (a) may administer an oath and examine the parties touching the matters in

question, and (b) Is entitled, for taking the account, to receive the allowance that the court

orders from the party that the court may direct.

Spelman v. Spelman (1994, BCCA) Facts Wife is asking for a share of rent which arose in this property as a profit. Held Wife not entitled to a share in the profit because the husband had mixed his labour

and gained rents. Take Away If asking for occupation rent not allowed at common law;

o Generally profits from a rent charge or other profit that the property earns is split proportionally between the co-tenants. However, if the profit is a result of one co-tenants labour, then the other co-tenant has no right to a share in that profit this is what happened in this case.

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Share of Expenses There are frequently situations of joint liability – ex.) mortgage, taxes.

o In these situations, if one co-owner pays the full amount, they are entitled to collect share from the other co-owner.

S.13 of the Property Law Act Address certain expenses where the co-owner has to pay their share as well as that a co-owner may apply for relief if they have paid more than their share of these expenses.

S.14 of the Property Law Act Under this section, on hearing an application under s.13, a court may:

o Order that the person who made payment has a lien against other person’s interest.o Order that the defaulting owner’s interest be sold if amount is not paid within certain

period of timeo Make another order “including an order that the applicant may purchase the interest

in the land of defaulting owner at the sale” *Reading s.13 and s.14 – they are only procedural, they can only be used to enforce a right to

contribution that exists independently of them. o They do not create any new liabilities (Bernard v. Bernard)

At common law, an occupying co-owner can’t compel other owners to pay for expenses that they have voluntarily incurred.

Additionally, a co-owner has no right to compensation for expenses she/he incurs, such as maintenance cost.

Leigh v. Dickeson (1881)**See chart Facts Plaintiffs sought to recover from the defendant money which they alleged to be due

to them from the defendant for the use and occupation by him of ¾ of premises.o Originally the defendant had been renting the property; he then purchased the ¼

interest from the other tenant in common.o The plaintiffs argue that the defendant still has to pay rent; the defendant countersued

for expenses he incurred repairing the property. Rule Occupation rent can’t be collected from another co-owner, unless it is specified

otherwise. o This case is an exception because the defendant was not in occupation as a co-owner,

but as an occupant under a leaseo Expenses At common law, a co-owner can’t spend money on repairs voluntarily and

then recover it later. You can’t force others to incur expenses on account of that property.

Held The plaintiff can recover rent from the defendant; defendant can’t recover for repair expenses.

Bernard v. Bernard (1997) Facts Husband and wife owned the property as joint tenants; husband leaves, leaving the

wife in sole occupation. They divorce. Husband is now claiming occupation rent. Rule At common law, an absent co-owner had no general right to claim compensation from

the owner who had enjoyed sole use of the jointly owned property.o Only if a co-owner was ousted can he bring a claim for occupation rento In this case the husband left on his own will.

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o *Exception during a partition action Where the occupying owner claims for expenses, such as mortgage interests, taxes, and repairs, then an absent co-owner can submit a charged of occupation rent.

Summary: In a partition action, outside of ouster and bailiff cases, an occupying owner will not be charged for his occupation unless he claims an allowance for his expenses.m

Held The husband can’t claim for occupation rent.

BCLI Recommendations The Property Law Act should be amended to provide that on the application of a co-owner

made at any time during or after the period of co-ownership, a court may order that a co-owner:

o Account to another co-owner for amounts received or expended in relation to the co-owned land or the interest of the co-owner in the land;

o Contribute proportionally to a necessary expense related to the co-owned property, either before or after the expense is incurred; or

o Compensate another co-owner. The Property Law Act should be amended to provide that, on an application by a co-owner for

relief described in [previous recommendation], the court may, without limitation, consider whether

o A co-owner, owing to the default of another co-owner, has paid more than a proportionate or just share of expenses necessary for the preservation, upkeep, or repair of the land.

o A co-owner has been excluded from operation of use of the land o A co-owner has received more than a proportionate or just share of rents or profits

from use or occupation of the land, including cultivation of the land or removal of its natural resources;

o A co-owner has made improvements that increased the realizable value of the land;o A co-owner who claims contribution or a set-off for expenses should pay a fair

occupation rent;o A co-owner has engaged in unreasonable use of the land.

Severance of Joint Tenancies Severance can take place during lifetimes of joint tenants:

o By unilateral act of one of the joint tenantso By mutual (express) agreement

A court may infer an agreement to sever from the conduct of the partieso By “any course of dealing sufficient to intimate that the interest of all were mutually

treated as constituting a tenancy in common.” – Williams v. Hensman (cited in Sorensen)

A unilateral intention is not sufficient to sever a joint tenancy, there must be an act that destroys one of the 4 unities

o It is relatively simple for one joint tenant to sever the joint tenancy by transferring his/her interest either to him/herself or a third party.

Have any of the 4 unities been broken?o If yes then a joint tenancy becomes a tenancy in commono If the legal effect is separating the unity then there is severance

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Sheldon Stonehouse v. AG BC (1962, SCC) Facts Wife and husband are joint tenants of the property. Wife, without the husband

knowing, transferring the property to her daughter. The daughter goes to register the deed 3 years later and after the mom has died.

o Husband argues he should inherit all of the property because of survivorship. Held The joint tenancy was severed when the wife executed the deed of transfer (not when

the daughter registered it)o S.21 (what act?) If a person executes a transfer deed, even if it is not registered,

you can’t go back and say that the transfer is not valid.o Mrs. Stonehouse’s interest being transferred to her daughter destroyed the unity of

title and therefore a joint tenancy could not exist – it was converted into a tenancy in common.

Summary Because the transfer was legally complete while the wife was still alive, the joint tenancy was severed.

Felske Estate (2007, AB QB) Alberta court held that a joint tenant could not unilaterally severe a joint tenancy without notice. This goes against the finding in Stonehouse. BC disagrees, follows the SCC decision in Stonehouse.

Mortgages At common law, a mortgage created by one of the joint tenants would severe a joint tenancy. A mortgage is seen as a conveyance of legal title from the mortgagor to a mortgagee.

o If you have legally conveyed title to someone else, that would have severed the tenancy.

o The legal effect of a mortgage is that the unity of title is changed, therefore the joint tenancy is severed.

At common law, this transfer of title was always subject to the equity of redemptiono The person who has taken the loan is always entitled to pay off the loan and regain the

title.

Lyons v. Lyons (1967, Australia SC) Under the Torrens system, a mortgage is not a transfer of legal title. A mortgage is just a charge on that property. In this case, the husband had taken out a mortgage. When the husband died, the wife asked

that the caveat of the mortgage be removed. o The wife now owned the property entirely because of survivorshipo Respondents argue that it is a tenancy in common rather than a joint tenancy

Claiming that the creation of the mortgage severed their joint tenancy Rule (in a pure Torrens System) The grant of a mere incumbrance or burden of the estate,

such as a rent-charge of a right of common does not pass the estate or interest in the land itself, and therefore does not destroy any of the 4 unities.

Conclusion There was no severance (under the Torrens system). Since the mortgage did not act as a transfer of legal title, none of the 4 unities were broken.

o Therefore the mortgage charge is removed from the property.o Because of this, banks will insist that joint tenants have a joint mortgage.

North Vancouver v. Carlisle (1922, BCCA) Case of foreclosure

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Issue Whether the Land Registry Act (now Land Title Act) changes the common law nature of mortgages?

Rules In BC, mortgagees have to rely on common law rules of foreclosureo These rules work on the principle that in a mortgage, the legal title is transferred to the

mortgagee when the mortgage is executed by the mortgagor subject to the mortgagor’s equity of redemption.

If the mortgage is not repaid, at common law, the mortgagee will bring an action of foreclosure

Held The Land Title Act does not affect the rules of mortgage in BCo This is inapplicable with Lyonso There is some support that mortgages should only operate as a charge (and therefore

does not operate as a severance) – Maimets v. Williams (1997, Ont CA) Argues that a mortgage should not be valid until executed by both parties

named in the document

Trusts Does creating a trust sever the joint tenancy?

o Yes, because it severs one of the unities – the unity of titleo The person is now holding as a trustee, not as a joint tenant

Public Trustee v. Mee (1972, BCCA)A case involving a fully completed trust. Facts Wife and former husband were joint tenants of certain lands and premises. Shortly

after the divorce, the former husband executed a declaration of trust for his infant son William. The trust was never registered

o Wife arguing that it was not a valid declaration and that when the former husband died, she took the remaining undivided ½ interest in the property through her right of survivorship.

Rule A valid declaration of trust (although not registered) could effectively sever a joint tenancy to the same extent as a transfer made to a trustee would do.

o No difference in alienating the property directly to the person who is benefited or alienating it to a trustee to hold and deal with it for the interest of that person.

Held The father set up a completely constituted trust which severed the joint tenancy.

Foort v. Chapman (1973, BCSC) The court held that while there was an agreement for sale and purchase, it was not a

completed sale – at best it was a charge on the property.o A charge does not sever a joint tenancy

In this case, survivorship applied and there was no severance. Equity protects bona fide purchasers for value.

o In this case the son was not a bona fide purchaser because he didn’t pay anything (he paid $1 and then his mom forgave all of his other payments.

RE: Sorensen and Sorensen (1997, AB App. Div) Facts A couple owned several properties as joint tenants, entered into a settlement

agreement at the time of the divorce. Wife wants to provide for her son, executes a series of documents, even bringing an action for partition.

o Wife dies on the day of the partition being heard

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o Husband claims joint tenancy. Trial No severance, in favour of the husband Appeal There was a severance, but only with regards to the trust executed.

o Held that the divorce agreement was not an express agreement to sever the joint tenancy. It just created a lease agreement for which they were still joint tenants

o Further held that the lease did not sever because it did not interfere with the chief characteristic of the joint tenancy – which is survivorship

A fixed term lease could sever the joint tenancy (a lease for life is not a fixed term)

o The execution of a will cannot sever a joint tenancy nor can commencing partition proceedings.

Exception It was held by the BCCA that, where both joint tenants executed wills leaving the property in question to the other, this evidenced a common intention to treat the property as severed and fell within the third category of ways that a joint tenancy might be severed.

Conclusion There was no severance except for the declaration of trust for the son

Agreement between the partiesHansen Estate v. Hansen (2012, Ont CA) The party asserting that the joint tenancy was severed did not establish that joint tenant’s conduct fell into the formulation found to have the effect of severing a joint tenancy in other cases. Need to consider the totality of the evidence when determining whether parties intended to

mutually treat interests as severed. Each case is to be assessed on their own facts when considering the evidence.

Flannigan v. Wotherspoon (1953, BCSC) In this case the court found enough evidence to indicate an existence of an agreement

between the parties to sever. Relevant evidence:

o The brother said on his death bed that he was leaving everything to his daughter.o Surviving brother and daughter (niece) acknowledged that they had separate interests

in the propertyo They had two separate bank accounts set up where the money that was being paid

from the sale of the property was divided into. o The surviving brother couldn’t prove that he didn’t know it was a joint tenancy.

Conclusion The parties, by their conduct and acts, had affected a severance by mutual agreement.

Walker v. Dubord (1992, BCCA) Issue Whether any of the wife’s action severed the joint tenancy Real Property there was severance

o She transferred the title of the matrimonial house to herself, destroying unity of title The court actually varied this under the Wills Variation Act

Personal property English law doesn’t applyo No severance was made with regards to the personal property.o Bequests to her nieces and nephew did hold up

Take –Away A declaration of an intent to sever is not enough, must be combined with any actual act of severance

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o Even a notice of intent is not sufficient in BC – intention must be followed by an act. Severance by notice in writing has been proposed as an idea for law reform.

o Rules of severance of joint tenancy are not very different between real and personal property.

Jurisprudence around severance that relates to land also applies to personal property.

Exceptions Statutory presumption under s.11 of the LTA only applies to land.

Partition and Sale Unity of possession has been destroyed when there is actual separation of the property – this

occurs through partition or sale Common law Co-ownership can be terminated through agreement only

o This was followed by English partition statutes in the mid 16th century. This permitted judicial application for partition of the property – courts had to

grant partition if asked for one, court order of sale was still not possible The right to maintain an action for partition was limited to coparceners, joint

tenants and tenants in commono Sale allowed in 19th century – because equity courts assumed jurisdiction and allowed

for this. Partition of Property Act Sets out the basic legal framework.

o In theory it can result in the physical partition of the property, but almost always involves an order for sale of the property and partition of the proceeds.

o S.2(1) Who the court can compel an order againsto S.4(1) refers to “any person who, if this Act had not been passed, might have

maintained a proceeding for partition may maintain such a proceeding” Any person who was able to bring an action in common law, can bring an action

for partition under this statute. This statute doesn’t create any new rights – it recognizes only the people who had the rights before (at common law).

o S.6 application for sale. Court must order a sale, but only if it sees good reason – there is still discretion.

o On the face of the statute, a co-owner is entitled to an order of partition. However, the court has discretion to refuse to make an order in certain circumstances.

There have been disputes regarding the court having discretion

Morrow v. Eakin and Eakin (1953, BCSC) Facts Judgment creditors bringing an action for partition against one of the co-owners of

the property (who owns an undivided share of that property) Issue Can a judgment creditor bring an action for partition under the statute? Held No, judgment creditors only have a charge on the property, not a right to possess. Take Away Only people who have a right to possess the property can bring an action in

partition – co-owners only.

Rayner v. Rayner (1956, BCSC) Facts Husband and wife co-owned a cottage, get divorced. Husband was in possession for 7

years, then the wife became in possession. Husband brings a claim for partition, wife argues that she should be able to have the same exclusive possession that the husband did – possession for 7 years.

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Issue Can the court refuse an order for partition or sale? Held The court can refuse to bring an order for partition or sale.

o It is a statutory discretion, it is up to the courto Equity all guides discretion and equity demands that you come to the court with clean

hands. Take Away While the husband had a prima facie right to partition or sale, the court was

able to apply the rules of equity and use their discretion to refuse his application.

Bradwell v. Scott (2000, BCCA) Facts Friends bought land together, one set of friends sold their share to the Bradwells.

The Bradwells and Scotts didn’t get along.o Bradwells, who own 74% brought an order for sale or partition

Trial Made the order for partition Court The court’s jurisdiction to make such an order does not depend on proof or disproof

of equity alone (not just about clean hands) – the court can look at a very broad set of thingso Entitlement to equitable relief (having clean hands) is not a condition precedent to the

exercise of the court’s discretion. o S.6 has a neutral burden of proof – it is up to the courts to determine this, there are no

fixed rules Held appeal dismissed (order for partition stands) Take Away We should not limit the court’s discretion by creating a general rule, the facts

and circumstances of each case must be examined in totality.

Mowat (2012) Facts Owners of condo homes; some of the owners wanted partition, others didn’t. Held The court has discretion not to order sale under the Partition of Property Act Reasoning Examining all of the evidence, the court decided not to order partition and sale

because there was evidence that many of the respondents who didn’t want sale and partition would suffer extreme hardship if the property were sold.

o Also considered the reasonable expectations of parties when they bought the properties.

Sahlin (2011) Facts Island in the Georgia strait, family owns part a piece of land with a nature

conservatory. Trial Ordered partition, but not sale Held Appeal dismissed.

o The court has discretion under s.6 of the Partition of Property Act to refuse to order sale when such order would not do justice between the parties.

Reasoning The family was also committed to preservation, a sale could take the property away from both parties and into hands of a third party who does not share the same ecological sensitivities of the parties, and an order for partition allows both parties to realize their objective for use of property.

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Future Interests

Review – Fee Simple + Transfer The most complete interest we know is the fee simple If I have an interest in a property, then that interest extends forward into time into infinity –

as long as there is someone I can pass that interest to, that interest won’t end.o Can give an interest by will or can be governed by rules of intestacy.

You can divide up that interest that you are giving:o Give to B for life, then to C one holds a life estate, one holds it in fee simpleo B holds a present interest, and C will have (after B dies) a future interest.o B’s life estate is a smaller interest than the fee simple that A originally had. B got

something less. o C has a future interest

Future interests are not things that someone will get in the future, but something that they own in the present which carries a right to possession in the future.

They are present interests which are pushed to the future.

“Vested” and “Contingent” Interests “A Future interest is an interest by virtue of which possession will or may be obtained at a

future date.”o A future interest can be either a vested interest or a contingent interest

Will “To A for life, then to B”o B has a present right to a future interest. Only the possession is postponed.o B has a vested interest

May “To A for life, then to B if she graduates with a degree from a Canadian law school.”o This is a condition precedento B will become the owner only after she graduates from a Canadian law school, they

have to meet this condition precedent. Not only the possession, but also the ownership is postponed until this condition is met.

Her interest in the estate itself is postponed until she does what she is required to do

Her future interest will not become a present interest until this condition is met.

o B has a contingent interest.

Vested Interests There is a difference between “vested in interest” and “vested in possession” “To A for life, then to B”

o B is vested in interest, not vested in possession until A’s death. A prior life estate is not considered in law as a condition precedent because

death is inevitable. o A is vested in interest and vested in possession

If you have a vested interest (in either possession or interest), you can leave your interest to someone else in a will.

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Contingent Interests “To A for life, then to B if she graduates with a degree from a Canadian law school”

o B’s interest is subject to a condition precedento Occurrence of condition precedent not inevitable.

An interest is contingent until (becomes vested when):o Property is identifiedo Identity of grantee or devisee is establishedo No condition precedent

The vesting of the interest is delayed pending an occurrence of a condition precedento The interest becomes vested once the condition precedent is fulfilled – at that point

(when she gets the degree), her future interest changes from a contingent interest to a vested interest.

Vested vs. Contingent Interests Vested absolutely “To A in fee simple”

Vested absolutely, but possession is postponed “To A for life, remainder to B in fee simple”.

Contingent Interest (subject to condition precedent) “To A in fee simple if A graduates with a degree from a Canadian law school”

Vested but subject to divesting (subject to condition subsequent) “To A in fee simple, but if A graduates with a degree from a US Law school, then back to me.”

o If the person does X, then their interest can be divested. o “But if” usually indicates a condition subsequento If the event is external, then it is considered a condition subsequent.o Grantor would retain a right of re-entry.

Vested but determinable (subject to determinable interest) “To A in fee simple, until A graduates with a degree from a US law school, then back to me.”

o Until, during usually indicates a determinable interesto If the event is an integral part of the formula, a necessary condition, then it is to be

considered a determinable interest. o Grantor would retain a possibility of reverter, an automatic claim.

If you have a vested interest, you can “will” it away – can pass it on to someone else. Even if you die before you take vested possession.

If you have a contingent interest and die before you take a vested interest, it reverts back to the original owner.

Classification Matter of interpretation, but as a rule, common law courts show a preference for “early

vesting”o Constructing in favour of vesting

Need to consider that the testator’s intention is paramount Presumption against intestacy:

o If there is a will, the testator did not want the rules of intestacy to govern their estate.

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o To the extent that is possible, the court will try to interpret a will and give it effect Rule in Browne v. Moody The mere postponement of distribution to enable an interposed

life-rent to be enjoyed has never by itself been held to exclude vesting of capital.o A life estate will not affect a vested interest.

An interest is presumed to be vested if it follows a life estateo Where the payments are derived for reasons personal to the legatee, such as them

turning 21, the gift will not vest till the appointed them.

Browne v. Moody (1936, PC) Facts Testatrix left her son a life estate in her investment (son gets the income from the

fund), then, after the son dies, the remainder of the fund to her granddaughter and daughters, to be divided equally. Additionally, the will had a clause that if any of the legatees die before the testatrix or son, their interest will be divested and given to the issue of the daughter.

Issue 1 Do the daughters/granddaughter have a vested interest? Decision Vested interest – they have a present right to enjoy the property in the future. Reasoning Must give effect to the language used in the will, based on the language used

immediate vested interest had taken place because there was no condition precedent.o The life estate of the son doesn’t prevent immediate vesting from taking place.o Presumption against intestacy

Take Away The mere postponement of distribution to enable an interposed life-rent to be enjoyed has never by itself been held to exclude vesting of the capital.

o A life estate will not affect a vested interest because death is a certain event. o The granddaughters and daughters received a vested interest when the testatrix died.

Issue 2 Does clause 7 make their legacy liable to be divested?o This clause imposes a condition subsequent; the legacies are liable to be divested. The

clause is only triggered if the daughter dies with issue (with a lineal descendant), if the daughter doesn’t have any children then she can give the interest to anyone in her will.

RE: Squire (1962, Ont HC) Facts Two properties, each going to a grandson once they reach the age of 30. The trustees

will hold the properties until that point.o In the meantime, the income that the property earns will be accumulated and added to

the property that they get.o Encroachment was allowed if they were to pursue higher education.

Issue Whether the properties that were devised upon these two grandsons became vested on the death of the testator?

o If they become vested upon the death of the grandparent then it could be conveyed to them as soon as they have obtained the age of majority, 21.

Decision The property became vested in the two grandsons at the death of the testator. Reasoning The court favours early vesting; the earlier you can vest a property, the more

certainty the situation acquires. o The words used, “upon reaching the age of 30” do not establish a condition precedent.o Bickersteth v. Shanu (1936) “the established rule for the guidance of the court in

construing devises of real estate is that they are to be held to be vested unless a condition precedent to the vesting is expressed with reasonable clearness.”

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o Other factors: the properties were clearly separated from the rest of the estate (clearly identified property and clearly identified donee), there is no gift over, and the income in the meantime is accumulated for that particular person.

No other person had an interest in the property.o References Saunders v. Vautier Held that the court holds that a legatee may put an

end to an accumulation which is exclusively for his benefit. Take Away Because there was no condition precedent and no other person has an interest

in this property, the court favoured early vesting – finding that the grandsons had a vested interest when the testator died and could obtain the property at the age of majority, 21.

RE: Carlson (1975, BCSC) Facts Gift to the youngest son “upon attaining the age of 21”; once he is 21, 90% of the

estate will be split between him and his sister, the remaining 10% to his brother. Relevant provisions in the will:

o (C) To hold the residue of my estate in trust for the education, maintenance, and advancement of my son Christopher and to use such portion of income and/or capital for the said education, maintenance and advancement of my said son.

o (D) Upon my son Christopher attaining the age of 21 years to divide 90% of the then residue of my estate into two equal parts and pay over one share to my Christopher and one share to my daughter Janice, for their own use absolutely.

o (E) To stand possessed of the remaining 10% of the residue of my estate and to use the same to cover certain debts incurred by my son Paul, or so many as the said 10% will cover.

Issue Were the gifts immediately vested at the death of the testator, or is there a condition precedent making the gifts not vested until Christopher is 21?

Decision The gifts vested upon C attaining the age of 21; when the testator dies they only get a contingent condition. Christopher got a vested interest, Janice and Paul had contingent

Reasoning Court can’t write a new will for the testator – need to determine the intention of the testator.

o Rule in Saunders doesn’t apply since it is to be split after with the sister. o Courts will lean towards early vesting if there is ambiguity, if there is no ambiguity

then the courts will look to intention. Paul Since Paul had no debts at the time of the testator’s death, this gift fails for uncertainty Take Away When the entire gift is to be used for one person and then what remains is to

be divided with another person once that first person attains a certain age, then the residue does not vest until that person attains that age.

o This is because we don’t know what the final share will be.

Phipps v. Ackers (1842, HL) Facts Testator gives land to George to be held in trust until he turns 21. If George shall die

before he turns 21, without issue, then the land goes back to the residue of the testator’s estate.

Issue What interest does George have? Decision A vested interest that is liable to be divested – in the event that he dies under 21

without leaving a lawful issue. Reasoning The subsequent gift over in the event of the devisee dying under 21 sufficiently

shows the meaning of the testator to have been that the first devisee should take whatever interest the party claiming under the devise over is not entitled to.

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Take Away The very existence of gift over indicates that the first devisee takes an immediate vested interest.

o The court is looking at what B (person getting gift over) is not getting at the time of the death of the testator to determine what A gets at the time of the death.

o Even when there is the possibility of subsequent divesting (a condition subsequent), the courts will still lean towards early vesting.

Barton Estate Take Away The rule from Phipps v. Ackers also applies to personal property.

o Looked at what the person would get in this gift over to determine the first person’s interest.

The reference to age in this case is being interpreted as a condition subsequent, not a condition precedent.

Festing v. Allen (1843, Exch) Facts Testator leaves land to trustees to the use of his granddaughter Martha, and then

after her decease to her children once they attain the age of 21. If she should die without issue, then the interest goes to other people named in the will.

o Life estate to Martha with the remainder to her children who should attain the age of 21.

o Martha dies leaving 3 infant children. Issue Did Martha’s children take any vested interest in the property? Decision No

o Since no one has attained the age of 21 at her death, there is no one who can take the gift; the remainder is defeated.

Reasoning Did not apply Phipps v. Ackers, distinguished this case in that in Phipps there is an absolute gift to a certain, named person. In this case the subsequent gift was to her children who have attained the age of 21 – there is no clearly identified person to whom the remainder is to go.

**This case still applies in BC!!

Contingent Remainders You can’t create a remainder that will produce a gap, therefore the remainder is in fact void

and is treating as non-existing.

Types of Future Interests 2 broad categories:

o Legal future interests: Common law future interests arise in inter vivos transfers without the

interposition of trustees; 4 types recognized. Legal executory interest (not examinable)

o Equitable future interests: Can be created through a trust arrangement (inter vivos or in a will) Arguably, all future interests in a will should be treated as equitable.

Reversions The interest that remains with someone who has made a partial disposition of the property Ex.) A To B for life

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o B has a vested life estate;o A has the reversion in fee simple

Reversion is always vested.

Rights of Entry The interest that arises when a transferor conveys an apparent absolute interest but adds a

condition subsequent which will divest the interest of the transferee in favour of the transferor and her/his heirs.

Ex.) A To B in fee simple, but if B marries C then Blackacre is to be returned to A and her heirs.

o B has a fee simple subject to condition subsequento A has a right of entry

Right of entry is a contingent interest S.8(2) of the PLA “A right of entry affecting land, exercisable on breach of condition or for

any other reason, may be made exercisable by any person and the person claiming under the person.”

o You can transfer your right of entry to someone else. o Common law wouldn’t allow this.

Possibilities of Reverter The interest that arises when a transferor conveys a determinable fee simple, by limiting the

duration of the estate. Ex.) A To B in fee simple, until B marries C

o B has a determinable fee simple interesto A has a possibility of reverter

Possibility of reverter is a contingent interesto There is controversy around this

Remainders A remainder is a future interest meeting 2 qualifications:

o Possession is postponed until some prior freehold estate expires;o Remainder does not operate so as to prematurely terminate that prior estate

Ex.) A To B for life, then to C in fee simpleo B has a life estateo C has the remainder in fee simple.

Remainders can be vested or contingent.

Creation of a Remainder At common law, the creation of remainder was subject to 4 extremely stringent rules.

Statutory modification in BC has reduced these to 2 ½ rules. The first two rules were based on the common law doctrine of seisin – based on physical

delivery of possession – prohibited “springing interests”. The third and fourth rules were based on the proposition that only the grantor could take

advantage of a right of entry or possibility of reverter – prohibited “shifting interests”.

Rules Governing Legal Remainders1. Remainder must be supported by prior estate of freehold, created by the same document –

still applies

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o Prevents springing interests2. Remainder after a fee simple is void – still applies, but subject to s.8(2) of the PLA – right of

entry can operate in favour of a third party o Prevents shifting interests

3. Attempt to create a remainder is void at the outset if the remainder operates to prematurely terminate prior estate – no longer applies, due to s.8(2) of the PLA.

o Prevents shifting interests?4. In order for a remainder to be valid at the outset, it must be at least possible that the holder of

the remainder will be in a position to take possession at the termination of the prior estate – still applies.

o Prevents springing interests?

Future Trusts Strict common law rules relating to remainders did not apply to equitable interests. However, this changed with the 1535 Statute of Uses, they became legal executory interests.

Validity of Conditions and Qualifications Qualifications can be imposed in 3 ways:

o Condition precedent Which must be satisfied before the interest can vesto Condition subsequent Which operates as divesting provisiono Determinable interest A condition which sets the limits to the interest/causes the

interest to “determine” Conditions or qualifications concerning dispositions of land may be invalid for a variety of

reasons, includingo Being an undue restrain on alienation;o Being an undue restraint on marriage;o Being uncertain in its expression or intent

Why does law place restrictions on owners? A way of keeping ownership “clean” so you can determine who owns the property – affects

certainty.o There should be some certainty as to what you can/can’t do.

What you are trying to do might be opposed to public policy Freedom of transfer is a value that has been recognized – but that right is not absolute, you

may not be allowed to do something with your land. Result of balancing act the law tolerates conditions and qualifications, but only up to an

extent.

What happens when an event is invalid? Condition precedent invalid gift fails

o To A if…o If the event if invalid the gift fails because then no person can qualify and therefore the

disposition is of no effect. Condition attached to determinable interest invalid gift fails

o To A untilo The event would have been part of the limitation itself and as such if the event is

invalid the entire limitation and disposition is invalid.

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Condition subsequent invalid gift is absoluteo To A, but if…o If the event is invalid, the condition subsequent will be struck leaving the disposition

to have effect.

Approach Taken by Courts to Interpretation Condition subsequent Courts far more willing to subject conditions to strict scrutiny,

because it will not destroy the gift. Determinable interests Courts more flexible; it is preferable to subject the transferee to

questionable conditions than to leave him/her without any interest at all.o Courts will sometimes be willing to read determinable interests as absolute interests

subject to a condition subsequent in order to save gifts that would otherwise be invalid.

Condition precedents Courts are quite lenient

Uncertainty If conditions attached to a property are too uncertain or imprecise, the courts will declare it

invalid because they would not know what has to be done – they don’t know what is meant by the term.

Most cases involve qualifications of three types – 3Rso Race, Religion, Residenceo These qualifications fail because of uncertainty

In cases involving a condition subsequent (or determinable interest), policy has required that the circumstances of defeasement or determination should be clearly known from the time of disposition and should not come as a surprise to the holder.

Cases Noble et al. v. Alley (1951, SCC)Case involving a will restricting who the land could be sold to

o SCC held the racial restrictive covenant invalid on the grounds of uncertainty. It is not possible to determine with any certainty what the racial correct blood of the recipient might be.

RE Tuck (1978) Involved a condition that the gift would be divested if the descendants married someone outside of the Jewish faith. However the clause also contained that if there was a dispute as to whether someone met the qualification, a reference could be made to the Chief Rabbi of England.

o Denning Since there is this clear stipulation, the gift is not uncertain. There is a way of determining that uncertainty.

RE Messinger Estate (1968, BCSC) The will gave property to the testator’s widow “while she resides in the home”. The court found this to be a condition subsequent that was void for uncertainty.

Take Away Be as clear as you can be so that you don’t fail on the ground of uncertainty.

Restraints on Alienation “To A on the condition that the property never be sold, leased, or mortgaged”

o Invalido Prima facie a restraint on alienation is repugnant

The right to alienate is part of what is given to a transferee by a transferor

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To give something, then to seek to control further alienation of that interest is, in principle, repugnant.

Historically alienation was not possible since property denoted social standing – you weren’t allowed to transfer land/divide it/make a will etc.

Today The law of property frowns upon restraints on alienation – land has become a commodity.

o It should be easy to sell/transfer/use; want clear title. Absolute restraints on alienation are invalid, partial restraints may well be acceptable.

o Courts are willing to inquire into the motives of the transferor.o A restraint may be valid if it is limited to a particular type of dispositiono A partial restraint may be made more acceptable by a time limitation

A determinable interest is not a restraint on alienationo In a determinable interest less is given from the beginning; the interest simply ends

naturally. Balance Wishes of the transferor against the interests of the transferee as well as the

public interest in maintaining family relationships, preserving personal autonomy, etc. RE Brown (1954) Argued that the law should not continue to expand in allowing restraints

on alienation, adopted two tests:o Whether the condition takes away the whole power of alienation substantially – this is

a question of substance, not mere form; ando If a disposition is made to a class “which is bound to be a diminishing class, it brings

about in substances,…a general prohibition on alienation.”

Public Policy Competing interests are a person’s right to do as they please with the property versus

someone else saying that they can’t.o The right to alienate might be seen to reflect commercial efficiency.

Canada Trust Co. v. Ontario (Human Rights Commission) (1990, Ont CA) Intention to exclude from benefit “all who are not Christians of the White Race….”

o Held The provisions of the trust which confine management, judicial advice and benefit on grounds of race, colour, ethnic origin, creed or religion an sex are void as contravening public policy.”

The gift remains, the provisions are just struck out. Estate of Victor Hugh Priebe (2016, Ont SC) Doctor set up a trust which gave out bursaries

to “Caucasian males, non-married…In the event that one provision/part is struck down for going against public policy, then the provision in question will be struck down without affecting the preceding paragraphs.”

o Held Qualifications are void for being contrary to public policy, the clause fails and therefore no awards or bursaries will be created under these clauses.

Equitable Future Interests Gets around the 4 remainder rules and Purefoy v. Rogers Statute of uses was exhausted by double use/trust, so we are now in equity You are allowed to have gaps in equity since it is only the beneficiary that will have a gap, not

the legal title (which always remains with the trustee). Use “Unto and to the use of X in trust for _____”

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Incorporeal Interests Interests that someone might have on the property, less than estate 4 types:

o Easements (can bind third parties – i.e. subsequent owners)o Profits a prendre (can bind third parties)o Covenants (after Tulk v. Moxhay, they may bind third parties if they have notice)o Licences (generally cannot bind third parties)

Nature of Incorporeal Interests Involve non-possessory rights with regards to a particular piece of land

o They either give you a right to do something or restrict you from doing something. Courts have to balance competing concerns:

o The estate holder’s right to do as they please with their propertyo Courts are careful as to how far they are willing to go to enforce rights of an

incorporeal interest Incorporeal interests will most likely be registered against the land as charges

o They complicate titles Disputes often arise over which kinds of interests are created – easement, covenant? If the interest attaches with the land, you don’t have to worry about it ending after the

grantor/grantee pass on their land/estateo The right will run with the land, you get it automatically when you buy the land even

though you are not privy to the contracto Normally easements run with the land, while covenants don’t.

Easements Negative (more restrictive)

o Allows a person to restrict what someone else can do with his/her propertyo Ex.) To protect right to light

Positive (more common)o Allows a person to do something on or to someone else’s propertyo Ex.) Right of way – most common easement, allows you to go over the neighbour’s land

to get to their property. A right of support is most likely a positive easement since it is doing something

to the neighbour’s land, exerting a thrust on it (Phipps v. Pear). Easements are created either by an express grant or can be implied by necessity.

o Easements run with the land, will bind third parties even without notice. Easements are enforceable both legally and equitably (negative easements)

Phipps v. Pear (1965, CA)This case clearly defines positive and negative easements (as they are stated above) Facts Two houses, on separate lots, standing side by side. No. 16 house had its flank wall

flat up against the old wall of No. 14. No.14 gets demolished which exposes the flank wall (which was never painted, in a rough state)

o Plaintiff was claiming a negative right, trying to prevent their neighbour from being able to pull down/demolish their house (the neighbour’s house).

Issue Was there a right to protect the neighbour’s house? Held The plaintiff has no right to protection

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Reasoning There is no such easement known to law as an easement to be protected from the weather.

o Policy considerations against giving an easement It would unduly restrict your neighbour in his enjoyment of his own land. It can also hinder additional development/desirable improvement (Dalton v. Angus).

o The only way for an owner to protect himself from the weather is by getting a covenant from his neighbour that he will not pull down his house/cut trees, etc.

Take Away There is no comprehensive list of negative easements, the list is not closed, but the court is very cautious to recognize new restrictive easements because they unduly infringe/restrict what a property owner can do on their land.

What constitutes a valid easement? 4 criteria from RE: Ellenborough Park:

1. There must be a dominant and servient tenement In BC, minor exception in LTA s.218 allows a “statutory right of way” to

Crown, Crown Corporation, municipality, etc.2. The owners of the two parcels must be different persons – dominant and servient

tenement must be different persons Required at common law, abolished in BC by s.18(7) of the PLA

3. The easement must accommodate the dominant tenement (“reasonably necessary for the better enjoyment of that tenement”)

4. Right given by the easement must be capable of forming the subject matter of a grant: Not too wide and vague Not inconsistent with the proprietorship or possession of the servient owner Not a “mere right of recreation without utility or benefit”

#3 criteria involves looking at the benefit enjoyed by the dominant tenement to recognize an easement

#4 deals with considering if this easement should be transferred with the land, become part of the property.

Servient tenant The one that is serving the other, they own the property. Dominant tenant The one who has the easement. S.18(7) Property Law Act Common ownership and possession of the dominant and servient

tenements does not extinguish an easement. **Even if all 4 criteria are met, the courts might still find that the right is not an easement but

only a contractual righto Therefore it is restricted to the original grantor-grantee.

RE: Ellenborough Park (1956, Eng. CA) Facts A right was granted to the purchasers of plots of land in Crescent Road, which faced

the park, to use the park as a pleasure ground.o There were no private ways from those houses direct to the park and access had to be

obtained over the ordinary roads Issue Is this right that the house owners have a right known to the law? Is it enforceable by

them against the owners of the park?o If the house owners are entitled to an enforceable right in respect of the use and

enjoyment of the Park, that right must have the character and quality of an easement. o If it is an easement, the right runs with the land and therefore these owners would

have that right.

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Decision It is an easement Court This case turned on criteria #3 and #4. (The park is the servient tenement, the house

owners are the dominant tenements – they are different owners).o The easement must accommodate the dominant tenement The right to use and

enjoy the park did enhance the value of the property (however this isn’t sufficient on its own), there needs to be a connection between enjoyment of the right and the use of the house.

The park constitutes, in a sense, the garden of the houses to which its enjoyment is annexed. The court found the necessary nexus in this case.

o Capable of forming the subject matter of a grant Needs to be something that you can pass on through a grant or a deed.

There is a specific use of the park, it is possible to say with some specificity what the right conveyed/what it meant; in this case the exercise of the dominant tenement’s rights do not deprive the servient tenement owner of their own interests; court found that this right was not only for recreation.

Take Away This case lays out the 4 criteria for determining an easement.o Criteria #3: There needs to be a nexus between the right you are claiming and the

enjoyment of the property. o Criteria #4: Consider the 3 factors. However, the mere recreation part is a principle

that has been honoured more in breach than in observance, but still continues to exist as a criterion in law.

Covenants Incorporeal interests that don’t run with the land

o Only applies between the original covenantor and covenantee However, courts are beginning to rethink this and bind subsequent third

parties to the contract as well. A covenant is a promise to do or not to do something

o Traditionally it was a “promise under seal” (seal no longer required) Wide range of uses:

o To restrict uses of lando To restrict operation of certain types of businesso To protect ecologically sensitive areas (conservation covenants)

Only enforceable in equity Need to have notice to bind a third party Two types:

o Restrictive (negative) allows someone else to restrict what you can do with your own property.

o Positive allows someone else to require you to do something with your property. Ex.) Imposes positive obligations to do something

Example A owns Lot 1 and 2, sells Lot 2 to B. A wants to maintain value of her property, takes a

covenant from B that B won’t build a house for less than $300,000.o B – covenantor; B’s property = burdened land (or servient tenement)o A – covenantee; A’s property = benefited land (or dominant tenement)

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*If it is an easement, it will run with the land and subsequent purchasers from B will be bound by this as well.

*If it is a covenant, only B will be bound by it – if B sells to C, C can build a house worth less than $300,000

Tulk v. Moxhay (1848) Facts Plaintiff owned Leicester square and adjoining property. Transferred Leicester

square to Elms. o Elms pledged to “maintain property as pleasure ground” (positive obligation) and “not

to build on property” (negative obligation).o There were a series of transfers, ending up with the defendant Moxhay.

No reference to the covenant in the transfer, but Moxhay admitted to knowing about it.

Issue Is Moxhay bound by the covenant? (Did the covenant run with the land?) Decision Moxhay is bound by the covenant Reasoning The price would be affected by the covenant (it would be inequitable to allow

the original purchaser to sell the property the next day at a greater price in consideration of the assignee being allowed to escape from the liability which he had himself undertaken).

o Plaintiffs in these cases would have no way of protecting their interestso Defendants would be in the position for windfall (presuming the purchase price

reflected the fact that he couldn’t build) The court did not draw a distinction between positive and restrictive covenants, nor did they

say that there needed to be benefitted land/dominant tenement. Take Away This was a landmark case in the law of restrictive covenants

o Decided solely on the basis of notice – there needs to be notice to bind a third party

Development of Doctrine Courts have since narrowed the operation of the doctrine in Tulk, 4 main elements must now

be satisfied for a covenant to be enforced:1. Covenants must be restrictive in nature

i. Only restrictive covenants are enforceableii. Positive covenants are not enforceable (only enforceable to the parties to the

contract, but when the property is transferred they are not enforceable – no privity of contract).

2. There must be burdened and benefitted landi. There needs to be a servient land and dominant land.

3. Covenant has to “touch and concern” the benefitted landi. Must be imposed for the benefit of or to enhance the value of the benefitted

landii. Obviously analogous with the notion of easement “accommodating” the

dominant tenement. 4. It must be intended that burden was to run with the servient land.

All 4 are still generally applicable, but need to consider effect of LTA s. 219.o S.219(2) When the crown is involved positive (and negative) covenants will also be

enforceable (the crown can enforce against you) Future BC Law institutes recommended that certain types of positive covenants be

permitted – only for purposes of enforcing a cost-sharing arrangement or joint work.

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Modification/Cancellation PLA s. 35 Deals generally with a court’s power to modify or cancel charges; easements and

restrictive covenants are specifically mentioned. S.35(2) sets out a number of factors that the court can take into account:

o Change in character, no injury to person entitled to benefit, reasonable use of land impeded without practical benefit to others, unenforceable, etc.

Remember Noble v. Alley Racial restrictive covenant unenforceable because of uncertainty

Parkinson v. Reid (1961, SCC) Facts Appellant is the owner of lot 28, respondent is the owner of lot 29. The previous

owners had entered into an agreement, which was registered, for a joint stairway on lot 28.o Note of the covenant was made in both conveyances/saleso Lot 28 is damaged in a fire, lot 29 owner demands that the stairway be replaced

SCC Does not find that a covenant contained in a grant of a right of way that the grantor will keep the way in repair is enforceable against a successor in ownership of the servient tenement. The appellant was under no obligation, enforceable at law or in equity to replace the stairway.

Personal Property

Finders The role of possession in property law The person who finds a chattel, a piece of personal property, the act of finding the item gives

the finder the better title to it than everyone else, except the true owner. Finding was once the basis for both land and chattel – doctrine of discovery In personal property, the finder’s rule reflects the extent to which law will go to protect prior

title/possession

Parker v. British Airways Board (1982, Eng. CA) Facts Parker finds a bracelet in the BA lounge at Heathrow. He gives the bracelet to a BA

official and says if the original owner doesn’t claim it, give it back to me – leaves name and address.

o BA was unable to find the original owner, BA sells the bracelet and keeps the proceeds ($850)

Trial Favours Parker, BA has to pay him Issue Who has a stronger claim to the bracelet BA (occupier) or Parker (finder)? Decision Parker’s finder right prevails. Rules CA creates a list of obligations of both parties from jurisprudence:

o Simply becoming aware of the presence of a lost item is not enough to make you a finder – you need to do something more, make a claim

o The thing must be lost – you can only find things that are lost Hiding something doesn’t count as being lost

o Trespassing finder someone who finds something by trespassing on the land These finders don’t have a better title (policy concern – don’t want to award

offenders).o When chattel is attached to a property, then the occupier of that building/land would

have a better title

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Rationale is that in that situation the chattel is to be treated as an integral part of the realty as against all but the true owner and so incapable of being lost or that the finder has to do something to the realty in order to get at or detach the chattel, and if he is not thereby to become a trespasser, will have to justify his actions by reference to some form of licence from the occupier.

o The case of the non-occupying owner. Ex.) A owns the house, being rented out to B, C is visiting B and finds a piece of

jewelry. In this case, the occupier did not make a claim. The dispute was between A and C – the owner and the finder. The finder’s claim prevailed because the rule is that it would belong to the occupier, not the owner.

o Bridges v. Hawksworth Person picks up a parcel while leaving a shop, shows it to an employee of the store, the storeowner comes out. Finder says to the storeowner to try to find the original owner, 3 years later, still no original owner. The storeowner says that the money is his, finder claims that it is his.

If the plaintiff had found the money outside the store as he was leaving, clearly he would be able to keep it.

Because he found it in the store, the store owner should have better title. CA Disagreed, found that the finder had a better title.

Application Cites Bridges, it is similar since just as the shop owner didn’t know the parcel was there, BA didn’t know about the bracelet.

o But Bridges has been overturned in subsequent caseso There are other factors to consider, the CA in this case comes up with the manifest

intention of control to make the law more clear The manifest intention to control in that space is required for the occupier to

have a better title, the occupier of the premises should exercise intention to exercise over that space.

While BA exercising some control over the lounge, the right of control that they exercised was not on an individual basis but on classes of people.

o There was no sufficient manifestation of control Parker’s prima facie right to keep the bracelet is not displaced by BA.

Marital Property Historical view:

o Dower Was designed to provide shelter for widows, it conferred on the widow a life interest in the freehold lands of her deceased husband.

It took precedence over a testamentary transfer Dower did not apply to a variety of property interests including leaseholds,

joint tenancies, and reversionary interests or remainders.o Curtesy Male equivalent to dower, it was designed to postpone the claims of feudal

lords to certain incidents of tenureo Common law dower was abolished in BC in 1925, homestead legislation was enacted

Exempted the family home from seizure by creditors. Conferred a life estate in the home on that spouse after the death of the owner

New Family Law Act

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If you had an agreement under the old, family relations act, that law still governs the relationship.

Triggering event is separation Big changes:

o Removes the language of custody and access replaces with guardians charged with parenting responsibilities and parenting time.

Divorce act still says custody and accesso Parentage is revised to consider new technology use of a surrogate, and other

methods. What matters is the intent of the parents. Can have up to 5 legal parentso Bests interests of the child, fundamental test

Being raised in a violent home is a factoro Law of relocation is codified, makes it easier for parents who are moving for family or

financial reasons.o Family violence is expansively definedo Fundamental change to how we divide property.

Fundamental Changes in Division of Property Definition of spouse has changed to include non-married spouses (defined in s.2 and s.3).

o “A marriage like relationship that the parties have been in for at least two years” will suffice for division of property to apply.

Regime changes to an excluded property model, family property is broadly defined as all property owned by either spouse at the time of the marriage breakdown.

o Unless the statute says it is excluded Which includes any property owned by one spouse before the relationship. Also includes gifts and inheritances.

The new Family Law Act applies only to family property that is acquired by a spouse after the commencement of the relationship between the spouse. Gifts and inheritances are excluded from “family property” (s.85).

o You can divide 50-50% any increase in value of the property during the relationship (the increase is split 50-50%).

Family debt is included in the division of property (s.81):o Before it was that you couldn’t be made responsible for someone else’s debt, now this

is not the caseo It matters when the debt is acquired, has to be acquired after they become spouses to

be considered family debt The law does not allow you to opt out of this act Rationales and Principles:

o Division of property was one of the only differences between married and unmarried couples, now no definition of spouses excluded.

Walsh v. Bona (2002, SCC) Court upheld the exclusion of unmarried couples from the statutory matrimonial property regime upon breakdown of the relationship. Their reasoning was that they needed to respect the autonomy of the couple and their chose not to get married.

o Division of property is about capital, not about income. 2014 Family Home on Reserves and Matrimonial Interests or Rights Act was enacted by

the federal government to deal with division of property owned on a reserve.o Concern with this act is that there was not proper consultation.

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Variation of Wills Wills Variation Act, replaced by Wills, Estates and Succession Act from March 31, 2014 S.60 Wills, Estates and Succession Act “Despite any law or enactment to the contrary, if a

will-maker dies leaving a will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the will-maker’s spouse or children, the court may, in an action by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the will-maker’s estate for the spouse or children.”

Tataryn v. Tataryn (1994) Deals with the old act, but the provision is the same in the new act (s.60) BC Wills and Variation Act gave broad discretion to the court to change/vary the will if they

thought the deceased spouse did not adequately provide for the remaining spouse. Facts Husband and Wife had been married for 43 years, through joint efforts they created

an estate. o Husband only left his wife a life estate, left nothing to John, and everything to Edward.

Issue How do we interpret “adequate provision” as found in s.2(1)o If the will is not adequate, just and equitable, the court may honour a different

disposition which is more equitable. Two interests that have to be protected:

o The interest of testamentary autonomyo The interest of equity between the beneficiaries

Rules o Earlier Approach Needs maintenance approach

Adequate means what is necessary for the basic maintenance of the spouse so that they don’t become a public charge – don’t become dependent on the state to provide for them.

Includes children and other beneficiarieso Walker v. McDermott Moved away from standard of need maintenance.

This approach would limit the legislation to being a welfare document Broader interpretation would lead to adequate meaning in order to maintain a

standard that is just and fair. SCC Applied broader approach

o Things like unjust enrichment and the length of the relationship need to be consideredo The act itself doesn’t mention need, if the legislature wanted to limit it to basic needs

they would have said so in the statute itself.o The focus needs to be on acknowledging that while the property is in the name of one

person, it has benefitted from the work of others. Conclusion Title of the matrimonial home is given to the spouse (wife has a fee simple)

Howard Estate (1997) Facts Wife is left nothing when husband dies. The courts do not interfere with the will. Relevant considerations the late age that the parties were married, the fact that they did

not become an economic unit, they did not enter into a relationship for mutual benefit, the wife’s estate was larger, they made their wills separately, and they have a prenup.

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Land (Spouse Protection) Act “Homestead” means land owned by one spouse but being “a dwelling occupied by the spouses

as their residence.” S.2 There must be an application by or on behalf of the non-owning spouse to register an

entry on the register to the effect that the homestead is subject to this Act. S.3 Any inter vivos disposition is void without written consent of the non-owning spouse. S.4(2) Despite any testamentary disposition – a life estate is given to the non-owning

spouse on the death of the owning spouse.

Aboriginal Property

Delgamuukw (SCC) Main issue we are concerned with is “What is the content of Aboriginal Title, how is it

protected by s.35(1) of the Charter, and what is required for its proof?” Aboriginal title as sui generis Two aspects:

o Must be distinguished from “traditional” proprietary interests, such as fee simpleo Must be understood by reference to both common law rules of real property and rules

of property found in aboriginal legal systems. Various dimensions of that title:

o Inalienability It can’t be sold (can only go back to the Crown)o Source in prior occupation physical fact of their occupation, trying to recognize pre-

existing conditions Aboriginal title arises from the prior occupation of Canada by Aboriginal people

o Communal land is held collectively Content of Aboriginal title:

o Encompasses the right to exclusive use and occupation of the land It confers the right to use land for a variety of activities, not all of which need to

be aspects of practices, customs and traditions which are integral to the distinctive cultures of aboriginal societies.

o Inherent limit lands held pursuant to aboriginal title cannot be used in a manner that is irreconcilable with the nature of the attachment to the land.

Aboriginal title is a type of aboriginal right but is distinct from other rights.o Aboriginal title is a right in land and, as such, is more than the right to engage in

specific activities which may be themselves aboriginal rights.o Aboriginal title is a “personal and usufructuary right”o S.35(1) constitutionalized aboriginal title in its full form.

Proof Of Aboriginal Title Occupation prior to sovereignty

o 1846 is the date of sovereignty (Treaty of Oregon)o Both common law and aboriginal perspectives should be taken into account in

establishing the proof of occupancy.o Any land that was occupied pre-sovereignty, and which the parties have maintained a

substantial connection with since then, is sufficiently important to be of central significance to the culture of the claimants.

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

o No need to establish unbroken chain of continuityo There must be a “substantial maintenance of the connection” between the people and

the land.o Fact that occupation may have changed won’t necessarily preclude a claim for

Aboriginal title. Exclusivity At sovereignty, occupation must have been exclusive

o Proof of exclusivity must rely on both the perspective of the common law and the aboriginal perspective, placing equal weight on each

o Exclusive occupation can be demonstrated even if other aboriginal groups were present, or frequented the claimed lands

o Joint title could arise from shared exclusivity.

Tsilhqot’in (2014, SCC) “Aboriginal title is what it is – the unique produce of the historic relationship between the

Crown and the Aboriginal group in question” Affirms test from Delgamuukw

o The 3 elements of the test are not ends in themselves, these are inquiries that shed light on whether aboriginal title is established or not.

o They are all questions of fact Infringement of Aboriginal title The infringement of the aboriginal right must be in

furtherance of a legislative objective that is compelling and substantial.o Is the infringement consistent with the special fiduciary relationship between the

Crown and aboriginal peoples? If there is proof of aboriginal title, the government needs consent to infringe. In most cases, the compelling and substantial objective put forth by the government must

further the goal of reconciliation.

Miscellaneous Notes

Homelessness – Jeremy Waldren Whether we can tolerate an economic system where a large number of people are homeless Makes a connection between property law and freedom

o Freedom is a connecting term, Property rules limit freedom Bigger point property rules engage a concern about freedom and liberty and if we are a

society concerned about freedom and liberty, we should be conscious of this whenever we discuss property.

How is property law connected to homelessness – freedom.

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