Property, Howell, Fall 2000 & Spring 2001
Howell’s office: room 214
1) Exams: closed book, but will be given clean copy of syllabus, use full sentences except in last 10 minutes or so when can use point format
2) Final exam: covers whole year, about 75% spring term material, 25% from fall (tenures, estates, trusts, uses most likely, possibly support – may examine same thing twice, so look at Christmas exam). A clean copy of the Perpetuity Act will be provided.
3) Dictionary:
a) Disposition = both a bequest of personalty and a devise of realty
i) Bequeath/legacy = a gift of personalty by will
ii) Devise = a gift of realty by will
b) Devolve = passing property from one to another, not be a positive act but rather by operation of the law
c) Deed = instrument that conveys an interest in land inter vivos (i.e. while living)
Contents
Page 118 of 118
Contents 1
Cases / Statutes 4
Proprietary interests and classification of property 8
Proprietary interests against the world, protected by torts, possession (bailee) v. ownership 8
Realty (corporeal, incorporeal hereditaments) and Personalty (chattels real, chattels personal) 8
How high and how deep does land ownership go? 9
Maxim – Cujus est solum ejus est usque ad coelum et ad inferos 9
Literal meaning of maxim – acceptance of “up to heavens” for overhanging sign, trespass 9
Limit on maxim – necessary for ordinary use/enjoyment of land – so aircraft do not trespass 9
Reiterates up to use/enjoyment; and can prevent others gaining rights to space above land 10
Nuisance – own airspace for useful tower, though causes concern for airport (prior warning) 10
Nuisance – up to “necessary for ordinary use” – useless structure blocking aircraft has to go 10
Can protect airspace over land even if poor motives: low, fixed over-swinging crane trespasses 11
Over-swinging crane does trespass, but poor motives of plaintiff, so postponed injunction 11
Maxim applies underground – people in cave trespass (no access) – now mostly statutes 11
Property only if under dominion – gas underground, water, wild animals (feræ naturæ) 11
Fixtures 12
Fixtures in personalty: greater absorbs smaller (separate existence, separated no damage) 12
Fixture? Consider degree (how well fixed) & object of annexation (for sake of chattel or land) 12
Leading BC case: prima facie fixture if attached, but objective degree & object tests to refute 12
Since no restrictive covenant, sign is fixture (dissent: sign should speak for itself) 13
Machinery attached to steady it is fixtures, and so are constructive fixtures (e.g. forklift truck) 13
Non LaSalle/Stack approach in Ontario – consideration of subjective intention 14
Use and flow (quantity and quality) of water 14
Three categories of water: surface water, water in watercourse, percolating water 14
Common law riparian rights: ordinary use, extraordinary use, flow and access in watercourse 15
B.C. Water Act: title/use all “stream” water to Gov, unless license, unrecorded water/domestic 15
Opinion 1) – riparian rights still exist except as against party with Water Act license 16
Opinion 2) – although judge said didn’t need to decide matter, riparian rights extinguished 16
Opinion 2) – in B.C.S.C. judgement, obiter dictum = riparian rights extinguished 17
Conflicting opinions in BC – must discuss both in any case, but 2) probably more persuasive 17
Percolating water can be extracted by landowner for any purpose (including wasting it) 17
1989: groundwater not yet in Water Act, nuisance to pollute ground or watercourse water 18
1995: Water Protection Act vests all groundwater in government, hence Water Act applies 18
Ownership of bed of water areas 18
Foreshore, tidal or navigable Prov, non-tidal & non-navigable ad medium applied in the past 18
1886: ad medium applies, even if bed not coloured or area included, unless known intention 19
Even Torrens system ad medium still applies to “bounded” by non-tidal/non-navigable stream 19
Land Act, S.B.C. 1961 following Rotter phases out ad medium rule 20
Does ad medium rule apply to Indian reserves – probably, but not decided since navigable 20
Access, Navigation 20
Riparian rights include access, right to cross foreshore, mooring, not construct on foreshore 20
Navigable rights if in natural state useful as public highway: commerce/predictability 20
Support 21
Right of support (lateral and subjacent) of land in its natural state (i.e. without additions) 21
Support includes indirect i.e. not to facilitate wind/rain by excavations on adjoining land 21
But if wind naturally blows sand off land (and neighbor then prevents its return) no action 21
Lateral support only for natural land not weight of buildings, but was liable for vertical 22
Not entitled to lateral support for increased pressure by building, but generally with vertical 22
“Fill” on land is not natural part of land, so no right of lateral support for it 22
No absolute right to support by or extract percolating water – negligence & nuisance available 23
Accretion 24
Accretion = gradual and imperceptible growth (or erosion) of land, or receding water 24
Time accretion begins relevant, can’t be foreshore, policy issues (e.g. “manurable”) irrelevant 25
Accreted land must go out, not come up – deposits should attach to adjoining land, not bed 25
Accretion includes windblown sand, imperceptible = can’t see consolidation / stable advance 25
Upland border of Crown “strip” is not mobile “snake” unless explicitly described as such 26
Tenures (pyramid), estates (legal title), trusts (equitable holding for another’s benefit) 26
Tenures = pyramid of relationships, King-tenants in chief-mesne-demesne (now unimportant) 26
Estates: “unGodly jumble” but flexible: fee simple/tail, life, reversion, remainder, autre vie 27
Equity – “use” on the “use” became modern trusts (holding title for use/benefit of another) 28
Trust used to create flexible estate-like succession for personalty (splits legal title from use) 30
Successive legal interests in personalty with wills: title in ultimate holder + other life interest 31
Common law: marital unity, life estates curtesy & dower, “use” for separate equitable interest 32
Alienability, Torrens land title system, Indefeasibility 33
Alienability – source in 1290 Quia Emptores, completed in 1660 Abolition of Tenures Act 33
Mechanics of transfer: from historical livery of seisin to modern documentation 33
Conveyancing: Common law, Deeds registration, Torrens Title registration 34
General Principle of Indefeasibility: curtain drawn over previous errors, mirrors situation 35
Exceptions to Indefeasibility: lease (up to 3 years) with occupation, builder’s/mechanic’s lien 35
Exceptions: fraud/forgery without knowledge – from deferred to immediate indefeasibility 35
S.29 notice of unregistered interest no effect, but actual/constr knowledge+dishonesty = fraud 38
Indefeasibility is to protect bona fide purchasers for value, not just registered owners 39
The Fee Simple 40
Creation: words of purchase v. limitation, no longer strict need for “and his heirs” 40
Repugnancy: if give absolutely cannot control it’s destiny – intention in wills, formal in deeds 41
The Life estate 43
Creation by express words “for life”, by statute, pur autre vie and devolution on death 43
Family Relations Act (community property regime on breakdown) & Wills Variation Act 44
Common law: resulting trust, constructive trust (equitable remedy avoids unjust enrichment) 45
Waste and Life Estates (and other relationships) 46
Legal waste: permissive (passive), voluntary (active), includes ameliorating 46
Equitable waste: no unconscionable waste (even if unimpeachable) and to other relationships 47
Obligation/cannot benefit by not paying taxes, can’t sell against remainderman’s wishes 48
Aboriginal property 49
History of aboriginal land title claims in B.C. 49
Delgamuukw: reconciliation, content, inherent limits, spectrum, proof, justified infringement 49
Aboriginal cultural artefacts/chattels, held in museums, seeking return 52
Co-ownership – concurrent estates 53
Co-ownership (unity of poss), TIC (shares), JT (each owns whole + 3 unities + survivorship) 53
Creation: old CL preferred JT, but now lack of unity/words of severance/statute Þ TIC 56
Relations between co-owners: can ask to account if unfairly sharing profits, but not for labour 59
Expenses: common obligation & at request & option adopted v. no option/equity on partition 59
Severance overview: destroy unity, mutual agreement (express or implied), other unilateral? 61
Destroy unity: transfer/trust yes, mortgage/lease/divorce?, agree to sell/will/uni declaration no 63
Severance by mutual agreement – express or implied by course of dealings/actions as if TIC 67
Severance by unilateral act that falls short of breaking a unity – likely in UK, unlikely in B.C. 68
Partition and sale: history and the B.C. Partition of Property Act 69
Only those with right of possession may seek partition (e.g. not creditors, remainderman, etc) 70
Court discretion: may focus on equitable “clean hands” maxim or on statutory discretion 70
Future Interests 72
Conditions precedent (contingent) v. conditions subsequent (vested) v. absolute vesting 72
Common Law future interests: reversions, remainders, rights of entry, possibility of reverter 77
Rules restricting remainders, avoided by legal executory interests & equitable future interests 80
Attributes of future interests: protection from equitable waste, alienability, registration 84
Validity of conditions/events, restraints on alienation 85
The rule against perpetuities, the Perpetuity Act 87
CL rule against perpetuities: contingent interest must vest, if at all, within perpetuity period 87
Statute law: the Perpetuities Act – common law rule still applies, but adds a safety net 89
Examples showing common law rule against perpetuties 91
Examples also showing use of safety net in Perpetuity Act 93
Incorporeal interests 99
Introduction: distinguish contracts (don’t bind future owner) from incorporeal hereditaments 99
Easements 99
Profits a Prendre: to take part of land, has implied right of entry, can be in “gross” 102
Leases: exclusive occupation (not for licensee), privity of estate “touch and concern” land 103
Covenants intro: contract-like, if privity of contract or estate (touch/concern) binds 3rd parties 103
Covenants & Common Law 103
Covenants & Equity: will bind burden if negative, benefits dominant tenement, and notice 105
Creation of Covenants: need to register them, but being registered doesn’t prove them 107
Licence: permission for licensee to do otherwise illegal thing on licensor’s land, differs lease 107
Licenses: Bare, coupled with land interest (e.g. profit), and new irrevocable contractual 107
3rd party successor bound by license unless bona fide purchaser for value without notice 109
Personal property 110
Finders: rights + obligation to true owner, who exerted most control 110
Bailment: taking of possession/control, returning same object, obligation to take care 113
Sub-bailment: if sub-bailee knows bailee not owner, then liable to owner, limits not applicable 115
Gifts 116
Gifts: capacity to give & receive, inter vivos requires intent and delivery (cohabiting tricky) 116
Cases / Statutes
A.G. B.C. v. Neilson (1956) (S.C.C.) 25
A.G. of Manitoba v. Campbell (Man. Q.B.) (1983) 10, 17
Administration Act Amendment Act 32
Andrews v. Partington 89, 98
Austerberry v. Oldham Corporation, (1885) (Ch. Div.) 104
Bata v. City Parking (1974) (Ont.C.A.) 115
Bernard v. Bernard, (1987) B.C.S.C. 61
Bernstein of Leigh v. Sky Views and General Ltd. (1977) (English Q.B.) 9, 10, 11
Blackburn and Cox v. McCallum, (1903) S.C.C. 85
Bradford v. Pickles (1895) (English H.L) 17
Bremner v. Bleakley (1924) (Ont.App.Div.) 21
Brown v. Moody, (1936) P.C. 73
Bull v. Bull, (1955) C.A. 58
Canadian Commercial Bank v. Island Realty (1986) (B.C.) 37
Canadian Exploration Ltd. v. Rotter (1960) (S.C.C.) 19
Carr v. Rayward (1955) (B.C. Co.C.) 35
Central Station v. Shangri-La (1979) (B.C.S.C.) 38
Chasemore v. Richards 17
City of New Westminster v. Kennedy (1918) (B.C. Co. Ct.) 47, 85
Clarke v. Clarke, (1890) S.C.C. 57
Cleland v. Berberick (1915) (Ont H.C.) 21
Cook v. City of Vancouver (1912) (J.C.P.C.) 16
Crawford v. Kingston 114
Creelman v. Hudson Bay Insurance (1920) (J.C.P.C.) 35
Delgamuukw v. British Columbia (1997) (S.C.C.) 49
Diamond Neon (Manufacturing) Ltd. V. Toronto Dominion Realty Co. Ltd. (1976) (B.C.C.A.) 13
District of North Saanich v. Murray (1975) (B.C.C.A.) 20
Dukart v. Surrey, (1978) (S.C.C.) 101
Duke of Norfolk 88
Edwards v. Sims, Judge (1929) (Kentucky C.A.) 11
Errington v. Errington & Woods (1952) (C.A.) 109
Festing v. Allen, (1843) Exch 76
Flannigan v. Witherspoon, (1953) B.C.S.C. 67
Foort v. Chapman, (1973) B.C.S.C. 65
Frazer v. Walker (1967) (J.C.P.C.) 36
Gibbs v. Messer (1891) (J.C.P.C.) 36
Gillies v. Bortolullzi (1953) (Man. Q.B.) 22
Ginn v. Armstrong, (1969) B.C.S.C. 68
Grafstein v. Holme & Freeman (1958) (Ont. C.A.) 111
Halsall v. Brisell, (1957) (Ch. Div.) 105
Hammonds v. Central Kentucky Natural Gas Co. (1934) (Kentucky C.A.) 11, 17
Harmeling v. Harmeling, (1978) B.C.C.A. 70
Hashem v. Nova Scotia Power Corp. (1980) (N.S.S.C.) 10
Haywood (1881) (C.A.) 106
Heffron v. Imperial Parking (1974) (Ont. C.A.) 115
Hermanson v. Martin (1983) (Sask. Q.B.) 37
Hiltz v. Langille (1959) (N.S.S.C.) 46
Hounslow London Borough Council v. Twickenham Garden Dev. (1971) (English Ch. Div) 107
Johnson v. Anderson (1937) (B.C.S.C.) 16, 17
Kelson v. Imperial Tobacco (1957) (English Q.B.) 9
Kowal v. Ellis (1977) (Man. C.A.) 112
L&R Canadian Enterprises Ltd. V. Nuform Industries Ltd. (1984) (B.C.S.C.) 13
Land Act 20
Land Registry Act 35
Land Title Act 35
LaSalle Recreations Ltd v. Canadian Camdex Investment Ltd. (1969) (B.C.C.A.) 12, 14
Leigh v. Dickeson (1884) (C.A.) 60
Lesson v. Jones (1920) (N.B.C.A.) 114
Lewvest Ltd. V. Scotia Towers Ltd. (1981) (Nfld. S.C.) 11
Lichty v. Voigt (1977) (Ont. Co. Ct.) 14
London County Council (LCC) v. Allen, (1914) (C.A.) 106
Lyons v. Lyons, (1967) (S.C. Vict. Australia) 64
M v. H (1999) (S.C.C.) 44
Mastron v. Cotton (1926) (Ont. App. Div.) 60
Mayo v. Leitovski (1928) (Man. K.B.) 48
Me-N-Ed’s Pizza v. Franterra (1975) (B.C.C.A.) 38
Mickelthwaite v. Newlay Bridge Co. (1886) (English C.A.) 19
Morris v. C.W. Martin (1965) (English) 114, 115
Morris v. Howe (1982) (Ont. H.C.) 48
Morrow v. Eakin and Eakin, (1953) B.C.S.C. 70
Munroe v. Carlson, (1976) B.C.S.C. 68
Murdoch v. Murdoch (1975) (S.C.C.) 45
National Provincial Bank v. Ainsworth (1965) (English H.L.) 110
Nicholson v. Riach (1997) (B.C.S.C.) 39
North Vancouver v. Carlisle, (1922) B.C.C.A. 64
Pacific Savings v. Can-Corp (1982) (B.C.C.A.) 39
Parker v. British Airways Board (1982) (English) 112
Parkinson v. Reid, (1966) (S.C.C.) 105