Property Outline – Fall 2013
- WHAT IS PROPERTY
Property is a collection of rights (over things) enforceable against others. The term property signifies a set of relationships among people that concern claims to tangible and intangible items.
- CLASSIFICATION OF PROPERTY
· Real Property
Rights in relation to land
o Corporeal
Those interests capable of being held in possession: freehold estates
o Incorporeal
Non-possessory in nature
· Personal Property
Things other than land
o Chattels Personal
§ Choses in Action
Intangibles
§ Choses in Possession
Tangibles
o Chattels Real
§ Leases
· Unique Interests
o Aboriginal Title
o Other
- THE DIMENSIONS OF LAND
a) Air Space and Subterranean Areas
i. Airspace
§ Maxim
Whoever owns land owns all land above it
§ Maxim holds true. Ownership of a tract of land also confers rights in the airspace above the surface, with no fixed upper limit (Kelsen v. Imperial Tobacco)
§ Limit on maxim: standard based on ordinary use, an intrusion must not interfere with actual or potential use and enjoyment (Bernstein v. Sky Views and General)
§ No one can “own” airspace, is it public (The Queen in Right of Manitoba v. Air Canada)
§ Injunctions can be made even if there is no interference with the enjoyment of the land, and it is not presently being used (Lewvest v. Scotia Towers)
ii. Nuisance
§ Private nuisance
Interference of an occupier’s use and enjoyment of land
§ Public nuisance
Interference with public at large in exercise of rights common to all
§ Action in nuisance can be brought if it can be proven that there has been an unreasonable interference with the enjoyment of the plaintiff’s land (Attorney General of Manitoba v. Campbell)
iii. Below the surface
§ Owner of land also has absolute subsurface rights (Edwards v. Sims)
b) Fixtures
A chattel that becomes sufficiently attached to land may be transformed into a “fixture”, thereby forming part of the realty
i. Tests
a. The greater absorbs the smaller
b. Can it have a separate existence in a useful sense
c. Can it be taken apart without damage
ii. Annexation
§ In order to determine whether something is a fixture look at the degree and the object of annexation
o Degree: How well fixed is it?
o Object: Why was it affixed? To enhance the land or for the better use of the chattel as a chattel?
§ Things attached to land that are easy to remove and don’t have permanency, and that for the better use of the chattel as a chattel are not fixtures (Re Davis)
iii. The Fixtures Doctrine
1. Objective Test
· Not attached other than by own weightàchattel
· If attached even slightlyàfixture (unless appreciable damage would result from it’s removal)
· Can refute objective test by looking at annexation
2. Annexation
· Degree of annexation
· Object of annexation
· Object of annexation given more weight than degree of annexation (Recreation v. Canada Camdex Investments)
iv. Contracts
§ Whether or not a chattel becomes a fixture cannot be conclusively controlled by contract
§ An agreement that provides that a chattel “shall not be attachment or otherwise be deemed a fixture” will not resolve the issue of characterization (Diamond Neon v. Toronto Dominion Realty)
v. Items that are not attached
§ Items not physically attached will sometimes be treated as fixtures (L&R v. Nuform)
vi. Ambiguity over object of annexation
§ As a general matter when ambiguity over the object of annexation arises because of the existence of dual functions (chattel use and land-enhancement), attachment or non-attachment should carry the day
§ Purpose of annexation test is hard to apply (ex: mobile homes) (Lichty v. Voigt)
c) Water
i. Categories of Water
1. Surface Water
· Rainwater, snowmelt
2. Water in Watercourse
· A defined channel either on surface of land or underground
· Subject to riparian rights
· Riparian land: land at border of land and water
3. Percolating Water
· Underground water that is trickling or oozing
ii. Common Law Riparian Rights
o Riparian rights known as natural rights
o Ordinary use: can take water in any quantity for ordinary use, such as domestic (even to the point of exhaustion)
o Extraordinary use: can take water in reasonable amounts for irrigation, manufacturing, etc, as long as substantially replaced and water not significantly reduced in flow or character
o Flow: downstream riparian owner entitled to a flow not substantially altered in volume or quality
o Access to and from water
o Accretion and drainage
o Current legislative regimes typically do not completely wash away the common law of riparian rights, unless abrogated by statute, those rights remain in force (Johnson v. Anderson)
o BC Water Act can nullify riparian rights (Steadman)
o If extracting water from different place than license gives permission, it is unlawful (Schillinger)
ii. BC Water Act
Title/use of all stream water is owned by Government, unless license given or the water is unrecorded or domestic
a. Definitions (s.1)
· Domestic Purposes: for household use, sanitation, fire prevention, domestic animals and poultry, and irrigating small gardens
· Groundwater: water below surface of ground
· Stream: natural watercourse or source of water supply, whether usually containing water or not, ground water, a lake, river, creek, spring, ravine, swamp and gulch
· Unrecorded Water: water the right to use of which not held under license or under a special or private Act
b. S. 2(1): title and right to use and flow of all water in any stream in BC vested in government, except only in so far as private rights have been established under license or approvals given under this or a former Act
c. s. 2(2): no right to divert or use water may be acquired by prescription (prescription = manner of acquiring property as a result of use/enjoyment of land openly and peacefully for a prescribed period of time)
d. s. 3: a proclamation by LG in Canada may make this Act apply to groundwater
e. s. 42(2): it is not an offence to divert unrecorded water (i.e. water for which no license has been issued) for domestic purposes
· Note this latter part makes it lawful, but does not give right, to use unrecorded water. Distinction of lawful = a shield (so I can’t be sued, can argue nuisance if someone else interferes with my use/enjoyment of my land and hence water in/on it, but do not have entitlement) from a right (i.e. entitlement) = a sword (I can sue someone else for taking it away)
f. S. 5: licenses allow holder to divert water according to specified use, time, and quantity; to store water; construct necessary works; alter/improve stream
g. S. 41: person commits an offence if: hinders or interferes with license holder or their works; puts sawdust, timber, tailings, gravel, refuse, etc. in stream after having been ordered not to; diverts water without authority, or more than authorized to, or that cannot use beneficially; makes changes in and about a stream without authorization. Fines are up to $200,000 per day or imprisonment not exceeding 12 months, or both
h. S. 42(1): not an offence to divert water to extinguish a fire (but must promptly restore)
iii. Percolating Water
o Landowner can extract percolating water for any purpose, with no regard to others (Bradford)
o Note: In Canada today no one has right to percolating water
o 1989: percolating water was not a part of Water Act and not owned by anyone, so common law principles applied (Steadman v. Erickson)
o Could argue a nuisance claim
iv. Ownership of Beds of Streams, Lakes and Ponds
o Ad medium filum aquae
o common law presumption that the boundary of land that is adjacent to a non-tidal river extends to the middle of that river, unless the documents of title state otherwise
o When the body of water is tidal, ownership extends only to the ordinary or mean high water mark
o Beyond that line the Crown holds title
o The foreshore (the strip between the high and low marks) also belongs to the state
o Tidal rivers are treated as navigable and hence reserved for general access
o Ad medium will apply as a rule of construction to help assist courts and when land is sold on the border of a river even if it is not explicitly stated in the maps (Mickelthwaite)
o Ad medium does still applies under BC Torrens system when land described as bounded by a non-tidal and non-navigable stream (Canadian Exploration v. Rotter)
o Land Act
o Legislation passed after Rotter to phase out ad medium rule in BC
o S.55(1): no part of bed or shore is deemed to have passed to person acquiring grant unless red colour used on map, or express provision to contrary, or minister otherwise directs
o S.56(2): this does not affect any claim decided by court before 1961 (so Rotter ok), or someone with indefeasible title issued before 1961 that specifically includes bed (whether or not red used)
v. Access by Riparian Owners
· Riparian rights include access, right to cross foreshore, and mooring, but not the right to construct on foreshore (North Saanich v. Murray)
· If the waterway in it’s natural state is navigable, then it must be treated as a public highway (Welsh v. Marantette)
b) Support
· The owner of land enjoys a right of support for land in its natural state and at its normal level, a right that must be respected by the owners of neighbouring properties
o Right exists because the removal of soil on one property reduces lateral pressures imposed against adjoining lands
· A purchaser of land is entitled to the level of support that existed at the time the land was acquired
· Excavation on neighbour’s land that leads to subsidence is actionable and liability is strict
· A claim for loss of support is predicated on the occurrence of actual damage, not merely increasing the risk of future subsidence
· The right to support applies both vertically and horizontally
o Ex: mining operations beneath someone’s land is actionable
· The natural right of support does not extend to buildings on the land
· If direct action of neighbor causes nature to directly or indirectly impact natural state of land, they are liable (Cleland)
· There is no claim if the neighbour’s actions did not have an impact on nature impacting the natural state of the land (Bremner)
· Natural right of support does not extend to additions or erections (Welsh)
c) Accretion
i. As the contours of a body of water change, so does the configuration of the adjoining land
o Regulated by accretion, an element of common law riparian rights
ii. Accretion of the land is when there is recession of the water and the land grows, no longer belongs to the Crown but to owner of the land
iii. In order for the landowner to benefit of an accretion the process of transformation must be gradual and imperceptible in action
o It is the progress of accretion that must be imperceptible, not the result
o Accretion may occur through non-natural forces, as long as it is not the landowner who has caused it
iv. Accreted land cannot be foreshore, it must be dry (Neilson)
v. Accreted land must come about by land projecting outwards horizontally (deposits must attach to adjoining land), not through vertical development (Re Bluman)
- BASIC PRINCIPLES OF LAND LAW
a) The Doctrine of Tenure
If A owns land, and dies leaving no will or no next of kin as recognized as recognized by law, the land will go to the immediate lord, which in Canada means the Crown
· The doctrine of tenures embodies the rules for allocating land rights and corresponding obligations, but does not describe their duration
b) The Doctrine of Estates
Doctrine of estates sets rules for the duration of property rights. An estate confers a segment of ownership as measured by time. There are freehold, leasehold and fee tail estates.
· Estates are quantitative, unlike tenures, which are qualitative. With an estate you have title to land for a period of time after which it passes to the next successive estate owner, or the Crown if there isn’t one. Technically no one owns the land, but they have an interest in the land
· 4 types of freehold estates
1. Fee simple
· Closest approximation to absolute ownership
· Potentially infinite duration and includes the most proprietary rights
· An estate that is fee simple will continue after the death of the current holder through a will or otherwise to those who are entitled under statute
o If no takers an escheat will occur
· Proper language must be employed, or else only a life estate will be passed
o “To A and his(or her) heirs”
2. Fee tail
· An estate in fee tail devolves only to lineal descendants
· Abolished in BC in 1921
3. Life Estate
· Estate given to someone for the duration of their life
· If A gives land to B, then the land returns to A upon B’s death
o A is reversioner
4. Autre vie
· For the duration of someone else’s life
· Leasehold Estate
· An ownership of a temporary right to hold land or property in which a lessee or a tenant holds rights of real property by some form of title from a lessor or landlord.
c) Equitable Interests
vi. ?????
d) Relationship of Real and Personal Property
vii. Real Property
Rights in relation to land
viii. Personal Property
Things other than land
· Personal property is allodial: you own the very thing itself, as oppose to estates which are separate from the land
e) Marital Unity: Common Law and Equity
f) Separate Property Regime/Claims Upon a Breakdown of Marriage
- ISSUES IN ABORIGINAL TITLE
a) Introduction
i. Three Competing Meanings of Aboriginal Title