David Suk S CML Property Summary, Professor Gold, Fall 2014

David Suk’s CML Property Summary, Professor Gold, Fall 2014

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Table of Contents

The Tenure & Estate Systems 2

The Doctrine of Tenure 2

Reception (Ziff) 2

The Estate System 3

Future Interests 3

Conditional interests 3

Grounds for the invalidity of a condition 4

Shared Title 4

Joint Tenancy (Co-ownership with survivorship) (BC Law Institute) 4

Tenancy in common (Co-ownership without survivorship) (BC Law Institute) 5

Report on Accounting??? Did Thomas take lecture notes??? 5

Remedies 5

Real Actions (Causes of action for real property) 5

Remedies: Personal Property (LRC BC) 6

Acquiring Property 6

Transfer: acquiring (real or personal) property from another person 6

Acquiring personal property via possession (Finders & Abandoned/Res Nullius) 7

The notion of possession (personal property) 7

Acquiring abandoned property or res nullius (property of no one) via possession 7

Finders: possessory title to non-abandoned property by finding it (or even by stealing it) 7

Acquiring Real Property via Possession (Adverse Possession) 8

Acquiring Property Rights Through Labour 9

Easements (similar to CVL servitudes) 9

How to Create an easement (don’t forget Ellenborough Park test first!) 10

First way to create an easement: express grant or reservation 10

Second way to create an Easement: Implied grant or reservation 10

Third way to create an Easement: presumed grant (aka prescription) 11

Scope of easement: 12

Ways of ending an easement 12

Takings 12

Takings 13

Takings Cases in the USA 13

Leases/Licenses 14

Bailment 17

What is Property? 17

Labour Theory of Property (John Locke): 17

Occupancy or Possession (primarily a variant on the Labour Theory) 18

Utility (Bentham; Mill) 19

Freedom and Personality (Hagel) 19

Radical Theories 20

4. Law and Economics 20

Property as a bundle of rights 21

The problem with any theory of property, and many cases analysing property: 22

ABORIGINAL PROPERTY 22

Solution Maps 22

Creation of new property right question 22

MISC 23

The Tenure & Estate Systems

The Doctrine of Tenure

·  The doctrine of tenure describes the relationship between what we colloquially call a “landowner” and the crown – or historically in England, some intermediate lord. According to the doctrine, the “landowner” is in fact not an owner at all, but a tenant of the lord.

·  Today in Canada there is only one type of tenure, “free and common socage”, which is a direct relationship between the tenant and the crown. The doctrine of tenure, however, remains important, because it provides the conceptual basis for CML property. Certain CML concepts cannot be understood apart from the doctrine of tenure.

·  E.g. “echeat”, whereby land reverts to the crown if its title-holder dies without an heir. Why does this happen? b/c the crown, and only the crown, owns the land in the first place.

·  Also the estate system. If the king owns everything, what is a tenant’s interest in the land? Answer: a temporally bounded abstract right in the land; an “estate”.

Feudalism and its collapse.

·  Tenants holding “free tenure” provided the lord or king with an oath of loyalty and certain services: military, religious, spiritual, or agricultural services. In exchange, the tenant received from the lord protection and certain rights in land. In practice, the services were often commuted for a cash payment.

·  “Villain tenants” held only unfree tenure. They were mere occupiers for the lord. They had no property rights, including no right to bequeath. They had no place in the feudal structure, and therefore no access to the king’s justice (in civil matters).

·  A tenant wishing to transfer his interest in the land had two options:

·  Substitution: The transferor gives his position in the feudal hierarchy, together with its privileges and responsibilities, to the transferee.

·  Subinfeudation: The transferor makes the transferee his tenant, below him in the feudal hierarchy.

·  Transferor’s preferred the latter option b/c the prior involved dropping out of the feudal hierarchy, thereby loosing status, legal protection, etc.

·  Subinfeudation made the feudal hierarchy so complex that it was difficult for lords to collect rents and services from their tenants.

·  Enactment of Quia Emptores, 1290, prohibited transfer by substitution. Gradual effect was simplification of the feudal hierarchy b/c when a person died w/o an heir, his position in the feudal hierarchy, along with his interests in land, reverted to the crown (“echeat”).

·  Tenures Abolition Act 1660, almost all free tenures were converted into 'free and common socage' or 'freehold tenure'.

Reception (Ziff)

·  When a “terra nullus” is colonized, CML is received in its entirety whole the law of England (statute law) forms part of the laws of the colony as far as it is applicable to the conditions of the colony.

·  North America was viewed as terra nullus notwithstanding First Nation presence b/c they were viewed as savages w/o law or civilization.

Rationale

·  Prudence – to avoid uncertainty

·  Convenient – no need to re-invent the wheel

·  Displacing statute law would mean that old and unreformed CML property law would govern.

·  Justice: English law was viewed as encoding principles of universal justice

The Estate System

·  The estate system is a necessary corollary of the doctrine of tenure. It explains the apparent contradiction between the idea that the king owns everything and the idea that tenants have an interest in the land.

·  An estate is a temporally bounded abstract right in land; it is, “a time in the land, or land for a time” (Walsingham’s Case, 1573).

Fee Simple: a grant from the crown in perpetuity, including the right to transfer inter vivos or to one’s heirs. This is the largest possible bundle of rights.

Life Estate: a grant measured by the lifetime of a person.

·  May be the lifetime of the grantee (pur sa vie) or another (pur autre vie).

·  Transfer of a life estate is possible, but the transferor can only transfer what she has, an estate that will last only until someone’s death.

·  For example, if A grants a life estate to B pur sa vie, and B conveys the estate to C, it is now a life estate pur autre vie (B’s vie). When B dies, his interest reverts back to A.

Fee Tail: Not possible in ON since 1956 and therefore not on the exam.

·  In brief, an estate granted with a restriction on the transferee’s right to transfer. For example, “To John and the heirs male of his body” or “to John and the heirs male of his body by his wife Joan”.

·  Abolished b/c CML hates restraints on alienation and b/c entailed land could not enter market (economic argument).

Future Interests

Reversion: any interest retained by the grantor.

·  No need to be specified; arises by operation of law from grantor’s failure to alienate the entire interest.

·  E.g., grantor of a life estate has remainder in fee simple.

Remainder: an 3rd party’s future interest created by grant of an estate less than fee simple

·  E.g., “to A for life, then to B”. B has a remainder in fee simple, grantor has no reversion.

Waste: action or inaction on the part of the estate owner which altered the physical character of the land

·  To protect the interests of the remainderman, an estate holder with less than fee simple cannot generally engage in certain types of waste.

·  Ameliorating waste (improvements) is allowed, permissive waste (defaults in maintenance) is allowed, but voluntary waste (dimuntion of the value of the land – e.g. quarrying or logging) is not allowed.

·  All unless the grant stipulates otherwise.

Conditional interests

Fee simple subject to condition precedent: Condition must be satisfied before the grantee has any right of enjoyment at all

·  The grantee of a conditional estate gains a “vested interest” in the estate once the condition is met.

·  Vesting ≠ (necessarily) immediate right to possession. E.g.: “to A for life, then to B for life if she reaches 21": If B attains 21 b/f A dies, B has a vested interest but no right to possession.

Fee simple subject to condition subsequent: A full fee simple estate, but one subject to termination if the condition is met.

·  When the condition is met, the grantor has the right of re-entry, but the grantee’s estate is not terminated until the grantor exercises this right.

·  If the condition is successfully challenged, the estate becomes fee simple w/o condition. (Sifton)

·  The estate is fee simple subject to condition subsequent where the granting document frames the condition is a “divided clause from the grant”, conceptually separate from the clause granting full fee simple. (Re: McCoglan)

·  “provided that, on condition that, but if, if it happen that”; merely indicative (Re: McCoglan; Sifton v Sifton)

Determinable fee simple: An estate qualified by a condition such that it is less than fee simple; the condition is part and parcel of the estate, not a separate condition that may end it.

·  When the condition is met, the estate automatically reverts to the grantor once the condition is met.

·  If the condition is successfully challenged, the estate reverts to the grantor / remainderman. The thinking here is that the condition was part of the grant, so if the condition is invalid, so is the grant

·  The estate is determinable fee simple where the condition is part of the clause making the grant.

·  Key words: while, during, as long as, until; merely indicative (Re: McCoglan; Sifton v Sifton)

Ambiguity: CML property tends to avoid interpretations that would restrict the rights of a title holder and tend to read ambiguity against the grantor / drafter.

·  Therefore, in the presence of ambiguity, the court generally prefers fee simple subject to condition subsequent over determinable fee simple b/c the latter estate reverts to the grantor/remainderman immediately once the condition is met, or found invalid (e.g. Sifton v Sifton).

Grounds for the invalidity of a condition

Uncertainty: A clause is void for uncertainty unless “the court… and…the parties…can see from the beginning precisely and distinctly” what would and would not meet the condition. (Sifton v Sifton; also used in Clayton v Ramsden)

Public Policy: There are recognised public policy grounds by which a court will invalidate a condition.

·  The public policy ground must be recognised (Noble v Wolf), for example:

·  Discrimination (Re Canada Trust) or

·  Encouraging divorce: “if you divorce your husband” (Gold),

·  Restraint on marriage are void if they are overly strict (you can only marry him), but are allowed if they are sufficiently general (Clayton v Ramsden)

·  Restraint on Alienation: a condition is void if it overly restrains the grantees’ ability to transfer his/her interest. In recent cases, the question is often framed in economic terms: does the condition eliminate the value of the interest? For example, a condition cannot allow transfer to only one person, but could allow transfer to anyone but one person, or to a class of persons. Example: mining town, a SCotUS Justice Stevens case.

·  Alternatively, the court may recognise a new ground of public policy, but this has only happened once in 100 years – the discrimination addition in Re Canada Trust.

·  Courts are generally reluctant to invalidate a condition on public policy grounds because the CML right to free disposition of one’s property is viewed as fundamental (Clayton v Ramsden).

Shared Title

Joint Tenancy (Co-ownership with survivorship) (BC Law Institute)

Treated in law like a unitary owner.

Four requirements (the four unities) for it to arise: (if 1,2, or 3, absent, = tenancy in common)

·  Unity of title: The interests of the co-owners must be created by the same act or instrument, such as a transfer of land or a will.

·  Unity of time: The interests of the co-owners must be created at the same time.

·  Unity of interest: The interests of the co-owners must be of equal nature size (equal shares!), and duration (all life estate, all fee simple, not a mix).

·  Unity of possession (undivided): Each co-owner is entitled to possession of the whole of the land and none is entitled to any part of it to the exclusion of the other co-owners.

·  A characteristic of both joint tenants and tenants in common.

Consequence:

·  Joint-tenancy includes right to survivorship: On the death of a joint tenant, the interest of that joint tenant comes to an end rather than belonging to his or her estate, and the surviving joint tenants simply continue in ownership of the entire property in the co-owned land.

·  therefore good for couples / married ppl

·  Impossible to add or substitute any new joint owners to the initial arrangement of a joint tenancy! (due to the four pillers)

·  They cannot deal with their interests in the co-owned land in a manner inconsistent with the concept of unitary ownership and still preserve the joint tenancy.

Severance: Joint tenancy is “severed” (becomes tenancy in common) at CML in 3 ways:

·  (1) mutual agreement of the joint tenants (may be inferred)

·  (2) a (mutual) course of dealing that indicates the joint tenants are treating their respective interests as if they were tenants in common.

·  (3) act or transaction by one joint tenant w.r.t. that joint tenant’s individual interest; -- UNILATERAL

·  Any act that causes the 4 unities to no longer be met, for example, when one joint tenant transfers his/her interest to another (no longer unity of title), or one joint tenant mortgaging his/her interest (a 3rd party has acquired a right, no more unity of interest), or one when goes bankrupt, etc. Not a will though!!

·  Severance of one joint tenant’s interest does not affect the relationship among the remaining co-owners among themselves. A joint tenancy will persist among them. For example:

·  Additional ways of severance from legislation: Order for partition or sale (Partition of Property Act); Severance under part 5 of the Family Relations Act