Property Law Fall CANS Grace Kim

Property Law – Fall CANS – Grace Kim

PROPERTY LAW

FALL CANS

Table of Contents

TOPIC 1: Introduction

I. THE NATURE OF PROPERTY

What is Property?

Yanner v. Eaton

Harrison v. Carswell

11 Elements of Ownership (Bundle of Rights) [Honore]:

Figure 1.1 Types of Property Rights

II. PRIVATE PROPERTY: JUSTIFICATIONS & LIMITATIONS

7 Categories - Justifications for Private Property

III. CLASSIFICATIONS OF PROPERTY

Real Property

Personal Property

IV. NOVEL CLAIMS OF PROPERTY

Numerous Clausus Principle

Attributes approch & Functional approach

Case Law: Novel Claims of Property

INS (Int’l News Service) v. AP (Associated Press)

Victoria Park Racing v. Taylor

J.C.M. v. A.N.A.

Saulnier v. Royal Bank of Canada

TOPIC 2: INTANGIBLE PROPERTY

INTRO TO INTELLECTUAL PROPERTY

I. COPYRIGHT

Five Requirements for Subsistence of Copyright

Originality Test (CCH Canadian v. LSUC)

Fair Dealing Analysis (CCH Canadian v. LSUC)

Case Law: Copyright

Theberge v. Galerie d’Art du Petit Champlain Inc

CCH Canadian v. LSUC

II. PATENTS

2 requirements for patents

Patent infringement

Monsanto Canada v. Schmeiser

III. Trademarks

To register a trademark

Mattel Inc.

PERSONALITY AS PROPERTY

Misappropriation of Personality Test (Krouse v. Chrysler)

Krouse v. Chrysler Canada

Athans v. Canadian Adventure Camps

Gould Estate v. Stoddart Publishing Co.

Topic 3: Personal Property

PROPERTY CLAIMS: FORMS OF ACTION

Limitation Periods

TRESPASS

CONVERSION

DETINUE

Replevin

Reversionary Interest

Mears v. London and S.W. Rwy. Co.

KEY CONCEPTS OF POSSESSION

Constructive possession

Custody

Abandonment

CASE LAW: CONCEPTS OF POSSESSION

Pierson v. Post

Clift v. Kane

Keeble v. Hickeringill

The Tubantia

Popov v. Hayashi

FINDERS’ RIGHTS

CASE LAW: FINDERS’ RIGHTS

Armory v. Delamirie

Elwes v. Brigg Gas Co.

South Staffordshire case

Grafstein v. Holme & Freeman

Hannah v. Peel

Bridges v. Hawkesworth

Bird v. The Town of Frances

Thomas v. Canada

Parker v. British Airways Board

BAILMENT

Liability: Duties of a bailee

BAILMENT TEST (Gobeil v. Elliot)

Gobeil v. Elliot

Taylor Estate v. Wong Aviation Ltd

Bluementhal v. Tidewater Automotive Industries

Mason v. Westside Cemetries Ltd.

Morris v. C.W. Martin & Sons

Topic 4: Transfer of Personal Property

GIFTS

Inter vivos Gifts

Irons v. Smallpiece

Re Cole

Watt v. Watt Estate

Thomas v. Times

DMC (Donatio Mortis Causa)

5 Requirements for an effective DMC

Re Zachariuc; Chevrier v. Public Trustee

NEMO DAT RULE

3 Exceptions to Nemo Dat Rule:

Sales of Goods Act (SOGA), RSBC

Battle River Dodge

TOPIC 5: FIXTURES

DETERMINING FIXTURE

Tenant’s Fixture

Criteria for Detachment from Land

Artic Transit & Concrete Products Ltd. v. Rolling Mix Concrete

LaSalle Recreations Ltd.

TOPIC 1: Introduction

I. THE NATURE OF PROPERTY

What is Property?

Property is a bundle of rights to/in things that is enforceable against othersconcerning claims to tangible and intangible items; Ownershipis a bundle of rights
Objects of property: physical/non-physical things in which one has property rights
Tangible (corporeal) chattels: land, buildings, goods
Intangible (incorporeal) chattels: claims on revenue, mortgages, patents, copyrights

Subjects of property: persons (humans and legal persons like orgs)

Yanner v. Eaton

Right to exclude;[crocodile]

Facts

P charged with killing and keeping crocodiles under Fauna Conservation Act. The Native Title Act gives people right to traditional activities.

Issue

Is there a right to excludability under the Fauna Act? .

No, judgment for P – no exclusive state right to control fauna.

Ratio

Property as opposed to full/absolute ownership can best be understood in terms of control. Property is seen as the power to control over access (right to exclude & right of exclusivity).

Harrison v. Carswell

Right to exclude; limitations to private property; [mall]

Facts

Carswell picketing peacefully at the sidewalk of a mall. Owner of mall said that she would be charged with trespassing if she did not stop.

Issue

Did the owner of property (mall) have sufficient possession of shopping mall sidewalk to press charges of trespassing? Yes! Owner had the right to exclude tenants as per his private property rights

Ratio

PP extends into public

11 Elements of Ownership (Bundle of Rights) [Honore]:

a)possession, management & control - exclusive use, right to exclude others

Right of exclusivity – the exclusive right to own all the aspects of property in its entirety by the owner
Right of excludability –the owners power to exclude others from his property; state-enforce right of exclusion

b)income & capital - to alienate, to consume, waste, or destroy the whole or part of it

c)transfer – inter vivos & on death

d)protection under the law – security against expropriation

e)liability to seizure – exact compensation for debts that may occur

f)prohibitions on harmful use – have a duty to use your property that does not maliciously /carelessly harm others

g)rights correlate w/ duties – Abezizv. Harris Estate: disposal of a corpse by an executor; duties was of a dignified burial

h)Not all rights of ownership are absolute – limitations on ownership in soc interest

Ex: search & seizure in crim procedure

i)bundle of rights can be augmented/reduced through judicial/legislative action

Figure 1.1 Types of Property Rights

1. Private Property: the individual has the right to exclude others from the use/benefit of the property.
2. Common Property: the individual in a community has a right not to be excluded from the use/benefit of the property. 2 catories:

a)Communal/collective ownership - in some societies or cultures (ex. Indigenous peoples), more restrictive than open access – stipulations for qualification

b)Public domain – fully open access; no property rights; the commons (light, air, water)

3. Public (state) Property: the state creates/enforces the right to exclude individuals from property.(ex. City parks, city streets, highways)

II. PRIVATE PROPERTY: JUSTIFICATIONS & LIMITATIONS

7 Categories - Justifications for Private Property

Economic Prosperity

Law & Economics
Economic efficiency: rewards from PPinc productivity

Economic efficiency and wealth maximization achieved through commodities of exchange if the law protects:
Exclusivity of Ownership
Ownership entitlements be transferable: This facilitates market exchange over property interests.
Property should be as universal as is feasible: Broad array of items available for exchange (objects of property) and rights be tenable by as many people as possible (subjects of property)

Tragedy of the commons

Explains situation in which individuals, acting in their own self-interest use up all or majority of limited resources, causing detriment to rest of the group/area. Group of herders share common grazing area for their cows.

Solution: allowing people to have their own property.

Benefits: harmful effects internalized among each plot
Disadvantages: stifles creativity, patent blocking

Labour/Desert Theories:you mix your own labour with material objects that were held in common; you should reap the benefits through private property
Disadvantage: environmentally unfriendly, there is no infinite supply of resources
First Occupancy: first in time, first in right – the first person to take occupancy/possession of something has property rights on it

Utilitarian: security for private property holdings imperative for peoples’ need for happiness: exclusivity of ownership. PP necessary b/c it maximizes happiness of society and efficiency in the economy

Flourishing Freedom: private property seen as promoting autonomy, the guarantee of every other freedom; PP as a means of exercising power/control

Personhood: being able to control property satisfies basic need for development of the person, moral growth & human nature. Conferring property rights on a person makes that person a better citizen. Property as extension of our self, of our personality.

Ex: Native’s relationship w/ land = expression of cultural identity

Anti-Commons: this is a situation where there is too much private property and too many people have the right to exclusion.

Pluralist Approaches: various approaches/theories combined, each reinforcing each other

III. CLASSIFICATIONS OF PROPERTY

Real Property

Various interests with the LAND; Immovable Property
2 categories of real property:

1)Corporeal hereditaments: TANGIBLE; actual physical things over which rights of ownership can be exercised – all tangible obj affixed to the land

Ex: buildings, trees, dirt, grass

2)Incorporeal hereditaments: Intangible; non-physical rights affecting land – rights of the use of land

Ex: easements, profit a prendre (non-possessory interest which give the holder the right to take natural resources from the land of another), mortgages

Personal Property

All other property other than land; Movable Property
2 categories of personal property:

1)Choses (things/chattels) in possession: TANGIBLE property; may be felt/touched and can only use it exclusively or dispose of it (methods to dispose – gift, sale, bailment, inheritance; technical method of transfer is thru physical transfer or deed)

2)Chose in action: an abstract entity in INTANGIBLE things; rights under this category can only be enforceable by legal actions

Examples:

- Debt:promise to pay – property right in debt is transferrable

- Commercial paper:contract for sale of goods b/w merchants

- Goodwill, IP, stocks & shares, money

Somewhere b/w real & personal property:

Chattels Real/Leasehold: interest in land less than a freehold (interest in land that you have forever); leases

IV. NOVEL CLAIMS OF PROPERTY

Idea of property is in a state of flux – it changes over time
2 Driving forces of novel claims of property: technology & science

Numerous Clausus Principle

“Closed numbers”; Limiting categories
This principle prevents courts from recognizing property interests that fall outside of the “closed set” categories.
Property interests are limited and carefully regulated – to stop “tragedy of anti-commons” – stifling innovation and creativity

Attributes approch & Functional approach

2 main approaches in determining property:

1)Attributes Approach

Does the proposed object of property have the same characteristics as traditional objects of property? Does it look like property?

Market value?

Transferable? (inheritance, gift, sale)

2)Functional Approach

What are the societal functions that would be served as labeling something as property?

The law recognizes “property” for social/economical reasons

Policy factors

Example using the 2 approaches in a novel claim of property – your university degree:

Attributes – It doesn’t have market value, nor transferable. But it was “purchased”
Functional – May serve societal functions to use the degree to derive income; or could cause detriments in society by treating as prop – disparity b/w economic classes

Case Law: Novel Claims of Property

INS (Int’l News Service) v. AP (Associated Press)

Novel Claim; Quasi-Property; [news]

Facts

INS gained access to AP news through bulletins and early editions of newspapers. INS member rewrite the news and publish it as their own. AP is suing to bar INS from copying its news.

INS claim: news published by AP is public VS AP claim: the news is their property

Ratio

No property right in news, because it’s public. However, going forward “hot news” is quasi-property in a commercial reality sense – the gathering of news (putting work into it) gives it some sort of property rights in a competitive commercial setting.

Analysis

INS did not violate because original AP articles were not copyrighted and were published in public. Going forward, quasi-property – can only exclude their competitors for a limited amt of time; news is public, but the creation of “hot/new news” should be protected against unfair competition it wouldn’t be profitable if anyone we could take it. Property rights are granted to protect commercial value of news.

Victoria Park Racing v. Taylor

Creation of something of value, on its own, does not give the right to exclude;[horse]

Fact

VP owned a horse racing track. Taylor built a platform on his land to view races and broadcast this info. VP argued that his ticket sales are low because of Taylor and that Taylor was being of nuisance which interfered with VP’s property rights.

Ratio

Spectacle is not property. Creation of something of value (spectacle), on its own, does not give the right to exclude.

Analysis

VP argued that Taylor was acting as a nuisance, resulting in unreasonable & significant interference with VP’s use & enjoyment of their property. Court disagreed. No nuisance = looking over a fence does not interfere with the proceedings of a racecourse.

J.C.M. v. A.N.A.

Functional & Attributes; [sperm]

Facts

Lesbian couple breaks up and disputes what should be done with sperm donation they own. Claimant wants to keep it on claims of property, and respondent wants it destroyed.

Ratio

Treating an item as property can justify a legal treatment as property.

Analysis

Common law does not allow ownership of human beings/body parts. There may be negative soc implications in deeming human parts as property (functional). However sperm was decided as property as it was purchased, used, benefited (attributes) and essentially treated like property.

Saulnier v. Royal Bank of Canada

Functional & Attributes; profit a prendre analogy; [fishing license]

Facts

Fishermanin financing his business signed a GSA with the bank, later declared bankruptcy. He refused to sign bankruptcy documents by reasoning that his fishing license does not constitute as property that could be re-possessed by the bank.

Ratio

Finding similar attributes & characteristics between a novel claim and an existing category of property, tied with social benefits of treating that novel claim as property (functional) justifies it as a legal interpretation of property.

- Control over how something can be used is important in determining it as PP.

Analysis

License is property. It can be determined as property based on commercial realty:

attributes> looks like property - can be used to gain commercial benefits (similar to profit a prendre - non-possessory interest giving holder the right to take natural resources from the land of another); enables the holder of license to access value (fish) from the common (sea)

functionalsoc benefits of having license held as a collateral by bank

TOPIC 2: INTANGIBLE PROPERTY

INTRO TO INTELLECTUAL PROPERTY

Intellectual Property (IP)areintangible as they lack physical characteristics.
They are ideas and thoughts disclosed to others in a tangible form of expression that fulfill conditions for legal protection giving rise to IP rights.
3 categories of IP: copyright, patent, trademark

I. COPYRIGHT

The right to prevent others from doing a variety of things with respect to something which is copyright-protected for a certain period of time

Purpose of Copyright:
To achieve a balance between promoting public interest in the encouragement and dissemination of works of the arts and intellect
Get a just reward for the creator
Recognizes rights by users, not just the creators

2 sets of rights within works:

Economic – economic benefit to the property; “sole right to produce/reproduce…” (s.3)
Moral – have the right for your work not tobe modified; integrity, authorship, authenticity of the property (s.14.1, s.14.2)

Five Requirements for Subsistence of Copyright

Has to be a Literary, Dramatic, Musical, ArtisticWork (s.2)
Author was, at the date that the work was made, a citizen or subject of, or a person ordinarily resident in a treaty country. (s.5.1a)
Work must be original (s.5.1)

Originality Test (CCH Canadian v. LSUC)

Must “originate” from the author (source) and;
By assessing the quality of the work:
Be MORE than a mere copy and;
An exercise of skill & judgment that is more than trivial

Capable of being copyrighted (s.2)
Fixation (not in statute, but is expressly implied): work must be fixed in a tangible medium of expression, can’t be a mere idea

If it was determined as Copyrightinfringement can Fair Dealingdefence be used?

Fair Dealing Analysis (CCH Canadian v. LSUC)

To determine if something is “FAIR”, you consider:

Step1: Look at the purpose of the act/infringement – does it fall under the categories? (research, private study, criticism/review, news reporting, satire parody?

Step 2: Then look at the fairness of the work/dealing assessed as a whole

1)Charter of the work/dealing

What did they do with the work?
Was it widely distributed? Was the copy destroyed after use?

2)Alternatives to the Dealings

Did they have an alternative?
Could they have made their work w/o relying on works of others?

3)Amount of Dealing

Quantity of copies

4)Nature of Work

How accessible the work is?
Private/public (confidential v. published)

5)Effect of the Dealing of the Work

Does copying diminish the value of the original work?
Does the copy compete with the original work in the market?

Copyright Infringement

s.27(1): infringement if you do anything only owner can do

It is an infringement of copyright for any person to do w/o consent of owner of copyright anything that by the Act, only owner of copyright has right to do

s.3: right to produce or reproduce– either an entire work or a substantial part of a work

Defences to Copyright Infringement:

1. Work is not one in which Copyright subsists

2. Copyright has expired

3. P doesn’t own the copyright

4. No infringing act

5. Miscellaneous defences (s.32.2)

6. Common carrier exemptions.2.4(1)(b)

7. Private copying regime S. 30 (2) Libraries, Archives and Museums

8. Non-commercial user-generated content(s. 29.21)

9. Fair dealing defences (s.29): allows copyright-protected material to be used to be fair

Types of fair dealing: research, private study, education, parody/satire, criticism/review (source cited), news reporting

Case Law: Copyright

Theberge v. Galeried’Art du Petit Champlain Inc

Reproduction of work – copyright infringement; [poster art]

Facts

G lawfully reproduced posters of T’s paintings using a chemical process from the paper onto the canvas. T is suing G to stop producing canvas art by transferring authorized reproductions (posters) of his artistic work.

Ratio

Mere act of fixating does not constitute a copyright infringement – there is no inc of copies.

Moral right under Copyright Act has limitations: just because owner doesn’t like the new look doesn’t mean it has hurt the integrity or authenticity of property.

Analysis

Reproduction is an act of producing additional copies, multiplying copies. In this case, G engaged in re-fixing and does not constitute reproduction.