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Property Law – Pavlich – December 2015
CH1: LEGAL CONCEPTS OF LANDRights in Airspace
Case / Facts/Conclusion / Ratio/rulesKelsen v Imperial Tobacco Co [1957] / -P sued D for overhanging sign; permanent held to be trespass; for P / -A permanent fixture attached to adjoining land that infringes on the airspace of another’s property will constitute a trespass (not nuisance); airspace is owned to a certain height; broad ratio: airspace capable of ownership
-property right has been given to Kelsen under the lease, he has the right to exclude everybody, including the freehold owner
Ad coelom Maxim: Whoever owns the soil owns to the heavens above and to the depths below. Airspace is land, and it is an in rem right.
Owners and leasors who have possessory interests in the building can also have possessory interests in the airspace above the building – have the same in rem rights
Bernstein (Lord of Leigh) v Skyviews [1977] / -P sued Ds for aerial photos - over flight NOT trespass / -Over-flight by aircraft falls outside zone of ordinary use AND enjoyment over which a landowner would have airspace ownership rights; ad coelom maxim limited
- Airspace rights extend only up to the “ordinary use and enjoyment” by the owner. Anything above that is not considered trespass on privately owned land.
-surveillance is a nuisance
Manitoba v Air Canada [1980] / -Province can’t tax airlines for flights overhead / Supports the notion that you can't have ownership of airspace all the way up to the heavens, but does so by saying that you cannot own airspace at all --> clearly this is an error
**trespass?? need to know height for enjoyment, frequency**
Ad inferos vertical section of land= the top layer can be owned by the landowner, the layer of earth below (which could hold mineral wealth) by the gov’t
· allows you to utilize the things below the surface of the earth; all of this is owned by the Crown
Legislation
Land Title Act, s. 138-143 / Air space constitutes land and lies in grant. This allows the owner in fee simple to subdivide land into “airspace parcels” for which indefeasible title can be obtained, and dispose of them by grant, transfer, etc. No easements or restrictive covenants in respect to the grantor’s land are implied in the transfer.Strata Property Act / allows definition of volumetric air parcels and the subdivision of airspace into even smaller parcels that can be sold to private owners. Bare land strata plan permits the subdivision of the horizontal plane only
Building strata plan allocates strata lots to individual owners (vertical)
- Permits a person to acquire fee simple ownership in multi-unit building on land he/she doesn’t own
Fixtures v Chattels – Maxim: quicquid plantatur solo, solo cedi = whatever is affixed to the soil belongs to the soil
Case / Facts/Conclusion / Ratio/rulesRe Davis [1954] / -Bowling alley as chattel / - To be a fixture, the object needs to be affixed for the better use of the building.
Two part test—degree of annexation and object of annexation (if to improve freehold, then fixtures, but if for better enjoyment of the chattel, then chattels)
•Degree of affixation:
· How well is the object affixed to the building
· Consider how easily it can be removed, how permanent the object is
•Degree of annexation:
· If object is to improve the freehold, even if only slightly affixed = part of realty
· If object is for the better enjoyment of a chattel =/= part of the realty
Zellstoff Celgar Limited v. British Columbia / -mill was constructed in the 60s and most of the current equipment was installed in the 90s
- Almost all of the equipment was affixed, almost all could be dismantled or removed / If the objective intent of the object of annexation is permanence, then it is seen as for better use of the land and therefore a fixture
- The objective intent of the equipment was for it to remain for its useful lifetime
- Took into consideration that it was a pulp mill, and that the equipment was therefore for better use of the land
CMIC Mortgage Investment Corp v Rodriguez 2010 / -Cover All #2 deemed a chattel b/c moveable / If not affixed, assume the item is a chattel unless owner's actions show that it was intended to be/used as a fixture
INTENT is relevant; if intended to be moveable it is then a chattel
-Item attached to a structure will become fixture if it loses its essential character.
-RBC v Maple Ridge 6 rules: (1) Only attached by own weight, easily removable = chattel (2) Plugged in, removable = chattel (3) Attached even minimally = fixture (4) Attached, removable but w/o necessary part = fixture and vice versa (5) Tenant’s fixture can be removed as chattel (6) Purpose test considers intention (covers areas not included in 1st 5 rules; subjective intention)
CoverAll 2 could have been installed on a buried foundation but it was installed on portable above-ground foundation; Mrs. R had to have made a conscious decision to do it that way which suggests she wanted to have the option of moving the building around her property or dismantling it quickly and easily
Elitestone Ltd. v. Morris 1997 / Bungalow had been resting on concrete pillars since ‘45. D lived in it & didn’t consider it to be chattel, P wanted to evict him. / When D’s bungalow was built, each piece became part of the structure, which was itself part and parcel of the land. The bungalow is considered to be part of the land.-Object brought onto land can be classified under one of three things: Chattel, Fixture, Part + parcel of the land itself (#2 and #3 = treated as being a part of the land)
-3 criteria: 1. Degree of annexation; 2. Object/purpose of annexation; 3. Whether the fixture is treated as part of the land (like houses)
Water/Riparian Rights – Statute trumps CL if license – Right to use unrecorded H20 for domestic purposes – Commercial use w/o license = unlawful
Common Law Background / -H20 not owned; H20 rights attached to ownership of land; right to flow (diminished in neither quantity nor quality; no diversion); right to use (ordinary/domestic); Right to use or not use w/o losing right ;commercial use required H2O be returned to watercourse substantially undiminished in quantity and qualityWater Legislation / -Water Sustainablity Act: use of flowing water – must be licensed
Domestic purpose: use of H20 for household purposes by the occupants of one or more private dwellings (other than multi-family apartment buildings), including hotels and strata or cooperative buildings, located on a single parcel, including the following uses:
A. Drinking water, food prep and sanitation
B. Fire prevention
C. Providing water to animals or poultry kept for household use or pets
D. Irrigation of a garden not exceeding 1000m^2 that is adjoining and occupied with a dwelling
5(1)- property in and the right to use and flow of all H20 at any time in a stream for all purposes vested in the govt, except where private rights have been established under authorization
5(2)- same as above, except with percolation and flow of ground H20, and private rights have been deemed under s 22(8) or established under authorizations
6(1)- person must not divert H20 from a stream or an aquifer, or use H20 diverted from these unless a) holds an authorization b) diversion or use is authorized under regulation
6(3) Unless regulations under section 135 (5)[regulations closing or restricting access to H20 source]provide otherwise,a person is not prohibited from diverting, in accordance with any applicable regulations, and beneficially using unrecorded water
(a) from a stream for domestic purpose or for prospecting for a mineral, or
(b) from an aquifer for prospecting for a mineral. (ok to use unrecorded water for domestic purposes)
6(4) A person may, in accordance with the regulations, divert, and beneficially use, including store, groundwater from an aquifer for domestic purpose unless
(a) provided otherwise by regulations under section 135 (6),or
(b) this subsection does not apply to the applicable aquifer by regulations under section 136[regulations requiring authorizations for domestic use of groundwater].
7(1): a licence entitles its holder to do the following in a manner provided in the licence:
A. Divert and beneficially use the quantity of water specified in the licence
B. Construct, maintain and operate the works authorized by the licence and related works necessarily required for the proper diversion or use of the water or power produced from the water
C. Make changes in and about a stream necessary for the construction, maintenance or operation of the works referred to in b or to otherwise facilitate the authorized diversion
D. Construct fences, screens and fish or game guards across streams for the purpose of conserving fish or wildlife
22. Precedence of rights; the general principle is first in time trumps the ones later in time
Water Protection Act: purpose to foster sustainable use, property in and the right to the use and flow of H20 is vest in the BC govt
Case / Facts/Conclusion / Ratio/Rules/Attitude to RRs
Johnson v Anderson [1937] 1 DLR 762, 51 BCR 413 (SC)
-Narrow embrace of RRs v. Steadman
-Full engagement w/ CL rights / D diverted stream that went through P’s property; P used it for DOMESTIC purposes, sought demo/injunction; D had license but not for diversion; P wins, remedy by way of orders, not damages / Riparian law still prevails for unrecorded H20; Act only steps in when dealing with licenced H20
WA provides that the riparian owner can get flowing water on his land and has a remedy against wrongful and unauthorized diversions
-RO still has right to make use of H20, still has access to remedy against unauthorized diversion depriving him or right (unless taken away by legislation – WA doesn’t); CL operates, right to use/flow
Schillinger v H Williamson Blacktop & Landscaping Ltd (No 2) (1977 BCCA)
(unlawful use vs lawful in Steadman) / P owned land, diverted H20 for hatchery; neighbor/logger D’s ground water flowed to P, contained silt that contaminated P’s H20/closed business; P had license to divert but for different Creek, P claims damages; D wins
-COMMERCIAL use (vs other 2) / -P’s diversion unlawful; his claim was based on consequences of that diversion à must fail, his breach of statute (41(1) of WA à 6 WSA) = an offence for any person to divert H20 from any stream w/o authority or to use any H20 when he is not lawfully entitled to do so
- RRs, if any, can exist only for a person lawfully using the H20 and only way to acquire the right to the use and flow of H20 in any "stream" is under the provisions of the WA (P hadn’t done so)
Steadman v Erickson Gold Mining Corp (1989 BCCA)
(lawful use vs Schillinger) / -P using H20 for DOMESTIC purposes from well; Ds building road, contaminates H20 with silt, makes P’s H20 unusable; no licenses
-Diamond saw (incidental/minor commercial use – detracts from overall domestic use? Not here; non domestic use too small à insignificant) / -Under WA property in and right to use/flow of H20 vested in Crown, except right to unrecorded H20
-You can use ground H20 to extent that is dries up neighbor’s well, but can’t contaminate it (if P’s H20 = ground H20, he wins, but can’t tell so D wins)
-P has a right to use and enjoy the H20 until the Crown issues a licence in respect of that H20; until then the P is entitled to claim that the D must not make the H20 unusable
-flowing unrecorded H20 for domestic purposes has the right not to be contaminated
Policy reasons for EXPANSIVE VIEW OF RIPARIAN RIGHTS (Johnson)
PROS
· Fills gaps in statute
· Limits bureaucracy (prevents e/o from needing license)
· Reflects common sense/public understanding
· Allows for more interpretation (not just statutory) / CONS
· Intro’s lack of clarity
· Not democratic (leg elected, judges appointed)
· Public interest in enviro integrity, econ development
· Common law = piece meal
Accretion- RO’s entitled to an increase by accretion, or can suffer decrease by erosion
· Doctrine of accretion: gives recognition to the fact that where land is bounded by H20, the forces of nature are likely to cause changes in the boundary between the land and the H20
· Where these changes are gradual and imperceptible, the law considers the title to the land as applicable to the land as it may be so changed from time to time
· AVULSION= sudden changes in land don’t give rise to gain or loss of property rights as opposed to accretion (cannot use doctrine on avulsion)
Case / Facts/Conclusion / Ratio/RulesSouthern Centre of Theosophy Inc. v. South Australia 1981 / -The lake’s high-H20 mark marks the land’s eastern boundary but, since it’s receded over the years due to accretion partly caused by construction, another 20 acres are exposed that A intends to claim / -doctrine of accretion applies
A riparian property owner may lose as well as gain from changes in the water or boundary level
Right of Access-
Case / Facts/Conclusion / Ratio/RulesNorth Saanich (District) v. Murray 1975 / A constructed a wharf on and across the foreshore (delineated as the land btwn high H20 and low H20 mark) adjacent to his land. R claims trespass. / -R) has the right access and regress from water
-Cannot interfere with public right of navigation or put down anything which disturbs the foreshore
Support- support is part of the land