Chapter 1 Concepts of Property in Law .......................................................................................................................... 3 Victoria Park Racing and Recreation Grounds Co.

. Ltd v Taylor 1937, Australia................................................... 4 Pettkus v Becker 1980.................................................................................................................................................... 4 International News Service v Associated Press US 1918 .......................................................................................... 5 Chapter 2 The Concept of Possession ............................................................................................................................... 5 US Supreme Court Mitchell v U.S. ............................................................................................................................... 7 Tee-Hit-Ton ................................................................................................................................................................... 7 The nature of the thing being possessed ......................................................................................................................... 7 Pierson v Poste ............................................................................................................................................................... 7 Armory v Delamory ....................................................................................................................................................... 7 Parker v British Airways (Court of Appeal, 1992) ....................................................................................................... 8 Joint finding....................................................................................................................................................................... 9 Keron v Cashman .......................................................................................................................................................... 9 Edmonds v Ronella ........................................................................................................................................................ 9 Bird v Fort Frances ....................................................................................................................................................... 9 Buckley v Gross (English decision) ............................................................................................................................ 10 Irving v National Provincial Bank (English Court of Appeal 1961) ......................................................................... 10 Clark v Maloney........................................................................................................................................................... 10 R v Christie................................................................................................................................................................... 10 Moffat v Kazanza ......................................................................................................................................................... 11 AG of Canada v Brock................................................................................................................................................. 11 Law of finders and treasure trove ................................................................................................................................. 11 Extinguishment of the Rights of the True Owner ........................................................................................................ 11 Possession in relation to land ......................................................................................................................................... 11 Asher v Whitlock.......................................................................................................................................................... 12 Perry v Clissold (1907) ................................................................................................................................................ 12 Mabo v Queensland ..................................................................................................................................................... 12 McPhail v Persons Unknown ...................................................................................................................................... 12 City of New York v Utsey ............................................................................................................................................. 13 Statute of limitations in relation to land ....................................................................................................................... 13 Piper v Stevenson ......................................................................................................................................................... 13 St. Clair Beach Estates v MacDonald ......................................................................................................................... 13 Lutz v Kawa.................................................................................................................................................................. 14 Possessory claims among co-owners.............................................................................................................................. 14 MacLean v Reid ........................................................................................................................................................... 14 Spectrum Investments.................................................................................................................................................. 14 Giouroukos v Cadillac Fairview ................................................................................................................................. 15 Keefer v Arillotta.......................................................................................................................................................... 15 Meridian Investments v How ...................................................................................................................................... 15 Beaudoin v Aubin (from the Bucknall article) ........................................................................................................... 15 Wood v Gateway........................................................................................................................................................... 15 Pye v Graham (2003 House of Lords) ........................................................................................................................ 16 Chapter 3 Fundamental Principles Governing Property Interests in Land ............................................................... 16 The Doctrine of Tenure .................................................................................................................................................. 16 Incidents of tenure .......................................................................................................................................................... 17 The Statute of Quia Emptores (1290)............................................................................................................................ 18 The Doctrine of Estates .................................................................................................................................................. 18 Life Estate .................................................................................................................................................................... 18 Fee simple .................................................................................................................................................................... 19 Fee tail ......................................................................................................................................................................... 19 Who could hold land ....................................................................................................................................................... 19 Conveyancing and Law of Property Act ..................................................................................................................... 20 Qualified estates .............................................................................................................................................................. 20 Void Conditions ........................................................................................................................................................... 21 Re Essex County Roman Catholic Separate School Board and Antaya ................................................................... 21

Re Tucks Settlement ................................................................................................................................................... 22 Re Down ....................................................................................................................................................................... 22 Life Estates ...................................................................................................................................................................... 22 Re Waters ..................................................................................................................................................................... 22 Re McColgan ............................................................................................................................................................... 23 Life estates and successive interests in land.................................................................................................................. 23 The Rule in Shelleys Case ............................................................................................................................................. 23 Re Rynard .................................................................................................................................................................... 24 Present and future interests ........................................................................................................................................... 24 Future interests at common law .................................................................................................................................... 25 Vested and contingent remainders ................................................................................................................................ 25 The Common Law Remainder Rules ............................................................................................................................ 26 The Rules ......................................................................................................................................................................... 26 No remainders after a fee simple ................................................................................................................................ 26 No springing freeholds ................................................................................................................................................ 26 Timely vesting .............................................................................................................................................................. 26 No shifting freeholds ................................................................................................................................................... 27 Equitable estates ............................................................................................................................................................. 27 The Use and Remainder Rules....................................................................................................................................... 28 Rule 1 ........................................................................................................................................................................... 28 Rule 2 ........................................................................................................................................................................... 28 Rule 3 ........................................................................................................................................................................... 29 Rule 4 ........................................................................................................................................................................... 29 The Statute of Uses ......................................................................................................................................................... 29 Rule in Purefoy v Rogers................................................................................................................................................ 30 The Statute of Uses and Testamentary Dispositions .................................................................................................... 30 Way to use the Statute of Uses to get around the legal remainder rules.................................................................... 31 Rule 1 ........................................................................................................................................................................... 31 Rule 2 ........................................................................................................................................................................... 31 Rule 3 ........................................................................................................................................................................... 31 Future interests under wills ........................................................................................................................................... 31 The Modern Trust .......................................................................................................................................................... 31 Rule Against Perpetuities ............................................................................................................................................... 32 Rule against Perpetuities ............................................................................................................................................. 32 Issues with the rule ...................................................................................................................................................... 32 Statutory reform of rule against perpetuities .............................................................................................................. 33 Re Gaites Will Trusts (1949) ...................................................................................................................................... 33 Re Frost (1889) ............................................................................................................................................................ 33 Chapter 7 Concurrent Interests in Property ................................................................................................................. 33 Types of Concurrent Interests ....................................................................................................................................... 34 Joint tenancy ................................................................................................................................................................ 34 Tenants in common ..................................................................................................................................................... 34 Co-parcenary ............................................................................................................................................................... 34 Tenancy by entireties ................................................................................................................................................... 34 McEwen v Ewers and Ferguson ................................................................................................................................. 35 Severance of a joint tenancy........................................................................................................................................... 35 Aboriginal ............................................................................................................................................................................ 35 R v Sparrow .................................................................................................................................................................. 36 Van der Peet ................................................................................................................................................................. 37 Gladstone ..................................................................................................................................................................... 37 Marshall ....................................................................................................................................................................... 37 Mikisew Cree 2005.................................................................................................................................................... 38 Delgamuukw ................................................................................................................................................................ 38 Marshall and Bernard ................................................................................................................................................. 39

Chapter 1 Concepts of Property in Law

What is property law about? o Rights, rights to things, things may be intangible or tangible intangible = IP Property involves ownership generally in some cases less than ownership will be okay Property rights are legal rights One such right is the right to possession o Preclude others from taking something Law of property involves a relationship between people and things More importantly it involves relationships between people If you lose something the law will not help you find it The law will enforce your rights if you know where it is In common law systems property rights are held by persons Who can have property rights in common law o Any entity that has legal personality o People (natural persons) o Artificial person corporations Because only persons can have property rights a group of persons cannot have them they are not a legal person Clubs and associations that are not incorporated for example appoint someone to hold the property for them In common law systems animals cannot have property rights Minors can own property but there are some restrictions on their ability to transfer property Property rights in rem are rights against the whole world In contrast contract rights are in personam rights related to a specific person not the whole world Can have contracts in relation to things that are property rights Whenever land is sold there is a gap in time between agreement and transfer Contracts may involve a transfer of rights but it may not occur at the same time Property still belongs to the vendor until the actual transfer occurs But sometimes contracts will be enforced by the courts so after the deal is struck the seller usually cannot back out This is seen in cases of housing and other unique goods In real estate the purchaser gets an equitable interest in the property when the deal is struck A major issue with property rights is proof proof of ownership Possession leads to a presumption of ownership must be property capable of possession The common law of property goes further than that o Protects possession for its own sake o Possession gives someone a right against everyone else o If remain in possession for 10 years you get title in Ontario o Also cannot claim possession for a third party In squatting statute extinguishes rights to land and creates a new right of possession vested in the squatter If someone owns something what does that mean o In law may mean that one has a bundle of rights o Entitled to the use and enjoyment of the land But it is not unlimited Limited by the rights of others and such things as zoning laws etc. o Entitled to the right to derive income from the property Can lease or rent the property Give up some rights during the term of the lease o Right to alienate the land To sell or transfer it to another o Right of inheritance Convey property upon death if it is an inheritable property right Some interests in land are only life interests Property law is a social construct The different rights under ownership are not exclusive

There can be public rights that impact possession Aboriginal title to land cannot be alienated In some aboriginal cultures they may be inalienable Personal property vs. Real property o Real property land and anything attached to it with some degree of permanence o Personal property everything else Real property may be corporeal or incorporeal tangible or intangible Incorporeal rights are such things as easements right of way over anothers land Profits a prendre right to go on someone elses land and take something from it Personal property can also be corporeal or incorporeal Choses in action can only recover something through legal action Property right is an enforceable interest Once something is detached from the land it is no longer real property becomes personal property

Victoria Park Racing and Recreation Grounds Co. Ltd v Taylor 1937, Australia Many grounds upon which he attempted to establish claim Nuisance o Two kinds of nuisance Public nuisance interference with or harm to public in general Private nuisance interfere with the use and enjoyment of land o Nuisance is a tort action not the same as trespass which is interference with possession o Problem with nuisance for plaintiff is that the actions of the defendant did not interfere with his use or enjoyment of his property just made it less profitable o Categories of nuisance are never closed must be substantial interference majority found none Rich and Evett dissented o There is no all inclusive definition of nuisance o Defendants use of its land was not a natural use of its land o Would have upheld that there was a nuisance here o Defendants actions made the track less profitable Differences between majority and minority o Majority for nuisance must interfere with use and enjoyment o Minority it did interfere made it less profitable o Second major difference was that the dissenters found the defendants use of his property was unnatural o Dissenters seemed to look more at the purpose and effect of his actions o Municipal authority is delegated from the province Plaintiff also contended that he had a right to privacy o Majority rejected this no common law authority for privacy o Had the remedy of self help build a higher fence o Minority it is not just interference with privacy since if something prevents the use and enjoyment of land then there is an interference with privacy and a nuisance Plaintiff also contended that he spent money to create a spectacle o This spectacle then became his property o Majority rejected this by saying that it was difficult to view a spectacle as being owned Common law system is about judge made law In Victoria the judges of the majority were unwilling to extend that law Today the debate focuses on judicial activism but that is what the common law is all about Every issue that goes to appeal involves some uncertainty about what the law truly is or means In Victoria the information being transmitted was not confidential information In Canada there may be an opportunity to proceed in this type of case on the basis of unjust enrichment

Pettkus v Becker 1980 He accumulated property while she paid the bills o There elements

Person receives a benefit Other party suffered a corresponding loss No juristic reason (legal explanation) for this to occur

International News Service v Associated Press US 1918 As with Victoria the case is about the limits of property rights Has to do with whether there can be property rights in news Appellant had been denied access to certain countries in order to cover the war Used respondents news in their own papers USSC held that when two businesses are in competition as these two were there is a principle of fair business practice o It is wrong to take the news from the other and incorporate it into your own paper Justice Pitney o Also relied on the argument that there can be property in news Content cannot be copyrighted Can copyright the written word Would not be a copyright violation to write report based on news in another paper But would be quasi-property right that was interfered with Quasi-property right was only good against competing news services Gain this quasi-property right through the process of gathering news and expending money Property is in rem right is good against all others Brandeis dissent o Emphasized that an essential element of legal private property is the right to exclude others o But in this case there is no right to exclude others o Also questions the use of copyright should be for artistic creations etc. Majority decision protects private property right of news service Brandeis protects rights of the public to information o Brandeis is famous for introducing briefs in Canada factums that incorporate policy arguments when he was a lawyer

Chapter 2 The Concept of Possession

Concept of possession o What is the relationship between possession and ownership o Ownership involves a right to property o Personal property involves absolute ownership o Only Crown can own land absolutely o Can divide possession from ownership o Possession can be either rightful or wrongful o When two people assert ownership of land the dispute is over who has better title to the land o Possession in fact involves actual possession of the thing o There is also a mental element to possession intention to possess the thing Possession in fact does not depend on a legal distinction Possession in law is possession in fact that is recognized by the legal system o There are exceptions Most important is employee employer relationship Possession in fact can be with an employee but possession in law is with employer o Possession in law does not mean it is lawful possession E.g. if someone steals something and possesses it then they have possession in law that is wrongful Possession is single and exclusive o Two people cannot have possession at the same time o In cases of co-ownership there is a single shared possession o Possession, once acquired, is assumed to continue until you give up possession E.g. car in parking lot you have not given up possession of it

 Ownership is presumed from possession in law o Subject to rebuttal of ownership Most property is acquired by a transfer from someone else sale, gift, transfer etc. But every property right has an origin o Should be able to find out who had the original property right o For land it is easier to trace the title back than for other things In England the basis of land ownership is that the Crown owns all of the land Comes from the feudal system o All land rights derived from Crown grant In British colonies o In Australia and others it was deemed that the land was terra nulliis vacant land o In Canada this was not the case Recognized aboriginal title to land In Canada it is theoretically possible to trace land rights back to the original Crown grants In common law systems the main way that property rights arise is through possession The first to take possession becomes the owner of the thing When a statute of limitations extinguishes the right of an owner in adverse possession cases a new right is created in the name of the adverse possessor o It is not a transfer of rights Other property rights can be created by making new things Can sometimes involve the use of things that were previously owned Also applies to domestic animals if a cow gives birth the owner of the cow owns the calf Why is it a rule that the first to take possession becomes the owner o Difficult question o One explanation is based on Lockes labour theory mixing labour with a thing makes you the owner But assumes that one owns ones labour Also issue of how much labour is involved in producing something Also why should the taking of possession give one the right of ownership forever o Another theory is the contract theory People generally agree with the assumption that when one takes possession they own that thing Is an agreement between people Ownership gives one person freedom and limits the freedom of everyone else Distinction between saying that there is private property and justifying it on a political, moral or economic basis Justification for having these property rights protected by legal system is not a legal question and is based on social, political, and cultural orders and interests. From a legal perspective: what amounts to taking of possession, that is, what is necessary for the thing to be taken so those rights arise, both in terms of land and objects or things Choses in action: recover through court action: shares, stocks, bonds the paper itself is not in the thing itself, which can be possessed, but value is in something else. Choses in possession: recover through retaking How can one take possession of land in order to attain rights? In Common law, land was rarely, originally unowned o However, if land is unowned in the common law, land can become owed by way of occupancy. This requires: Must have intent to be in occupation: do something the owner would do on the land, something natural to occupation per se. Actual physical occupation In Canada, this has been addressed only through Aboriginal Land Claims: Marshall / Bernard (2005) (unowned land and original title) what kind of occupation is necessary to determine aboriginal title (original title) at the time of colonial intrusion? This case answer the questions: common law recognizing original title at time of European arrival

Land is already owned but someone else acquires rights to it through Adverse Posession Statutory limitations on real property ownership What does B have to do in order to gain possession (exclude A) of the owned land. Possession follows title Onus on B to show rebuttal of this possession. It is not usually squatting but rather a matter of adjacent property owners and illdefined or encroached boundaries. o Initial possession of B is wrongful but it is with justification that such rules exist. o B has rights against the world at the moment of possession that are superior to everyone else except the titleholder . Groups, as tenants in common (together as legal personality), can adversely possess. Productive use of otherwise empty land. With adverse possession, what does A (owner) have to do to get the possession back before limitation ends? In old common law a mere re entry was enough Under statute, in Ontario, A will have to do more than common lawre entry to reacquire possession. Requires dispossession, that is, A must assert possession but this is much easier to establish than B hold out the statutory limitation. Ex. of 14th century example of sufficient mere entry climbing through window.

US Supreme Court Mitchell v U.S. Indian occupation had to be considered with reference to their life and habits of usage and this is a sufficient as the cleared fields of the whites. Thus, hunting ground would be within possession Tee-Hit-Ton Indian group in Alaska, Aboriginal title to land is not property right that is protected by the Constitution, rather a political decision by Congress to take or not. o Highly criticized o Reverse situation in Canada o recent Canadian case Delgamuuk 1997. Affording constitutional protection to aboriginal title, based on treaty. Whereas, general property rights in Canada not constitutionally protected.

The nature of the thing being possessed

Pierson v Poste Facts: D was hunting a fox when an interloper appeared, killed the fox and ran off with the carcass. Result: The interloper was awarded with the property right Comments: Pursuit of an animal is insufficient to establish property rights; such rights can be obtained only by wounding/ capturing or killing the animal Dissent would have asked hunters to see what the custom in this situation should have been. CL does recognize local customs. o A whale was harpooned and escaped in Swift v. Gifford. Another person caught the whale and the court recognized the custom (i.e. first person to harpoon the whale receives property rights) Armory v Delamory Chimney sweep found jewellery, takes to pawn shop, does not want to sell for low price, but is not given back the stone. Chimney sweep sues in trover and involves conversion o Wrongful interference with persons property rights in respect to possession. o The boy gives for appraisal (not wrongful) but upon refusal to give back (conversion to appraisers own use) it becomes wrongful

Person received possession from someone else, that person can not deny the giving persons previous possession, especially in the case of the sweeper who did not intent to give away rights. At time, damages were only available, not get it back. o Boy succeeded, was entitled to highest value of the stone. o Boys rights came from his possession. Finders rights in rem, are good against most with exceptions o Owner has better rights o If in the employment of someone, then employer might have better rights. Parker v British Airways (Court of Appeal, 1992) Facts: Plaintiff found gold bracelet at airport, handed it to an official and asked for the bracelet to be returned to him if not claimed by the owner. Owner never claimed it and it was not returned, but sold it and kept the proceeds. Result: Court finds for the plaintiff and awards him damages. o The rights and obligations of the finder are as follows: The finder of a chattel acquires no rights over it unless: a) it has been abandoned or lost, or b) he takes it into his care and control [not entirely true as a thief does acquire some rights in civil law that arise from possession]. Abandonment requires a clear intention to give up his rights. The first possessor after abandonment has taken place will become an owner. Note that there are exceptions to this, such as the abandonment of dangerous items. The finder of a chattel acquires very limited rights over it if he takes it into his care and control with dishonest intent or in the course of trespassing. Dishonest intent can consist of someone finding something and immediately converting it to their own use, without making an attempt to find the owner Trespassers automatically have a less right as a wrongdoer cannot profit from wrongdoing A finder of chattel, while not acquiring any absolute property or ownership in the chattel, acquires a right to keep it against all but the true owner Reaffirmation of Armory v. Delamirie Any servant or agent who finds a chattel in the course of his employment or agency does so on behalf of his employer or principal who acquires a finders rights to t the exclusion of those of the actual finder. A person having a finders rights has an obligation to take such measures as in all the circumstances are reasonable to acquaint the true owner of the finding and present whereabouts of the chattel and to care for it in the meantime. Cost v. benefits analysis o The rights of the occupier are as follows: An occupier of land has rights superior to those of a finder over chattels in or attached to that land and an occupier of a building has similar rights in respect of chattels attached to that building, whether in either case the occupier is aware of the presence of the chattel. Occupier has a better right for items attached to the land and the building because such items are viewed as part of the land the occupier is in possession of. Note entering to detach an item means that trespass has occurred! An occupier of a building has rights superior to those of a finder over chattels upon or in, but not attached to, that building only if (before the chattel is found), he has manifested an intention to exercise control over the building and the things which may be upon it or in it. The case turned upon this point. The D failed to manifest the intention to exercise control in the area in which the bracelet was found. Court discusses instances where this might be demonstrated such as the existence of a bank vault. An occupier that does the above is under an obligation to take such reasonable measures to ensure that lost chattels are found and, upon being found, to acquaint the true owner of the finding and to care for the chattels in the meanwhile. An occupier of a chattel (i.e. ship, car etc.) is to be treated as if he were the occupier of a building for the purposes of the foregoing rules. o

Noted that the D did not own the area of the airport in which the transaction occurred. In this case, it is likely that D is a lessee and in the case of finder v. lessee whose rights are superior? o For example, the lessee is precluded from carrying out activities that will diminish the land with respect to the owner. A lessee can take some things from the land but not others.

From Parker There is a common law dealing with finding but the court is not bound by it Court has the right and duty to extend and adapt the common law in light of established principles and current needs of the community Common law has ready made solutions for every problem o Is just a theory, a fiction o Asserts that the common law just discovers the answers to problems Supposedly judges rely on the community to aid in creating judicial rules Another reason is that judges are uncomfortable with making up laws and therefore assert that they are just discovering them A further reason is to prevent retroactive application of the laws o If a law is undiscovered then no one can be expected to abide by it o To get around retroactivity judges say that they discover laws that already existed an then how can the law be retroactive if it already exists

Joint finding
Keron v Cashman Kids find a stocking with money in it One of them found it and they all began playing with it and then the money came out There was no intention on behalf of the first to possess the money Intention only arose later when they realized that there was money in the stocking Court divided it up between them only fair way of doing things Edmonds v Ronella Boys found an envelope with money in it A girl came along and together they took it to her house Police came and gave her a receipt as the finder Court found possession occurred when they left the parking lot together and therefore they shared possession of the money What if she had taken the money from them? o For boys to take possession they must have the money and the intention to possess it o If they did not have the intention to possess it they would not have a case o But most likely the court would find a way for the boys to win because what she had done was wrong Do these cases violate the rule that possession is a single and exclusive thing o In these cases there is only a single possession but it is shared o Could have shared possession of a single object one would need to pay the other for their share or sell it and split the proceeds Bird v Fort Frances Boy found money in a can under a billiard hall Brought it home to mother who hid it in the couch He was spending some and police became suspicious of him and asked him where he got it He told them, mother gave over cash, police handed it over to the city, put in trust, could not find true owner, boy sues for it back Court said that there are only three ways he could have gotten possession o True finding no trespass, had an intention to return it etc. o His taking of the money was wrongful taking Probably a trespasser who could not claim anything found on anothers property

Also made no effort to find the true owner Took the money with felonious intent Intended to take it, knew he had no right to do so, and intended to spend it Judge said the boy was not a true and honest finder Was either a civil or a criminal wrong But judge said he did not have to decide which because in either case he would have the same rights This is because he had taken possession of the money and thus had a better right to it than anyone else Town had no rights but the real owner or occupier would have had a stronger claim to possession What about the taking of the money by the police officer o Was most likely not wrongful because mother handed it over o But police officer had no right to ask for the money o Judge said he took it as a bailee in order to find the true owner and when he could not he was obliged to return it to the boy o The town had no greater right than the police officer to the money There is a further issue in this case o When the police officer took the money the boy did not have possession, the mother did o Mother willingly gave over the money o Question is in what circumstances does possession continue after actual possession is given up o Could treat mother as agent of the son and then the mother could not deny that the son had rights to the money o

Buckley v Gross (English decision) o Police arrested a many in London who had tallow on him o There had been a fire at a candle factory and tallow had run into the sewer and into the Thames, the tallow had hardened in the river o He was charged with theft and acquitted o Sued for tallow back and denied recovery Court said his possession was wrongful because there was a magistrates order for the police to take possession of the tallow from the factory o Ruling was that if wrongful possession is rightfully taken away then there is no longer any right of ownership Irving v National Provincial Bank (English Court of Appeal 1961) o Relied on Buckley v Gross o There had been a robbery, man was caught with money on him, arrested and tried but acquitted could not prove the money was from the bank o He sued police for the money back but as in Buckley there was a magistrates order and therefore he no longer had possession because it had rightfully been taken from him by the police o Court probably felt that he had stolen it just could not be proven beyond a reasonable doubt Clark v Maloney (page 131 notes) Logs were lost, another found them who lost them to be found by yet another o Case is between the two finders o Do rights of the first finder continue after he loses them yes because he was not in dishonest possession o The finders possession may be interrupted without taking away all rights to the items found R v Christie Marijuana in the trunk of the car, says she found it and thought her kids were into drugs, was driving around trying to find friends, got in an accident and charged with possession of marijuana She was acquitted court said she had no intention to possess the drugs Appeal court said that she may have had possession in the civil sense but not in the criminal sense

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Moffat v Kazanza Kazanza found money that previous owners had secreted in the house Former owners were claiming it Had not abandoned money nor really lost it But purchaser said that the money went with the sale of the house said that once the house was sold the former owners could no longer access the house to get money back The case illustrates that an owners rights continued and are stronger than those of the finder Per KM, the remedy to a legal claim for the initial owner lies in the fact that an owner has a right to reacquire property unless barred by the Statute of limitations. o In the case, the court held that the true owners claim was stronger than the finders claim concluding that there had been no gift or sale of the tin or abandonment by the initial owners. AG of Canada v Brock Man pulled over by police, had $300,000 in the car, claims he did not know about it, next day says it was from offshore investors of his, he died later of a drug overdose, The estate seeks the money back win at trial lose on appeal Case shows that possessory rights are inheritable and can be passed on but he had no intention to possess had said he did not know about the money Court of appeal overruled on the basis of a different set of facts

Law of finders and treasure trove

Crown has a prerogative right to treasure trove Applies when treasure has been buried or hidden May also arise via statute o NS has one o Also Canada Shipping Act Crown has right to shipwrecks

Extinguishment of the Rights of the True Owner

True owner can abandon their rights Can also be extinguished by statute o In Ontario the limitation is 2 years o When a finder finds something the limitation does not begin until the finder begins to use the thing for his or her own benefit o Statute does not extinguish the title of the true owner limits legal rights to a thing o But if the true owner could get back possession he would have a stronger case

Possession in relation to land

Rules are very much the same as for personal property But land cannot be found Have adverse possession instead Person in possession is presumed to be the owner Much of possession relates to evidence proof Even if someone can rebut possession that is not all o If one can prove they have title they will get possession of the land o But you cannot rely on a third persons title to claim possession Called jus tertii o Even if you can prove that another has title you cannot use that to overcome possession o In order to dispossess someone you need to prove that you have a better title than they do The title that arises from possession is one that can be passed on sold, inherited or otherwise passed Title from possession is good against all the world except those that can show a better title

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Asher v Whitlock Manor large landholding owned by a lord where others had small portions that they owned as tenants had to pay services to the lord Waste of the manor land not actively being farmed Williamson in 1842 enclosed a part of the waste and approximately 1850 enclosed more and built a cottage He died in 1860 leaving it to his wife until she remarried and then to his daughter Wife remarried in 1861, in February 1863 daughter dies, May 1863 wife dies New husband wants the land, daughters heir at law sues for it Court held that Williamson though in wrongful possession could pass on his title Court said that the daughters heir wins because Williamson had the ability to pass on his estate The daughters interest arose as soon as the mother got remarried therefore the new husband had no rights As far as the statute of limitations is concerned the time does not begin unless there is a break in the adverse possession in this case possession was continuous and was just passed on All of these matters are now governed by statute Another judge in the case says that possession is evidence of seisen Also says that if the defendant could prove that the testator did not have an estate he could pass on then he would be able to show better title since he lived there For example if Williamson was only a tenant at will of the lord Only points this out to show how the defendant may have won but it does not apply to this case Seisen is an old term for possession o Someone who had possession by freehold o Williamson had diseised the lord of the land Perry v Clissold (1907) Deals with jus tertii Crown expropriates land for school from a squatter who had not been there long enough to have title (10 years) but did have possession in law The government has to compensate the squatter for the land. Compensation is required because the squatter had possession of the land which, despite not being the owner, demonstrates a good interest in the land. o Possession in law is not lost until someone shows better possession. o The government could not dismiss squatters claim b/c someone else had better title (jus tertii). Noted that if true owner wants to be compensated now must get it from squatter Crown had exercised its authority under statute to seize land But even the government cannot take land from an adverse possessor without paying compensation Crown also had to pay the full value of the land in question Mabo v Queensland Crown grants of land extinguish rights of indigenous people because indigenous rights are not granted by the Crown Perry v Clissold is against this o Clissold had no Crown grant yet he got compensation Self help is also an option in matters involving squatters A landowner can retake possession without having to go to the courts Simple reentry is not enough it must be something more McPhail v Persons Unknown Court said it was ot up to it to enforce a court order to retake possession Was not at the courts leisure to allow people to live in anothers house against the law Court found it was not appropriate to delay enforcement of a court order even though self-help was available

12

City of New York v Utsey Squatters did not claim possession of the place where they were staying City wanted to do reconstruction and evicted them Court said that they were tenants at will and that the city had to give them notice to move

Statute of limitations in relation to land

Different limitations in different areas Ontario in 2002 introduced a new statute with a uniform 2 year period but did not affect land Also passed the Real Property Limitations Act did not change anything S.15 of the Act after limitation has passed the right to reclaim land is extinguished Act does not transfer title it extinguishes it and creates a new one in the adverse possessor on application for a declaration of title Courts today are not very sympathetic to adverse possessors except maybe in cases of innocence such as a fence that is in the wrong place etc. Justification for statute of limitations o Bar claims after a period of time due to loss of evidence o Economic incentive To provide for people to develop land If the person in adverse possession is not interfering with the intentions of the true owner then no adverse possession is found to have arisen It is also less of an issue in systems where there is a land registry system in place such as the Torrens system o Every transaction is recorded, adverse possessor must file a claim to be protected In Canada some land is Torrens North and West while some is not southern Ontario o This is because the Torrens system did not arise until the late 19th century One of the major issues with Real Property Limitations Act is when does the right of action accrue o Usually at the time of dispossession or discontinuance of possession Need an adverse possessor for dispossession Therefore the two discontinuance of possession and dispossession are not the same o Need to have someone to launch an action against If the true owner has no current use for the land other than speculation it is extremely difficult for an adverse possessor to gain possession

Piper v Stevenson This is an early case Woman bought 6 plots of land but enclosed 8 Did everything that would normally be done on the land True owner brought an action but limitation had expired No luck St. Clair Beach Estates v MacDonald MacDonalds claimed they had rights to some of the land which the company had purchased and wished to register St. Clair had purchase land in 1969 but MacDonalds had purchased their in 1961 o They had used the land for various purposes in the interim o But did not have permission of the owners to do so If they had possession they would have not been in adverse possession Instead would have been tenants at will But a tenancy at will will become adverse after one year would have added a year to the term for adverse possession Other possibility would have been that they were licensees who could access the land for limited purposes Licensee is generally not in possession of the land But the owners of the farm had continued to use the disputed property for picking cherries, and used as much as possible for farming as well

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 Judge also found that there had to be an intention to be the true owner MacDonalds had tried to purchase it at one point indicating that they knew they did not own the land Lutz v Kawa Mistake of property line, a fence put in the wrong place Court held that adverse possession arose even though there was no intention Would be incongruous to allow one with conscious intent to take land while not allowing one who did so honestly to not get it But new purchaser of land was able to defend the title because of the Torrens system the adverse possession had not been registered There is a section in the Ontario Real Property Limitations Act saying that if the adverse possessor at any time acknowledges the title of the true owner in writing that the 10 year period begins from that date

Possessory claims among co-owners

Co-ownership arises in two ways o Joint tenancy if one of them dies the other gets it automatically cannot be passed on by will o Tenancy in common With respect to adverse possession the issue is can the possession of one living on the land be adverse to the other(s) o Yes s.11 of the Real Property Limitations Act o Does there have to be intent to exclude the other(s) Not necessary PC said in Paradise Beach (p.172) OReilly (p.173) Ontario Court of Appeal Brother and sister had maintained a farm for 33 years got possession against their siblings Parents had left the farm to all of them Court also applied the equitable doctrine of laches o When you had not exercised rights for a long period you could not exercise them later Tenancies at will o One form of leasehold o Leasehold can be for a fixed term some are 99 years or more o Can be terminated at any time by either party MacLean v Reid Man living on his brothers farm for a long period Brother sold the land to another who wanted the other brother out Court found that the brother living on the land was in adverse possession Other brother could not sell what he did not have Limitation period in relation to legal disability o S.36-39 of the Act o Gives them an extra five years after the time the disability ceases to exist o 20 years maximum When the disposesed individual is a leaseholder o With leases the period for adverse possession against the true owner does not begin until the lease is over o Fair-weather case England Lease is over when the leaseholder surrenders it New limitation begins Question is how can the leaseholder surrender something that he no longer has Spectrum Investments Squatter registered his title and therefore the leaseholder had nothing to surrender

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Giouroukos v Cadillac Fairview There were successive short-term leases court treated them as one long lease Plaintiff wanted limitation to run from the end of the first short term lease Shows courts unwillingness to support the motives of adverse possessors Keefer v Arillotta 8ft strip of land between two properties in question must have an intention to exclude the true owners from the use of the property which they wished to make of it Respondents failed to prove an intention to dispossess the true owner and had done nothing that was counter to the wishes of the true owner A person claiming possessory title must establish the following: o Actual possession for the statutory period by themselves and those through whom they claim; o That such possession was with the intention of excluding from possession the owner or persons entitled to possession [per Pye v. Graham is this an intention to possession rather than an intention to own?] o Discontinuance of possession for the statutory period by the owner and all others, if any, entitled to the possession. Dissent o Owner did nothing that would stop the limitation period from running mere reentry is not enough to reacquire or maintain possession Meridian Investments v How How rented a 100 acre parcel of land Owner lost it but got half back How had been using part of the land as an airstrip the part the owner lost Meridian wanted its half back and prosecuted for it If they sought possession back they would be acknowledging that How had possession o Instead prosecuted under trespass Court held that Hows use of the land was not against the wishes of the owner who only wanted the land for speculative purposes Case extremely limits the ability of adverse possessors to gain possession of land This kind of decision supports speculation in land What would Hows position be vis--vis 3rd partied o Not answered in this case Beaudoin v Aubin (from the Bucknall article) Piece of land between neighbours where one (Beaudoins) had used a part of the others land even after finding out that it was not their own land When the new purchaser bought the land they wanted to claim it back Held that intention is just needed to possess the land and not necessarily to possess it against the true owner of the land Old law was simply that adverse possessor had to get possession without the owners consent Wood v Gateway Deals with what happens in cases of mistake Neighbours and one had used some land of the other with neither knowing it was the others land. Had constructed a fence and run a business on part of the disputed land When the land was sold the developer sought to reclaim the disputed portion of property Do not need explicit intention to exclude true owner Both parties had the mistaken belief that it belonged to the applicants When sold the respondents sought the land Introduced a key consideration into adverse possession debate

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Where neither knew of the mistake is it possible to come up with the requisite intent to possess the land Yes because you have an intention to exclude all others including the owner o Is it possible to establish exclusion of the true owner Yes if you exclude them it is a question of fact o Question of using it against the wishes of the true owner Frustrate their intentions regarding the land Said that this did not apply in honest mistake cases How can their be a requirement of use against the intention of the true owner when the true owner had no intention because he did not know the land was his Says that the inconsistent use test arose to prevent injustice to rightful owners and to prevent unjust enrichment of wanton trespassers Question was, in Wood, whether they had excluded the true owner Yes they had so therefore was adverse possession and all was okay This decision was approved of by the Court of Apeal in Teis v Town of Ancaster giving it more weight and authority

Pye v Graham (2003 House of Lords) Grahams had permission to use four fields for their herds to graze The agreement had expired in 1984, limitation period was 12 years In 1997 Pye took them to court House said that Pye had no use for the land but speculation but that did not save him b/c his intention made no difference This is directly contradictory to the Wood decision

Chapter 3 Fundamental Principles Governing Property Interests in Land

Of the various ways to fracture interests in land the most common are leases and co-ownership The Doctrine of Tenure In 1066 William the Conqueror conquered England and introduced feudalism Under the feudal system the aristocracy only maintained land so long as they remained loyal to the King In theory the Crown always maintained ownership of the land an underlying title Tenants in chief were the lords who owned huge parcels of land They in turn entered into agreements with other tenants o These tenants would get interests in land on condition they rendered certain services and remained loyal to the lord There could be numerous people with an interest in any one portion of land o First was the Crown with ultimate ownership o Second was the tenant in chief who held immediately of the Crown Tenant in chief would render certain services to the Crown and would in turn parcel out his land to various persons o Third were the mesne lords Held of the tenants in chief and rendered services to them o Fourth was the actual holder of the land the tenant in demesne Would render services to the mesne lord in return for having the land The feudal system of landholding effectively created the social, political and constitutional order of feudal society in England Feudal services provided the Crown and aristocracy with the resources it needed to operate The evolution of property law was greatly influenced by the ongoing struggle between landholders seeking to enforce these services and others seeking to avoid them Tenures came in one of two forms o Free tenures had specified services required of them allowed for certainty and could not be increased by the lord or terminated without cause

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o Unfree tenures had no specified services and were thereby subject to the lords discretion There were different types of free tenures as well o Tenures of chivalry most frequently held by tenants in chief Knights service provision of knights for the sovereigns army Grand sergeanty personal service to the sovereign o Spiritual tenures held church lands in return for spiritual services o Tenure in socage render agricultural services to the lord

Incidents of tenure
Wardship and marriage o If an heir was a male under 21 or female under 14 the lord could manage the land for his own profit until they reached the age of majority o Lord could select a spouse for any tenant in wardship and fine the tenant for declining a suitable spouse or for marrying under age without the lords license o Wardship and marriage were of great value and could be bought, sold and bequeathed by the lord to third parties and became known as chattels real Relief o An amount of one years income from the land was payable upon descent of the land to an heir following the death of the tenant Aids o Lord had the right to call for financial contributions for such things as ransom Escheat o Has remained in existence today o When a tenancy came to an end the land escheated back to the lord Would do so if the tenant died without an heir Also could happen if the tenant was convicted of a serious crime Seisin someone seised of the land was the one against whom the feudal services could be enforced Someone always had to be seised of the land the common law abhorred an abeyance of seisin It was essential to know who was seised of the land at any given time since this determined the distribution of the burdens and benefits of the feudal system From the concept of seisin arose the practice of livery of seisin o Formal ceremony whereby a person seised of the land, the feoffer, could convey it to another, the feoffee o The feoffer entered on the land and, in the presence of witnesses, delivered seisin to the feoffee either by some symbolic act, such as handing him a twig or a sod of earth, or by uttering some words such as enter into this land and God give you joy Tenants were not permitted to alienate their interest in land without the consent of the lord This limited the ability of tenants to alienate their land There were two types of alienation available to tenants o Substitution Could convey land to another and the other would then be responsible for all incidents of tenure Although initially the lords consent was required it appears that by the 13th century alienation by substitution was allowed without the lords consent o Subinfeudation The tenant could become a lord themselves by alienating an interest in land in such a way that the new holder of the land would assume tenurial duties to the one who previously had it Lords disliked subinfeudation since it interfered with their incidents of tenure If the one who initially held the land dies without heirs the lord gets the land but since the tenant had subinfeudated the land all the lord got was the services from the new owner and not the land itself

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The Statute of Quia Emptores (1290)

Abolished subinfeudation Also confirmed the right to alienate land without the consent of the lord Also provided that all alienation of land was to be done by substitution and not subinfeudation Therefore only the Crown could create new tenures This began the flattening of the feudal system since when land escheated back to the lord he could no longer subinfeudate the land to another tenant However the Crown could still do so and receive valuable incidents of tenure This upset other lords and in 1660 the Crown, in exchange for other sources of tax revenue relinquished its claim to incidents of tenure Escheat is the sole remaining incident of tenure in Canada o When one dies without heirs the land escheats back to the Crown Aboriginal title to lands is not tenurial because it does not originate from Crown grant but rather arises by operation of law from a pre-existing right based on historical occupation and possession of land The question of sovereignty over aboriginal lands is often taken to be a matter of international law and not determinable by domestic courts The Royal Proclamation established the fundamental principle that no aboriginal lands in America were to be taken without the consent of the aboriginal occupants In Calder the SCC accepted that aboriginal title is recognized at common law and was not extinguished merely by the acquisition of Crown sovereignty Although some form of pre-existing and continuing aboriginal interest in the land was recognized by the Royal Proclamation Canadian courts were slow to articulate the precise nature of the interest If aboriginal title were read narrowly, limited only to a right to occupy the land for certain traditional purposes it would be of small economic value However if aboriginal title is read more broadly to include wide rights to develop and exploit the full economic potential of the land it is of much greater value The Doctrine of Estates The doctrine of estates in land is another method by which interests in land can be divided among a variety of people Tenure fragmented interests along the lines of exploitation and alienation Estates fragments interests over time Doctrine of estates permits any number of people to hold interests in the same piece of land The holders of estates in land will enjoy possession of the land in succession The tenure by which one holds land determines the quality of the property interest o By what terms or tenurial services and incidents the land is held The doctrine of estates determines the quantity of the interest o The period of time during which one holds the interest Estates permits one person to be in possession of land while another may have an estate in land that will entitle him to possession at some point in the future Freehold estates o Two parts to a land transfer: words of purchase and words of limitation Type of freehold estate Words of purchase Words of limitation Fee simple To A And his heirs Fee tail To A And to heirs of her body Life estate To A For life o Words of limitation tell us the nature of the estate o Words of purchase tell us who the estate transfers to There are two principal types of estates in land in existence today the life estate and the fee simple Life Estate X to A for life, and then to B o A is the life tenant, B acquires what is known as a remainder interest, X retains nothing

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 X to A for life o A is the life tenant, X retains the remaining interest called a reversionary interest and is known as the reversioner o The reversion interest reverts back to X when A dies In the first example both A and B acquire what is known as a present interest o Both have a property interest in the same piece of land, B can convey his interest to another who will acquire it at the time of As death o If B predeceases A his interest will pass to his heirs Fee simple Originally the fee simple estate was created by a grant of land to A and his heirs o The estate continued so long as A had lineal descendants, if not it would escheat o This even occurred if A alienated his interest to B the estate continued only so long as there were lineal descendants of A o By 1306 it was established that if A alienated his lands to B the estate continued so long as B had lineal descendants o After this the estate in fee simple was essentially unending o Heirs was later broadened to include collaterals such as cousins, aunts, nephews etc o With the passage of the Statute of Wills in 1540 it became possible to leave estates by will Due to this escheat became rare and the fee simple essentially eternal The fee simple is the largest estate possible can potentially last forever Fee simple estate in free and common socage is today the most common interest in land It is this interest which most closely approaches ownership o It is the largest bundle of rights that one person can hold in land under common law o It is not strictly speaking ownership since the Crown retains ultimate title Rights to use and enjoy land are not unlimited can be limited by statute or regulation such as noise by-laws, zoning regulations etc. Fee tail Is now obsolete in all the provinces except Manitoba Created by a grant to A and the heirs of her body lasts so long as there are lineal descendants A only acquired a life estate upon her death it passed to her descendants If a wanted to convey her interest to B it would only last so long as A was alive Fee tail was of interest to wealthy families who wanted to maintain ownership of land in the family Big disadvantage is that the land is essentially inalienable who wants to buy land when the estate could terminate unexpectedly at any time

Who could hold land

Legal persons could hold land individuals and corporations Some had restrictions on land ownership o Minors had a restricted power of disposition o Women had many restrictions o Mentally incompetent also had restrictions on disposition of lands o Foreign citizens at common law were not allowed to hold land has bee abolished by statute o Since corporations can exist indefinitely they were effectively immune from many of the incidents of tenure such as relief and escheat Many statutes were passed limiting the ability of corporations to gain estates in land For freehold estates the duration is uncertain, whereas leaseholds are certain in duration In feudal history freehold estates were regarded as the higher estates because the freeholder was seised of the land and subject to any applicable tenurial services or incidents The creation of a leasehold estate is a common method to divide interest in land over time The one who grants a lease holds a right known as the reversion when the leasehold ends the grantor gets it back Historically leases were not viewed as ownership of the land but rather as contractual situations In leases the tenant was not regarded as being seised of the land

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 The common law developed strict rules regarding the precise words required to create an estate and these rules have now been modified by statute To create an estate in land larger than the life estate the use of certain precise words was essential At common law a freehold estate of inheritance could only be created in an inter vivos transfer only by a phrase that included the word heirs To X and his heirs conveyed a fee simple estate any other word usage created a life estate and nothing more In wills a different approach was taken In wills the courts were more willing to give a broader interpretation to the words but absent some evidence to create a fee simple courts still opted for life estates Words of limitation words that define or delimit the size of the estate conveyed fee simple or life estate Words of purchase indicate to whom the interest is being conveyed Legislation has changed the strict common law requirements effectively reversing the presumption in favour of a life estate Conveyancing and Law of Property Act s.5. (1) In a conveyance, it is not necessary, in the limitation of an estate in fee simple, to use the word heirs. (2) For the purpose of such limitation, it is sufficient in a conveyance to use the words in fee simple or any other words sufficiently indicating the limitation intended. (3) Where no words of limitation are used, the conveyance passes all the estate, right, title, interest, claim and demand that the conveying parties have in, to, or on the property conveyed, or expressed or intended so to be, or that they have power to convey in, to, or on the same. (4) Subsection (3) applies only if and as far as a contrary intention does not appear from the conveyance, and has effect subject to the terms of the conveyance and to the provisions therein contained. (5) This section applies only to conveyances made after the 1st day of July, 1886. If a grantor intends to grant only a life estate they must expressly specify this In wills courts tried to give effect to a testators wishes even when the precise words had not been used Unless there is evidence to the contrary the law now presumes an intention to convey a fee simple or the whole interest held by the testator Estates in fee simple may be either absolute or qualified estates Qualified fee simple estates can terminate not only on the death of the tenant without an heir but also at an earlier time in certain circumstances Qualified estates arise when the grantor or testator wishes to grant a fee simple estate that will terminate on the happening of some event An absolute fee simple will terminate only if the holder dies without an heir Qualified estates are of less value than absolute estates because the qualified estates may terminate if the condition on which the land is held is violated The law attempts to balance the competing interests of the original landholder who seeks ongoing control and the current occupant who may be dispossessed Consequently the law permits the creation and enforcement of some types of qualified fee simple estates

Qualified estates
There are two types of qualified estates Determinable fee simple o Will automatically determine on the occurrence of some specified event, which may never occur o The grantors interest is called a possibility of reverter o If the occurrence of the determining event becomes impossible the determinable fee simple becomes absolute o X to A in fee simple until B marries If B dies the event cannot occur If B marries then X gets the estate back o Words such as so long as, during, while, and until typically create a determinable fee simple Fee simple subject to a condition subsequent

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o o o o o o o

There is an addition of a condition on a grant in fee simple which may terminate the estate at the instance of the grantor X to A in fee simple on condition that A does not marry B The purpose of a fee simple subject to a condition subsequent is to compel compliance with the condition on the pain of forfeiture The grantor retains a right of reentry also called right of reentry for condition broken The grantor must reenter to bring the estate to an end If the grantor fails to do so the estate continues and A will acquire a fee simple absolute once the limitation period expires A condition subsequent may defeat an estate that has already been granted Is called a condition of retention

Fee simple subject to a condition precedent o The grantee will receive nothing unless the condition is satisfied o A condition precedent is a condition of acquisition must meet to acquire the estate in the first place X to A on condition that she marry B It is sometimes difficult to determine whether a particular grant creates a fee simple subject to a condition precedent, a fee subject to a condition subsequent or a determinable fee The characterization of the grant or devise is often crucial to the basic question of whether or not the grant will take effect Void Conditions Conditions may be void for a number of reasons o A condition may be repugnant to the interest granted if it is inconsistent with the use and enjoyment of the property Most common type is a restraint on alienation of land A partial restraint may be upheld but a complete restraint will not be o A condition may be contrary to public policy A complete ban on marriage Conditions that incite one to commit a crime Conditions based on race or religion o Condition may also be too uncertain If a condition precedent is void for some reason then the condition cannot be satisfied and the entire grant or devise will fail The common law is generally in favour of an interpretation that will allow the grant or devise to take effect or vest As a result courts are generally reluctant to find a condition precedent void and will strain to uphold these conditions If a condition subsequent is void then only the condition fails and the grant still takes effect giving the grantee an absolute fee simple Since the courts favour a vesting construction they will be strict in interpreting conditions subsequent since they give rise to a possibility of forfeiture they want the estate to be maintained if possible courts will therefore be willing to find them void A determinable fee operates similarly to a condition precedent If the condition is void the entire grant fails since the determining event is void In these cases the courts will sometimes attempt to construe such a grant as a condition subsequent in order to avoid this result Re Essex County Roman Catholic Separate School Board and Antaya Deed contained a covenant that the property was to be used for school purposes only The grantor reserves to himself the preference to buy the property at market value if it is no longer used for school purposes Court determined it to be a condition subsequent and not a determinable fee since the condition did not occur in the perpetuities period the school board keeps the property

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 The restriction in the present case is a superadded condition upon a grant of a fee simple rather than an integral part of the very limitation of the estate created in the School Board Re Tucks Settlement Made a trust provided that his descendants got access to the trust so long as they married an approved wife Also provided for who an approved wife would be Jewish and a means of resolving disputes rabbi Speak of conceptual uncertainty use of vague words in the grant Evidential uncertainty difficult to apply the words of the grant due to the facts of the case Since the testator allowed for a means by which any dispute could be settled the rabbi then there is no reason to worry about it and the grant stands Re Down Testator left land to his sons, one of whom was older than the other, the younger was to get his share upon attaining the age of 30 so long as he remained on the farm Issue was if it was a condition precedent, or subsequent If precedent his interest would fail and the court did not like this option Court held that the condition so long as he remains on the farm was a condition subsequent and void for uncertainty There also may be some consideration here that to find a condition precedent would disentitle the one son to any share in the estate and that would not have been the grantors wish at any time

Life Estates
Like an estate in fee simple a life estate could also be qualified A life estate can be subject to a condition precedent, condition subsequent or determinable interest X to my widow so long as she remains unmarried o Widow would acquire a determinable life estate with two natural termination points death or remarriage o The grantors estate would retain a possibility of reverter and a reversion in fee simple X to my widow for life provided that she does not remarry o The natural termination point of this estate is death o If she remarries the executor of the grantors estate can exercise the right of re-entry which would also terminate the estate A license is merely a contractual right gratned by the owner permitting another to enter onto the land for a specified purpose A license does not create an estate in land that will bind subsequent purchasers of the land o Because it is a contract privity of contract applies It is therefore important to determine whether a particular grant or devise creates a qualified life estate or merely a license As with fee simple estates the characterization of the conditions is important o If a condition precedent the grant or devise will fail, same rules for condition subsequent and determinable life estate as with a fee simple estate Re Waters Ontario 1978 HCJ Testator gave to the use of a woman a residence so long as she lives or until she remarries She to pay all repairs and upkeep, and when she no longer needs or uses it the residence becomes part of the residue of his estate Issue was whether it was a life estate or a license Court determined that it was a life estate with provisions for losing the life estate remarriage Another issue was repairs that needed to be done The clause states that she shall pay for all repairs and other upkeep expenses and she is therefore responsible for the necessary repairs It is repairs necessary to keep the house in a reasonably fit condition that she is responsible for

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Re McColgan Ontario 1969 HCJ Doctor was good friends with a woman to whom he left a house until her death or until she is not residing therein personally She had left for a while to obtain medical care but returned in a matter of months Court held that it was similar to going on a vacation would that mean she lost the house The interest is a life interest said the court to be a home for the woman Issue was whether the until she is not residing therein is a determinable interest or condition subsequent Court found the condition to be external to the grant and therefore a condition subsequent o Said that if the event occurs it will defeat an estate already granted o This is one of the hallmarks of a condition subsequent condition of retention Court says that the condition is vague difficult to define residing and therefore fails for uncertainty o If the condition had been a determinable interest then the whole grant would have failed and they do not like to do this Life estates pur autre vie o A life estate can be alienated to third parties o X to A for life and then to C, A to B o The life tenant can alienate the interest they have and no more B gets an estate that lasts only so long as A is alive o If A is absent for seven years and cannot be located A is deemed to be dead

Life estates and successive interests in land

After the life tenant dies the estate will revert to the grantor or pass to the remainder person The life tenant may exclude the grantor or remainder person so long as the life tenant is alive They can take possession only on the death of the life tenant The life tenants interest is to enjoy the property to the maximum during his or her life The remainderperson or reversioners interest is to preserve the property for the future The concern of the law is to prevent the property from falling into disuse and disrepair The life tenant then has gained significant abilities to manage the land Doctrine of waste governs what the life tenant can do to alter the physicality of the property o Ameliorating waste enhances the value of the land Will generally not be held liable for ameliorating waste o Permissive waste damage resulting from failure to preserve or repair the property Unless the instrument which granted the estate expressly imposes liability for permissive waste the life tenant is not required to maintain the property in good repair o Voluntary waste conduct that diminishes the value of the freehold Imposes the greatest obligations on the life tenant Cutting too much timber, destroying buildings, opening mines etc. The donor may make the life tenant unimpeachable for voluntary waste o Equitable waste severe and malicious destruction Life tenant is always liable for this, even with a grant making them unimpeachable Life tenant is responsible for all current expenses on the estate o For example the interest on a mortgage but not the principal o Also responsible for property taxes

The Rule in Shelleys Case

Relief to the lord only arose when one took the land by inheritance not be inter vivos grant Landholders invented the following grant to get around relief o X to A for life, remainder to the heirs of A in fee simple As heirs would take their interest from this grant remainderperson and this would be an inter vivos grant and therefore when A died they would inherit without having to pay relief The law developed to get rid of this because the lords did not like it

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If a freehold estate is granted or devised to a person and, by the same instrument, an estate is limited by way of remainder to his heirs or the heirs of his body, whether the remainder immediately follows his estate or follows an intermediate remainder, the word heirs is construed as a word of limitation and not purchase As a result the word heirs indicates the size of the estate fee simple Also as a result the heirs take nothing and in the above example A would get a fee simple estate The rule in Shelleys Case was only triggered when heirs was taken to mean the whole line of inheritance and not a single individual If it could be established that a single individual was in mind then the grant was okay The Rule in Shelleys Case is a rule of law and not of construction and therefore it applies regardless of the manifest intent of the grantor The rule applied even if there was an intermediate interest o X to A for life, then to B for life, remainder to the heirs of A A acquired two estates life estate and an estate of inheritance in remainder following Bs life estate, As heirs get nothing Where there is no intermediate estate A will acquire an immediate fee simple absolute by operation of the rule and the doctrine of merger Doctrine of merger o When one has two estates in the same piece of property a life estate and fee simple the lesser estate merges into the greater creating only a fee simple absolute Ontario 1980, CA Woman granted her estate to her son, also granted that after his death his heirs would get the estate Issue was whether the rule in Shelleys case applied giving her son absolute fee simple There is a threshold question in determining whether the rule applies Whether or not the word heirs was intended to be the whole line of succession or a single person Court determined that she meant his next of kin, not the whole line of succession Especially since she had another clause in her will which states that notwithstanding anything else in the will she wants her son to have the use of the property and he is not able to sell, mortgage or do otherwise with it Court said his estate was a life estate limited by a determinable interest if any creditor attempted to seize it he would lose it and that Shelleys rule did not therefore apply

Re Rynard o o o o o o o

Present and future interests

A future interest is an interest in property in which the right to possession and enjoyment of the property is postponed until sometime in the future For example the grantor can create successive estates o X to A for life, remainder to B in fee simple Bs estate is a future interest because B will not be entitled to his estate until A dies Bs estate is a present interest because he can convey it to others at any time B is said to have a vested interest at the time of the grant but his interest will only vest in possession at the time of As death An estate which is less than fee simple is called a particular estate because it is only a particle of the whole estate In the above example A obtains a particular estate Estates can also precede one another in succession o X to A for life, remainder to B for life, and then remainder to C in fee simple A acquires a life estate vested in interest and in possession B acquires a life estate that is vested in interest at the time of the grant and which will vest in possession upon As death C acquires a remainder in fee simple that is vested in interest at the time of the grant and which will vest in possession after the deaths of A and B o Estates that precede one another are called prior particular estates

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 If the grantor does not create a remainder after a prior particular estate the property reverts back to the grantor at the termination of the prior particular estate o X to A for life A acquires a life estate vested in interest and possession X has retained a reversion because the property will revert back to X Reversions are not created by express grant but arise by implication they are implied whenever there is a grant of something less than fee simple In a grant o X to A in fee simple provided that she does not marry Y A acquires a fee simple subject to a condition subsequent and X retains a right of entry for condition broken Both the right of entry and the possibility of reverter are future interests in property because the right to possession and enjoyment of the property is postponed There is no guarantee that these particular future interests will ever vest in possession because the conditions may never be broken The purpose of future interests is to enable the holder of an estate to determine when and upon what conditions the next generation may enjoy possession of the land Holders of estates do not have unlimited discretion in determining how and when future generations may enjoy the property The law has long tended to favour the free alienation of property and to disfavour undue and enduring restraints on the power of alienation Future interests at common law The creation of future interests was severely limited at common law Common law court abhorred any situation where the identity of the person seised of the land might become uncertain o X grants to A when she turns 21 (A is 15) Because A is only 15 she has not satisfied the condition For common law courts this grant created an abeyance of seisin because it was not clear who would be seised of the land for six years prior to the condition being met In response to situations such as this the common law developed the remainder rules The remainder rules generally prohibit the creation of future interests that can give rise to an abeyance of seisin such as in the above grant

Vested and contingent remainders

Vested has two possible meanings An estate may vest in possession or in interest Vests in possession when the holder of the estate is entitled to immediate possession of the estate Vests in interest when the entitlement to possession arises may vest in interest before possession X to A for life, remainder to B in fee simple o A and B both vest in interest when the grant is made, but B vests in possession only upon the termination of the prior particular life estate of A upon As death X to A for life, remainder to B in fee simple when B turns 21 (B is 15) o As interest vests in possession and interest at the time of the grant o Bs interest cannot vest until B turns 21 In this case Bs interest is called a contingent remainder because it is contingent upon Bs turning 21 Bs interest will vest at 21 and will vest in possession upon As death X to A for life remainder to As widow for life o The identity of As widow will remain unknown until As death o The remainder cannot vest until As death and the remainder will therefore vest in interest and possession at the same time o This is a contingent remainder because the vesting of the remainder interest is contingent upon determining the identity of the remainderperson

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 A vested remainder can be defined as follows o It is limited to a person who is in existence o It is limited to a person who is ascertained o It is not subject to a condition precedent If any of these three criteria do not apply the interest is a contingent remainder rather than a vested one A contingent remainder may contain one or all three of these uncertainties A possibility of reverter is not viewed as a contingent remainder Possibility of reverter is viewed as vested interest o This is because the determining event is regarded as marking the natural limitation of the determinable estate

The Common Law Remainder Rules

Remainder rules were not applied to courts of equity and do not apply to equitable interests Interests created at common law are referred to as legal interests Interests created in equity are called equitable interests Originally only the following four future interests were permitted o The reversion o The vested remainder o The possibility of reverter o The right of entry for condition broken The reversion and the vested remainder were permitted at common law because neither future interest raised the possibility of an abeyance of seisin o On the termination of the prior particular estate seisin would immediately pass to the vested remainder or revert to the grantor

The Rules
There are four commonly identified remainder rules No remainders after a fee simple Once a grantor has disposed of a fee simple the grantor has disposed of all his or her interest and has nothing further to grant o X to A and his heirs, remainder to B and his heirs B gets nothing because the grant to A gives A all that X has o X to A in fee simple so long as the CN Tower stands and if and when it falls down to B in fee simple Is void because X has already given fee simple to A nothing left to give to B No springing freeholds A remainder must be supported by a prior particular estate of freehold created by the same instrument This rule prohibits the creation of a freehold estate that springs up in the future by itself o X to As first born child (A has no children) o X to A upon As marriage (A is unmarried) o X to A at age 21 (A is 15) These grants transfer nothing to A because the common law requires an immediate transfer of seisin at the time of the grant These purported interests, known as springing freehold because they spring up at some future time are prohibited at common law Timely vesting A contingent remainder is void unless it vests in interest by the end of the prior particular estate This rule derived from the common laws concern about any possible abeyance of seisin The common law would not tolerate any gap in seisin between estates o X to A for life, remainder to B in fee simple upon attaining 21 Bs interest must vest during As estate The common law does not permit gaps in seisin

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Common law will adopt a wait and see approach to determine if the estate vests during As estate Providing B turns 21 while A is alive then B will get the estate o X to A for life and one year after As death remainder to B in fee simple Would fail at common law because there had to be an abeyance of seisin If the remainder is to a class of persons o X to A for life remainder to As children who attain the age of 21 Common law would close the class at the time of As death and those children who were 21 or older would share in the estate and the others would get nothing No shifting freeholds A remainder is void if it operates so as to defeat the prior particular estate of freehold A remainder is required to vest in possession only upon the natural determination of the prior particular estate This rule applies only in one case where there is a life estate subject to a condition subsequent with a remainder to a stranger o X to A for life but if A goes bankrupt then to B immediately Grantor cannot convey a right of entry to a stranger Because the remainder will allow a stranger to defeat a prior particular estate it is void A takes a full life estate and the grantor retains the reversion This rule does not apply to determinable limitations because a determinable limitation sets the time at which an estate will naturally determine and revert to the grantor The limitation in a determinable estate is part of the grant and defines its duration whereas a condition subsequent is added to the grant and can defeat the grant if it is violated In general the four common law rules prohibit the creation of springing or shifting interests Springing interests are not supported by a prior particular estate of freehold (rule 2) or do not vest in interest during the prior particular estate (rule 3) Shifting interests interests that purport to shift abruptly from one person to another upon the happening of some event. Either purports to shift from the holder of a determinable fee simple to a stranger upon the happening of some event (rule 1) or when a remainder operates to defeat a prior particular estate (rule 4)

Equitable estates
Courts of equity developed a distinct set of interests in property that permitted a much wider range of future interests than did the common law The use made it possible to make testamentary dispositions of land that evaded many of the incidents of tenure Legal title under a use was conveyed to trusted person the feoffee to uses who promised to hold the land for the benefit of the grantor Feoffee also agreed to hold the land for whomever the grantor designated to take the property upon his death In a use the grantor retained possession of the land and acquired the power to designate his heir The feoffee remained seised of the land at all times Since the grantors designated heir was not seised of the land he did not have to pay relief to the lord upon taking possession of the land Common law courts regarded the feoffee as the one seised of the land and therefore entitled to possession and the grantor could not enforce his rights Courts of equity would enforce the use Later the use was regarded as creating an equitable estate in land leading to the creation of new and different interests in property With the introduction of equitable estates it became possible to separate the legal from the equitable estate o X to A and his heirs to the use of B and his heirs A is the feoffee to uses and acquires the legal fee simple and is seised of the land enforced by the common law courts B acquired an equitable fee simple enforced by the courts of equity gave B the use and possession of the property without seisin o X to A and his heirs to the use of B for life and then the remainder to the use of C and his heirs A is the same as above

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B gets an equitable life estate C gets an equitable remainder in fee simple Courts of equity also did not apply the common law remainder rules to equitable estates o X to A and his heirs to the use of B and his heirs when B turns 21 (B is 15) A is as above Bs interest is intended to spring up when B turns 2 prohibited under common law Under equity Bs interest is permitted and A would be required to hold the land until B turned 21 Whenever the beneficial use of the land was unclear the courts of equity would determine that the beneficial ownership would result back to the grantor o In the case above the grantor received an equitable fee simple defeasible on B attaining 21 The common law also took a similar approach to timely vesting o X to A and his heirs to the use of B for life remainder to the use of Bs children who attain 21 Class closing rule (Festing v Allen) would apply under common law But in equity the class remained open until there was no possibility of other grantees meeting the condition Courts of equity also permitted the creation of shifting interests in property o X to A and his heirs to the use of B in fee simple so long as the London Bridge stands and if and when it falls to C in fee simple A acquired a legal fee simple B acquired an equitable determinable fee simple C acquired what was known as a gift over of an equitable shifting interest if and when London Bridge fell With the introduction of equitable interests in land it became possible for the first time to create shifting and springing interests in property This new class of interests became known as executory interests because they have yet to be executed or carried into effect These interests will only vest, if at all, at some point in the future Equitable interests also made it possible to evade most incidents of tenure There was one other advantage of equitable interests o It became possible to convey equitable estates without the inconvenience and publicity of livery of seisin The practice developed of using a contract between the vendor and purchaser for the transfer of the interest in land, with the actual transfer to take place at some point in the future (the bargain and sale). Eventually the courts recognized the contract for purchase and sale as creating for the purchaser, at the time of a valid contract, an equitable interest in the land, and for the vendor an equitable lien (entitlement) on the purchase monies. The equitable interest was recognized to be enforceable against everyone except the bona fide purchaser for value without notice (actual or constructive)

The Use and Remainder Rules Equity did not apply any of the remainder rules can create contingent remainders that violate the remainder rules Rule 1 No remainder after fee simple o X to A and his heirs for the use of C and his heirs until C marries E and then to the use of D and his heirs o Known as a shifting use occurs when the equitable interest shifts from one party to the other o D has a equitable executory interest and will only get fee simple when C marries E Will be executed if the marriage occurs o Is the same as in modern trusts Rule 2 Cannot be compound freeholds must be an immediate transfer of fee simple o X to A and his heirs to the use of C and her heirs when C turns 21 (C is 19) o Cs interest is an equitable executory interest

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o o o o

o Rule 3 Cannot be gaps in seisin o X to A and his heirs to the use of B and his heirs for life and then to C and his heirs when C marries after Bs death o Cs interest is contingent not vested and could not be allowed at common law but in equity when C marries C gets the interest o C has equitable executory interest until marriage o C gets equitable fee simple when C marries o The fact that there is a gap between Bs death and Cs vesting of the estate would violate the remainder rule o X has the resulting use until C marries o Springing use is when the equitable use goes from the grantor to the recipient o Bs interest arises through the feoffment o If the interest of C arose only when C married and C married prior to Bs death then the rule would not be violated o Rule in Festing v Allan if you have a contingent remainder given to a class then the class ceases when the event occurs give estate to children who marry apply the rule only those married at the time of the grantors death share in the estate o Under the equitable rule all children who get married before or after share in the estate Rule 4 The benefit of a condition subsequent cannot be given to the remainder person o X to B and his heirs to the use of C for life on condition that C does not marry E but if he marries E then to D and his heirs o In common law only C would get the life estate o D has equitable fee simple remainder o Would be called an accelerated interest If C marries E then D has right of entry o This is a shifting use as well o Is an equitable executory interest to the extent that it can be accelerated

Called a resulting use of the equitable fee simple A holds legal fee simple but X has equitable fee simple which will spring to C when the condition is met If X dies before C turns 21 then Xs heir is entitled to the use and benefit of the land until C turns 21 If C dies before reaching 21 X would retain equitable fee simple and A would transfer the legal fee simple to X Is called a springing use

The Statute of Uses

The use had a detrimental effect on the collection of feudal incidents and the lords did not like this In 1535 the Statute of Uses was passed The intent was to take the legal title from the feoffee to uses and placing it in the hands of the cestui que use the one whom the use was held for The statute provides that where one person is seised to the use of another person or body politic (corporation) the legal interest held by the first person will be executed and that interest will be transferred to the other person or corporation The statute makes the second person seised of the land making them liable for all incidents of tenure that they had previously evaded In this way the second person will have their interest transformed from an equitable interest into a legal one o X to A and his heirs to the use of B and his heirs As interest is transferred to B and B becomes seised of the land o X to A and his heirs to the use of B for life remainder to the use of C and her heirs The use is executed and B acquires a legal life estate and C acquires a legal vested remainder B is seised of the land Cs estate vests in interest at the time of the grant and in possession upon the death of B

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 The Statute of Uses executed the use and sealed off the tax loophole that had permitted the evasion of the incidents of tenure But the use survived and was to become what is now known as the trust The Statute of Uses did not eliminate all uses o The statute only applies when one is seised of land to the use of another If A is only a leaseholder the statute did not apply o The statute did not apply if a corporation was seised of land to the use of another only if a person was o The statute can be avoided if the feoffee to uses is given active duties to perform o Also the statute does not apply to personal property such as stocks, bonds etc. After the passage of the Statute of Uses courts of common law had to decide what to do with the equitable executory interests that had been created before the Statute o X to A and his heirs to the use of B at 21 (B is 19) Before the statute A acquired a legal fee simple and B an equitable executory interest that would vest in interest and possession when B turned 21 After the statute the use is executed and the seisin passes from A to B The statute therefore forced the common law courts to recognize that B held the same interest that he held before an executory interest But now it is a legal executory interest that will spring up at 21 Following the Statute of Uses it became possible for the first time to create executory interests in law and enforced by the common law courts The legal remainder rules were not completely ousted by employing a conveyance to uses There remained an exception:

Rule in Purefoy v Rogers

o o o o If a legal executory interest can comply with the common law remainder rules, it must In other words a legal executory interest will be void if it can comply with the common law remainder rules but it fails to do so If an executory interest could not comply with the remainder rules the common law courts would permit it to take effect as a legal executory interest In order to avoid the rule in Purefoy v Rogers from applying the grantor needed to include the italicized words X to A and his heirs to the use of B for life then to the use of Bs first child to attain 21 either before or after Bs death This grant explicitly contemplates that there may be a gap between the prior particular estate and he vesting of the contingent remainder

The Statute of Uses and Testamentary Dispositions

Before the Statute of Uses a conveyance to uses was the only way to make a testamentary disposition of land because landowners had no general right to designate their heir upon death The Statute of Wills was passed in 1540 which allowed for testamentary dispositions Testaments were interpreted broadly did not need to use precise wording for example Also devises did not need to comply with the common law remainder rules thus permitting the creation of legal executory interests In a devise therefore it is possible to create springing and shifting interests without employing a use The Statute of Uses did not apply to a use upon a use but only to a use after a use o X to A and his heirs to the use of B and his heirs to the use of C and his heirs Courts interpreted this as giving a legal fee simple to B and transferring the equitable fee simple to C The interest of C became known as a trust o This led to a compressed version of the grant X to B and his heirs to the use of B and his heirs in trust for C and her heirs The statute requires that one person be seised to the use of another not to himself In this case the first use is not executed by the Statute because the courts of equity determined that the Statute does not execute a use upon a use

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The language was further compressed to X unto and to the use of B in trust for C The use of unto and to the use of had the effect of evading the statute making it possible to create equitable interests in property much as had been the case prior to the statute These developments laid the groundwork for the modern trust

Way to use the Statute of Uses to get around the legal remainder rules
Rule 1 X to A and his heirs to the use of C and his heirs until C marries E and then to D and his heirs Statute executes the uses Takes the legal interest from B and gives them to C and D C gets legal fee simple determinable and D gets the legal executory interest Rule 2 X to B and his heirs to the use of C and her heirs when C turns 21 (C is 19) Statute gives the legal fee simple to X and creates a legal executory interest for C Statute is in effect and allows one to do what one could not have done under the common law Rule 3 X to A and his heirs to the use of B for life and then to the use of C and her heirs when C marries after Bs death A gets no fee simple, Bs equitable life estate becomes a legal life estate and Cs equitable executory interest becomes a legal executory interest and X gets the legal fee simple until C marries But then there is the issue of whether or not there is a gap o Could go to C and his heirs when C marries o Rule in Purefoy and Rogers If a legal executory interest can comply with the legal remainder rules it must If a person, in this case, could have gotten married before the death of B but did not then the legal executory interest is void o Also means that the rule in Festing and Allan applies If the estate goes to Bs children who marry after Bs death Only those children that are married when B dies will share in the estate

Future interests under wills

Modern devolution of estates legislation also creates a statutory trust in favour of the beneficiaries by specifying that personal representatives hold the estates property in trust for the beneficiaries In essence any and all legal interests in wills are turned into equitable interests thus protecting these interests from any of the rules relating to legal future interests including the common law remainder rules

The Modern Trust

The ancient feoffee to uses is now referred to as the trustee and the cestui que use is called the beneficiary The trust continues to be used to provide for children or dependent adults, shield property from taxation and create executory interests that are not valid at common law Trustees are also fiduciaries at law imposes a significant legal burden on them Trusts may also arise in the absence of any express intention Resulting trust whenever the beneficial interest under a will has not been fully disposed of there will be a resulting trust in favour of the grantor or the grantors estate o May also arise where there has been a gratuitous transfer of property from one to another If there is insufficient evidence that the one giving up the property intended to make a gift of it the law will impose a trust on the one receiving the property in favour of the one giving it up The law has a general presumption against a finding of a gift and assumes that one did not occur absent evidence to the contrary

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 Constructive trust may be imposed in equity where there is no intention to create an express trust and no presumption of a resulting trust because there has generally been no transfer of property o Equity may impose a constructive trust where: A non-titled party has contributed money or labour to the acquisition or maintenance of property held by a titled party A non-titled party has thereby enriched the titled party This enrichment has resulted in a corresponding deprivation to the non-titled party There is no juristic reason for this enrichment The question of trust also arises in the context of aboriginal lands court has found that a fiduciary duty exists

Rule Against Perpetuities

Future interests enable property owners to determine who may enjoy property at some point in the future and on what conditions This allows property holders to control the use and ownership of property long into the future The law does not necessarily like this and tries to balance the interests of current property owners who seek to control what happens to land and those of future property owners who need sufficient powers of alienation over the land to ensure that it will not fall into disuse or disrepair The rule against perpetuities is designed to strike a balance in such situations After the Statute of Uses and Statute of Wills a number of executory interests were immune from the common law remainder rules some could arise well into the future Rule against Perpetuities An interest is valid if it must vest, if it is going to vest at all, within the perpetuity period. That period is calculated by taking the lives in being at the date of the instrument takes effect, plus 21 years. The basic common law rule has been modified by statute in many jurisdictions but many still retain the same process for determining the length of the perpetuity period The rule against perpetuities applies to almost all contingent interests in property, real or personal, legal or equitable At common law the rule did not apply to a possibility of reverter Did apply to a possibility of entry for condition broken But in Ontario the possibility of reverter is now subject to the rule against perpetuities forty years Issues with the rule If at all o Some contingent future interests will never vest in interest o However the rule is concerned with what may happen not what will happen o Common law courts did not take a wait and see approach to perpetuities o If there was any possibility that the interest might vest outside the perpetuities period it was void o Without the wait and see rule there was certainty because at the outset it was possible to determine whether the contingent interest violated the rule against perpetuities o This has been changed by statute with wait and see now being allowed under law Within the perpetuity period o Depends upon the lives in being o If there are no lives in being the perpetuity period is simply 21 years o Lives in being those mentioned explicitly or implicitly in the gift X devises to my grandchildren who attain 21 X is not a life in being because X is dead Lives in being = Xs children because they can have children o Some common law rules of interpretation were developed to mitigate the harshness of the rule against perpetuities Class closing rule A gift to a class might be saved if it is possible to close the class at a moment when it is certain that the interests of those members of the class who are included must vest in time

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Issues with the lives in being included the octogenarian grandmother and the precocious toddler the common law did not consider the fact that neither could have children only the fact that they were female and therefore may have children mattered

Statutory reform of rule against perpetuities The rule destroyed many contingent interests Statutes were passed incorporating a wait and see approach to perpetuities In reviewing gifts do the following o If the gift complies with the old common law rule because there is no contingent interest that might vest outside the perpetuity period the gift is valid o If there is a potential perpetuity problem the statute provides for specific remedies with somewhat more realistic assumptions for certain problems that frequently arose at common law For example the precocious toddler Ontario law provides that a male can only have children if over 14 and a female between 12 and 55 o Use a wait and see approach Will not treat a contingent interest as void solely because it may vest outside of the perpetuity period Also a contingent interest is presumptively valid until it is proven that it cannot vest beyond the period is therefore void or will not vest at all is therefore valid Re Gaites Will Trusts (1949) Testatrix dies and leaves personal property of $5000 to her trustees and a life interest to Mrs. Gaites for life and remainder to Mrs. Gaites grandchildren who were living at the time of the testatrix death or born within 5 years of testatrix death who turn 21 o Under a trust you can create life interests for personal property In this case Mrs. Gaites is entitled to the interest off the principal and her grandchildren will get the principal when they turn 21 Problem was the born 5 years of her death At the time of the testatrix death the lives in being were Mrs Gaites (67) her two children and an eight year old grandchild Kids interests are important because they are the ones who can have the grandchildren Court said there was a problem with perpetuities o Mrs. G could have a child who could have a child within the 5 year period after testatrix death o Found a way around it Said that it was only legitimate grandchildren that could get the money Said that the child of Mrs. G would not be able to marry and have legitimate children until reaching the age of 16 and therefore that child would not comply with the devise Re Frost (1889) Testator devises to trustees to D for life (currently unmarried) then to Ds husband for life and then to Ds children who are living at the time of the death of the survivor of D and her husband D has an equitable life estate Ds husband gets an unvested equitable life estate which of necessity will vest in Ds life Problem is that the only life in being is D who may marry someone who is not yet alive Also Ds husband may live for more than 21 years after her death childrens interest would fail S.9 of the Perpetuities Act assumes that the husband is a life in being so that this interest will not fail If Ds husband dies before the 21 years have passed then s.9 is not used because of the wait and see of s.3 and 4 perpetuities period has not been exceeded

Chapter 7 Concurrent Interests in Property

The idea of shared or common interests in property represents an important challenge to the dominant concepts of individual ownership and private property

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 Concurrent interests involve sharing of possession there remains only one indivisible possession

Types of Concurrent Interests

There are four main types of concurrent interests in property Joint tenancy o Includes a right of survivorship o If one joint tenant dies the other(s) get their share o Cannot pass on by inheritance Must have four unities in order for a joint tenancy to arise o Unity of time All of the interests must vest at the same time X conveys to A for life remainder to B and C in fee simple when they turn 21 (they are different ages) Will turn 21, if at all, at different times o No unity of time Under a will or a conveyance to uses this unity does not apply o Will wait and see if the condition occurs beforehand o Unity of title All tenants must receive their interests via the same instrument X conveys to A, B and C in fee simple as joint tenants If B conveys his interest to D, D cannot be a joint tenant since his interest arose under a different instrument o In this case A and C are still joint tenants but are tenants in common with D o If either A or C die they get the others share will then have 2/3 ownership in tenancy in common with D o Unity of interest All tenants must receive the same interest o Unity of possession All can possess the land at the same time Is one possession that is shared amongst them But because of unity of interest all will have the same size interest Must be no words of severance No words dividing the estate between persons o For example no share and share alike, no equally, If words of severance exist it would be a tenancy in common and not a joint tenancy Tenants in common Can pass it on by inheritance Can acquire interests at different times, have different interests etc. o A has a fee simple and conveys 1/3 interest to B for life A and B are tenants in common during Bs life estate A would be seised of the land B would be seised for the length of the life estate If they leased the land A would get 2/3 of the income and B the rest If A were farming the land and receiving income B would get nothing Need to exercise the interest Co-parcenary o Arises when someone dies with fee simple in land and died without a male heir o In this case female heirs inherited as co-parceners o Got distinct shares and survivorship did not apply Tenancy by entireties Between husband and wife

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 If conveyance to husband and wife in a marriage in a contract which would have made them joint tenants if they were strangers they are deemed to be in a tenancy by entireties o Could not sever the joint-tenancy o Must therefore be a right of survivorship McEwen v Ewers and Ferguson At common law the devise would most likely have been a joint tenancy because of the use of the word jointly But the use of equal share mitigates against this could be taken as words of severance Court leans towards and chooses tenancy in common where there is any doubt as to which it is Joint tenancies are most often used in family contexts At common law it was not possible for corporations to be joint tenants they did not die This has been altered by statute and now corporations are allowed to be joint tenants The words used to create concurrent interests are important considerations The common laws traditional preference for joint tenancies meant that ambiguities, if they existed, were resolved in favour of the creation of joint tenancies This presumption was reversed by statute so that now the creation of a joint tenancy requires clear words such as to A and B as joint tenants and not as tenants in common

Severance of a joint tenancy

Must have the four unities for a joint tenancy to exist, any act which breaks down one of the unities therefore breaks the joint tenancy and reduces it to a tenancy in common Can occur in one of three ways o An act of one person in relation to their interest such as conveying it to another or themselves o Mutual agreement o Through a course of dealing

Aboriginal
Much uncertainty in the law about this area Prior to Delgamuukw there was no real definition of aboriginal title o Since then have Bernard and Marshall o Delgamuukw was never retried so was not resolved SCC ordered a new trial This area of the law involves a number of important cross-cultural issues o The relationship that aboriginals have with land is different than the European relationship In Delgamuukw the SCC said there are two sources of aboriginal title o Occupation and use of the land prior to Crown sovereignty o Aboriginal law in relation to land Is different than common law Is different between nations Is difficult for others to understand Much of it stems from aboriginal traditions which are often oral It is possible that at some time enough cases dealing with aboriginal law will be decided that evidence will not have to be continuously adduced as to its existence o But as of now it must be introduced in each and every case Distinction between property rights and sovereignty o Property rights arise under a legal system Rights as between legal actors in that system o Sovereignty takes place at the level of nation states Involves the interrelationships between sovereign actors But international law generally only accords rights to nation states Leaves out such entities as transnational corporations, NGOs and aboriginal groups o These are demanding a role in international arrangements

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Treaties are often signed between nations But treaties with aboriginals are not regarded as international agreements Do not recognize aboriginals as comprising sovereign nations There is an interplay that exists between demands by aboriginals for land rights and their demand for some degree of self-government Canadian courts have accepted the contention that the Crown has sovereignty do not question it R v Sparrow The existing aboriginal rights protected in s. 35(1) of the Constitution Act, 1982, refers to rights that existed in 1982. The protection did not revive rights that were previously extinguished. The aboriginal right to fish had not been extinguished by the regulations under the Fisheries Act. There must be a clear and plain intention in the statute to effect such extinguishment. The Crown failed in the case before the Court to show that there was such clear and plain intention to extinguish the aboriginal right to fish. Legislation that affects existing aboriginal rights will be valid if meets the test for justifying an interference with a recognized and affirmed right. However, the Crown is to be held to a high standard of honourable dealing with the aboriginal peoples given its responsibility to act in a fiduciary capacity with respect to them. Once a prima facie case of infringement had been made out, an examination into reasonableness of the limitation, the nature of the hardship imposed and the preferred means of the aboriginal peoples of exercising that right must be conducted. The legislative purposes of management and conservation of the natural fishing resource were valid objectives which justified interference with the aboriginal right to fish. However, the allocation of priorities after taking valid conservation measures into consideration would then fall to the food requirements of the Indians. Following that, the brunt of the conservation measures should fall on sport and commercial fishing. In the case at bar, the evidence was insufficient to determine whether the regulation of net length was an infringement, whether the restriction was justifiable and whether the restriction was necessary in the circumstances. After 1763 the Royal Proclamation sets out a procedure for transferring land from Aboriginals Start getting treaties where aboriginals surrender land rights for treaty rights Treaty process ended in 1927 government passed a law outlawing the raising of funds by Aboriginals Part fo the reason for this was that BC denied land rights to Aboriginals and did not want to negotiate This amendment was repealed in 1957 but th egovernmetn did not want to pursue treaties at that time Didnt think aboriginals had any claims to the land 1969 White Paper o proposed abolishing Indian Act was about assimilation o said that treaty process with aboriginals was flawed because they were not nations government said at the time that it would accept its legal obligations but did not feel that it had many aboriginals protested the proposed changes Calder in 1973 was the first case to recognize aboriginal title but did not win o Three said was title but extinguished by legislation o Three said was title and still existed o One said did not have to hear the case because needed to ask permission to sue the Crown and had not done so After this case the government said that maybe aboriginals had more rights than they had thought Led to comprehensive land claims process Also have specific claims deal with treaty areas First comprehensive claim was the Quebec and Northern Cree agreement about James Bay hydroelectric Nisga entered into an agreement in BC in 1998 o Only one to sign such an agreement in BC o These treaties cover land, resources and self-government issues o They also include money as compensation for land given up

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 Treaty 3 o Cede release and yield up land and rights o Appears that they are giving up everything o But different understandings negotiations were oral but documents written in English favoured the government o But with aboriginals land is vested in past future and present generations have no right to give it up o Indians have the right to fish and hunt in surrendered areas This preserves their way of life and making a living But subject to regulations Sparrow Van der Peet o To be an aboriginal right an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right. o A number of factors must be considered in applying the "integral to a distinctive culture" test. o The court must take into account the perspective of the aboriginal peoples, but that perspective must be framed in terms cognizable to the Canadian legal and constitutional structure. o In assessing a claim to an aboriginal right a court must first identify the nature of the right being claimed in order to determine whether a claim meets the test of being integral to the distinctive culture of the aboriginal group claiming the right. o To characterize an applicant's claim correctly, a court should consider such factors as the nature of the action which the applicant is claiming was done pursuant to an aboriginal right, the nature of the governmental regulation, statute or action being impugned, and the practice, custom or tradition being relied upon to establish the right. o The activities must be considered at a general rather than specific level. o They may be an exercise in modern form of a pre-contact practice, custom or tradition and the claim should be characterized accordingly. o To be integral, a practice, custom or tradition must be of central significance to the aboriginal society in question -- one of the things which made the culture of the society distinctive. o A court cannot look at those aspects of the aboriginal society that are true of every human society (e.g., eating to survive) or at those aspects of the aboriginal society that are only incidental or occasional to that society. o It is those distinctive features that need to be acknowledged and reconciled with the sovereignty of the Crown. o The practices, customs and traditions which constitute aboriginal rights are those which have

continuity with the practices, customs and traditions that existed prior to contact with European society
Gladstone Had been selling herring spawn on kelp Were able to prove that it was existing custom at time of contact diary of a European Marshall Fishing eels and selling them SCC said had a treaty right Treaty from 1760 or so which stated that Indians had the right to trade at trading houses for a moderate livelihood Marshall 2 court refused to reconsider but gave a detailed answer about the limitations on the aboriginal right to fish said it was not unrestricted can limit through the Sparrow test The trade arrangement had to be interpreted in light of the oral promises made by the Crown during the treaty negotiations. The Crown's promise of the Mi'kmaq's access to necessaries through trade in wildlife was the key. Where a right had been granted, there had to be more than a disappearance of the mechanism created to facilitate the exercise of the right to warrant the conclusion that the right was extinguished.

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 The appeal had to be allowed because nothing less would uphold the honour and integrity of the Crown in its dealings with the Mi'kmaq people to secure their peace and friendship, as best the content of those treaty promises could be ascertained. SCC in treaty cases has said that o Must read generously o Any ambiguity is to be read in favour of aboriginals o Must understand what aboriginals felt the treaty said and meant o Said the oral treaty is the real deal the written one is just the governments interpretation of the treaty Aboriginals regard treaties as a sharing of the land o Do not believe that people can own it Mikisew Cree 2005 o Federal government wanted to create a winter road through part of Wood Buffalo National Park o Government said the road fell under other purpose in treaty o SCC said that the government had a duty to consult with aboriginals Degree of consultation depends on o Strength of the aboriginal claim to the land o Degree of impact on aboriginals As a result of Haida Nation and Mikisew cases resource development requires consultation with aboriginals o Can no longer ignore their concerns o Must consult in good faith o Do not need to reach an agreement just need to consult o If the claim is already existing and proven then the issue is infringement not interference Aboriginal land rights Potential sources of rights o Aboriginal law and customs in relation to the land Continuity of law and customs Yorta Yorta where court said no continuity so no right If aboriginals had land rights at the time of sovereignty then they should continue For cases not in the materials need to know o The case and what it stands for o E.g. Van der Peet right based on practice, custom or tradition integral to the culture This test applies to everything but title Delgamuukw applies to land rights o Also Powley for Metis Could not have contact with Europeans as the test is control by Europeans Do not need to know anything about specific rights and custotms o If on exam all facts will be presented o Can assume facts if necessary state the assumptions if used Delgamuukw o What is Aboriginal Title? Gov/t argued Aboriginal title is the sum of rights established under the other test didnt include anything else First nations argued Aboriginal title amounts to inalienable fee simple SCC says Aboriginal title is a right to the land itself (clearly a proprietary interest) and its an exclusive right to use and occupy the land not limited to traditional uses. Encompasses surface and subsurface rights. It is proprietary in nature, but it is not a fee simple. However, it is not an inalienable fee simple it is unique, sui generis (in a class of its own). Crown has underlying title but it is not a common law interest in land.

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Sui Generis Aspects of Aboriginal Title

Source: Based on exclusive occupation of land prior to Crown assertion of sovereignty whereas other land usually acquired thru Crown grants Communal: Land is vested in the whole Aboriginal nation as a group/community has legal personality even though not incorporated (recall: usually group cant hold land individual members must hold it for the group). Inalienability: It cannot be sold to private purchasers must be surrendered first to the Crown. Paternalistic attitude operating Crown must prevent frauds and abuses. Also governmental aspect to land. Inherent Limit: Cant use the land in ways that would be incompatible w/ the original uses of the land on which they relied upon to establish Aboriginal title purpose is to preserve the land for future generations (compare to equitable waste i.e. cant strip mine land that was used as hunting ground) Proof of Aboriginal Title Exclusive occupation of land at time of Crown sovereignty Two or more groups can have joint title if they prove they shared it exclusively Onus of proof on Aboriginal group claiming title Proven thru oral histories (must be given same weight as written histories), written histories, experts (historians, anthropologists etc.) May also be proven thru aboriginal law proof of jurisdiction See handout

Is it part of aboriginal culture that land is shared Shared with others How does this coincide with exclusivity of possession In Bernard the appeal court said that the argument that sharing precludes ownership is specious Aboriginal title is a proprietary right including subsurface rights o Limited by inherent limit o Inherent limit is a limitation on use not on ownership o Aboriginal title is sui generis having a basis in pre-contact times o Must prove that at the time of Crown declaration of sovereignty that they were in exclusive occupation of the land to which they claim title o Lamer said that you needto look at it from a common law and aboriginal perspective o If there is aboriginal title there is no former owner that needs to be excluded Mabo indigenous rights are based in their legal system prior to occupation o If they had no laws in relation to minerals they can have no rights to minerals o Delgamuukw court said that aboriginal title does not depend on aboriginal laws and customs Once exclusive occupation is shown then aboriginal title is proved One approach is to force aboriginals to prove occupation of each and every spot of the territory claimed The other is tot force them to prove control over a territory and not necessarily each spot in it Also in Delgamuukw there is a possibility for aboriginal title to be shared amongst groups o Could be important in BC since many claims overlap o This avoids the possibility of neither having title due to an inability to prove exclusive occupation

Marshall and Bernard McLachlin et. al. o Did not succeed on aboriginal title because did not prove exclusive occupation of land o Said nothing about the relevance of aboriginal law in proving exclusive use and occupation o Said they must examine pre-sovereignty practice and transform it into a modern right Sounds more like Van der Peet than Delgamuukw o Found they did not have exclusive control over the areas where they took the logs LeBel and Fish o Disagreed with McLachlins approach to title same result o Said her approach was too narrowly focused on common law concepts of property interests o Should use aboriginal concepts as well in combination to define an approach

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o o o o

Refer to Delgamuukw decision saying that aboriginal title should be considered in relation to aboriginal property Also rejected her approach to nomadic and semi-nomadic peoples In this case the evidence was not strong in favour of exclusive use and occupation LeBel also said that this case is not definitive in dealing with title in the Maritimes

Aboriginal title is extremely important in defining the rights of not only aboriginals but also of other Canadians Because you usually dont claim lands that are already inhabited Lamer in Delgamuukw talks or reconciliation sicne we are all here to stay o Court is also concerned with economic development o If BC claims were all in favour of aboriginals all future resource development wodl benefit them and no others o Other Canadians also have treaty rights since two parties signed the agreements

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