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PROPERTY CANFACT PATTERNStart with a clear statement of the overall plan – an introductionState issue, state conclusion (will discuss lack of donative intent, delivery, issues WRT gifts between cohabitants)Address each issue in logical order (even if issue stated in question)Did Ali make a valid gift of the PS3 to Bren?State conclusionI would advise Ali that there was likely no valid gift b/c there was no intention and no deliveryState legal rules (not every sub rule)The requirements for a valid gift of chattel is donative intent, delivery, and acceptanceAnalyze to the rules (add the sub-rules)Delivery can be actual or constructiveConclude brieflyESSAY QUESTIONSStart with intro, characterize controversy, clear statement of thesisIn what context does this controversy or issue arise?Give enough so reader understands why this is an issue and how it arisesMake your argumentWhat are the components to persuade/what points to addressTABLE OF CONTENTSCommon Law Estates (fee simple vs. life estate)2 Creating Life Estate vs. Fee Simple3 Life Estate Examples5 Law of Waste7Origins of Equity – Statute of Uses8 Statute of Uses9 Limitations on the Statute of Uses10 Modern Trust11Resulting Trusts12Constructive Trusts13 Elements of Unjust Enrichment14 Institutional Constructive Trusts (real estate situations)16Qualified Transfers and Future Interests – Basic Concepts16 Vested vs. Contingent Interest17 Condition Precedent vs. Condition Subsequent 17State Limitations on Private Power: Public Policy19State Limitations: Uncertainty and Restraints on Alienation21The Nature of a Lease (lease vs. license)23 Test for a Lease24Landlords’ and Tenants’ Interests and Obligations 26 Privity of Contract and Privity of Estate26 Covenants26 Covenant of Quiet Enjoyment28Residential Tenancies 28Bailment30Co-Ownership – Basic Concepts and Categories32 Joint Tenancy vs. Tenancy in Common32 Severance of Joint Tenancies34Condominium36Aboriginal Title38 Aboriginal Title Litigation40Easements43 Elements of an Easement43 How to Create an Easement (incl. easement of necessity)45Access to Public and Private Property47Covenants50 Modern Rule WRT Burden of Covenant52 Non-competition Covenants53Priorities at Common Law and in Equity (legal vs. equitable interests)54Title Registration56COMMON LAW ESTATESTwo Feudal Doctrines:Doctrine of Tenure: allowed large numbers of individuals to hold interests in land concurrently, dividing interests among the feudal hierarchy Determined the quality (as opposed to quantity time) of interest (varying services, incidents, hierarchical ranks); largely irrelevant today (now just crown/tenant)Doctrine of estates: allowed numerous people to hold interests in the same parcel of land consecutively, dividing interests over timeDetermines the quantity of interest (i.e. duration); still crucial todayTypes of Estates:Freehold estates:Only fee simple survives as a common law estateLife estate continues, but almost always as an equitable interest (governed by rules of equity, created by will or inter vivos trust doc)Fee tail is basically extinctFreehold estates either go on forever or end time can’t be determined b/c based on someone’s deathLeasehold estatesUnlike freehold estates, have certain durationUnfree (copyhold) estates Never introduced in CanadaAboriginal title Unique to CanadaBailment: where you don’t actually own the property, just renting/borrowing (ex: car, book)Trust/will: can also achieve limited ownership of personal propertyFee Simple:“to A and his heirs”Largest estate in the common law Can last foreverOwners come/go (conveyance or inheritance), estate remains until owner dies w/ no heirs escheats to crownCreating a Fee Simple: Previously at Common Law (Thomas v Murphey):To grant (convey) a FS inter vivos (between the LIVING), a deed had to use the word “heirs”“To A and her heirs,” “to A and his heirs, successors and assigns”Without the word “heirs,” only a life estate was grantedRule of law (applies regardless of intention), not rule of construction (helps ascertain intentions)To devise (DECEASED to living) a FS, a will only had to indicate that intention clearly“to A forever,” “to A and his issue”, “to A absolutely”3 terms to describe gifts in will:Bequest (all gifts in will)Devise (land)Legacy (personal property)Creating a Fee Simple: Today at Common Law:Statutory reforms relaxed the rulesNB statute said “in fee simple” = sufficient languageON statute said “in fee simple” = sufficient OR any other words sufficiently indicating limitation intended RULE IN BC: British Columbia statute says words that sufficiently show intention will be sufficient in granting fee simple estate (in absence of express words of limitation) as per Property Law Act & Land Title Act and Wills, Estates and Succession Act) Thomas v Murphey (NB): the beneficiaries under a will convey land to the executors, “their successors and assigns” in trust, for the purpose of selling the land and paying the proceeds to the beneficiaries; executors sell the land to T; T claims not fee simple b/c didn’t use “heirs” and wants costs/damages; did T acquire a fee simple even in absence of the use of the word “heirs” in the conveyance of it? YES – even though NB statute silent on whether any other words suffice (besides “heir” and “in fee simple”) court interpreted same as ON legislation such that any other words sufficiently indicating intention would suffice; key = whether grantors intended to convey a fee simple estate; intent was to pass on fee simple; RATIO: in NB word “heirs” no longer essential to create fee simple by deed, use of “fee simple” or words indicating fee simple suffice (rule of construction)BC Property Law Act, s 19(1) In the transfer of an estate in fee simple, it is sufficient to use the words “in fee simple” without the words “and his heirs”. Doesn’t specify what words other than fee simple work similar to gap in New Brunswick legislation must look at Land Title Act(2) A transfer of land to a person without words limiting the interest transferred … passes the fee simple or the greatest estate or interest in the land that the transferor has power to transfer, unless the transfer expressly provides that a lesser estate or a particular interest is being transferredBC Land Title Act, s 186Bridges the gap to make the rule similar to Ontario words that sufficiently show intention will be sufficient in granting fee simple estate(5) … if the transfer does not contain express words of limitation, the transfer operates to transfer the freehold estate of the transferor in the land to the transferee in fee simple.(6) … if the transfer contains express words of limitation, the transfer operates to transfer the freehold estate … in accordance with the limitation (8) Subsections (4) to (7) do not operate to transfer an estate greater than the estate in respect of which the transferor is the registered ownerOnly true if person had fee simple estate to begin with BC Wills, Estates and Succession Act, s 41(3) A gift in a will(a) takes effect according to its terms, and(b)subject to the terms of the gift, gives to the recipient of the gift every legal or equitable interest in the property that the will-maker had the legal capacity to give.A will passes the entire estate subject to any contradiction in the will itselfCreating Life Estate vs. Fee Simple:X = owner of a fee simple estate in land who executes a deed or will transferring an estate in land to ATraditional Common law ruleCurrent BC statutory ruleGrantTo create FS, exact term “heirs” necessary; if no words of limitation, grant passes LE only (presumption of LE, FS requires “heirs”)“and heirs” unnecessary, “in FS” passes FS; transfer is in accordance with words of limitation; if no words of lim, grant passes owner’s full estate unless expressly less (presumption of FS, LE requires clear words)DeviseTo pass FS, words indicating intention to convey FS necessary (weak presumption of LE, FS requires clear words)Devise passes full estate, subject to terms of will (presumption of FS, LE requires clear words)Note: for grants, cannot rely on extrinsic evidence of intention (two living parties cannot state their intentions extrinsically interpretation of intent is limited to intrinsic evidence (what was on the document as is)Words of Purchase and Limitation Examples:Words of purchase who is getting an estate in the landWords of limitation what the receiver is getting331470011811000D’Arundel’s Case:?Henry II grants land to Roger and his heirs; Roger conveys the land to William and his heirs; on Rogers death, his heir Radulf sues William to recover the land; “and his heirs” conveyed no interest to RadulfRoger has a fee simple – can convey this fee simple during his lifetime; Roger’s heirs had no interest UNLESS Roger died while still owning the fee simple estate0381000Anastasia gets life estate, Boris gets fee simple upon Anastasia’s deathA gets life estateCommon law rules would create life estate for B b/c need “heirs” and when B dies the property would revert back to the original grantor XStatutory rules would presume fee simple for BAdvantages of Fee Simple:Flexible, versatile tool to manage wealth over timeLow transaction cost device to induce owners to conserve natural resources for future generationsTragedy of commons:View 1: privatizing the commons gives herders a rational incentive to take care of the landView 2: people with private ownership deplete resources to their collapse View 3: the owner’s incentive to think about the future and protect the thing for the future depends on the discount rate (rate at which future costs and benefits are discounted from the perceptive of someone in the present higher discount rate = faster use)Life Estate:Typically created by words “To A for life”This language confers a life estate on A, life tenantLife tenant may convey interest or rent out landDuration = for life tenant’s lifetime (pur sa vie)Can be for another person’s life (pur autre vie):If life tenant A transfers her interest to B, B holds for life of A (the “measuring life” or cestui que vie)What if B predeceases A? Becomes part of B’s estate and passes to whoever is designated in B’s will continues until A diesIf B had no beneficiaries, would escheat to the Crown until A dies, then go to whoever was supposed to get it after AOr if created by the original instrument , eg. “to A and B for the life of A”, “to C for the life of D”Life Estate Examples:X grants “To A for life”X retains reversion: fee simple estate reverts to X on A’s deathX = reversionerX grants “to A for life, then to B and his heirs”B acquires a fee simple remainderFee simple passes to B upon A’s deathB = remaindermanX retains nothingWhat if B or X predeceases A? Fee simple remainder continues to exist if B dies and will be inherited by whoever is first in line to B’s inheritance Absolute Interest, Gift Over Fails:Re Walker (ON): JW, testator: “I give unto my wife all my property and also should any portion remain in [her] hands at the time of her decease undisposed of by her such remainder shall be divided as follows”; life estate or fee simple? FEE SIMPLE – on one hand seemed to be giving gift of property with all incidents of ownership to wife, but on other hand added gift over of what remains at her death; ask what was testators intention to give wife full ownership but also give others anything remaining upon her death; JW didn’t use “life” or other limiting words; court: attempting to do the impossible – grant absolute estate yet resume ownership; court said dominant intention was to give absolute gift to wife; RATIO: to resolve inconsistent intentions, 1) ascertain testator’s dominant intention, reject subordinate intention as repugnant, 2) either wife’s gift is absolute and gift over fails OR wife gets life estate and gift over prevails – NO middle course, 3) exception life estate with power of sale may be possible life tenant with power to sell life estateNote: court in this case did NOT give reasoning as to why they didn’t allow the exception, just mentioned it but went with dominant intention, which was fee simpleLife Estate w/ Power to Encroach for Maintenance, Gift Over:Re Taylor (SK): “I give all my estate to my wife to have and use during her lifetime. Any estate of which she may be possessed at the time of her death is to be divided equally between my daughters”; fee simple or life estate conveyed to wife? LIFE ESTATE W/ ENCROACHMENT ON CAPITAL – differs from Walker b/c no “right of disposal”; prime directive for construing wills = ascertain testator’s intention from will as a whole, give effect to greatest extent possible; intention was to give life estate with power to encroach/deplete some of the estate for maintenance; uses word lifetime; no inconsistent intentions; gift over to daughters indicates intention to give wife LE; RATIO: power to encroach does NOT make life estate a fee simple; prime directive for construing wills = ascertain testator’s intention from will as a whole and give effect to greatest extent possibleLife Estate w/out Power to Encroach, Gift Over:Christensen v Martini Estate (AB): Martini left some to C’s (neighbors/friends) and some to wife; “I give to my wife 2203 31 Ave SW for her use. When she no longer needs [it] that she give said property to S & S”; did wife get fee simple, life estate or life estate with encroachment? LIFE ESTATE (no encroachment), remainder to C’s– intention was to give wife and C’s something most likely intended to give wife LE w/out encroachment, gift over to C’s; no power of encroachment b/c choice of language demonstrated intention that property not be diminished “said property”; “until she needs it” indicates life estate; RATIO: do not need to say “during lifetime” to indicate LE; need indications of power of encroachment Rules – Life Estate vs. Fee Simple:Prime directive for construing wills = ascertain testator’s intention from will as a whole and give effect to greatest extent possible (Re Taylor)Life estates can include power to encroach, must have some indication of this intent (Re Taylor, Christensen v Martini Estate) “said property” indicates NO power of encroachmentTo resolve inconsistent intentions: (Re Walker)1) Ascertain testator’s dominant intention, reject subordinate intention as repugnant2) Cannot have life estate and fee simple NO middle course 3) Exception life estate with power of sale may be possible life tenant with power to sell life estate OR power of encroachmentOther Examples – Effect of Power to Encroach:Rankin: “To A to be used by her and at her death if any is left to B”Absolute interest, gift over failsMinchell: “To A for her life time, and if anything should be left over, to B”Absolute interest, gift over fails Unlimited power of encroachment = fee simple Townshend: “To A to be used and disposed of as she wishes during her lifetime. Any that is left at her death to B”Absolute interest, gift over failsFee simple b/c the ability to dispose of the entire estate as she wishes during her lifetime makes it equivalent to an absolute estate (fee simple)Scott: “To A,” followed by gift over to A’s sister of “whatever property remains in A’s hands at the time of her death”Absolute interest, gift over failsYou can have life estate with power to encroach for personal maintenance/upkeep, but life estate coupled with unlimited power to dispose/encroach = fee simpleKey: unlimited power to encroach = fee simple BUT if the power to encroach for maintenance has same result, i.e. you need to deplete entire estate for maintenance, STILL A LIFE ESTATE Once you can encroach for any reason (not just maintenance) it becomes fee simpleRelevance of the Distinction between Fee Simple and Life Estate:Affects who gets the property when the holder is gone (“battle of the beneficiaries”)Also affects what the holder may do with the property during her lifetimeLaw of Waste:Balances interests of present an future ownersWaste = activity that reduces value of real estate for future owner (can also be beneficial)Fee simple owner: may generally commit wasteLife tenant: may not commit waste unless authorized by instrument creating the estatePower to encroach may give power to commit wasteRemainderperson: may get damages, injunction or accounting for unlawful waste, but may not dictate who may use land Types of Waste:Ameliorating waste: results in benefit and not in injury improves the inheritance (benefits remainderperson)Permissive waste: connotes failure to act/inaction that changes character of landEx: allowing building to become dilapidated by failing to repairVoluntary waste: deliberate, positive action that causes injury or damage to the land Ex: tear down and remove a building; exploiting mineralsNote: if cutting down trees – considered voluntary waste if for timber; BUT can also be cut down and not considered waste ex: clearing land for cultivating fieldEquitable waste: voluntary waste crosses line into equitable waste if it is wanton and maliciousLife Tenant’s Liability for Waste:Life tenant has all rights of ownership within limits can occupy and use land, rent, earn income from, and sell BUT…Liable for:Voluntary waste, unless unimpeachable by original instrumentEquitable waste, even if unimpeachable (unless original instrument expressly covers it)To A for life and A shall be unimpeachable for waste courts of equity said this couldn’t have meant to immunize them for acts of wanton and malicious acts of destruction, only voluntary waste UNLESS the instrument says unimpeachable INCLUDING wanton and malicious acts of destructionWhere tenant for life is exonerated for liability waste but where waste amounts to acts of wanton destruction, tenant for life could be restrained in equity Not liable for:Ameliorating waste, unless it completely changes character of property Ex: changing a house into a shopping mall liable to remainderperson)Permissive waste, unless there is a duty to repair in original instrumentPower v Powers Estate (NL): P inherited equitable life estate with power of encroachment; who should pay for expenses relating to operating the house – should it come from income of the estate (life tenant) or from the capital of the estate (remainderman’s share)? MIX OF BOTH:Property taxes? Life tenantMortgage payments?Life tenant pays interestRemainderperson pays principleUtilities?Life tenant, even if trustee of remainder has discretion to pay utilities out of capitalCannot force trustee to exercise their discretion in a certain wayKeep the property in good repair?Recurrent repairs vs repairsnecessary for preservationLife tenant pays recurrentRemainderperson pays the repairs necessary for preservationWhat about shingles for roof? Would be paid out of capital remainderperson Replacement of a furnace? Paid out of capital remainderpersonProperty insurance and premiums?No duty on life tenant to insure the premises trustee currently has common law duty to insure the premisesControversy WRT paying the premiums:Court says fire insurance is more like property taxes or mortgage interest – modern day current expense therefore should be paid by life tenantsOther insurance differs such as insurance to replace furnace (remainderperson) vs. insurance to repair furnace (life tenant)Generally: trustee’s duty to insure against typical perils but tenants duty to payORIGINS OF EQUITYOrigins of Equity:Two justice systems developed side by side in England: law and equityLaw was dispensed by the royal courts, equity by the king’s ChancellorLaw courts administered the emerging system of common law, as modified by statuteLimitations of the common law:Rigid, formalistic: remedies available only through narrow range of established writs (causes of action)Refused to allow disposal of land by willContinued to enforce feudal incidents long after they degenerated into a form of financial extortionWealthy landowners looked for ways to escape the law’s restrictions invented new type of conveyance – conveyance to usesUses:Uses were equitable or beneficial interests in landIn early law a man could not dispose of his estate by will nor could religious houses acquire itTo evade common law, the practice arose of making?feoffments?(deed by which a person was given land in exchange for a pledge of service) to the use of, or upon trust for, persons other than those to whom the?seisin?(legal possession/title) was delivered, to which the equitable jurisdiction of the chancellor gave effectTypical Form of Conveyances:X conveys land to 2 or more persons as joint tenants to hold to the use of persons designated by XVarious language to same effect: “to the use of”; “to hold for the exclusive use, benefit and enjoyment of”; “in trust for”Person to whom land conveyed = foeffee to usesPerson for whose benefit land held = cestui que use (the person who uses)Benefits of Conveyances:Conveyor’s (X’s) reasonsLeave land by will to circumvent primogeniture (right of firstborn)Circumvent restrictions on monastic landholdingInsulate cestui que use (actual user of land) from feudal services & incidents such as wardship, relief, escheatOnly the party seised of the land was liable for theseCommon law considered only the foeffee to uses to have seisin (legal possession/title); cestui que use was not liable because not seisedThus enjoyed all benefits of ownership without burdensAvoid some services & incidents altogetherBy conveying to 2 or more foeffees to uses as joint tenantsNo relief was due upon death of a joint tenant because the deceased joint tenant’s interest went to surviving joint tenant(s) automatically by right of survivorship, not by inheritance Conveyor & foeffees to uses could avoid relief & escheat altogether by bringing in additional joint tenants whenever 1 foeffee leftAvoid inheritance tax altogetherFoeffee’s reasons?Religious motivationsLoyalty/gratitudeMonetary compensation – became primary motivationIf Foefee Reneged:Common law would not enforce the promiseCourt of Chancery emerged to administer the principles of what became known as equityBasic Features of Equity:Equitable remedies are always discretionary “equity varies with the length of the Chancellor’s foot”Equity supplements common law (turn to common law first, then to equity for gaps/failures)But equity prevails in case of conflictCourts of law and equity had different causes of action, remedies, proceduresCourts eventually fused in England in 1870s, later in CanadaFusion procedural, not substantive; equity and law persist as separate bodies of rulesEquity and the Use:The Chancellor enforced conveyances to uses by binding the foeffee’s conscience: Unconscionable to disregard terms of the useOrdered foeffee to exercise legal rights consistent with terms, or to convey legal title to beneficiariesAnd enforced beneficial interests against all others who could not in conscience disregard themThose acquiring legal title as a gift (second place to the terms of the conveyance to uses)Purchasers for value who knew or ought to have known of the use (even if you paid consideration, lose out to beneficiaries if you had subjective knowledge or objectively should have known)But not against a bona fide purchaser for value without notice (no subjective or objective knowledge)Legal and Equitable Interests (Fundamental to Canadian Property Law):A new range of proprietary interests emerged (besides feudal system and separation over time via estates)Ownership could be divided into legal and equitable interests; but what was the nature of beneficial ownership?Chancellor applied doctrine of estates by analogy Beneficiaries held equitable fee simple or life estateBut Chancellors were not bound by rigid rules of law, allowed creation of interests not known to lawThis flexibility became the most important feature of land law, causing the use to persist long after disappearance of tenurial incidentsStatute of Uses:Henry VIII wanted revenue back where person is seised of land to the use of another person or corporation, latter is deemed to hold legal title to same estate to which he held equitable titleThe legal interest held by the foeffee to uses is held simultaneously with the equitable title held by the beneficiariesEffect of the Statute of Uses:X to F and his heirs to the use of A and his heirsBefore Statute: F held legal FS, A held equitable FS, X retained nothingEquitable fee simple owner of this land is A – all F holds is a bare ownership (the legal fee simple); X has nothing – gave away complete fee simple estateAfter: Statute executes the use, leaving A with legal FS, F with nothing (X still held nothing)X to F and his heirs to the use of A and his heirsThe person who had the equitable title (A) is now seised of the land and they hold the legal title to whatever estate had previously been an equitable estate – A has everything, F now has nothing, X still has nothingA was seized of the land in fee simple, responsible for incidents and services of tenureX to F and his heirs to the use of A for life, remainder to the use of B and her heirsBefore: F = legal FS, A = equitable LE, B = equitable FS remainderAfter: A = legal LE, B = legal FS remainder, F = nothingX to F and his heirs to the use of A for life, remainder to the use of B and her heirsX to F and his heirs to the use of A for lifeBefore: F = legal FS, A = equitable LE, X retained equitable reversionAfter: A = legal LE, X = legal FS reversion, F = nothing; Statute executed resulting usesX to F and his heirs to the use of A for lifeKing’s way of getting back his sources of revenueLimitations of the Statute of Uses:The Statute of Uses does not apply:Where foeffee to uses has active duties to perform (ex: managing property, renting it, collecting income)X to F and his heirs in trust that F should collect rents and profits and pay them to A and her heirsF holds a legal fee simple estate in trust for A who holds an equitable fee simple estate, and F has the duties to manageStatute only applies to bare uses (no duties to manage)Where feoffee to uses holds a leasehold estate (vs. a freehold estate)X to F for 99 years in trust for A and his heirs for 99 yearsF would have legal leasehold for 99 years and A would have equitable leasehold for 99 yearsThe 99 years are simultaneousX to F and his heirs to use of A for 99 yearsStatute only applies where foeffee is seized of landA has legal 99 year useWhere foeffee to uses is a corporationX to ABC Trust Co in trust for A and her heirsX to F in trust for A and her heirsTo uses of personal propertyX’s cash, bonds and stocks to F in trust for AStatute of Uses only applies to landWhere foeffee is seised to his own useX to F and his heirs to the use of F and his heirsF holds legal FS by virtue of common law, not StatuteStatute does not apply to a use upon a use (used to avoid tax issues)X to F and his heirs to the use of A and her heirs to the use of B and her heirsBefore Statute: F = legal FS, A = equitable FS, B = nothingAfter: A = legal FS, F & B = nothing But after Tenures Abolition Act 1660, when Crown’s financial interest in prohibiting equitable ownership ceased, Chancery changed its mind and began to enforce B’s use so: F = nothing, A = legal FS, B = equitable FS By an obvious ruse, equitable interests could be created as freely as before 1535But beware a use after a use X to A and her heirs to use of B for life, then to use of C and his heirsEmergence of Modern Trust:Language of “use” was replaced by “trust”“Use” was reserved for interests meant to be executedX to F and his heirs to the use of A and his heirs in trust for B and her heirsThree complete fee simple estates purporting to be granted simultaneously/concurrently in timeDone this way because Statute of Uses would wipe F outX to F and his heirs to the use of A and his heirs in trust for B and her heirsBecause of The Statute of Uses, A has full legal title to land in trust for B A holds legal fee simple, B holds equitable fee simpleTerminology was compressed over timeX to A and his heirs to the use of A and his heirs in trust for B and her heirs becameSame result as above without using FIF you did – X to A and his heirs in trust for B and her heirs this would wipe A out of the picture as per the Statute of Uses, which is why the “use upon a use” was usedX unto and to the use of A and his heirs in trust for B and her heirs, which becameSame result as above (considered equivalent to “to A and his heirs to the use of A and his heirs in trust for B and her heirs”) just refined the language furtherX to the use of A in trust for BSame result as above further refines the language Why does X to the use of A in trust for B create a valid trust, while X to A in trust for B does not? (Note: still need to pay attention to the language from Unit 5 WRT what conveys a fee simple vs. life estate, etc.)X to the use of A in trust for B compression of the original longer form that protected A’s interest – still same affect as longer formX to A in trust for B need “to the use” as it is currently is a simple conveyance to uses where the Statute of Uses would apply – legal effect is saying “from X to B”Modern Trust:Devises were legalized by the Statute of Wills, 1540Before then landowners could not devise land; conveyance to uses was best way to designate heir Statute of Uses limited this, prompting widespread landowner angerStatute of Wills allowed landowners to devise land freely, abolished primogeniture Statute of Uses eventually repealed in placesRepealed in UK 1925, still in force in Ontario and most other Canadian common law provincesStatute of Uses wasn’t specifically enacted in BC … was it received?“Statute of Uses” phrase only appears in 5 BC decisionsStatute of Uses is part of BC lawEquity and Women: “Even the disabilities which the wife lies under, are for the most part intended for her protection and benefit” (Blackstone)Doctrine of coverture: at common law, wife’s legal identity merged into her husband’sShe could not own property, sue or be sued; had no rights over her children or to her own earnings even if long separated from her husbandDid equity help women avoid these constraints? A woman’s property could be conveyed to trustees before marriage, for her sole and separate use only helped wealthy womenBut trusts were also used to disadvantage women“Strict settlements” were used to deprive women of their common law inheritance rights (Trusts also used to deprive widows of common law dower (1/3 income of husband’s real property)Equity did little to help divorced or separated womenDoctrine of coverture was ultimately abolished as part of wider reform & suffrage movements, not by the courts of equityRESULTING TRUSTS3 Types of Contemporary Trusts:Express trusts: created expressly where a settlor transfers property to a trustee to hold for someone’s benefit Purposes: minimize tax liability, provide for dependents or loved ones, manage family property, pursue charitable objects, acquire land by stealth, conserve nature, etc.Must be drafted to avoid Statute of UsesMust satisfy the three certainties (intention to create trust, subject matter – what is the property/asset over which asset is held, objects – the beneficiaries and purposes)Resulting trusts: arise by operation of law in favour of a person who transfers legal title to another but retains a beneficial interest Usually in accordance with the parties’ intentionsConstructive trusts: imposed where demanded by justice, often against legal title holder’s intentionsResulting Trusts: Arise by operation of law in favour of one who transfers legal title to another but retains a beneficial interest, for example:Failure to dispose of all beneficial interests in an express trustTrustee holds legal title but after A is dead, no provision as to whose benefit the property is held for trustee does not get full ownership after A dies the law imposes a resulting trust in favour of the original settlor after A dies, trustee is still a trustee but now holds the property in trust for X (the settlor) Same as creating fee simple reversionGratuitous transfer of assets or gratuitous contribution to the acquisition of assetsTraditionally, grantor/contributor was presumed to retain beneficial rights (presumption of resulting trust) But presumed to give away beneficial rights if grantee was wife or minor child (presumption of advancement)**Presumption of resulting trust and presumption of advancement = rebuttable**Beneficial ownership results back to first personUsually a matter of ascertaining true intentionsPecore v Pecore (SCC): 1994 a father transferred hundreds of thousands of dollars of his own money into accounts held jointly with his daughter. In 1996, concerned to avoid capital gains tax, he informed the banks that he was “the 100% owner of the assets and the funds are not being gifted to” the daughter. He controlled the accounts and paid all taxes on them. The daughter cared for her disabled husband, worked part-time low-paying jobs and had no financial security. The dad worried about the daughter and often helped out financially. He died in 1999 leaving most of his estate to the daughter and the residue to her and her husband in equal shares. His will didn’t list the accounts because he thought they were taken care of. The daughter didn’t turn the joint accounts over to the estate. The husband divorced the daughter, remarried, and demanded ? of the joint accounts. Where only one person puts money into a joint account and that person dies first, the question arises whether that person intended the funds to go to the other joint account holder alone or to be distributed according to his/her will; i.e. issue was whether the father intended to make gift of survivorship to daughter or retain that equity; Who is the beneficial owner – daughter alone or is daughter holding property in trust for father’s estate? DAUGHTER ALONE – presumption of advancement does not apply, presumption of resulting trust does BUT was rebutted in favour of daughter b/c of evidence of clearly demonstrated intention that balance was to go to daughter alone (intention to make gift)Rules from Pecore v Pecore re: Presumptions in Resulting Trusts:Presumptions allocate the burden of persuasion Presumptions are rebuttable – burden of proof lies with person contesting the presumptionPresumption of resulting trust: grantor/contributor retains beneficial rights (in Pecore, would mean that the daughter was just holding the money in trust for her father’s estate Presumption of advancement: grantor gives away beneficial rights to grantee (in Pecore, meant that Paula was an absolute owner b/c intention to make gift) Between spouses: presumption of resulting trust (except for EXPLICIT joint tenancy arrangements)Parent to minor child: presumption of advancement (mother or father to minor child)Parent to adult independent child: presumption of resulting trustParent to adult dependent child: presumption of resulting trust Gratuitous transfers: (incl. parent to adult child) presumption of resulting trustCONSTRUCTIVE TRUSTSConstructive Trusts:Trusts imposed by equity regardless of legal owner’s intentionsInstitutional constructive trusts Arise automatically to hold parties in certain relationships to high standards of trust and prevent them from retaining property they shouldn’t in good conscience keep, even absent unjust enrich, e.g. where trustee meddles w/ trust property, agent breaches duty of loyalty to principal; vendor refuses to perform valid contract to sell landRemedial constructive trusts New and evolving tool imposed by courts to remedy unjust enrichment, mainly in family law disputes, e.g. where spouse w/out title contributes substantially to property’s valueOnly emerged in 1980 in Canada (Pettkus v. Becker)Only appropriate as a remedy where claimant can establish direct link between contribution and property, contribution was substantial, and monetary award is inadequate (Peter v Beblow)Timeline of Legal Change WRT Constructive Trusts – Upon separation, does a woman have property in assets held only in man’s name?1973: Married wife who works on but contributes no money to acquisition of ranch has no equitable interest in it via resulting trust (Murdoch, SCC)Dissent (Laskin) suggested unjust enrichment constructive trust as alternativeMid to late 1970s: Provincial legislation gives married but not unmarried partners an equal share in family property upon marriage breakdown (BC: 1979)1978: Married wife who works on & contributes $ to acquisition of ranch has equitable ? interest in it via common intention resulting trust (Rathwell, SCC)Minority (Laskin+2) would award constructive trust too1980: Common-law wife who works on beekeeping farm & contributes $ but not directly to its acquisition has equitable ? interest in property via constructive trust but not common intention resulting trust (Pettkus, SCC)Beginning of the rise to prominence of the constructive trust and the end of the common intention resulting trust1986: Common-law wife who works on and thereby helps maintain & increase value of farm husband brought into relationship, but contributes no $ to its acquisition, has equitable 1/3 interest in property via constructive trust (Sorochan, SCC)Now have an equitable interest via constructive trust in something husband brought into relationship (not just in something acquired by husband during relationship)1993: Common-law wife who does domestic work at home husband brought into relationship but contributes no $ to its acquisition and makes no direct contribution to its maintenance has equitable 100% interest in property via constructive trust (Peter, SCC)Extended doctrine of constructive trust to domestic labour - don’t need to contribute to acquisition of house or to its maintenance/improvementKerr v Baranow; Vanasse v Seguin (SCC): K and B separated after 25+ years living together; K sued for share in family home based on her financial and other contributions and B counter-claimed for housekeeping and personal care for time after K was disabled; V and S separated after 12 years living together, during which V left job so S could pursue business; V cared for children, S made millions; V sued for share in family home and investments; 4 key issues: Still role for common intention resulting trust in domestic partnership breakdown in Canada? NO – only contributor’s intention should matter, only contributions to acquisition of assets should matter, commonality of intention often highly artificialUnjust enrichment provides more realistic, comprehensive, principled & flexible remedyWhen calculating $ remedy for unjust enrichment, should court treat claimant as co-venturer (partners in business) or hired help?Co venture: proportionately to growth of asset (sharing in assets value)Hired help: fee for service basis 3 elements of successful unjust enrichment claim:Enrichment of or benefit to the defendantCorresponding deprivation of the claimant (can be direct or indirect – ex: staying home with children, lost opportunity for advancement)Absence of a juristic reason for the enrichmentBurden on claimant to show no juristic reason from an established category (donative intent, contract, statutory requirement)If no juristic reason from established category, burden shifts to defendant to show another reason (public policy, parties’ legitimate expectations; as per Peter v Beblow, does NOT include spouses moral duty or desire to perform domestic services)Remedies for unjust enrichment:Proprietary award: imposition of constructive trust giving plaintiff beneficial title to assets legally owned by defendant Available only where plaintiff shows direct and substantial causal link between their contributions and the acquisition, preservation, maintenance or improvement of a specific property and monetary award is insufficientMonetary award (was at issue in Kerr/Vanasse): quantum meriut (fee-for-service) vs. share of asset value (typically more $$)Choosing the remedy – 3 kinds of unjust enrichment, 3 remedies:Where plaintiff makes direct and substantial contribution to the acquisition, improvement, maintenance or preservation of a specific property, remedy is constructive trust (proprietary) (“value-survived” – co-venturer)Where plaintiff and defendant are engaged in a joint family venture and their joint efforts contribute to the accumulation of wealth, remedy is monetary award corresponding to plaintiff’s proportion of contribution (monetary) (“value-survived” – co-venturer)Where plaintiff provided unpaid services but can’t link contribution to a joint family venture or specific property, remedy is quantum meruit (fee for service) (monetary) (“value-received” – hired help)Elements to consider for remedy #2 – joint venture:Factors = open, overlapping listMutual effort: did parties work collaboratively toward common family goals?Economic integration: were the parties an interdependent and integrated economic unit? (Joint bank accounts, joint investments, etc.)Actual intent: did the parties actually intend to share the wealth?Priority of the family: did the parties give priority to the family, e.g. by making sacrifices for the sake of the family? (Or did they put priority on themselves)What role does mutual conferral of benefits play in unjust enrichment analysis?In joint family venture cases:Once claimant shows contribution to family venture and wealth accumulation, parties’ respective contributions are considered in determining claimant’s proportionate shareIn provision of services (quantum meruit) cases:Mutual conferral of benefits may be evidence of contract or of reasonable/legitimate expectations at juristic reason stage of analysisWhat role do the parties’ legitimate expectations play in unjust enrichment analysis?Vanasse v Senguin:Should V share net increase in family wealth or just be paid for services rendered?Was there a joint family venture and did V contribute to S’s wealth accumulation?Was there a direct causal link between V’s contribution and S’s property?S could not have built up the company but for V’s assumption of household & childcare responsibilitiesSo why no constructive trust? (Not at issue in appeal)Result: V awarded ? share of S’s increased wealth, minus what S had given her = almost $1MKerr v Baranow:Is K entitled to share in family home by way of resulting or constructive trust?Was there unjust enrichment of B? Was there a joint family venture?Did B’s caregiving contributions unjustly enrich K?Unable to determine any of the above on the evidentiary record (not as simple as Vanasse v Senguin)Result: returned for new trial to determine joint family venture and B’s counterclaimRelevance in BC:Much of the above cases no longer relevant because of Family Law Act:Common law spouses now covered by family property legislation in BCTurn to legislation first statutory right to one-half interest in all propertyFamily Law Act, SBC 2011, c 253??(1) A person is a spouse for the purposes of this Act if the person (a) is married to another person, or (b) has lived with another person in a marriage-like relationship, and (i) has done so for a continuous period of at least 2 years…81?… (b) on separation, each spouse has a right to an undivided half interest in all family property as a tenant in common, and is equally responsible for family debt.2 States of Real Estate:Agreement of Purchase and SaleParties sign contract specifying agreed terms of sale and setting date (typically 60-90 days) when vendor will transfer title and purchaser will pay balance of purchase pricePurchaser tenders deposit (typically 5%-25%)Closing or completionVendor executes title documents and hands over possession, purchaser pays balance of purchase price, purchaser’s lawyer registers title documentsBetween agreement and closing:Purchaser arranges financing, title search, property insurance & utilities to be in place at closing, funds to cover closing costs (adjustments, land transfer tax, legal fees), and if it is a condition of sale: sale of purchaser’s current property, inspection, surveyWhat could go wrong between agreement and closing & what are the solutions?Building could be destroyed; vendor could die; vendor could find someone else willing to pay a higher price; market could crash; purchase financing could collapse…Leading vendor or purchaser to renegeValid agreement of purchase & sale does not convey legal title, but:“The moment you have a valid contract for sale the vendor becomes in equity a trustee for the purchaser of the estate sold, and the beneficial ownership passes to the purchaser” (Lysaght v Edwards, Ch 1876)Vendor holds title on a constructive trust (institutional constructive trust)Retains only a right to purchase price, a charge against real estate to secure payment, and a right to retain possession until the purchase price is paidMust take reasonable care of the real estateWhat is a valid contract?Lysaght: “’Valid contract’ means in every case a contract sufficient in form and in substance, so that there is no ground whatever for setting it aside as between the vendor and purchaser”1. Generally valid (offer, acceptance, consideration; no fraud, unconscionability, etc)2. Vendor’s title proven by vendor or accepted by purchaser3. Terms sufficiently precise to support decree of specific performance4. In writing and signed by the party against whom enforcement is soughtWhen will specific performance be awarded?Previously all land was thought to be unique therefore specific performance was always available to the purchaserToday, not all land seen as unique “It is no longer appropriate…to maintain a distinction in the approach to specific performance as between realty and personalty. It cannot be assumed that damages for breach of contract for the purchase and sale of real estate will be an inadequate remedy in all cases.” – Semelhago v Paramadevan (SCC)Specific performance only awarded where there is no comparable substitute propertyKey question = adequacy of damages can you be adequately compensated by getting $ instead of the actual land? If no – specific performance QUALIFIED TRANSFERS AND FUTURE INTERESTS – BASIC CONCEPTS Stuartburn (Municipality) v. Kiansky (MN): In Manitoba, an elected local official must be an “owner of land” in the municipality. A town Reeve sells his home and moves out of the municipality, but holds a remainder interest in land in the municipality that will take effect when his grandmother dies. Is he entitled to hold office? YES – he was the present owner of a currently existing freehold estate – his remainder was a presently existing, vested estate in land even though he wasn’t legally entitled to possession; RATIO: can be vested in interest – possession takes affect in future but held presently without conditions/uncertainties/contingencies Future interest = interest in property which the right to possession or enjoyment is postponed to a future timeIs nevertheless a presently existing interest and part of total ownership of the propertyAllows present owner to determine when and on what conditions future owners may enjoy possession of landVested vs. Contingent:All property interests = vested or contingentVested interests are either vested in possession or vested in interestVested in possession = holder entitled to immediate possessionIinterest that is not yet vested in possession is a future interestHolder must be alive, ascertained, and no condition precedent OTHERWISE contingentContingent interests are not yet entitlements and are not certain to mature into entitlementsPurely speculative, cannot buy/sellIf an interest is not vested, it is contingentA condition precedent makes a future interest contingent; a condition subsequent makes a vested interest subject to divestmentEstate is vested in interest if…The holder exists (is alive, if human)To A for life, remainder to A’s firstborn child (where A is alive but has no children) interest would remain contingent, not vested until A has child born aliveThe holder’s identity is ascertained, andTo A for life, remainder to A’s widow (A could divorce and remarry, widow could die, etc.) remainder not vested until A diesThere is no condition precedent to be metTo B if and when she is admitted into the practice of contingent until B admitted, vested once B admitted to bar Ex: to A for life, remainder to B & her heirs (A&B are alive)Stuartburn (Municipality) v Kiansky (MB): remainder interest = present interest to future enjoyment of property; RATIO: life estate is sufficient to qualify as holding a vested interest in propertyGeneral Principles for Interpreting Wills (McKeen Estate v McKeen Estate):Prime Directive: give effect to testator’s intention (actual and subjective)“of paramount importance is determination of the actual and subjective intention of the testator”Can also look at the circumstances and what reasonable person would have intendedPresumption against intestacyIn cases of doubt, courts presume testator did not intend to die wholly or partially intestate Construction in favour of vestingCourts prefer to hold a gift vested rather than contingent, where the will permits such an interpretation Types of Conditions (McKeen Estate v McKeen Estate):Condition precedent: makes interest contingent upon prior occurrence of an event that may or may not occurTo A for life, remainder to B in fee simple when and not before B turns 25 (B is 5)The condition of turning 25 renders B’s remainder contingent. Is A’s death a condition precedent to B’s interest?No: death of life tenant is not a CP, because it is inevitableAn interest is prima facie vested if postponement is simply to allow for a prior life estate (Browne v. Moody)An interest is prima facie contingent if the reason for postponement is personal to the donee, e.g. to marry, become a citizen or lawyer, or attain a specified ageCondition subsequent: defeats a vested interest upon occurrence of event that may never occurX to A and her heirs on condition that she not remarry, but if she remarries, the interest shall revert to XA has a FS vested in possession, subject to divestment if she remarries What does X have?Contingent right to recover the FS, a right of re-entry that will vest in interest and possession if/when A remarries (A’s remarriage = condition precedent to X’s interest)McKeen Estate v McKeen Estate (NB): McKeen died and left estate to his widow for life, residue to be divided equally among his 2 sisters “if they are both alive at the time of the death of the survivor of me and my widow. If only one of my sisters is alive at that time, I direct my trustees to deliver the residue of my estate to the surviving sisters, the same to be hers absolutely”; sisters died before widow; who gets the money – did the testator intend the death of his wife to be condition precedent or intend for them to have benefit regardless? BENEFIT REGARDLESS – giving effect to testators intention, presumption against intestacy, and construction in favour of vesting true intention was to ensure sisters were provided for therefore the sisters have remainder interest that vests in interest immediately on McKeen’s death (and in possession upon widow’s death); followed Bowne v Moody – provisios did not render the gift contingent but did render it defeasible subject to condition subsequent that one sister’s interest will be divested if she predeceases the widow and the other sister survives the widowUnderstanding the 3 Possibilities from McKeen:Possibility 1: One sister dies before widowBefore the widow dies, both are vested in interest that is subject to divestmentAt the moment sister 1 dies interest vested in interest is divested. From there forward, sister 2 is vested absolutely (no more condition). Becomes vested in possession at the moment of the widow’s death. Possibility 2: Both sisters survive widowBefore the widow dies, both are vested in interest that is subject to divestmentAfter widow dies, both sisters are vested absolutely and also become vested in possession.Possibility 3: Both die before widow (this case)Before the widow dies, both are vested in interest that is subject to divestmentAt the moment sister 1 dies interest is divested, sister 2 is still vested in interest At the moment sister 2 dies both sisters estates become vested in interestWidow dies sisters’ estates become vested absolutely in possessionQualifications that Defeat Vested Interests:Estates subject to condition subsequentEg. the sisters’ interests in McKeenUsually use words like “but if,” “on condition that,” etc.Holder’s estate is vested until the divesting eventThe other person holds a contingent right of entryDeterminable estatesUsually use words like “so long as,” “until,” “during,” etc.Holder’s estate is vested until the divesting eventThe grantor retains a possibility of reverter, which is considered vested in CanadaContingent right of entry is more vulnerable to invalidation than a vested possibility of reverterKey distinction:Condition subsequent considered a contingent interest Determinable estates considered a vested interestDeterminable Fee Simple vs. Fee Simple Subject to Condition Subsequent (Carolie (village) v Roper):Determinable fee simple: determining event itself sets the internal limit for the estateThe estate terminates automatically upon the determining eventGrantor retains a possibility or right of reverter: estate automatically reverts to grantor upon determining eventPossibility of reverter is considered a vested interest (in Canada)Therefore not subject to the rule against perpetuities, which only applies to contingent interests“the terminating event is an integral and necessary part of the formula from which the size of the interest is to be ascertained”Language: “While,” “during,” “until,” “so long as”Fee simple subject to condition subsequent: independent clause added to a complete fee simple absolute, which operates to defeat itEstate does not terminate automatically upon the divesting eventGrantor retains a right of entry for condition broken; estate terminates and reverts to grantor if and when grantor exercises right of entryRight of entry is considered a contingent interestTherefore subject to the rule against perpetuities“the terminating event is external to the limitation, … a divided clause from the grant”Language: “provided that,” “but if,” “if it happens that,” “on condition that”Classic authority in Canada for determinable FS: “To the school board so long as it shall be used and needed for school purposes and no longer” Re Tilbury West Public School Board (ON)Caroline (village) v Roper (AB): 1949 Thomas Roper’s widow transferred 1 acre to the village of Caroline, Alberta on condition that it should revert to his estate if used other than for a community centre. In 1982 the community centre burned down. The town wants to sell the land for commercial development; the estate wants the land back. Can the village do what it wants or must it return the land? Depends on whether the village received a fee simple subject to a condition subsequent or a determinable fee simple if FSCS, the divesting condition is void for violating the rule against perpetuities (b/c no time limit on use as community centre); if determinable FS, it is valid and enforceable; fee simple subject to condition subsequent – “shall revert” operating to defeat if future event occurs; condition void and unenforceable BUT court took pity on drafters and rectified to make determinable FS and ordered property be conveyed back to Ropers STATE LIMITATIONS ON PRIVATE POWER: PUBLIC POLICYCy-prés doctrine (Re Leonard Foundation Trust): If it becomes impossible or impractical to carry out a trust created for charitable purposes, the court may revise the trust to carry out the settlor’s intentions as nearly as possible Must have been possible/practicable to carry out at time it was made if it was impossible or impracticable to carry out from the beginning, cannot apply the cy-près doctrine would just conclude as void against public policy from the startOnly applies to charitable trusts –3 prongs:1. Must have a charitable purpose (ex: poverty relief, advancement of education or religion, other purposes beneficial to community)2. Purpose must be wholly or exclusively charitable 3. Must promote a public benefit (beneficial to public AND benefit available to sufficient cross section of the public Re Leonard Foundation Trust (ON): trust had racist, sexist provisions specifying that it was for white, British Christians, limiting awards to females, etc.; key issues = whether terms contravene public policy, and if yes, is trust saved by the cy-près doctrine? YES – violates public policy but trust saved by cy-près:Robins JA:Public policy should be invoked when it is for the benefit of the public, in clear cases in which harm to the public is substantially incontestable Avoid judicial idiosyncrasy (danger that unelected judges will impose their own idiosyncratic views of right/wrong on a case) Foundations 2 propositions: 1) white race best qualified to be entrusted w/ preservation of civilization, 2) world peace and advancement best promoted by white ChristiansTrust premised on notions of racism/religious superiority contravenes public policy concept of one race/religion being intrinsically better against democratic principlesTarnopolsk JA:Court is breaking new ground – no ruling in Canada or UK has found charitable scholarship trust for a class of people that is restricted on race/religion/nationality to go against public policy for discriminationPublic policy has changed – Charter, Ontario Human Rights CodeClearly violates public policy for discrimination on race/religion/nationality/sexCy-près doctrine:Found to be a charitable trust had charitable purpose (advancement of education), wholly and exclusively charitable, beneficial and available to sufficient cross-section Trust was initially possible/practicable to administer but has now become impossible/impracticable to administer it b/c public policy has changed Must remove all restrictions based on nationality, religion, race colour, ethnic origin, sex Can keep preference for children of teachers, clergy members, members of military, etc. b/c no racist or supremacist motivations Principles from Re Leonard Foundation Trust:An owner's attempt to control the future ownership or use of property will be void as against public policy when:The instrument contains discriminatory conditions or qualifications AND But not generally if it discriminates in favour of a historically disadvantaged group Take a case by case approach – ex: trust for women, indigenous peoples, people with physical or mental handicaps, etc. would actually advance public policy of equalityRe Ramsden Estate (PEI): OK to restrict scholarship to Protestant students as long as there is no blatant religious supremacy University of Victoria Foundation v BC (AG) (BC): OK to restrict scholarship to Roman Catholic students as long as there is no blatant religious supremacyThe instrument transferring ownership contains blatantly racist or supremacist motivations or goals ANDThe instrument creates an arrangement that has a public characterNUMBER 1, 2 & 3 TOGETHER = VOID AGAINST PUBLIC POLICYEx: charitable trust given special tax treatment b/c of public characterPrivate family trusts not affected by Re Leonard Foundation Trust rulingOR the transfer is absolute and unconditional but the recipient has reprehensible or illegal aims or activitiesMcCorkill v McCorkill Estate (NB): before McCorkill, all the situations where public policy was applied were with issue to the instrument itself – the only situations of unworthy heirs were the donee who culpably kills the donor to trigger inheritance, or terrorist financing extends now to a gift to any organization or entity that has aims that manifestly violate public policy but also that they pursue those policies using illegal meansInstruments that are unobjectionable but were executor/trustee has discriminatory motivations likely not voidSpence v BMO Trust Co (ON): disinheritance clause in will for discriminatory motive be enforced; RATIO: testator may have discriminatory motives that are racist or supremacist as long as they are not blatant in document and document does not have public character, testamentary freedom will prevailBlathwayt v Baron Caley (UK): will left real estate to beneficiaries provided they not be or become Roman Catholic; House of Lords upheld b/c not charitable trust – doesn’t violate public policyRe Tuck’s Settlement Trusts (UK): trust for future baronets so long as they were married to Jewish wife and continue practicing Jewish faith; didn’t violate public policy but had certainty issuesFox v Fox Estate (ON): widow was executor and trustee and had absolute power to encroach on estate to benefit grandchildren with residue to son; son remarried; widow transferred entire residue of estate to grandchildren before remarriage b/c son’s new wife was a gentile; RATIO: trustee/executor may not exercise powers for reasons that would violate public policy; suggested that testator can’t do this eitherRoyal Trust Co. of Canada v University of Western Ontario (ON): T dies in 2015, leaving a will that directs trustees to fund scholarships at Western or Windsor for white, male, single, heterosexual science students and for while, female, single students who are not lesbian or feminist, to be awarded on the basis of academic achievement, work ethic and good character; varsity athletes excluded; in event this provision is declared void against public policy, it is to be deleted without prejudice to the rest of the will; what happens w/ will? Qualifications related to race, marital status, sexual orientation, and philosophical ideology (not feminist) void against public policy; no express statements of white supremacist/homophobic views but can be inferred from the stated qualifications; cy-près didn’t apply b/c when the document was written and came into effect it still would have violated public policy STATE LIMITATIONS: UNCERTAINTY AND RESTRAINTS ON ALIENATIONUncertainty:Condition precedent: not void for uncertainty if the court can determine that a particular beneficiary meets the condition on the particular facts (Re Leonard Fdn.)More relaxed test does the person before us satisfy the condition?Condition of retention: (condition subsequent or determinable limitation) void for uncertainty unless the court can see from the start, precisely and distinctly, what event will terminate the interest (Re Down)More rigorous test must be clear for all potential casesDeterminable limitation:?a limitation of a property interest such that the interest continues only so long as certain conditions obtain and terminates automatically if the conditions no longer obtain. The determining event is an integral and necessary part of the formula from which the size of the interest is to be ascertained. Typically created by the words “while,” “during,” “so long as” or “until.”Condition subsequent:?a condition, added and external to the limitation of a complete and absolute property interest, that makes a vested interest subject to divestment upon the occurrence of an event that may or may not occur. Typically created by a grammatically independent clause using such words as “on condition that,” “provided that,” or “but if”Invalidity (HJ Hayes Co v Meade):Condition of acquisition: if a condition precedent is void, the entire interest is voidCondition of retention:If a condition subsequent is void, only the condition is struck out and the interest is rendered unconditional (absolute)If a determinable limitation is void, the entire interest is struck out and voidHJ Hayes Co v Meade (NB): T left part of land to J on condition that J reside on land and cultivate it; if J did not reside and cultivate it, his portion was to go to H and H was to pay J $1,000; J didn’t take possession of land, H never paid him $1,000, J returned years later to live on property for 15 years before his death; who owns land depends on whether J residing and cultivating or H paying $1,000 was a condition of acquisition (condition precedent) or condition of retention (condition subsequent or determinable limitation)Testators intention was to benefit all sons J get land or $1,000If conditions precedent: J gets nothing – he did not reside and cultivate; H gets nothing – he did not pay $1,000 would go into intestacyPresumption against intestacy + testator’s intention + vesting construction (if wills allow it, courts will interpret as vested) = preference for condition of retention Court doesn’t consider determinable limitation only considers condition precedent vs. condition subsequent and decides to interpret as CONDITION SUBSEQUENTReside and cultivate void for uncertainty? ($1,000 not uncertain)No standard provided, when did he have to take up residency, etc. Court says cannot tell precisely and distinctly what this means therefore condition to “reside and cultivate” = void for uncertainty and struck out (as per uncertainty rules for condition subsequent)James took absolute title to land at time of father’s death Note: could have avoided uncertainty to achieve T’s objectives by giving some criterion that is defined in legislation that provides certainty in advanceEx: living on farm – “that property needs to be the principle residence for tax purposes”Ex: cultivating the land – “so long as the land produces X amount of produce” OR “so long as X amount of farm income is declared on tax return” Fennell v Fennell (NL): J died and left home to her five children who didn’t live in NL on “condition that all of my family can make use of the said house at any time without costs provided that they share in upkeep of said house”; conditions precedent or subsequent? CONDITION SUBSEQUENT – had language of condition of retention, “provided that” indicates condition subsequent and “upkeep” indicates subsequent b/c you cannot upkeep a house before you take ownership, and it is a continuing obligation; “all of my family can make use of at any time” = ongoing use – indicates condition subsequent; family use and shared upkeep held to be conditions subsequent; void for uncertainty? YES – fairly rigorous test, looking for a practical level of clarity – i.e. where document itself provides some practical standard for applying the condition practical criteria that is objectively verifiable; this will doesn’t provide practical level of clarity – who is included in family, what does it mean to share in upkeep, etc.; therefore condition is invalid and expunged from will; RATIO: need some sort of practical standard included in will to apply condition subsequent/understand if it was metCould have avoided uncertainty by defining upkeep (what type, schedule of payment, who pays, etc.), anticipate situations of divorce, stating who could resolve uncertainty, etc.Re Down (ON): “when H arrives at age of 30 years, providing he stays on the farm, then I give all of my estate unto my said sons S and H”Arrive at 30 years of age = condition precedentProviding he stays on the farm = condition subsequent, void for uncertainty, struck out lacking criteria for determining nature and degree required to have “stayed on the farm”Result: when H turns 30, he is vested in possession gets farm in co-ownership with SPhilpott v Philpott Estate (NL): “to my grandson B my dwelling house and all its contents. It is to be clearly understood that B is to take care of his grandfather and to see that in the event of death he is to be decently and properly interred.” Not conditions – non legally binding declarations of a wishIf they were conditions, would have been condition subsequent void for uncertainty (and if they were conditions precedent, would have fulfilled – buried and estate paid for funeral)Davis Estate v Thomas (BC): “house to T if he wishes to live in it. If he doesn’t wish to live here, it shall be sold and half the money go to him and the other to named beneficiaries”“If he wishes to live in it” = condition of ownership (not non legally binding declaration of a wishIntention was that T should make a decision at the outset indicates a condition of acquisition Void for uncertainty? For condition precedent test = whether the court can determine if the particular claimant before the court has satisfied the conditionCourt ordered it as a condition precedent and gave time frame for T to decide whether he wished to live in it, and once declared, one year to take up occupation Note: once he gained the interest (declared he wished to live in it and took up occupation) could probably do whatever he wanted, including sellKostar v Shattock (AUSTRALIA): “to O if and when she shall attain age of 21 provided that upon attainment of such age she shall then be resident in one of the countries of the British Commonwealth”Attaining age of 21 = condition precedentResident in one of the British Commonwealth countries upon 21 = condition subsequent; subsequent to her attaining ownership BUT only for that one day b/c you could tell on the day she turned 21 where she resided, not void for uncertainty Sifton v Sifton (UK): “payments made to daughter only so long as she shall continue to reside in Canada” Void for uncertainty – what does reside mean?General rule = if court can construe as condition subsequent, more likely to do so in order to be able to strike out condition entirely and make it void for uncertainty Alienation:Alienation = the ability to transfer property rights from one person to anotherIf you have the power to alienate you can transfer your rights to someone elseRestraints on Alienation (TCS v Lyons):A condition that would take away the necessary incidents of a freehold estate, eg the power to alienate, is void as repugnant to the estateAbsolute restraint on alienation, even if temporary, is void (ex: you shall not transfer to anyone at any time)Right of first refusal = less restraining than a preemptive option to purchase (assuming you can sell for market value)Preemptive option to purchase = undue restraint on alienation b/c deprives owner of market value for landCan a purchase option restrain alienation?Re Rosher (Eng Ch 1884): preemptive option to purchase at fixed price (1/5 of market value at T’s death) = voidRe Cockerill (Eng Ch 1929): preemptive option to purchase at fixed price (1/2 of value at T’s death) = voidStephens v Gulf Oil (1975): right of first refusal at fixed price = voidTrinity College School v Lyons (ON): T&M gave TCS right of first refusal should they sell their land, plus option to by land for $9k on the death of the survivor of them; T&M later purport to gift the land to their daughters; T dies then M dies; TCS demands to buy land for option price b/c upon M’s death the preemptive option to purchase was triggered, but land is worth $135k; is TCS’s purchase option void as an unlawful restraint on alienation? YES – limiting market on alienation to a specific class of people at a specific price effectively deprives owner of right to sell; note: inter vivos right of first refusal at fixed price was NOT void as restraint on alienation regardless of fixed price BUT post mortem preemptive option to purchase at fixed price was void as restraint on alienation; RATIO: if you own land and elect voluntarily to sell it yourself at a fixed price below market, that is ok (inter vivos right of first refusal) BUT you may not transfer land ownership to a party subject to an option for a third party to buy it at a fixed price (preemptive option to purchase) that is a restraint on alienationTHE NATURE OF A LEASEBottom line = whether the occupant has the right of exclusive possession LEASELICENSEDefinitionProprietary estate conferring the right to possess a parcel of land for a limited timeTypes: Fixed term (ex: 5 years)Periodic (ex: month to month)At will (determined at any time by landlord or tenant – may not be able to have genuine lease at will as per Fatac)At sufferance (arises when tenant overholds after expiration of a term – not a true tenancy)Mere permission enter land, with or without additional permission to perform specified acts thereTerminologyLandlord or lessor; tenant or lessee (person who takes occupancy); demise (act of granting a leasehold estate); leaseholdLicensor (person granting access); licensee (person gaining access)RecognitionRecognized as estates in landNo interest: grants permission to do something that would otherwise constitute a trespassRights against third partiesGives tenant rights against whole world, including subsequent purchaser of the landPersonal, doesn’t usually bind third parties even with noticeBut in equity, licensee may have enforceable right to stay if she relied detrimentally on reasonable expectation created by licensor that she would be permitted to stay Remedies for breachWrongfully evicted tenant can recover possession, damages; parties may have access to special statutory procedures, tribunals, remediesWrongfully expelled licensee can only recover damages; no special rules or procedures (no right to get back on land)Test for a Lease:Classic test = exclusive possession (Glenwood Lumber, NL)If holder has exclusive possession, it’s a lease; if no exclusive possession it’s a licenseDenning detour:Characterization depends on intentions of the parties to create a merely personal privilege or an interest in land; fact of exclusive possession no longer determinative (Isaac v Hotel de Paris Limited; Shell-Mex v Manchester Garages)Modern test: parties’ intentions as to exclusive possession = key; an agreement is only “personal” if it doesn’t confer a right of exclusive possession (Street v Mountford, UK)Effect of the agreement is key“If the agreement satisfied all the requirements of a tenancy, then the agreement produced a tenancy and the parties cannot alter the effect of the agreement by insisting that they are only creating a licence. “ (Street v Mountfort)Parties’ intentions as to legal classification or personal character are irrelevant the only relevant intention is the intention to grant exclusive possessionRefinements to the exclusive possession test (Fatac):Serious restrictions on use of land are OK – still exclusive possession Ex: certain activities prohibited without owner’s consentBA Oil – no alternations without consent, only certain products could be soldOwner can NOT reserve right to enter for any reason interferes w/ exclusivity of possession Ex: if owner’s agents may enter at any time without notice, not a leaseShell-Max – owner’s employees may enter premises and occupier cannot impede the owner’s right to possession not a leaseNot a lease if occupier only has exclusive possession of small part of agreed premisesLabeling something a lease or license not necessarily determinativeUK says labels don’t matter; Canada gives some leewayNZ: Terminology used by parties in describing relationship immaterial unless it helps decide if there is right to exclusive possessionKey: The law articulated in Fatac and Street represents the law in Canada so you can apply that as the Canadian law with the above exception WRT terminology and labels in Canada, Metro-Matic said terminology and labels do matter, and in absence of other indications pointing in other direction, they are usually conclusiveRent is indication of intention to be legally bound but absence of rent doesn’t per se negate a tenancy don’t need to charge rent to be a leaseEx: can gift a leasehold rightNot a lease if terminable pursuant to another legal relationshipEx: student or clergy housing; must vacate at certain time as per separate legislationFor exclusive possession to be meaningful there must be a minimum finite term (fixed or periodic)No tenancy where there is no intention to enter into legally binding relationship or where tenant precluded by statuteFatac Ltd (in liquidation) v Commissioner of Inland Revenue (New Zealand): Puhinui owned 10 ha in NZ. P granted Atlas the right to operate a quarry on part of the land for 12 years, reserving a general right of access provided it did not obstruct A’s permitted activities. P sold the land to Mt. Wellington, which entered a contract with A reserving for itself the right to quarry everything but basalt, set up a screening plant in the quarry area, and stockpile and remove materials, provided it did not impede A’s quarrying operations. Does A have lease or license (needed to know b/c it determined which party to sale agreement was liable for GST)? LICENSE – A didn’t have right to exclusive possession – no provision for rent, contract labeled a license agreement, P had general right of access, no clearly defined area that A had exclusive use to; RATIO: in New Zealand the fundamental distinction between a tenant and a licensee is that tenants have right to exclusive possession (as per the refinements to the exclusive possession tests above)Metro-Matic (ON): apartment building owners enters “lease agreement” with M using typical lease terminology and providing that premises shall be only used for laundromat business; tenant has exclusive right to install and maintain laundry equipment; tenant’s agents have free access to premises at all reasonable times for specified purposes; building residents have free access to premises at all reasonable times; landlord will obtain agreement from purchaser of land to be bound by the lease. New owner buys building with full knowledge of lease, accepts two rent cheques then purports to terminate. Lease or license? LEASEUse of “lease agreement” was strong indication of the nature of the agreement (DIFFERS FROM UK AND NZ) if they call it a lease, probably a lease BUT not enoughLook at what rights/interests are actually createdProvision for tenant to have exclusive right to install and maintain laundry equipment was to avoid dispute about fixtures – doesn’t negate leaseTenants having free access to premises at all reasonable times for specified purposes just explains use of it as a laundromatBuilding residents having free access doesn’t negate exclusive possession Gas Stations:BA Oil (ON): service station operator signed “Service Station Lease” and “Retail Dealer Sales Agreement” that used typical lease terminology; prohibited operator from any construction, alteration or advertising without landowner’s consent; allowed landowner (BA Oil) to place signs on premises; and required operator to sell only BA’s products, provide facilities for storage, display, and sale of BA’s products. Lease or license? LEASELooks like a lease – was a lease Lease gave exclusive possession to the operators they could operate a gas station and no one else could; the fact that owners could place signs on premises wasn’t a significant interference with exclusive possession, nor were other restrictions (similar to other commercial leases)Shell-Mex (UK): service station operator signed “Licence” agreement that allowed operator to occupy premises, required it to sell only landowner’s products; allowed landowner’s employees to enter premises at any time without notice, required operator not impede landowner’s right of possession and control. Lease or license? LICENSEDuring Denning detour from exclusive possession test but probably still stands as license todayContrast from BA Oil WRT degree of rights reserved by landowner here Residential: Lease/licence distinction rarely relevant in Canadian residential cases b/c application of residential tenancy acts does not turn on itStreet v Mountfort (UK): UK renters rent housing under ‘licence’ agreements that give owners right to enter premises at any time without ‘licensee’s’ permission, and to assign additional lodgers at will. The owners never enforce and never intended to enforce these provisions but drafted the documents so that they would be construed as licences; lease or license? LEASE – was only done to be exempted from residential tenancies legislation that protected tenants in UK; this case said language parties use and terminology is irrelevant (NOT the law in Canada)CP Hotels v Hodges (CAN): Hodges family live in suite at Royal York hotel for 15 years with no written agreement, pay reduced rate, install some of their own furniture, but use maid service, phone and other amenities like ordinary guests; lease or license? LICENSE – hotel retained possession beyond a typical landlord retaining a key hotel had plenary right of access to premises for wide range of reasonsLANDLORDS’ AND TENANTS’ INTERESTS AND OBLIGATIONSPrivity of Contract and Privity of Estate:Landlord:Reversion: at end of lease, possession of the land reverts to the landlord. Reversion interests can be bought/sold landlord can transfer reversion to someone else. If landlord sells the land, selling fee simple title. When lease ends, possession reverts to whoever now holds the fee simple. Landlord’s assignee steps into position of landlord and has privity of estate with tenants (but no privity of contract)Tenant:Assignment: tenant gives up all of its lease interests and steps out of the picture – puts into place the tenant’s assignee. Tenant transfers entire remaining term of the lease and rights and obligations of the lease such that their assignee is in the exact same position as the original tenant and landlord was. If tenant assigns interest there is privity of estate between landlord and tenant’s assignee (but no privity of contract)Sublease: any situation where tenant transfers anything less than their entire interest; lease some of the space, lease for shorter term of total lease, etc. Tenant and subtenant enter into lease agreement and have privity of contract and privity of estate BUT main landlord has neither privity of contract or privity of estate with subtenantCovenants:Covenant = a promise made in a contractWhen parties have privity of estate but no privity of contract, the only covenants that bind the new parties are “real covenants”“Real covenant” touches and concerns the subject matter of the lease (the land)“Runs with the land”Test for real covenant: to touch and concern the land, must affect the land itself (nature, quality, or value of the thing demised) OR affect the value of the land at the end of the term (value of land after reversion)Is new landlord bound by original landlord’s promise of exclusive parking rights? Merger Restaurants v DME Foods Ltd (MN): 2 restaurants rent adjacent lots from same landlord; expansion on one lot leads to parking shortage; landlord grants DME parking rights on lot occupied by Merger; Merger objects saying its lease w/ prior landlord gave it exclusive parking rights on the common areas of its lot; is new landlord bound by previous landlord’s promise of exclusive common area rights? YES – landlord’s covenant to give exclusive parking rights on the lot “touches and concerns” the land extent and availability of parking spaces in shopping centre affects nature and value of land; DME cannot use Merger’s parking; RATIO: covenants that touch or concern the land run with the land and bind successors in title

Kontogonis: restaurant in bottom of two-story office building; parking covenant found not to touch or concern land; distinguished from Merger b/c it was a commercial office building which has different parking patterns than a shopping mall and lease had strong languageDoes a tenant have a right to assign or sublet?Common law right to assign or sublet but can be limited by contractEx: can assign or sublet only on consent from landlord which cannot be unreasonably withheld Coopers v Lybrand Ltd v William Schqartz Const. Co. Ltd: consent is not unreasonably withheld if landlord’s own financial interest will be adversely affectedBurden of proof lies with tenant to show that landlord is unreasonably withholding consent (Sundance, 1455202 Ontario Inc.)Question to ask is whether a reasonable landlord could have withheld consent (not whether they would have) (Sundance)Landlord can rely on any genuine reason for withholding consent – not limited to reason it gave tenant at time of refusal (1455202 Ontario Inc v Welbow Holdings Ltd conflicts in law – says that the reasons at the time of refusal are what matters – in BC this could therefore go either way)May landlord withhold consent to sublease based on impact on another tenant’s parking?Sundance Investment Corp v Richfield Properties Ltd (AB): S wants to sublet portion of its premises for Swiss Chalet; S’s lease says it cannot sublet without landlord’s consent, which shall not be arbitrarily or unreasonably withheld, and refusal not unreasonable where other major tenant objects to the “nature of the business”; landlord withholds consent when Beaver Lumber (other tenant) objects; was consent withheld unreasonably? NO – landlord was entitled to rely on Beaver’s objection; Beaver’s objection was regarding something within the nature of the business the availability of parking and parking patterns generated by a subtenant; even without “nature of business” provision, reasonable landlord still could have withheld consent; RATIO question = whether a reasonable landlord could withhold consent (not whether they would have); you can rely on any genuine reason to withhold consent, doesn’t have to be the reason you gave tenant at time of refusal (1455202 Ontario Inc v Welbow Holdings Ltd does not follow this principle)Dissent: parking is inherent in every business, not relevant to the nature of this specific business; Beaver is objecting to successful business not to any particular nature; Beaver really objecting to the location of the exit of the Swiss ChaletObligations of Landlords and Tenants:At common law, freedom of contract = general ruleVery few implied terms, and even those could be negated by agreementOne term will be implied and can’t be negated: the covenant of quiet enjoymentEg “Landlord covenants that on paying the Rent and performing the covenants contained in this Lease, Tenant will peacefully and quietly have, hold and enjoy the Premises for the agreed Term” (lease for the basement apartment in my old house)Covenant means that tenant’s ordinary and lawful possession will not be substantially interfered with by acts of the lessor or those lawfully claiming under her (Southwark)Substantial interference must be due to 1) conditions not existing OR 2) acts not in the parties’ reasonable contemplation when the lease began (Southwark)Excessive, aggressive behaviour of other tenants might violate the landlords covenant of quiet enjoyment Alabmore Construction (ON): suggests if landlord is aware of the problem and fails to do anything, their pure omission may make it liable for breachCurtis Investments (MN): suggests landlord only liable if he takes some positive action making him complicit – ex: actively authorizes or endorses misconductLaw is unsettled in BC!Does the landlord’s covenant of quiet enjoyment mean anything?Southwark London Borough Council v. Tanner (UK): social housing tenants in south London complain of excessive noise due to lack of sound insulation. Claim this violates landlord’s covenant not to interfere with their right to quiet enjoyment of the premises. Does this violate covenant of quiet enjoyment? NO – covenant means that tenant’s ordinary and lawful possession will not be substantially interfered with by lessor or those lawfully claiming under her quietly doesn’t mean without noise, enjoy doesn’t mean derive pleasure (means exercising and using right and having full benefit); not a substantial interference – excessive noise may qualify as substantial interference but NOT pre-existing conditions and lack of insulation was pre-existing also was in reasonable contemplation; RATIO: pre-existing conditions or acts in reasonable contemplation of parties when lease began do not violate covenant of quiet enjoymentPellatt (ON): landlord’s extensive renovations disrupt A’s ability to study for Ontario bar admission course. Landlord has offered termination of lease or free alternative housing but A declines. Covenant of quiet enjoyment violated? YES – landlord acted reasonably by offering alternatives and compensation but still must ask if there was a substantial interference with the tenant’s quiet possession and there was therefore she is entitled to compensation Didn’t involve pre-existing conditionNoises were well out of the ordinary use of the buildingConstruction was the activity of the landlordInvolved physical entry into her apartmentRESIDENTIAL TENANCIES SEE PRINTOUT OF SLIDES Not everyone living in a rental accommodation is a tenant, therefore not all covered under Residential Tenancy Act (RTA)Act requires landlord to write a written contract BUT if you end up in a tenancy without a written contract, still covered by the RTAStandard terms read into the contract regardless of what it saysPet damage deposit is ? months rent regardless of the number of petsIf landlord doesn’t complete inspection report, landlord’s right to keep damage deposit is extinguished. Can still claim for damages if tenant does damage, but wouldn’t be claiming for an order to keep the deposit. If tenant doesn’t sign it, loses right to get deposit back.Right to quiet enjoyment:Can claim based on unreasonable disturbances from other tenants or the landlordSmoke – even if it is not a non-smoking building, landlord could evict you for smoking IF that smoking is disturbing other tenants quiet enjoymentTenant must report any interference with quiet enjoyment to landlord, best to write letter to landlord and keep copy of letter. Give landlord deadline by which you expect something to be done about it always start with written requestIf a landlord is renting only their condo in a building managed by a strata, they cannot necessarily do something about another tenant causing a problem but landlord still has an obligation – likely would need to go to the strata and ask them to helpLandlord probably cannot just sit idly by even if they aren’t participating in causing the disturbance, if they are aware of it they need to do somethingLandlord entry – S.29 of the RTA:24 hours to 30 days written notice (under RTA email doesn’t qualify but arbitrator may find acceptable)Tenant must also be reasonable ex: tenant called landlord about leaky pipe, landlord came to fix but didn’t give 24 hours notice, tenant wouldn’t let him in because of no notice and pipe caused damage tenant responsible for damageIn case of emergency landlord can enter“Wellness check” due to fentanyl crises – are these ok? Does this qualify as an emergency? Repairs:Repairs – sometimes burden of fixing bedbug problem falls to tenant but ONLY if landlord can prove that tenant brought them inHard to proveMaybe if landlord sees tenant regularly bringing in street furnitureIf you need a repair – step one is to write demand letter outlining what needs fixing and when you want it fixed – give reasonable period for repair (how important is it, how long will it take to fix)If unable to use unit during repairs, remedy may be prorated rentIf landlord doesn’t act, mitigation may include applying to Residential Tenancy Board for repair order Reasonable wear and tear = natural issue (vs. tenant scratching hardwood floor) – tenant not responsible for itIf you withhold rent, landlord can serve 10 day eviction notice not entitled to do this unless it is an emergency repair (RTA allows this but still not recommended) or you get an order from the Residential Tenancy BoardIf you don’t report issue immediately, may be liable for further damageEx: if you have bed bugs and don’t report it and they spreadIf you need the repair done and landlord cannot do it, you can pay to repair and ask landlord to reimburse. If landlord doesn’t reimburse (and you have given receipts, etc.) you can withhold that amount from rent but still not recommendedServices:Non-essential services can be terminatedCannot unilaterally change price of service/facility (ex: if you had parking for $25/month and landlord wants to raise that to $75/month) BUT can remove the service and compensate (reduce the rent of) tenant (maybe somewhere between $25-$75 landlord will try for $25)Rent Increases:Inflation + 2%RTB order significant repairs to the property that could have been reasonably foreseenMoving out:Landlord cannot rely on improper notice ex: if tenant calls and says they want to move out (but not valid notice form) landlord cannot get new tenantLandlord cannot begin to mitigate until you move outCan legally agree to end a fixed term tenancy Assignment/sublet – if more than 6 months left, can ask landlord to sublet and they cannot unreasonably deny. If less than 6 months landlord can deny for any reasonEvictions:3 main types:1. 10 day eviction notice if you don’t pay your rentTenant has 5 days from the time they receive one of these to pay their rent Can also apply for dispute resolution, will lose place after the 5 days if they haven’t paid2. One month notice for causeRepeatedly paying rent late 3 times in one year constitutes this3. Two month notice for landlord use of propertyGood faith intent to occupy – only need to occupy for 6 monthsBAILMENTWhat is a bailment?Like lease of a chattelDefined by transfer of possession, which distinguishes bailment & lease from licencePerson parting with possession = bailorPerson taking possession = baileeAt intersection of contract, tort, property and trust lawBailment: “Delivery of personal chattels on trust, usually on contract, … that … the chattels be delivered in either their original or an altered form as soon as a time for which they were bailed has elapsed.” (Punch v Savoy’s Jewellers, ON)2 Requirements for transfer of possession, defining feature of bailment (Letourneau):Physical controlAnimus posidendi (state of mind) – intent to controlFactors to consider WRT the 2 requirements:Alleged bailee’s instructionsAlleged bailee’s established practice if part of standard practice of taking possession of customers’ chattels, supports bailmentAlleged bailee’s knowledgeWhether possession is necessarily incidental to the service performed by the bailee if yes, supports bailment (ex: valet parking)Location of the chattel if chattel placed on bailee’s land, supports bailment Duties of Bailment:Bailee has duty of safekeepingTraditional categorical approach:Bailee’s sole benefit: bailee liable for slight negligenceBailor’s sole benefit (gratuitous bailment): gross negligenceMutual benefit (for reward): bailee must take care a prudent owner would (Punch v Savoy’s Jewellers)And is liable for employee’s negligence or theft Emerging general reasonableness standard:Bailee must take same care of goods as would a prudent owner, acting reasonably in the circumstances (considering who was intended to benefit, how bailment came about, relationship b/w parties, value of item, cause of loss)Onus of proof on bailee if goods are lost/damaged while in bailee’s care to prove that:Bailee took reasonable care of the goods ORBailee’s failure to take reasonable care did not contribute to loss or damageEmployer must show that they took reasonable steps to hire good employee/agent who is trustworthy and that employees/agents took all reasonable care in the circumstances Bailment covers: (Minichiello)1. Goods one would reasonably expect to be in the bailed chattel2. Plus other items of which the bailee had actual or constructive noticeTwo key questions WRT bailment:Does a bailment exist?If so, what are the consequences, especially when something happens to the bailed item?Letourneau v Otto Mobiles Edmonton (1984) Ltd (AB): O repaired L’s trailer; L requested further repairs; O’s manager told L to leave trailer in adjacent parking lot after hours, padlock it and lock key inside water compartment – O would pick up next morning (O’s standard practice for after hours delivery); L followed instructions – trailer disappeared; was there a bailment of the trailer to O? if bailment, bailee has duty of care to bailor (O has duty); if no bailment, L left trailer at own risk; BAILMENTEmployee gave L explicit instructions for how to turn over trailer, L followed them goes towards animus posidendi in favour of bailmentThis was part of O’s standard practice – there was actually another couple trying to park in that spot as per instructions from other O employeeO had requisite state of mind/knowledge to take possession (instructions given to L)Possession necessarily incidental cannot repair car without possession of the carTransfer of possession was effective when L finished the instructions O failed to provide reasonably safe storage – didn’t meet standard; L not contributorily negligent (followed instruction, dropped of trailer in daylight)Parking Lot Cases:Does parking lot operator become bailee of car or merely grant license to enter and park car?Active supervision and control of car by the parking lot operator via surrender of keys, provision of attendant, serially numbered ticket, jockeying of cars, suggests bailment (ex: valet parking)Disclaimer that “charges are for use of parking space only” suggests license (ex: mall parking)Is bailee liable for loss of contents of the bailed item?Only with actual or constructive noticeMinichiello (BC): P left car and keys with valet, paid 40?, told valet there were “valuables in the trunk.” In the trunk was a briefcase with $16,000 in jewels. The car was stolen from the lot. Defendant found liable b/c didn’t take reasonable steps. BC said enough notice was given and valid consideration ($0.40 for valet was sufficient consideration)Sub-Bailees:Rules from Punch:Can have a bailment relationship and liability in absence of contractIf sub-bailee is aware of bailor who is not party to contract owes them duty of careIf bailor consented expressly or impliedly to sub-bailment on specific conditions, bound by those conditionsBailment can arise without consideration or communication of any kind (extend up chain to original bailor)51435001270000Punch v Savoy’s Jewellers Ltd (ON): P left a $11,000 ring with Savoy’s Jewellers in Sault Ste. Marie for repairs. S sent it to Harry Walker Jewellers in Toronto to do repairs, by registered mail with $100 declared value (as per usual practice). Due to postal strike, HW sent it back via CN Rapidex courier. S agreed to this but terms of shipment not discussed. HW sent it with $100 declared value, no insurance. Shipping form limited CN’s liability to $50 unless extra insurance bought. Ring disappeared, CN offered no explanation, admitted driver may have stolen it. Is W liable to P? Is S liable to P? Is CN liable to P or S?W (sub-bailee) LIABLE to P b/c didn’t act like reasonable and prudent ownerS (bailee) LIABLE to P b/c not enough diligence about security of arrangement – didn’t consult/notify owner of ring that they agreed to new form of shipmentCN (sub-sub-bailee) LIABLE to P and SMorris: owner (anyone higher up in chain who doesn’t have contractual relationship with sub-sub-bailee) is bound by the conditions in the contract if they expressly or implicitly consented (i.e. agreed that bailee could make sub-bailment with same terms) If sub-bailee is aware of bailor who is not party to contract owes them duty of careIf bailor consented expressly or impliedly to sub-bailment on specific conditions, bound by those conditionsS didn’t consent – S and W never even discussed terms of shipmentP was entirely unaware – cannot be bound by limitation of liability CN should have contemplated possibility of bailment bailment can arise without consideration or communication of any kind (extend up chain to original bailor)May bailee exclude liability for fundamental breach?PREVIOUSLY:Heffron v Imperial Parking (ON): plaintiff parked car in Impark lot, left keys with attendant, car disappeared, Impark offered no explanation, relied on disclaimer on ticket: “We are not responsible for theft or damage of car or contents, however caused.” Held: Impark may not rely on waiver of liability to excuse fundamental breachParty may not undertake to do something and yet purport to exclude liability for failing fundamentally to do itTODAY:Tercon Contractors (SCC): a party may contract out of liability for fundamental breach if:1. Clause covers the kind of breach that occurred (construing the clause strictly)2. Clause was not negotiated in circumstances that would render enforcement unconscionable3. Enforcement would not offend public policyCO-OWNERSHIP – BASIC CONCEPTS AND CATEGORIESCo-ownership = multiple parties sharing same interest in same thing at same timecan exist in real (land) or personal property Main forms: joint tenancy and tenancy in commonOther forms: corporations, partnerships, condos, co-ops, marital property, aboriginal title, communal property (e.g. Hutterites), commons (e.g. pastures, Internet?)JOINT TENANCYTENANCY IN COMMONDefinitionEach JT “holds everything and yet holds nothing” – entitled to possession of the whole thing, but nothing in the sense that there is nothing they can point out as their ownEach T in C ons an undivided fractional share of the wholeUpon deathRight of survivorship: when 1 JT dies, their interest is extinguished automatically and surviving JT’s interest is correspondingly automatically enlarged (nothing goes to deceased JT’s estate)When 1 T in C dies, their interest passes to their estate not to the surviving co-owner(s)UnitiesMUST HAVE 4 UNITIESONLY NEED UNITY OF POSSESSIONUnity of possessionAll co-owners equally entitled to use and enjoymentYES – all co-owners equally entitled to use and enjoyment. Unity of interestEach JT holds exactly the same interest in terms of the extent, nature and duration of the interest interest in the entire property.Cannot have unity of interest if you hold interests of a different nature (ex: one holding legal title, other holding equitable interst) Cannot have unity of interest if you only have a fractional share.Unity of titleJTs must derive interest from exactly the same instrument or event. Ex: cannot be JTs if one person gets interest from a will and the other from an inter-vivos giftOften true of T in C but not required. Unity of timeThe interest must have been created at exactly the same moment in time.Exception: may be gifts in a will/trust to a certain class of people as tenants who become entitled at certain point in time when they meet condition precedent such as turning 21 or vested to all grandchildren (need to be born). This is OKOften true of T in C but not required. PresumptionsTraditionally: common law presumed joint tenancy with right of survivorship unless contrary intention shownCan have joint tenancy at common law but tenancy in common in equity equity prevails in case of conflict. Ex: if survivor goes to court to say they are 100% the owner, court would say equitable interest prevails and you are not 100% the owner, instead holding in trust for person who died.TODAY: legislation changed the presumption for ownership of land now the presumption WRT land is tenancy in commonProperty Law Act, RSBC 1996, c 37711.(2) If, by an instrument executed after April 20, 1891, land is transferred or devised in fee simple, charged, or contracted to be sold by a valid agreement for sale in which the vendor agrees to transfer the land to 2 or more persons, other than personal representatives or trustees, they are tenants in common unless a contrary intention appears in the instrument.(3) If the interests of the tenants in common are not stated in the instrument, they are presumed to be equal.Old presumptions continue to apply to personal property JT unless contrary intention.$$$ is not real property therefore JT presumption applies Rebutting the presumption: Jarmon on Wills: anything which in the slightest degree indicates an intention to divide property must be held to abrogate the idea of a JT and create a T in C. Any indication of fractional sharing of ownership or of proceeds in the event of sale ex: equal, equally, share and share alike, share, respectively, enumerated fractions or percentages Presumption of T in C for land harder to rebut.Use of “jointly” not enough Need clear explicit evidenceTraditionally: equity presumed tenancy in common, especially where: 1) unequal contributions (equity assumed intention of parties would be to have ownership in accordance with contribution), 2) mortgagees, 3) business partnersB/c these 3 categories probably didn’t anticipate severe impact of right of survivors/may be unfair. BenefitsIntimacy and efficiency:Enables intimate partners to provide for surviving partnerConsolidation of title in last surviving owner reduces fragmentation of ownership, enhances marketability, facilitates title searchingFairness and predictability: Protects owners from survivorship’s arbitrariness and unpredictability, its drastic and perhaps unanticipated consequencesOften better reflects parties’ actual intentions and contributions Re Bancroft Estate (NS): B’s will directed money to be paid during his widow’s lifetime in “four equal shares” to his three kids and to his deceased daughter Minnie’s children (Paul and Jean). Paul later died, leaving 4 kids. Widow still alive. Does the interest left in the will to Minnie’s children create a JT or T in C? if JT – all the $ goes to Jean; if T in C, half of the $ goes to Jean, half to Paul’s 4 kids; JOINT TENANCY – money is not real property presumption of JT; was repeated use of language indicating sharing BUT this language referred to the four groups (Percy, Aubrey, Florence (living children) and Minnie’s group as a whole); no language suggests that Paul and Jean have any kind of division/sharing/fraction; Jean and Paul had JT so now Jean gets entire share aka ? share in T in C with Minnie’s siblings; RATIO: if no express intention, common law presumes JT for personal propertyNote: Bancrofts will treated great grandchildren differently depending on whether his widow was alive. After widow has died, still same 4 part division, one share goes to children of deceased daughter Minnie, but if any of those children of Minnie are dead, it goes in equal shares BUT if widow is still alive, just goes to the one grandchild (in this case Jean). Court took a literal interpretation. Court said YES Bancroft intended to treat his great-grandchildren differently before and after his widow’s death. Key Rules WRT Joint Tenancies (Re Bancroft Estate):JT in land requires clear words indicating appreciation of distinctionE.g. to A & B as JTs “with right of survivorship” or “not as Ts in C“Jointly” or “as joint tenants” alone probably won’t suffice need to include words that indicate you understand the difference between JT and T in CJT in personalty needs no special words “Jointly” or “as joint tenants” suffices (if silent – X and Y are owners – still presumed to be JT for personalty)JT is negated by slightest indication to contrary (Jarmon on Wills)Parties may hold as JT in law but T in C in equityEg. A & B purchase car in unequal shares, with title in names of A and B, no language to indicate division. A dies. What is the state of title?Severance of Joint Tenancies:Severing a JT converts it into a T in C, destroying right of survivorshipJT severed if any of the 4 unities is destroyed Same principles for severance apply to land and personaltyTraditionally a preference for severance to relieve from harsh and unanticipated consequences of right of survivorship questionable if this should still apply to land since JT in land must be created deliberately 3 Ways to Sever a Joint Tenancy (Williams v Hensman):Unilateral Act by any JT that destroys any of the four unities effects severance of that JT’s share Ex: conveyance to 3rd party or even to oneselfMutual agreement among JTs effects severance of their sharesExplicit mutual agreement amongst the joint tenantModern trend is to say that a charge that is lodged against real estate to secure repayment of a loan does not transfer the legal title to the creditor. If that is the case, probably doesn’t sever the JTCourse of dealing sufficient to show that all JTs mutually treated their interests as constituting a T in C severs all sharesNo explicit agreement but dealings show that implicitly they all treated each other as T in C’s not as JT’sNegotiations without formal agreement can suffice but party claiming severance must prove on BoP that parties mutually considered JT ended (Havlik)Onus of proof is on party claiming severanceSorenson Estate v Sorenson (AB): divorced couple owned land as JTs. 1971 agreed to sell part of land and lease house to ex-wife for her life and place charge against husband’s interest to secure child support payments. 1974 ex-wife dying of cancer and executes trust deed declaring she held her interest in the land in trust for developmentally disabled son, executed transfer of land to him which solicitor would register upon her death in order to sever JT. Ex-wife also executed will leaving property to her daughters in trust for her son and moved for partition but died before motion was heard. Ex-husband claiming sole ownership of land as surviving JT (right of survivorship) which would deprive son’s trust of almost all assets. Was the JT severed before ex-wife’s death? YES – severed JT by unilateral act declaring in the trust deed that she now held the land as trustee for her son – this went beyond intent and was a legally Declaring in trust deed that she was severing JT NOT sufficient b/c didn’t accompany declaration with any act that had legal effect – needed lawyer to fill out title transfer docs and register themCommencing action for partition NOT sufficient b/c incompleteExecuting land transfers to son and delivering to lawyer to hold until her death NOT sufficient b/c she needed to give the docs legal effect before her deathExecuting will leaving her property to daughters as trustees for son NOT sufficient b/c a will doesn’t take effect until death and then cannot operate to change legal statusException: if all JTs wrote wills purporting to sever JT and distributing their title, may be evidence of severance by course of dealing1971 settlement did NOT sever JT by agreement Agreeing to divide title to matrimonial home and sell vacant lot was not enough b/c ex-wife’s actions indicated she believed she had to do more to severLeasing matrimonial home not enough if JTs agree to lease land to one of them for the lifetime of that JT, does not sever the JT Act relied on must be inconsistent with the right of survivorshipCharging husband’s property interest as security for payment of child support not enough modern trend is to say that a charge that is lodged against real estate to secure repayment of a loan does not transfer the legal title to the creditor. If that is the case, probably doesn’t sever the JT. CONDOMINIUMCondominium:Purpose:Facilitate multi-unit residential and commercial development by stacking land ownership interests in a vertical columnLimitations of other methods of vertical stacking of land ownership?Leasehold – limited in ability to attract participants because:1) Tenant does not share in increase in value of asset2) Tenant doesn’t have same security of tenure as fee simple ownerLong-term leases – lose value over time “wasting asset”Phenomenon in Vancouver that long-term leases seem to keep market value until their last 30 years (trading almost at same value as fee simple)Cooperative ownership – share in increases in profit but hard to get a loanEmergence and spread of condominium1961 US National Housing Act amendment1966 BC Strata Titles ActThroughout common law world by 1970Basic Idea of Condo Ownership:Individual ownership of a single unit in a multi-unit development, shared ownership of common elements through condominium corporation, and right to participate in governance of corporationKey terms in BC: strata lot, strata plan, common property, limited common property, strata corporation, bylaws, air space parcel (volumetric parcel, whether or not occupied in whole/part by another building/structure may be subdivided in accordance with Strata Property Act)Key Features of Condo Ownership:Strata Property Act, SBC 1998, c 43239 (1) Land may be subdivided into 2 or more strata lots by the deposit of a strata plan in a land title office.Strata lot is created by a strata plan(2) The strata lots created by the deposit of a strata plan may, subject to this Act, devolve or be disposed of in the same manner and form as any land the title to which is registered in a land title office.Strata lot is simply land1???(1)In this Act:"common property"?means(a) that part of the land and buildings shown on a strata plan that is not part of a strata lot"limited common property"?means common property designated for the exclusive use of the owners of one or more strata lots;"strata lot"?means a lot shown on a strata plan2 (1) From the time the strata plan is deposited in a land title office,(a) a strata corporation is established, and(b) the owners of the strata lots in the strata plan are members of the strata corporation ....(2) Subject to any limitation under this Act, a strata corporation has the power and capacity of a natural person of full capacity.3? Except as otherwise provided in this Act, the strata corporation is responsible for managing and maintaining the common property and common assets of the strata corporation for the benefit of the owners.4? The powers and duties of the strata corporation must be exercised and performed by a council, unless this Act, the regulations or the bylaws provide otherwise.119?(1) The strata corporation must have bylaws.(2) The bylaws may provide for the control, management, maintenance, use and enjoyment of the strata lots, common property and common assets of the strata corporation and for the administration of the strata corporation.The Rise of Condominium (DC Harris, “Condominium and the City: The Rise of Property in Vancouver”):Increases the density of private ownership interestsChanges the character of citiesIncreases the availability of home ownership?For affluent professionals?At the expense of affordable (rental) housing?Fuelling rising house prices?Changes the meaning of private property?Does embedding private property within “vertically gated” communities inculcate virtues of cooperation, trust and honesty and weaken an individualistic, detached, despotic sense of private property?Or enhance that detached individualism by limiting “community” to a small group of ownersIs it having desirable or undesirable effects on the institution of private property?How they operate in Vancouver could be seen as undesirable strata bylaws can control use/enjoyment of strata lot itselfInterfering with personal autonomyRental rate requirements make it difficult for owners to rent outDecreases the availability of affordable housingMisbehavior:Metropolitan Toronto Condominium Corporation No 747 v Korolekh (ON): resident of a 30-unit townhouse condo persistently threatened, intimidated, watched, beset, verbally abused and physically assaulted other residents and vandalized their property, terrorizing them and destroying the utility of their shared courtyard. She ignored repeated demands to stop. The condo corporation sued for an order requiring her to sell and vacate her unit. Can she be forced out? YES – relatively small community, one common space for whole building which had utility totally destroyed; extreme behaviour; court not in position to supervise her; s117 of condo legislation prohibited conduct likely to damage property; court issued order of eviction and sale; RATIO: people join condos voluntarily on basis that they agree to share certain property and abide by set of rules that protect collectivity. No right to continue membership once clear intention to harm and persistent violation of rules occurs. BC Strata Property Act:173? (1) On application by the strata corporation, the Supreme Court may do one or more of the following:(a) order an owner, tenant or other person to perform a duty he or she is required to perform under this Act, the bylaws or the rules;(b) order an owner, tenant or other person to stop contravening this Act, the regulations, the bylaws or the rules;(c) make any other orders it considers necessary to give effect to an order under paragraph (a) or (b).Owners of Strata Plan LMS 2768 v Jordison (BC): owners of a Surrey condo unit subjected their neighbours to excessive noise, abusive language, threats, harassment and obscene gestures for years. They ignored repeated warnings and $30,000 in condo fines. The strata corporation sued for an order to force sale of the unit. BCCA 2012: court ordered owners to stop the offending behaviour but refused to order eviction and forced sale because owner was not (yet) in breach of a court order to stop the offending behaviourBCCA 2013: owners ignored the order, court found them in contempt, ordered eviction and sale ABORIGINAL TITLEReconciliation:What does it mean?Reconcile prior indigenous occupation with Crown sovereignty? (SCC)Restore a nation-to-nation relationship between indigenous and settler peoples based on mutual respect, a relationship thatEmbraces indigenous peoples’ right to self-determination within and in partnership with Canadian sovereigntyRecognizes, repudiates and remedies colonialism? (TRC)Key challenge for settler law and lawyers:Decolonize Canadian lawWhat does it mean to decolonize forms of law?What would it mean to have a set of property law systems based on a nation to nation relationship with indigenous peoples based on mutual respect and embraces indigenous peoples’ right to self-determination?Would have to approach legal process knowing that our settler system is not the only legitimate system operating in this territory History of Settler Law:Terra nulilusColonial doctrine which presupposed that before Euro arrival, the world was mostly no man’s land waiting to be settled by civilized peoples. 1763: Royal ProclamationOnly Crown may acquire Indian lands, via public meeting & treaty18th-19th C: Historical treaties1876: Indian ActSubordination, assimilation, criminalization1888: St Catherines Milling (JCPC) Merely personal & usufructuary right1951: Indian Act reforms 1973: Calder (SCC)Aboriginal land title persists unless extinguished1982: Constitution Section 35(1)“The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.” Constitution Act, 1982, s. 35(1)Three classes of rights:Treaty rights: specific rights conferred by treaty with the Crown (eg hunting, fishing, trapping, trading)Aboriginal rights to engage in certain activities (eg hunting, fishing, trapping) that were integral to the distinctive culture of an aboriginal group at the time of European contactAboriginal title to historic territory not ceded by treaty1984: Guerin (SCC)Aboriginal title sui generis, inalienable, burden on underlying Crown titleSui generis = in a category of its own – not like anything else1990: Sparrow (SCC)Infringement of s 35 rights requires 2-part justificationSee Sparrow Test1996: Royal Commission on Aboriginal PeoplesCreate new relationship based on indigenous self-determination, mutual recognition, respect, sharing 1997: Delgamuukw: aboriginal title testTest for proof of aboriginal title and the principles/rules about the content of aboriginal titleDealt with rules about what type of infringement can be justified 2014: Tsilhqot’in: aboriginal title award2015: TRC Final ReportCame out of the legal action by residential school survivorsRepudiate doctrine of discovery, re-establish nation-to-nation relationship of mutual respectGitxsan Land Law:“the ownership of territory is a marriage of the Chief and the land. Each Chief has an ancestor who encountered and acknowledged the life of the land. From such encounters came power.”What are the nature and source of ownership?Initial meeting between people coming to an area and land and spirits within the landPower exchanged between the parties that permeates both of themRelationship that is continually reproduced and reaffirmed through various ceremonies Marriage/fusion of chief and land arranging from the initial encounter of the chief’s ancestors and the spirit of the land creates power Who holds the ownership interest?Passed from generation to generationWithin the house – collection of familiesThe house = a kinship groupMarry outside the clanInterest is not held by any individual, not held by clan, not by the territoryInterest is held by the house (the “basic property-holding entity”)What interest do they hold?Daxgyet – power that emerges from the marriage of the chief and the spirit of the land = the main possessionHas obligation of power and respectHas obligation to continually reaffirm relationship Other view – doesn’t just constitute daxgyet, also includes:Adaawk – formal oral histories which enshrine the lawYukw- feast with which people formalize their social, legal, and political affairsHalayt powers- function independently of connection to the landNaxnox- songs, dances, and masks used in performance used in yukw?Wilp - house, family houseWhat is the content of the interest? What type of right is it?Territory may change hands but always retains its integrity – cannot make it smaller or biggerIntegrity/inalienability of the territoriesMay be transferred to another house as remedy for breach but cannot get split/etc.Jurisdictional right jurisdiction to govern the territory, allocate rights of use, etc.Property right attaches to names which are held by different people at different timesPrimary rules rules that have to be followed to carry out one’s reciprocal obligations to othersNot just relationships among people being governed also relationships/ obligations/rights that are reciprocal between people and things (land/animals/spirits all legal subjects)Secondary rules the rules about the feast hall who can speak, what they an speak of, validation stories, succession of individuals to particular chiefly namesBasic constitutional laws can’t marry someone in own clan, inalienability, absolute liability for people in territoryWhat are the remedies for breach of rights and obligations?Compensation when you commit a crime against another houseTo relinquish wealth, means, crests, territoryCompensation owed by one house to another absolute liabilityMay have to relinquish certain elements of your property, up to and including the entire territory itself – may be temporary or could be permanentNot the most common remedy for breach (this is for extreme cases)Withdrawal of support, isolation, ostracism “Social stigma”Most common remedy for breachSelf-retributionUp to and including taking a human life (?)Often involve independent third party mediatorsWhat sort of legal system is this?Biocentric: Subjects include all creation—people (dead, living, future), land, water, animals, spiritsNot just people/artificial people (corporations, etc.)Complex, decentralized: Small number of legal rules + multitude of kinship connections support deep, sustainable culture“Public” and “private”: System of both collective self-government and individual property rightsGitxsan legal systemSettler legal systemSmall number of rules, effected through multitude of kin connections & decentralized, complex legal orderExtremely large number of rules, effected through hierarchical, simply connected organizational structuresKinship-based social organization requires decentralized governance structures characterized by complex partiality, consensus, factionalismImpersonal one-person, one-vote political organization requires centralized, hierarchical government by specialists, strict impartialityPrimary territory-holding, self-governing entity is the HousePrimary territory-holding, self-governing entity is the band, corporation or NationProperty is defined by reciprocal interaction (of lineage and spirit, host and guest); preference for inclusive co-managementProperty is defined by exclusion of others from the owned land; preference for exclusive land titleAboriginal Title Litigation:Delgamuukw and Tsilhqot’in addressed three themes:What is the test for proof of aboriginal title?What is the content of aboriginal title?May aboriginal title be infringed?Proof of Aboriginal Title (Delgamuukw, refined in Tsilqot’in):Land must have been occupied prior to British sovereignty (sufficiency)In BC 1820s/30s (1846?)Must have been a sufficiently strong presence on the land If present occupation relied on as proof of pre-sovereignty occupation, occupation must be continuous (continuity)May be an interrupted/incomplete continuityOnly applies if using present occupation as proofIf bringing direct proof of pre-sovereignty occupation, this part doesn’t apply directlyAt sovereignty, occupation must have been exclusive (exclusivity)Sufficiency:Judge sufficiency from dual perspective: aboriginal laws, customs, practices + common law occupancy principlesBefore British sovereignty, did group act in way that would signal to 3rd parties that it held the land for its own purposes?Characteristics of group (size, lifestyle, resources)Characteristics of land (carrying capacity, what sort of activities does it support)Site-specific intensive occupation (Cultivation, settlement) sufficient but not necessary (Tsilhqot’in); need “strong presence”Regular harvesting, hunting, fishing, or other strong presence sufficient even if shifting, nomadicTiming: why British sovereignty? Seems like artificial measure significant date for settler legal system but not for indigenous systemIntensity: why does it matter how intense/strong the presence was on the land? Double standard why not an assumption of aboriginal titleContinuity and Exclusivity:Continuity: present occupation must be rooted in pre-sovereignty times, not necessarily uninterruptedExclusivity: group must have had intention and capacity to exercise effective controlDelgamuukw talks about exclusive control while Tsilhqot’in talks about exclusivity but uses phrase “effective control” unclear whether this is an attempt to step back from the strong standard of exclusivityDual perspectiveCharacteristics of claimant & other groupsCharacteristics of landActual exclusion, granting or refusal of permission, laws, treatiesShared exclusivity possibleExclusivity: why should it matter? What about overlapping territories?Defining characteristic of property today is not the right to exclude, it is the right to govern the property (argument from Gregory Alexander)Content of Aboriginal Title:Legal character:Sui generis; inalienable except to CrownCommunal: held collectively by entire nationArises from prior occupancyPhysical fact of occupation plus aboriginal lawA burden on radical or underlying Crown titleCrown retains no beneficial interestCrown retains fiduciary duty and power to infringe in the public interestInalienability: why? Doesn’t make sense to get rid of the land if you are supposed to be making a relationship with the landBut why does the Crown feel it has to have this fiduciary relationship? Why does it have to protect the inalienability of aboriginal land?Is this intended to be a reflection of what the indigenous law was? Underlying Crown title: How?Why should provincial laws apply on lands held pursuant to aboriginal title?Road traffic rules – need to be universal for safety purposes Counter-argument – many small countries in Europe with different rules – they manage to coordinate/stay safeHowever, mining/logging can have a real effect on aboriginal titleRights and Limitations:Rights:Exclusive use and occupation for variety of purposes not limited to traditional activities that were integral to the distinctive aboriginal cultureDecide use; occupy & possess; economic benefits; use and manage; modern waysSimilar to but not same as fee simpleInherent limitation:May not use land in manner irreconcilable with nature of group’s attachment to landMay not destroy land’s value for its historic use; may not deprive future generations of benefit of landDifferent emphasis between Delgamuukw – focus of inherent limitation is backwards looking – may not destroy land’s value for its historic use, and Tsilhqot’in – focus of inherent limitation is forward looking – may not deprive future generations of benefit of the landInfringement: To justify overriding group’s wishes on basis of broader public good, Crown must show thatIt discharged its duty to consult & accommodateIt acted in furtherance of a “compelling and substantial” legislative objectiveIt acted consistent with its fiduciary dutyInfringement: is it consistent with reconciliation?Is the availability of infringement consistent with reconciliation/a relationship that is nation to nation and based on mutual respectIrony of the duty to consult and accommodate – arises due to infringementIs the duty to consult/accommodate just a strategy for governments to cover themselves/lay the groundwork for infringement? Duty to Consult:A duty to listen/consider doesn’t give “veto” to first nation; not a requirement of consentBefore aboriginal title establishedIf Crown has real or constructive notice of potential or actual aboriginal title, has duty to consult and accommodate proportionate to strength of claim and severity of impactPreserve interest pending final resolutionAfter aboriginal title establishedCrown must obtain consent or justify infringement (highest level of consult & accomm)May need to reassess prior conductBoth before and after:Governments and individuals proposing to use land can avoid trouble by obtaining consentCompelling and Substantial Legislative Objective:Must further reconciliation of prior aboriginal occupation with Crown sovereignty, by pursuing objectives that are of compelling and substantial importance to ‘broader community’ as a whole, including aboriginal peoplesSuch as…development of agriculture, forestry, mining, hydro power, economic development, protection of environment or endangered species, infrastructure, settlement, fisheries conservation… Must be consistent with Crown’s Fiduciary Duty:Process and substance of government action must reflect group’s prior interestEg aboriginal participation in resource development; preferential terms; fair compensationMust not deprive future generations of benefit of landMust satisfy Oakes-style proportionality testDelgamuukw v British Columbia (SCC): The Gitxsan and Wet’suwet’en nations have occupied an area of what is now northwestern BC for millennia. They have asserted their sovereignty and jurisdiction over the area since before first European contact, but settler governments repeatedly refused to acknowledge or negotiate their claims, granting land ownership and resource rights to thousands of settlers. In 1984, 48 hereditary chiefs launched a lawsuit claiming ownership and jurisdiction over 58,000 km2 on behalf of their respective Houses; title not found; RATIO: test for aboriginal titleDelgamuukw claim rejected on a technicality, parties urged to go back to tableLand claim still unresolved 18+ years laterRatio has to do with a defect in the pleadingsTsilhqot’in Nation v British Columbia (SCC): The Tsilhqot’in nation has occupied an area of what is now the BC interior for centuries. In 1983 BC issued a commercial logging licence over part of the territory. The nation sued for a declaration prohibiting logging on its territory. After a blockade, BC promised no further logging without the nation’s consent, but talks broke down. In 1998 the nation amended its lawsuit to claim aboriginal title to around 5% of its territory; claim upheld – aboriginal title declared first court declaration of aboriginal title in history; Crown breached duty to consult; RATIO: modifies test for aboriginal titleTsilhqot’in nation, settlers and settler governments continue to work out implicationsEASEMENTSWhat is an Easement?A privilege annexed to one piece of land for the benefit of the first piece of land, to:Use another piece of land in a particular manner, other than harvesting produce or extracting natural resources (positive easement)Eg travel over, flood, take water, erect signs, place wires or pipes, excavate tunnels, deposit effluent, smoke or soot, emit noise, use kitchen or bathroomPositive easements = more commonNote: authorities describe emitting noise or depositing smoke/soot, depositing effluent as negative easements Wood doesn’t agreeOR prevent the other owner from using her land in a particular manner (negative easement)Eg block light or air, remove support Elements of an Easement at Common Law (Re Ellenborough Park):Must be a dominant tenement (benefitted by easement) and a servient tenement (burdened by easement)Easement must accommodate and serve the dominant tenementDominant and servient tenements must not be owned or occupied by the same personEasement must be capable of forming the subject matter of a grantAka must be something that we recognize as a property interest1. Dominant and Servient Tenement:Easement must relate to two parcels of landOne that is subjected to the easement (servient tenement), One that is benefitted by it (dominant tenement)No easements in grossEasement that benefits someone other than the owner of a dominant tenementExcept where permitted by common law (USA) or statute Eg public utilities, conservation easementsRequirement of a dominant and servient tenement is partially abolished in BC – only applies to certain types of parties/arrangements (see Land Title Act s218)Land Title Act, RSBC 1996, c 250218? (1) A person may and is deemed always to have been able to create, by grant or otherwise in favour of(a) the Crown or a Crown corporation or agency,(b) a municipality, a regional district, the South Coast British Columbia Transportation Authority, a local trust committee under the Islands Trust Act or a local improvement district,(c) a water users' community, a public utility, a pulp or timber, mining, railway or smelting corporation, or a pipeline permit holder as defined in section 1 (2) of the Oil and Gas Activities Act, or(d) any other person designated by the minister on terms and conditions that minister thinks proper,an easement, without a dominant tenement, to be known as a "statutory right of way" for any purpose necessary for the operation and maintenance of the grantee's undertaking, including a right to flood.(2) To the extent necessary to give effect to subsection (1), the rule requiring an easement to have a dominant and servient tenement is abrogated.2. Accommodate and Serve:Easement must benefit the dominant tenement, make it a “better and more convenient property” (the two part test) + proximityBy enhancing the normal enjoyment of the property, benefitting property itself not owner personallyRe Ellenborough Park (UK): owner of a park sold nearby lots to builders, agreeing that the purchasers and their successors would have "the full enjoyment at all times hereafter“ of the park as a pleasure ground. Is this a valid easement?Two key questions create the test for easement: (From Re Ellenborough Park)1. Does it enhance the normal enjoyment of the property, benefitting the property itself, not the owner personally?2. Does the easement make the dominant tenement a better more convenient property?ALSO servient tenement must be physically proximateWould this arrangement enhance the normal use and enjoyment of the residential properties surrounding the park? YES – using garden is part of normal enjoyment of a house, park designed to provide same amenities as home garden; garden enhanced enjoyment of the homes as homes (vs. zoo or sports arena which don’t enhance normal enjoyment of residential property)Court said that dominant and servient tenement must be neighbouring parcels – don’t need to be adjacent, but must be close enough in proximity to say that they are nearby geographically still an open question as to where to draw the lineNote: emphasis now focuses more on whether it makes it a more convenient and better property instead of normal enjoyment from Ellenborough3. Different Owner/Occupier:Dominant and servient tenements must not be owned or occupied by the same personBecause the owner of the servient tenement already has greater rights over servient tenement than she could grant herself by easementAbolished in BC not a problem for same party to own both parcels of landProperty Law Act, RSBC 1996, c 37718 (5)An owner in fee simple … may grant to himself or herself an easement … over land that he or she owns for the benefit of other land that he or she owns in fee simple ….(7) Common ownership and possession of the dominant and servient tenements does not extinguish an easement.(Easement continues to exist even after the two parcels of land are acquired by the same person)4. Subject Matter of a Grant:Easement must be capable of forming the subject matter of a grantRight claimed must:1. Not confer a right of joint possession or deprive the servient owner of possession, considering that every easement involves some measure of occupation & interference by easement takerGranting a limited class of people an unlimited right to come onto your land and use it for pleasure and recreation is not inconsistent with your retention and possessory right (Re Ellenborough Park)2. Not be too vague – nature and extent of right must be clear from doc creating right3. Be of utility and benefit In short, the list of easements isn’t closed, but the courts control entryShelf Holdings (AB): does an oil pipeline easement over an Alberta farm deprive the servient owner of possession? NO – valid easement; easement gave Husky right to install pipeline on or under land in specified corridor and have right of access for maintenance and to install structures ancillary to pipeline; servient tenements therefore couldn’t interfere with subsoil or erect any works; this was low level interference (just couldn’t make use of portions physically occupied by pipeline) with high degree of control for servient tenementProperty Law Act, RSBC 1996, c 37735?(1) A person interested in land may apply to the Supreme Court for an order to modify or cancel any of the following charges or interests against the land…:(a) an easement; ….(2) The court may make an order under subsection (1) on being satisfied that the application is not premature in the circumstances, and that …(e) the registered instrument is invalid, unenforceable or has expired, and its registration should be cancelled.Robinson v Pipito (BC): owner of 2 lots near Mission, BC registered an easement granting the owner of lot 1 free and uninterrupted access to and use of 80% of lot 2 for farm and recreational uses, plus full rights to all timber, gravel and fill, and obliging the owner of lot 2 not to erect structures or obstruct farm and recreational uses in the easement area. The owner then sold lot 2. Relations soured and the owner of lot 1 sued to enforce the easement; the owner of lot 2 counterclaimed for a declaration that the easement was invalid. Valid easement? NO – too restrictive, essentially grants dominant tenement exclusive possessionReiterates basic rules – easement will always interfere to basic extent but must not fundamentally negate possessory right of servient tenement/must not give exclusive use/possession to dominant tenementCan only look to grant itself, not conduct of parties80% of use is too much (unlike pipeline which is small area of restriction); uninterrupted use AND corresponding obligation on servient tenement not to interfere in any way owner of lot 1 has access to all timber, gravel and fill and grantor of easement cannot interfere Note: similar to restrictive covenants – if the easement no longer in effect, but would have effected initial purchase price, then the servient tenement can go sell the land for way more than they paidHowever, this is not what the common law or statutes sayIf instrument was invalid initially – not capable of forming subject matter of the grant, there was never an easement in the first placeHow to Create an Easement:1. By express grant or reservationGrant of easement may be included with a grant of landEg vendor V severs and sells lot to purchaser P, granting P a right of way over V’s remaining lot to access P’s lotOr may be independent of any other grantEg owner of lot A grants owner of lot B a right of way over lot A to access lot BReservation of an easement may be included with a grant of landEg vendor V severs and sells lot to purchaser P, reserving for V a right of way over P’s lot to access V’s remaining lotExpress grant should clearly identify:The dominant tenementThe servient tenementThe nature, scope and duration of the easementParties’ rights and responsibilities regarding the easement2. By ImplicationEasement may be implied in absence of express agreement in several situations, eg:A. Pre-existing quasi-easementB. Common intentionC. Easement of necessity (Nelson)A landowner may claim an easement if the claimed right is absolutely necessary for enjoyment of alleged dominant tenement (eg a landlocked lot), and both tenements had a common prior owner whose disposal of the dominant tenement rendered all use of it impossible unless the easement is impliedThe dominant tenement must be absolutely inaccessible or useless without the easementD. Prescriptive easement E. Via the doctrine of promissory estoppel3. By statuteMany easements are created by statute, egIn favour of condo units and common elementsIn favour of public utilitiesIn favour of land conservation groups (conservation easements)Dedication of a Public Highway (Nelson):Public highway gives up all proprietary interest in landTest: at common law, dedication will be found:1. Where there is an actual intention to dedicate,2. The intention has been carried out by the way being thrown open to the public;3. The use of the way as a highway has, in some demonstrable way, been accepted by the publicPresumption against dedication of public highway b/c complete extinguishment of property rights courts look to cogent and substantive evidence of intention and of actual act of “throwing it open” and public acceptance of it (neighbourly tolerance not enough)Nelson v 1153696 Alberta Ltd (AB): In 1985 Nelson bought land near Edmonton accessible only by a private road over a neighbouring farm. He developed it into a water ski park without municipal approval. (He got a development permit saying he may develop provided he get approval to access the lands – never got this – did it anyway) The farmer never granted him an easement to use the road but he and his customers did so for 20 years until the farm’s new owner barred them. Did farmer dedicate road as public highway? NO. Did Nelson have easement of necessity? NONo dedication of public highway:Previous owner said he had no intent to dedicate public highwayClear evidence of substantial public use BUT no intent to throw open to publicNo easement of necessity:Nelson “author of his own misfortune” by not doing due diligence when he bought land AND by failing to remedy situation and going ahead anywayMissing crucial piece of evidence – missing original grant or letters patent from Crown to find out whether easement of necessity would have been implied at time it was grantedHad found this by time of appeal but majority refused admit it as evidence (dissent would have considered the evidence AND found easement of necessity)Even if easement of necessity was implied originally, inconceivable that it would have followed the particular path in question (red herring – if you have easement of necessity, court determines where it is or you negotiate)Dissent says to look to practicalities of access – if access using river is impossible for substantial portion of year, it is not accessible by waterHirtle v Ernst (NS): lakefront lot on Big Mushamush Lake, NS, was accessible only via private paths unfit for vehicles over neighbours’ land. There was no water access to transport construction materials. Plaintiff tried and failed to purchase a right of way, then bought the lot anyway. He now wants vehicular access over the neighbouring lots to build and use a cottage. Landowner purchased lot knowing local bylaws wouldn’t allow transport of construction material forged ahead like Nelson BUT easement of necessity found – lot completely inaccessible without implied right of way that allowed vehicular access; had to do with right of development land would be sterilized/only available for tenting w/out easementACCESS TO PUBLIC AND PRIVATE PROPERTYGuest Lecture: Anna Cooper – Pivot Legal Society: Where Human Rights and Property Law Collide – Housing exclusion and the significance of public space:The Bundle of Rights:You need to have the property first to exercise your bundle of rightsEx: if you don’t own property, how can you:Use and enjoyExcludeTransfer (alienate)ControlWhat property rights let you do:Store belongingsPrivacyChange the spaceCreate boundariesBe unwatchedProtect yourself from the elementsIn some countries, housing is a right. Not in Canada.No requirement to provide housing, shelter beds, etc.“If you don’t have somewhere to be, not up to the government to fix it” not like this everywhere in the worldInternational Human Rights Law:Canada is a signatory to human rights instruments, which include the right to housing, adequate standard of living, etc.However, none of these enacted into Canadian law only have persuasive power McLachlin in Gosselin:You have s7 rights but no positive obligation on the state to ensure that each person enjoys these rights – life, liberty, security of the personS7 just seen to restrict state’s ability to deprive people of these rights Government can’t get in the way of you pursuing those rights but no positive obligation to provideThe Right to Save Your Own Life:Positive v negative rightsR v Rodriguez – government doesn’t have to help you commit suicide, but can’t stand in the wayR v Morgentaler – government doesn’t have to help you get an abortion, but can’t stop you from pursuing those rightsTo get around issue of no positive obligation WRT homelessness – need to identify the way the government is stopping you from getting your s7 rightsRecall…Victoria (City) v Adams:Basic issue is the “inevitable conflict between the need of the homeless individuals to perform essential, life-sustaining acts in public and the responsibility of the government to maintain orderly, aesthetically pleasant public parks and streets”A balancing act between essential, life-sustaining acts and aesthetic parks…Bylaw in Adams violated s7 and wasn’t saved by s1Homeless are part of “the public” not just “the homeless” and “legitimate citizens”The homeless sleeping in a park is a public useAbbotsford v Shantz:Shantz and other homeless individuals entered Jubilee park – evicted, case went to trialBylaw denied access to public space without permits and prevented from erecting temporary sheltersCourt recognized some key things:Accessibility issue – there is insufficient accessible shelter space in the City an empty bed doesn’t necessarily mean a homeless person cannot use that bed. A bed doesn’t equal a space for a person. Mental health issues (claustrophobia)Long term partners Pets prohibitedStruggling with addiction – cannot meet requirements of shelterSome shelters only open depending on temperatures – how do you know its open? Can’t leave your belongings there. Will it be closed next day?Displacement = harm – repeated displacement often leads to means of homeless to more remote isolated locations to avoid detection makes it more challenging to support people and increases health and safety risks.Homeless people getting moved all day long – cannot sit in one space for more than 20 minutes at times, whereas people who are not visibly homeless would not get asked to move Displacement alone is psychologically harmful – having nowhere to go, constantly getting movedDisplacement is practically harmful – pushed further to fringes of society Continuous movement is a big part of the problemImpossible to form and maintain relationships if you can’t be in a place where people can’t find youDownsides to Shantz:Court nonetheless decided that the outcome should be that people are allowed to be in public places and erect overnight shelters from 7pm to 9am (but then have to remove)Court grappled with issues facing the homeless, but still decided 7pm to 9am was sufficientWhat about the need for shelter in the day? The court addressed this but didn’t do anything about it Note: issues with these cases:You often want to bring a case but you aren’t comfortable making a case depending on the evidence etc. for fear of creating a bad precedentMost cases happen at the injunction stage British Columbia v Adamson:First time homeless encampment was successful at injunction stageAt the injunction stage, although ultimate question was about bylaw, the status quo between now and trial is that the camp was allowed to remainEviction notice given but court stepped back and considered whether there were competing rights at the moment1. Is there a fair matter to be tried?2. Balance of convenienceStrength of the applicant’s caseFactors affecting the public interest Interest of the broader public in this camp being or not being here can go both waysIrreparable harm If at the end of the day we decide the camp shouldn’t be here, what is the harm to the government?Some damage to the land, some garbage pickup neededIf the homeless are moved and in the end they had the right to be there? Harms of displacement, accessibility, how do you get to day job?Status quo; and,Any other factorsAssessing “the balance”:As case law develops, questions of what to consider in the balance of convenience have gotten more complicatedDoes the need outweigh the number of accessible spaces?Does the camp inhibit the public?Does it threaten health and safety?Does it comply with fire code?Does it encourage crime?Does it improve the lives of the occupants?Sleep, eating, stress, service access, safetyWhat would the impacts of an eviction be?Anita Place Tent City:Latest case; moved forward with this case because thought this would be a viable case for moving forward to the 24/7 argument for these campsCamp shut down based on promise that the people would have space – shelter closed one year later and went back to campCity brought in application to shut down the campChallenges:To get the injunction, need the stories of the individuals at the camp – go to the camp and type out stories as they tell you, print asap, get signed because people are transientPracticalities of what is needed for an encampment defence is difficult Can’t just have a few affidavits because you get accused of cherry picking the worst stories – need as many stories as possibleVery difficult to identify who your client is or provide that info – cannot get signed retainer, majority of homeless people don’t have IDID issue can be dealt with in some ways by having other members of camp identify each other – not currently being challengedMembers of the camp don’t all want the same thing – to follow code of conduct exactly would be to not represent the clients because cannot represent all the interestsTo get around this, hold vote to elect a group of people can agree, provide foodWhat happened:City “pressed pause” on injunction once they saw the evidence because would likely have lostCity now not evicting but blocking access to the needs (port a potties, etc.)City waited until camp was deemed fire risk and then brought injunction back based on fire safety argumentPivot was able to bring forward some arguments because there were previous fire fighting volunteers, plans, would have done this somewhere else otherwiseCity backed off because province said they were willing to pay for port a potties city realized court would have no sympathy because the city wasn’t even just unwilling to pay for things, they were preventing the province from payingNext:Led to consent orderCity willing to drop case if signed consent order camps agreed to be more safe, addressed fire safety issues, etc.Gives city a way to say they won something and camp still exists (“save face”)Key progress – got city to agree that occupants required certain services and supports to be provided to them to maintain compliance with Fire Safety RegulationsPositive obligation on the cityNot binding because not in court, but persuasive Camp is still thereNote: sometimes better not to have lawyerIf courts are going to let rules slide, will be when there are self-represented litigantsDoesn’t always workPivot working on how-to guide for encampment defencesSuccess in these cases generally means you get to stay in the homeless camp…but:Still not your propertyNo legal ability to block people from entering it, cannot get mailConstant state of indeterminacy Still better than nothingOther issues:Strong othering of peopleCommon law recognizes right to public assemblyMost significant constraints in Canada on right of exclusion and control of public property are the limitations that arise out of the CharterBatty v Toronto (City) (ON): protestors occupy park for occupy Toronto movement; issued a trespass warning that prevented them from creating shelters and being in the park from midnight to 5:30 am; Does the trespass warning violate section 2 (a) (b) (c) and (d) of Charter? YES but saved under s1; Charter offers no justification for protestors taking up large portion of public spaces for indefinite period; city still allowing them to gather in park some of the day – restrictions are reasonable; RATIO: courts will take into account the needs of a community as a whole when ruling on the justification of a government restricting people from protesting in a public place.COVENANTSWhat is a covenant?A contractual promise to do or refrain from doing something, eg. Purchaser covenants to use land only for single family dwelling; Vendor covenants to maintain boundary fenceCovenantor (promisor): bears burden of covenant (obliged to perform the promise)Covenantee (promisee): enjoys benefit of covenantTypes of covenant:Restrictive (negative): requires the covenantor to REFRAIN from doing somethingEasier to enforce vs. positive covenantEx: don’t build, cannot operate X type of businessCan raise public policy issues ex: do not sell to certain class of peoplePositive: compels the covenantor to DO somethingEx: erect or maintain particular structure, make payments Freehold covenants are given in connection with grant of a freehold estate in landLeasehold covenants are given in connection with grant of a leasehold estateKey to distinguish between positive and negative: can you fulfill the promise by doing nothing? If yes, it is a negative covenant. If to fulfill the promise you must take some positive action, it is a positive covenant. Contemporary Relevance of Covenants:Prominent private land use planning toolTo restrict competition or share costs of commercial developmentsTo control the use and appearance of a residential community or commercial complexSize, style, materials, colour schemes of buildingsSolar panels, wind turbines, clotheslines, satellite dishes, basement apartments, home businesses, parking RVs or unused carsLandscaping, grass height (would be positive – have to cut grass to maintain at certain height), swimming pools, holiday decorations, window coverings, succahs on balconiesEnforcing Covenants – General:Covenants are always enforceable between the original contracting parties due to privity of contractLeasehold covenants may be enforceable against new landlord or tenant due to privity of estate (recall Landlords’ and Tenants’ Interests and Obligations) so long as they touch and concern the demised premises Enforcement of a freehold covenant against covenantor’s successor in title or by the covenantee’s successor in title can be problematicEnforcing Covenants Without Privity of Contract:Freehold covenants are usually unenforceable in the absence of privity of contractThere are exceptions, but the rules are obscure, illogical, often fail to accommodate the legitimate expectations of parties to real estate transactionsTwo distinct questions:Running of the burden: When does the burden of a covenant bind the covenantor’s successors in title so that they may be sued to enforce the covenant? Running of the benefit: When does the benefit of a covenant pass to the covenantee’s successors in title so that they may sue to enforce the covenant? The Burden:At law, the burden of a covenant does not “run with the land”—period.A person cannot be made liable on a contract to which s/he was not partyApplies both to negative and positive covenantsIn equity, inequitable to allow successor with notice of covenant to ignore it (Tulk v Moxhay)B/C when original purchaser bought land taking on burden of promise, that burden would affect price they are willing to pay reduces value. If you pay a lower price and then can go sell it to someone else who will be unrestricted this is unfair to original seller. Would otherwise allow you to purchase land at artificially low price unjust enrichmentTulk v Moxhay (UK): 1808 Tulk sold Leicester Square Garden to Elms, who covenanted to maintain it “in proper repair as a square garden and pleasure-ground, in an open state, uncovered with any buildings.” Moxhay later purchased the land with notice of the covenant, but gave no covenant himself. Moxhay later (1840s) wanted to build. Tulk, who still owned several houses on the Square, sued to stop him.Can covenantee Tulk sue covenantor’s successor Moxhay to enforce the covenant? YES – question for court of equity is not whether covenant “runs with land” but whether a party shall be permitted to use the land in a manner inconsistent with the contract entered into by his vendor, and with notice of which he purchased would be inequitable to allow successor with notice of covenant to ignore it; T got injunction to stop M from developing

Modern rule (refining/narrowing Tulk): Burden of covenant will “run” in equity where:1. The covenant is restrictive, ie negative in substanceWas the covenant in Tulk restrictive? Yes b/c dispute was over whether Moxhay could build (also had positive character WRT garden upkeep)What is the test? Often tricky to apply, eg any dwelling must be at least 2000sf; must not cause or permit dilapidation of buildings; all buildings must be constructed with brickComply by doing nothing2. The covenant was intended to run with the land To bind successors, not just covenantor personallyUse language like “this covenant is intended to run with the land and bind successors”3. The covenant benefits another, dominant propertyMust be another piece of land benefitted by the promise requires at least two parcels of land involved in the relationship (burdened land – servient tenement, and benefitted land – dominant tenement)Covenants in gross are unenforceable absent privityCovenant in gross = promise that benefits some covenantee (person) but not particular piece of landEg covenant in favour of municipality, homeowners’ association or nature conservation group (conserve land by binding future owners of land to protect some wetland make promise to conservatory group that they will not disrupt land BUT the conservatory group doesn’t own a piece of land benefitted by that arrangement – if farmer sells that land, the new owner of the land won’t be bound by the promise even if they have notice b/c no dominant land benefitted)Covenant must actually be capable of benefiting the dominant landMust touch and concern the dominant land, ie. affect mode of occupation or directly affect value of landDominant land must be physically proximateDoes this requirement make sense?Operates as a filter for enforcement having identifiable piece of land that is benefitted in discernable way by a covenant provides rationale for enforcing promises against people who didn’t make promises (in absence of privity); whereas if they weren’t required it might open gates too much to enforcement of claims that don’t have enough merit for court to impose them on parties who didn’t actually make them4. Equity is otherwise prepared to step inSuccessor in title must take with notice; unenforceable against bona fide purchaser for value without noticeNot a problem today due to registry systemsDo non-competition covenants touch and concern the covenantee’s land?Oliver Wendell Holmes, 1885: no, they merely increase value of covenantee’s land indirectly by excluding competitors from the market (Norcross)Today common law consensus is that non-compete covenants are capable of touching and concerning the land so long as there is adequate proximity affect mode of occupation of the land (conducting a business is part of the mode of occupation) and affect value of land by directly restricting activities that determine the market value of the landConsider a spectrum of restrictions:Ban on all or virtually all businesses? Clearly affects mode of occupation and value – satisfies touch and concern testBan on specific kinds of business (eg gambling, strip clubs, sex toys, porn) different than covenantee’s? Still affects mode of occupation by preserving a particular character of an area – probably touches and concerns the landBan on same kind of businessSwan Properties v Irving Oil (NL): covenant was annexed to a vacant lot in Clarenville, NL prohibiting use of land for restaurant or “confectionary” sales, in favour of 12 dominant tenements ranging across eastern NL, including an Irving “Big Stop” restaurant 4-5 km away. The owner of the vacant lot wanted to open an A&W franchise and a “Movie Gallery” and acknowledged that this would violate the covenant. Did covenant touch and concern Big Stop? YES – notion of competition zone geographic zone within which two properties compete; Big Stop within same town, short drive away, small town880682 Alberta Ltd v Molson Breweries Properties (AB): 1994 Molson closed and sold its Calgary brewery, taking a covenant from the purchaser not to use the site for a brewery, for the benefit of Molson’s Edmonton brewery, 300 km away. Purported dominant tenement is 300km away from servient tenement. Can new company set up microbrewery? YES b/c lacking sufficient proximity for Edmonton brewery to touch and concern the property; slippery slope for unlimited geographic extent (ex: Microsoft enforcing restrictive covenants worldwide)PRIORITIES AT COMMON LAW AND IN EQUITYCommon law and equity developed own rules to determine who should prevail over the property right between the true owner and the good faith purchaser.Basic priority principle at common law: Interests rank in order of creation “first in time is first in right”Follows nemo dat principle: nemo dat quod non habet = one cannot give what one does not haveExceptions to Basic Priority Principle:ScenarioPriority Rule1. Legal interest followed by legal interestPrior interest wins2. Legal interest followed by equitable interestPrior interest wins, if equities are otherwise equal3. Equitable interest followed by legal interestPrior interest wins unless later is bona fide purchaser4. Equitable interest followed by equitable interestPrior interest wins, if equities are otherwise equal1. Two legal interests (L followed by L): (Chippewas)For example:B leases land from A for 10 years, then C purchases the same land from A in fee simple, with or without notice of B’s leaseRule: earlier legal interest prevails over later3. Equitable then legal (E followed by L): (Chippewas)For example:A concludes valid agreement of purchase and sale of land with B, then conveys land to C at a better price before deal with B closes (“gazumping”)Rule: later legal interest prevails only if acquired by good faith purchaser for value without noticeNo actual (subjective or imputed via agent of purchaser) or constructive (reasonable person) notice of prior equitable claim, plus no dishonesty or unclean handsAKA equitable doctrine of notice – bona fide purchaser prevails4. 2 equitable interests (E followed by E):Prior equitable vs. later equitable claimEg A concludes valid land sale agreement with B then concludes another with C, and neither deal has closedRule: earlier interest prevails, if equities are otherwise equalBut not if equities are unequal (eg holder of earlier interest guilty of fraud, negligence or undue delay)“As between persons having only equitable interests, if their equities are in all other respects equal, priority of time gives the better equity” Rice v Rice (Ch. 1853)Chippewas of Sarnia Band v Canada (ON): Anishnabe people occupied much of southwestern Ontario before English settlement. By 1827, they retained only a large tract near present-day Sarnia. In 1839 Malcolm Cameron purported to purchase 2500 acres of this land from them. The land was never properly surrendered to the Crown, but the Crown purported to grant fee simple title to Cameron in 1853. The land was subdivided, sold and re-sold to many owners, all of whom were unaware of any irregularity in Cameron’s title. The Anishnabe sued for a declaration of title in 1995. Who should prevail, prior aboriginal titleholders or subsequent unsuspecting purchasers? SUBSEQUENT PURCHASERS –1. Two legal interests (L followed by L):Is Chippewas’ aboriginal title legal or equitable? Aboriginal title is sui generis – of its own kindAboriginal title is mixed – has characteristics of legal and equitable title therefore basic rule for legal vs. legal does NOT applyNote: court essentially uses the fiduciary interest as the basis for saying aboriginal title has an equitable component and cannot prevail over subsequent legal interest – ironic b/c fiduciary interest is intended to protect aboriginal interestAre the landowners’ interests legal or equitable?Landowner’s interest are probably legal although C argued that Cameron never acquired title b/c title was never surrendered to Crown in accordance with fundamental principles of the Royal Proclamation Even if it is legal vs. legal, does nemo dat invalidate defective Crown patent (b/c you cannot give what you don’t have?)NO – Crown patent not void b/c of defence of officially induced error: where circumstances would normally lead one way (invoking nemo dat to make patent invalid), if a party relied on the government to their detriment, they have a defence against the normal outcomeSince Aboriginal title is mixed, did not do analysis of #2 – Legal followed by Equitable3. Equitable then legal (E followed by L):Does good faith purchaser rule apply?Aboriginal title has legal and equitable characters but court says you can still apply this doctrine which applies only when prior interest is equitable so long as there is some equitable characterKey = are later owners good faith purchasers? YES – subsequent purchasers relied in Crown grants and had no reason to look behind themShould it be relaxed in aboriginal title cases to put higher standard of onus on later owners?If situations where aboriginal title was taken are particularly substantial or egregious, shouldn’t apply good faith purchaser exception – earlier interest should prevail. BUT – this not one of those cases – not a substantial or egregious denial of aboriginal title b/c at time leaders of Anishnabe accepted terms of transaction with CameronSince landowners found to have legal title, did not do analysis of #4 – Equitable followed by EquitableConclusion:Rules of #3 – equitable followed by legal seem to apply hereShould doctrine of laches and acquiescence bar a remedy? For doctrine to apply, must show party did acquiesce or cause detrimental reliance to other parties: Yes – Chippewas were in position to assert claim earlier and waited to long – acquiesced in the situation and it would be unfair to disturb innocent purchasers titleBut intense colonial oppression makes it very hard to say that a first nation “acquiesced” – not fair to say they didn’t do what was reasonable weren’t always in a position to assert claim earlierDoes priority depend on character of rights or of remedies sought?Priority between interests is a matter of the character of the rights they hold NOT about the remedy sought Did Chippewas seek legal or equitable relief?Both – equitable remedies such as declaration, mandatory injunction and legal remedies such as writ of possession Legal remedy shouldn’t be barred by equitable defence Did decision constitute an unauthorized extinguishment of aboriginal title?Maybe…even though there was no formal surrender, the purpose of surrender was fulfilled by the crown. Court invoking principle intended to protect aboriginal interest again to justify denying interest. 2. Legal then equitable (L followed by E): (Whip)If the equities are equal, the law will prevail But a prior legal estate will be postponed to a subsequent equitable estate where the owner of the legal estate (a) assisted or connived in a fraud that led to the creation of a subsequent equitable estate without notice of the prior legal estate, (b) gave the mortgagor the authority to borrow and mortgagor improperly represented the resulting equitable estate as having priority(c) was grossly negligent in relation to later estateNote: Whip says no, doesn’t matter if you’re grossly negligent – only looking for A or B (fraud) BUT in BC this is the law(d) was otherwise estopped from asserting priority by virtue of representations or appearancesNorthern Countries of England Fire Insurance v Whip (UK): Crabtree borrowed $ from his employer company, secured by a legal mortgage over his land. The company took the title deeds and placed them in a safe to which C had a key. C later borrowed money from Whipp, handed her the deeds, executed an equitable mortgage over his land in her favour, and went bankrupt. She knew nothing of the mortgages in favour of the company, and the company knew nothing of C’s dealings with her. Whose mortgage has priority? NORTHERN COUNTRIES – although there was evidence of “great carelessness” that could be called gross negligence on part of company it doesn’t tip equities in favour of Whip no longer the case in BC; RATIO: at time of this case, gross negligence did not put a later equitable estate ahead of a prior legal estate; today – gross negligence by the prior holder can suffice to give the later equitable interest priorityTITLE REGISTRATIONCommon law jurisdictions in Canada are now almost all transferred over to a title registration system. United States uses deeds registration system.1. Common Law Conveyancing:Traditional priority rules applied; purchaser bore risk of defective titlePurchaser had to satisfy herself of vendor’s title by tracing chain of title through all prior transactionsBased on examination of the original documents AND manifest circumstances (gracing transactions back to original owner/grantee)Eventually limited to 60 yearsPreferred security of existing interests over ease of transferException: prior equitable interest vs. later legal interest purchased in good faith (equitable doctrine of notice) later legal interest prevailed only if later owner was bona fide purchaser without notice2. Deeds Registration:Began in 18th centuryTitle documents were stored in a registry office and listed in a registerEased title search but provided no guarantee of title (just about convenience)Purchaser still had to search the chain of title and determine validity of interestsOften modified priority rules, basing priority on date of registration (with varying exceptions for notice, fraud)Ex: earliest registered interest had priority over later registered interest, and also priority over unregistered interest (with exceptions if you had notice of an earlier interest, it might take precedence even though you were quicker to register)Still preferred security of existing interests over ease of transferTitle insurance emerged to protect purchasers3. Title Registration:Spearheaded by Sir Robert Torrens in South Australia in 1858, spread quickly to BC and beyondTitle is created, not merely recognized, by registrationGuarantees that the registered holder is the holderBasic idea: switch from convenient repository (deeds registration) to actual guarantee of titleThree central principles: curtain, mirror and netCurtain: the state certifies registered holder’s title, drawing a curtain on past dealingsPast dealings could be formal or informal transactions; registered or unregistered key = registry draws curtain only the party that is in front of the curtain is the registered holderTwo aspects:1. Registration creates interest: principle of registration interest doesn’t exist until registered2. Title is indefeasible upon registrationBut not against a person deprived of land by fraud in which the registered owner participated Land Title Act, RSBC 1996, c 25020 (1) Except as against the person making it, an instrument purporting to transfer, charge, deal with or affect land or an estate or interest in land does not operate to pass an estate or interest, either at law or in equity, in the land unless the instrument is registered in compliance with this Act. … no title until instrument is registered23 (2) An indefeasible title, as long as it remains in force and uncancelled, is conclusive evidence at law and in equity, as against the Crown and all other persons, that the person named in the title as registered owner is indefeasibly entitled to an estate in fee simple to the land described in the indefeasible title, subject to the following… once registered the title is indefeasible UNLESS – FRAUD EXCEPTION:the right of a person deprived of land to show fraud, including forgery, in which the registered owner has participated in any degree. the fraud exception to indefeasibility if registered owner tainted even to slightest degree by fraud, their title is not indefeasible against that person other exceptions: subject to qualified estates, restrictive covenants, easements Mirror: the register is a conclusive reflection of all interestsTitle registration system abolishes the equitable doctrine of notice Indefeasible title is unaffected by notice of prior unregistered interest (except in case of fraud)Equitable doctrine of notice abolished Land Title Act, RSBC 1996, c 25029 (2) Except in the case of fraud in which he or she has participated, a person contracting or dealing with or taking or proposing to take from a registered owner(a) a transfer of land, or(b) a charge on land, or a transfer or assignment or subcharge of the charge,is not, despite a rule of law or equity to the contrary, affected by a notice, express, implied, or constructive, of an unregistered interest affecting the land or charge …doctrine of equitable notice abolished subsequent purchaser of interest in land won’t be defeated by prior unregistered interest even if they have notice; only defeated by prior unregistered interest if they participated in a fraud (common law standard of fraud, not equitable standard)Net: person deprived of title by operation of the Act or administrative error is compensatedCatches all those who are left without title compensates them (in circumstances where but for the act they could have recovered the land/been put back on title)Land Title Act, RSBC 1996, c 250296(2) A person, … (a)who is deprived of any estate or interest in land (i) because of the conclusiveness of the register, in circumstances where, if this Act had not been passed, the claimant would have been entitled to recover the land from the present owner, and (ii) in consequence of fraud or a wrongful act in respect of the registration of a person other than the claimant as owner of the land, and(b) who is barred by this Act or by any other Act, or otherwise precluded from bringing an action (i) for possession, or any other remedy for the recovery of land, or (ii) for rectification of the register,May … proceed in court for the recovery of damages against the person by whose fraud or wrongful act the claimant has been deprived of the land. person who is deprived of estate in land because of the act AND there was fraud AND act bars them from recovery of the land can go to court for damages; damages are paid through an assurance fund “Title registration systems do not protect rogues.” But what about innocent parties who acquire interests from rogues? Issue – what if the fraudster passes/purports to pass the interest to an innocent party and innocent party is now a registered owner? How do you resolve that contest? “Principle of indefeasible title protects the person registered on title at the expense of the person wrongfully deprived of their interest in land”Question is whether innocent purchasers may rely on the register immediately when a fraudulent title is registered or only after an intermediate transactionTitle Registration Rules: (Lawrence v Wright)Title obtained by fraud is void even if registeredThe fraudster never wins…In BC, see s 23 LTA (exception about fraud)But subject to that exception, purchasers are entitled to rely on the registerRegistered title obtained by fraud can form a good root of title; Title Registration abrogates common law doctrine of nemo datQuestion is whether innocent purchasers may rely on the register immediately when a fraudulent title is registered or only after an intermediate transactionImmediate indefeasibility: an innocent party acting in good faith (without notice of fraud), who acquires an interest directly from a fraudster, acquires indefeasible title upon registrationDeferred indefeasibility: an innocent party acting in good faith, who acquires an interest via a forged instrument, does not acquire indefeasible title against the original owner, but registration of its interest enables it to pass valid title to a third party. Indefeasibility is deferred to a subsequent innocent party who acquires an interest at least one step removed from fraudLawrence v Wright (ON): Lawrence was registered owner of a house in Toronto. Without her knowledge, an imposter posing as her purported to convey the property to another imposter calling himself Thomas Wright, who obtained a $292k mortgage from Maple. Transfer registered with “Wright” as new owner. MT’s mortgage was registered later the same day. “Wright” absconded with the money. MT sued for possession. Lawrence applied to have ] fraudulent transfer and mortgage set aside. Who has better title – original owner L or innocent purchaser/mortgagee MT? LAWRENCE – deferred indefeasibilityAt common law and under deeds registration L would prevail as per nemo dat principle – fraudster had no title to pass, innocent purchaser bears risk of title defects Under immediate indefeasibility MT would have indefeasible interest and would winUnder deferred indefeasibility MT would lose – could only pass valid title to innocent third party Arguments for deferred indefeasibility:In Ontario it is system of deferred because:1. Under immediate, homeowner’s only remedy is compensation – loses sacredness of home – would be evictedBut what if it was a house flipping situation and intermediate owner just goes and sells it next day suddenly defrauded owner only gets compensation under either doctrineWhy should that concern about someone being out of their home only apply to refute immediate defeasibility? Seems to apply to deferred indefeasibility as well2. Idea that a person who buys a specific parcel of land with specific house on it can be compensated in damages goes against concept that real property is not fungible (while for lenders, money is money interest is purely monetary)But not all situations of deferred indefeasibility involve a lender – sometimes involve a new owner against previous owner3. Unlike intermediate owner, homeowner has no opportunity to avoid the fraud deferred indefeasibility places burden of fraud on party that has opportunity to avoid it looking at who is in best position to avoid fraud, and arguing that defrauded homeowner has no opportunity to avoid, but intermediate party who advances money to fraudster deals with them directly and has opportunity to investigateBut isn’t the deferred owner also in a position to investigate the title? Common law system was based on purchaser investigating past dealings of land to confirm no fraudWhy should we draw the line between the intermediate and deferred owner?BC’s Approach:Land Title Act, RSBC 1996, c 25025.1?(1) Subject to this section, a person who purports to acquire land or an estate or interest in land by registration of a void instrument does not acquire any estate or interest in the land on registration of the instrument.(2) Even though an instrument purporting to transfer a fee simple estate is void, a transferee who (a) is named in the instrument, and (b) in good faith and for valuable consideration, purports to acquire the estate, is deemed to have acquired that estate on registration of that instrument. (Enacted 2005)Is this immediate or deferred indefeasibility?IMMEDIATE BUT only for fee simple estate (doesn’t explicitly cover estate creating a charge, an easement, etc. Ex: would this protect innocent mortgagee like maple Trust, or only the innocent purchaser of the fee simple estate?)Defrauded owner gets compensation, innocent purchaser gets titleDo you agree with this approach?Overall, where does BC Land Title Act draw the line between protecting existing interests and facilitating transfers? ................
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