Property

PART 1: Concepts of Property in Law........................................................................................................ 8

Tues. Jan. 20: Introduction to Property Law in Canada, Ontario, and the Common Dish.......................................8
Fri. Jan. 23: Concepts of Property: e.g. Racetracks, Malls, and Private Property.................................................8
II. DEFINING PROPERTY IN CONTEXT........................................................................................ 8
Victoria Park Racing v Taylor............................................................................................................ 8
JCM v ANA................................................................................................................................. 9
III. PROPERTY AND THE RIGHT TO EXCLUDE............................................................................. 9
Harrison v. Carswell....................................................................................................................... 9
Trespass to Property Act, RSO 1990, C.T21, AS AMENDED (QUICKLAW)......................................................10
Remedies for trespass.................................................................................................................... 11
Property rights and the Charter........................................................................................................ 11
Committee for the Commonwealth of Canada v Canada.........................................................................11
Batty v Toronto (City)................................................................................................................... 12
Michelin v CAW.......................................................................................................................... 13
Manitoba Fisheries Ltd. v The Queen................................................................................................ 14
Mariner Real Estate Ltd v Nova Scotia.............................................................................................. 14
Tues. Jan. 27: First Possession; Finders................................................................................................. 15
THE CONCEPT OF FIRST POSSESSION...................................................................................... 15
Pierson v Post............................................................................................................................. 16
Johnson v. McIntosh..................................................................................................................... 17
-through this comparison, we can see that the audience presupposed by the comon law of first possession is an agrarian or
commercial people a people whose activities with respect to the objects around them require an unequivocal delineation
of lasting control so that those objects can be managed and traded...................................................................17
Coercion and distribution in a supposedly non-coersive state Robert Hale..................................................17
Perry v Gregory........................................................................................................................... 18
Finders of lost Objects................................................................................................................... 19
Armory v Delamirie...................................................................................................................... 19
This is still the law in Canada................................................................................................................ 19
Parker v British Airways Board........................................................................................................ 19
Cited: for quick reference South Staffordshire Water Co v Sharman: possession of land carries with it possession of all
chattels in or upon the land................................................................................................................. 20
Baird v British Columbia (1992), 17 BCAC 315 and Bird v Fort Frances, [1949] 2 DLR 791 (Ont
HC). Criminality and possession: level of criminal intention................................................20
Joint Finders cases........................................................................................................................ 21
Keron v Cashman......................................................................................................................... 21

Edmonds v Ronella....................................................................................................................... 21
Airports..................................................................................................................................... 21
Recall Parker..................................................................................................................................... 21
Popov v Hayashi.......................................................................................................................... 22
Principles................................................................................................................................... 22
1 -the object must be lost or abandoned 2 -intention to control to the exclusion of others 3 -actual physical control 22
Tues. Feb. 3: Intention, Mistake, and Reform of Possession........................................................................22
Real Property Limitations Act.......................................................................................................... 22
Statutes of limitation..................................................................................................................... 22
Brumagim v. Bradshaw.................................................................................................................. 23
Acts of Possession and the Statutory Commencement of the Limitation Period..........................................23
Posessory title and Land................................................................................................................. 23
Perry v Clissold........................................................................................................................... 23
Later cases expand upon these principles (and make a distinction between cases of trespass and cases of mutual mistake),
and are backed up by the Real Property Limitations Act................................................................................ 23
Real Proprety Limitations Act s. 15, 4, 5............................................................................................. 24
s. 15: At the determination of a period of the period limited by this Act ot any person for
making an entry or distress or bringing any action, the rights and title of such person to the
land or rent, for the recovery whereof such entry, distress or action, respectively might have
been made or brought within such period, is extinguished. *** does not transfer title to the
possessor!! They must prove possessory interest..................................................................24
s. 4: Limitation period is 10 years........................................................................................................... 24
s. 5: 10 years starts at the time of dispossessionOR at the time the title holder discontinues possession.....................24
Expanded upon in St. Clair beach, Keefer v Arilotta, Wood v Gateway, and Bradford Investments...........................24
3 Underlying Justifications for Statute of Limitations................................................................................... 24
Piper v Stevenson......................................................................................................................... 24
Since Piper, the court has refined the test and made a distinction between trespassers (Keefer v Arrilotta), cases of mutual
mistake (Wood v Gateway), and cases of unilateral mistake (Bradford v Fama)...................................................24
Re St Clair Beach Estates Ltd v MacDonald (1974), 5 OR (2d) 482 (H Ct J Div Ct).......................................24
Since St. Clair Beach, the court has refined the test and made a distinction between trespassers (Keefer v Arrilotta), cases
of mutual mistake (Wood v Gateway), and cases of unilateral mistake (Bradford v Fama)......................................25
MacLean v Reid (1978), 94 DLR (3d) 118 (NS SC App Div)...................................................................25
Keefer v Arillotta (Adverse Possession) adds IU test............................................................................ 25
This was the first case that held the inconsistent user test and since then, courts have narrowed the test so that it only
applies to situations of trespass, not cases of mutual mistake (Wood v Gateway) or cases of unilateral mistake (Bradford v
Fama)............................................................................................................................................. 25
Masidon v (1982)......................................................................................................................... 26
Beaudoin v. Aubin (1981) OR.......................................................................................................... 26
Mistake: Reassessing the Inconsistent User Test....................................................................................... 27

Wood v Gateway of Uxbridge Properties Inc [1990] 75 OR (2d) 769 (Gen Div) (Mutual Mistake).....................27
This case effectively narrowed the inconsistent user test so that it only applies to situations of trespass, not cases of mutual
mistake. SCC adopted this reasoning in Teis v Town of Ancaster. This was later expanded to cases of unilateral mistake
(Bradford)........................................................................................................................................ 27
Bradford Investments v Fama (Unilateral Mistake)................................................................................27
As it stands the court has refined the test and made a distinction between trespassers (Keefer v Arrilotta) where the
inconsistent user test does apply, cases of mutual mistake (Wood v Gateway), and cases of unilateral mistake (Bradford v
Fama) where it does not....................................................................................................................... 28
Brian Bucknall, Two Roads Diverged: Recent Decisions on Possessory Title (1984) 22 Osgoode Hall LJ 375
(footnotes omitted)....................................................................................................................... 28
PART 3: Fundamental Principles of Property Interests in Land.......................................................................28
Tenure.......................................................................................................................................... 28
Tenurial vs Allodial...................................................................................................................... 28
Seisin:....................................................................................................................................... 29
Fri. Feb. 6: Estates 1........................................................................................................................ 29
Creation of a life estate.................................................................................................................. 30
Re Walker (1925), 56 OLR 517 (CA)................................................................................................ 30
Re Taylor (1982), 12 ETR 177 (Sask Surr Ct)...................................................................................... 30
CREATING LIFE ESTATESLife Estate vs. licence............................................................................ 32
Re Waters (ON 1978) (p. 264)Creates Life Estate.............................................................................. 32
Re Powell (1988) (p. 265)Creates licence........................................................................................ 32
TAKEAWAY (Rules of construction):................................................................................................ 32
Tues. Feb. 10: Estates 2..................................................................................................................... 33
Determinable Estates..................................................................................................................... 34
Alienability................................................................................................................................ 34
Re Tilbury West Public School Board and Hastie [1966] 2 OR 20 (H Ct J)..................................................34
Re McColgan [1969] 2 OR 152, 4 DLR (3d) 572 (H Ct J).......................................................................35
Blackburn v McCallum (SCC 1903) restraint on alienation is void...........................................................35
Re Millar Estate 1938 SCC (great stork derby)..................................................................................... 36
Re Canada Trust Co and OHRC (Leonard) (1990 OntCA).......................................................................36
Fox v Fox Estate (1996 ONCA)....................................................................................................... 36
Re Ramsden Estate 1996 (PEI SC (TD))............................................................................................. 36
McCorkill v Streed (2013 NBQB).................................................................................................... 37
BMO v Spence (2015 ONSCJ)........................................................................................................ 37
Certainty and Uncertainty.................................................................................................................. 37
Pew v Lafferty............................................................................................................................. 37
Re Jordan and Dunn (1888) (OAR)................................................................................................... 37
Sifton v Sifton (1938 JCPC)............................................................................................................ 38

Fri. Feb. 13: Estates 3....................................................................................................................... 38

Vested and Contingent Interests.................................................................................................. 38
British Columbia (Public Guardian and Trustee of) v Engen(Litigation Guardian of)......................................38
Fri. Feb. 27: Special Panel on Aboriginal Title with Profs. Kent McNeil, Signa Daum Shanks, & Jeffery Hewitt.......40
PART 6: Transferring Property Interests by Gifts & Sale: Equitys Role............................................................40
Tues. Mar. 17: Gifts......................................................................................................................... 40
Deed of gift................................................................................................................................... 41
Schilthuis v Arnold (1991, Ont. Gen. Div. & C.A.):............................................................................... 41
Jones v Jones 1979 SKQB:............................................................................................................. 41
Delivery........................................................................................................................................ 41
In re Cole................................................................................................................................... 42
Constructive delivery:................................................................................................................... 42
Delivery & Common Possession......................................................................................................... 42
Constructive & Symbolic Delivery....................................................................................................... 43
Intention....................................................................................................................................... 43
Thomas v Times Book (1966, Ch. Div.).............................................................................................. 43
Intention.................................................................................................................................... 43
Beaverbrook Foundation v NB Gallery.............................................................................................. 44
McNamee v McNamee 2011 ONCA................................................................................................. 44
The Declaration of Trust.................................................................................................................... 44
Watt v Watt 1987 Man. C.A............................................................................................................ 44
Gifts & Trusts................................................................................................................................. 45
re Cochrane v Moore (1890)........................................................................................................... 45
Express Trusts............................................................................................................................. 45
Resulting and Constructive Trusts..................................................................................................... 45
Constructive Trusts:...................................................................................................................... 45
Express involves tripartite............................................................................................................. 46
Resulting Trusts and Presumption of Advancement............................................................................... 46
Pecore v Pecore 2007 SCC............................................................................................................. 46
Capacity & Undue Influence.............................................................................................................. 46
Csada v Csada............................................................................................................................. 46
Intention and Future Enjoyment.......................................................................................................... 47
Inter Vivos and Testamentary Gifts....................................................................................................... 47
Donatio Mortis Causa: valar morghulis.............................................................................................. 47
Zachariuc; Chevrier v Public Trustee (1984)........................................................................................ 47
Fri. Mar. 20: Sales & Mortgages.......................................................................................................... 48

Conveyances and Contracts for Sale.................................................................................................. 48

Statute of Frauds............................................................................................................................. 48
Equitable interests in APS.............................................................................................................. 49
Lysaght v Edwards specific performance:.......................................................................................... 49
Specific Performance....................................................................................................................... 50
Semelhago v Paramadevan (1996 SCC) uniqueness of land no longer taken as given....................................50
Marvost v Stokes (2011 ONSC, affd ONCA 2012)............................................................................... 50
John E Dodge Holdings (2003 ONCA).............................................................................................. 50
Canamed (2006 ONSCJ): subj/obj test & medical bldg...........................................................................51
Valid Contracts for Sale and Statute of Frauds......................................................................................... 51
Fusion of Law and Equity.................................................................................................................. 51
Walsh v Lonsdale......................................................................................................................... 51
Beyond Statute of Frauds: Equity and Part Performance............................................................................ 52
Maddison v Alderson (1883) the principles of past performance (PP) Oral agreements + acts of part performance can
lead to a valid agreement and specific performance in spite of the Statute of Frauds.......................................52
Deglman v Guaranty Trust (1954 SCC) Part Performance unequivocally referable to the contract asserted.......52
Taylor v Rawana (1990 OHCJ): meets Deglman...................................................................................52
Starlite Variety v Cloverlawn (1979 OHCJ, affd OCA): requirements for PP at p. 488...................................52
Steadman v Steadman (1974 HL) equally consistent test (not law of Canada).............................................53
Hollett v Hollett (1993 Nfld SCTD): applies Steadman; also, common practices of community.........................53
Erie Sand (2009 ONCA):............................................................................................................... 53
Priorities at Common Law................................................................................................................. 54
Priorities at common law................................................................................................................ 54
Hodgson v Marks (1971) EWCA...................................................................................................... 54
Registration systems..................................................................................................................... 55
Torrens registration....................................................................................................................... 55
PART 7: Concurrent Interests and Family Property...................................................................................... 55
Tues. Mar. 24: Concurrent Interests...................................................................................................... 55
McEwen v Ewers and Ferguson (1946 OHCJ)..................................................................................... 56
Wright v Gibbons 1949.................................................................................................................. 56
Statutory Presumption of Tenancies in Common: CLPA, s. 13.....................................................................57
Interpretations of S. 13...................................................................................................................... 57
Mitchell v Arblaster (1964-5 Aus. S.C.).............................................................................................. 57
Campbell v Sovereign Securities (1957 ONCA)................................................................................... 57
Williams v Hensman (1861 Ch D).................................................................................................... 58
Robichaud v Watson (1983 OHCJ):................................................................................................... 59
Course of Conduct......................................................................................................................... 59

 Course of Dealing.......................................................................................................................... 59
Hansen Estate v Hansen (2012 ONCA):............................................................................................. 59
Murder.................................................................................................................................... 59
Schobelt v Barber (1996 ONHCJ)..................................................................................................... 59
R v Ford (2010 BCCA) & CDSA, s. 16: forfeiture can sever JT................................................................59
Knowlton v Bartlett (1984 NBQB Fam. Div.):...................................................................................60
Murdoch v Barry (1975 OHCJ):.................................................................................................... 60
Severance, Statutory Principles, Notice, and Consent.............................................................................61
Severance & Consent in Family Property: Horne v Horne.......................................................................61
Rights & Obligations of Co-Owners.................................................................................................. 61
Termination of Co-ownership by Partition & Sale.................................................................................61
Cook v Johnson (1970 OHCJ) partition where appropriate.....................................................................61
Cf Rouse v Rouse (1999 ONGD): sale appropriate.............................................................................. 62
Knowlton v Bartlett (property not lend to partition here)......................................................................62
Fri. Mar. 27: Family Property............................................................................................................. 62
Property Interests in the Context of Married Spouses.............................................................................62
Statutory Reform Regarding Married Womens Property Rights................................................................62
The Early Jurisprudence Regarding the Divorce Act.............................................................................. 63
Defining Property Under the Family Law Act...................................................................................... 63
Professional Degrees and Property.................................................................................................... 63
Caratun v Caratun: -professional degrees not property............................................................................63
Woodworth & Weitzman:............................................................................................................... 64
Equity & Property Reform for Cohabitees........................................................................................... 64
Nova Scotia v Walsh 2002 SCC....................................................................................................... 64
Cohabitees and Equity...................................................................................................................... 64
Pettkus v Becker 1980 SCC............................................................................................................ 65
Unjust Enrichment & Constructive Trusts (post-Pettkus v Becker).............................................................65
Defining Contribution................................................................................................................... 65
Sorochan 1986 SCC...................................................................................................................... 65
Peter v Beblow 1993 SCC.............................................................................................................. 65
Kerr v Baranow; Vanasse v Seguin 2011 SCC...................................................................................... 66

PART 1: Concepts of Property in Law

Tues. Jan. 20: Introduction to Property Law in Canada, Ontario, and the Common Dish
Read: Ch. 1, p. 1-6, 77-83
Property as relationship, not thing

the legal concept of property concerns the network of legal relationships prevailing between individuals in respect
of things . Seen in this way, property comprises bundles of mutual rights and obligations between subjects
in respect of certain objects, and the study of the law of property becomes an inquiry into a variety of socially
defined relationships and morally conditioned obligations.

Subjects and Objects of Property Relationships

The dynamic nature of both subjects and objects of property interests: some persons in the past, including serfs
and married women, were excluded by law from holdingthat is, being subjects ofproperty interests; and
children under the age of 18 continue to be precluded from exercising certain kinds of property rights. In this
context the definition of who can be the subject of property interests has an important political significance
precisely because the delineation of potential right-holders fundamentally affects both the balance of power and
the distribution of goods within a society.

In the 21st century, few classes of people are explicitly precluded from holding interests in property. Yet the legal
right to become the subject of a property interest has not resulted in equality among all persons in relation to
property interests. In this way, there is an important relationship between property law and issues of social and
economic inequality.

Property Relationships in Context

The idea of property is often controversial. Philosophers and political economists have debated its merits and its
justifications for a long time
The law of property is particularly controversial in the context of 21st-century new property claims, which
reflect desires to overcome insecurity or dependency in the lives of many people. Perhaps surprisingly, the law of
property is also old law, much of it reflecting principles developed centuries ago in very different political,
social, and economic contexts. In this way, property law provides a dual challenge for students: it is necessary to
understand traditional property law principles in order to work with them effectively and, at the same time, it is
critical to assess traditional property law principles in the larger context of modern life and its challenges

Fri. Jan. 23: Concepts of Property: e.g. Racetracks, Malls, and Private Property
Read: Ch. 1, p. 7-19, 30-76
II. DEFINING PROPERTY IN CONTEXT
A. Historical Claims and Their Contemporary Themes: Victoria Park Racing and Recreation Grounds Co Ltd
v Taylor
Victoria Park Racing v Taylor
Plaintiff (racetrack) was suing for an injunction against defendants who owned adjacent property and had built
raised wooden platform in order to see the racecourse and the notice boards with information about the races
they would stand on the platform and comment on the races by phone, announcing the winner
o This stimulated an illicit off-course betting industry
o Punters who would otherwise have attended the race meetings now followed them at home
Decision: injunction refused (3-2)

any person is entitled to look over the plaintiffs fences and to see what goes on in the plaintiffs land. If the
plaintiff desires to prevent this, the plaintiff can erect a higher fence
No actionable nuisance
It was not possible to find property in a spectacle
Dissent:
Need for flexibility in the common law
There are legal limits to the right to overlook a neighbours land, and that the limitation required an attempt to
reconcile the right of free prospect from one piece of land with the right of profitable enjoyment of another.
Lack of precedent shouldnt preclude a finding for plaintiffs, as broadcasting technology was so new
Property in the Context of Scientific Innovation: JCM v ANA
JCM v ANA
Facts:
The litigants had begun a spousal relationship as lesbians, and they each eventually gave birth to one child, using
therapeutic insemination with sperm from a single anonymous donor..The couple had purchased the sperm from a
sperm bank in the United States for about $250 a unit (called a straw), and then stored the unused sperm straws in
a Vancouver fertility centre. Their relationship ended and they entered into a separation agreement that divided all
joint property of the relationship. The 13 remaining sperm straws were not addressed in their agreement. In 2010,
after JCM began a spousal relationship with TL, this new partner wished to have a child with JCM who would be
biologically related to JCMs child from her previous relationship. By this date, it was not possible to obtain
additional sperm straws from the anonymous donor, so JCM offered to buy out ANAs interest in the sperm
straws. ANA was opposed to the use of the sperm straws by TL, and indicated her preference that the remaining
sperm straws be destroyed.
Issue: whether the sperm straws were property and, if so, how they should be divided on separation pursuant to the
provincial Family Relations Act in British Columbia.
Decision: the sperm straw is property and should be divided equally
Here the parties, having purchased the sperm straws, have the choice to use them
The AHRA s 7(1) makes the purchase of sperm illegal
o However, since it has been treated as property up until this point, the legislation does not dictate or
influence whether or not the gametes in this case are property
III. PROPERTY AND THE RIGHT TO EXCLUDE

A. Shopping Centres: Public or Private Property?

From the beginning, the Canadian state strongly supported the right to exclude
o Not only did property owners enjoy common law rights, enforceable by damage actions and injunctions,
but also criminal and regulatory legislation provided property-owners with quasi-criminal powers to
protect their property against intruders.
o Clearly, protecting the right of owners to exclude was an important public policy that was never seriously
contested until the advent of the shopping plaza
The shopping Mall was the brainchild of Victor gruen, a socialist who wanted to create public spaces
-at the heart of the mall concept was the unresolved tension between its public and private dimensions
-for private investors, the mall was private property and members of the public were simply licencees whose permission to
be in the mall could be revoked at any time and for any reason
Shopping centres may have been imbued with public purposes in Gruens original conception, but, in practice, they have
often reflected the interest of mall owners and their investors private property

Harrison v. Carswell
Reasons: Majority (Dickson): Owner of shopping centre has a right to exclude anyone from the premises
- People coming in to shop there, and people who are employees of the businesses that are there dont have any
right of entry. They can enter because they have permission, which can be withdrawn.
o Cant be done contrary to human rights legislation but other ways, fine.
o Can exclude individuals or groups of individuals
o The leaseholders of stores are licensees, they have right to enter but others done
Owner of property is licensor
This permission given in exchange for money is a license.
Permission was withdrawn in Harrison v Carswell therefore she was found to be trespassing
Trespass an old form of action to protect real and personal property
With respect to the question of peaceful picketing: Society has long since acknowledged that a public interest is served
by permitting union members to bring economic pressure to bear upon their respective employers through peaceful
picketing, but the right has been exercisable in some locations and not in others and to the extent that picketing has
been permitted on private property the right hitherto has been accorded by statute.
Believes that, since the common law does not support a finding for Carswell, so any change should be left to
the legislature
o Question of institutional competence
- Dissent (Laskin): an employee in this situation has more than a revokeable license.
o Also, Peters didnt effectively resolve the issue
He finds room for distinguishment: Peters was not about a labour dispute
In this case the appellant had an interest sanctioned by law, in pursuing legitimate claims
against her employer
o Debate re: Stare Decisis
How strictly should higher courts follow lower courts previous decisions even if they dont agree
The SCC has the power to adjust the common law to fit a case like this
o Changes in societal values etc
Cant be mechanistic about previous decisions. we are free to depart from previous
decisions to support the pressing need to examine the present case on its merits
Notes: although Harrison has never been overruled, it has often been distinguished in the context of the Charters
guarantee of freedom of expression
The Manitoba legislature amended the Petty Trespasses Act to permit informational picketing on any walk, driveway,
roadway, square or parking area provided outdoors at the site of or in conjunction with the premises in which any business
or undertaking is operated and to which the public is normally admitted without fee or charge: does this confirm
Disksons view that the issue was better suited to the legislature?

Trespass to Property Act, RSO 1990, C.T21, AS AMENDED (QUICKLAW)

Makes trespass to land an offence. There can thus be a prosecution.
Note: doesnt take away right to a civil action also, but if damages awarded under statute cant also get civil damages
- Premises lands and structures or either and includes water. Odd because water is not generally owned unless its
contained
o Vehicles except while in operation
S. 2
- Every person who is not acting under a right or authority conferred by law and without express permission proof
of which rests on defendant enters..
o Subject to fine of up to $2000
o Defence colour of title person reasonably believed they had a right to be there; it was a reasonable
belief but it was wrong

S. 9
-

Arrest power
o (1) police officer or the occupier of premises or a person authorized by occupier may arrest without
warrant any person he or she believes on RP grounds to be on the premises in contravention of section 2
o (2) should call cop and give arrested person into their custody if not a cop

S. 12(2)
- Prosecutions conducted by a private prosecutor (Eg landowner)
Remedies for trespass
- If prosecution under statute, fine. Court can also order damages be paid to occupier of premises
- Civil remedies order to have person removed. Can get damages, including punitive in some circumstances
- Injunctions equitable remedies
- Note whether you bring an action or not might depend on what remedies are possible
The continuing impact of Harrison
Litman:
The majority view in that case seems to have been based on the supposition that property is inherently absolute and that
the dramatic step of depriving its owner, even to a limited extent, of its unbridled power is a matter for legislative policy.
This supposition as a matter of historical record, is not entirely accurate. Proprietary rights of exclusion, like other
private rights, have been modified or subordinated to accommodate a variety of interests since the early days of the
common law, and continue today to yield to such interests . There is no reason in principle why free speech should not
be part of the constellation of considerations which affect the determination of whether property rights exist and, if so,
whether those rights are tempered by the public interest.
Ontario Task Force on the Law Concerning Trespass to Publicly Used Property as It Affects Youth and Minorities
Traditional common law of trespass to property was predicated upon absolute notions of private property and
its attributes, such as the right to exclude others
o In the last two centuries there has been an accelerating process of limiting private property
rights where public and private interests in the use of such property have diverged
E.g. in the 70s the SCC enunciated a duty of common humanity on property owners
toward trespassers who suffered injury
On it face the TPA allows for discrimination general right of exclusion
Shopping malls have taken over public areas
o Many essential services are now found in malls
o People spend a great deal of time there
The privatization of the town square must carry with it a corresponding obligation to provide for nonproductive uses.
o This obligation must be implemented through legal recognition in the TPA of the public use of such
private property and by addressing design issues in the construction of publicly-used spaces
Aftermath: although a bill was introduced to amend the TPA, it died when an election was called and govt changed
Property rights and the Charter
The Charter was significant for property law in two ways:
1. Because of the entrenched guarantees in s 2, including freedom of speech and freedom of assembly, issues about
public access to shopping centres (and to similar places where the public is routinely invited) seemed to require
new analytical approaches (courts required to balance competing interests of owners of private property and
persons who were invited to be present on the basis of the quasi-public aspects of such property e.g. Layton)
2. Secondly, property is not itself a protected interest in the Charter. (this was debated and rejected)

Committee for the Commonwealth of Canada v Canada

Facts: the plaintiff (committee) wished to distribute pamphlets about its organization at the Montreal airport at Dorval.
The airport authorities prevented it from doing so in the basis of federal regulations that expressly prohibited advertising
or solicitation in the airport. The plaintiff then initiated an action under s 2(b) of the Charter (and succeeded at trial and
appeal). The SCC dismissed the appeal
Issue: interaction of the right to exclude and protection of freedom of expression is this a reasonable limit on freedom of
expression
Decision: No, it is unreasonable
LHeureux-Dube:

Rejects the governments argument that the governments private property interest (and right to exclude) in
the airport is no different than any other owner of private property
o If this were the case, the government could exclude any member of the public from any governmentowned property for any reason (e.g. excluding those with contrary opinions from Parliament Hill)
This standard would be antithetical to the spirit of the Charter and would stultify the true
import of freedom of expression
There needs to be a logical compromise: to recognize that some, but not all, government-owned property is
constitutionally open to the public for engaging in expressive activity (e.g. jails are not open to leafleting, but
Parliament Hill is)
o Airports have become contemporary crossroads public thoroughfare and should be on the same
constitutional footing as streets and parks
But planes are NOT public forums
B. Parks and Public Space
Batty v Toronto (City)
Facts: Protestors involved in the Occupy Toronto movement began camping overnight in St James Park on Oct 15, 2011.
It provided a base for periodic demonstrations, as well as shelter for protestors. On Nov 15 the City issued a trespass
notice. At that point there were 300 tents, 3 yurts, kitchen facilities and 25 porta-potties.
In response the protestors applied for an injunction, preventing the city from evicting protestors from the park. The claim
was based on an infringement of the protestors ss 2 (a)-(d) rights
Issue: is the trespass notice an unreasonable infringement of the protestors ss 2 (a)-(d) rights?
Decision: it is an infringement but it is justified under s 1

By living together in our Canadian community, we subject ourselves to the rule of law we are not unconstrained
free actors
The protestors are exercising their freedom of expression the camp was integral to the movement, thus the
eviction order would interfere with that
The court takes into consideration the views of those living near the park, and who normally make use of it
protestors are a nuisance (sound and odor), and prevent enjoyment of the park
The limitation was reasonable
o The regulation of the erection of structures in public parks and the use of parks during the midnight
hours is a pressing and substantial objective
o It is rationally connected, minimally impairs, and is proportional

C. The Right to Exclude: Intellectual Property and Freedom of Expression

How does the right to exclude affect intangible property interests such as intellectual property?
o Statutes create exclusive rights in relation to various kinds of intellectual property. For example, s 3(1)
of the Copyright Act defined copyright as:
the sole right to produce or reproduce the work or any substantial part thereof in any material
form whatever, to perform the work or any substantial part thereof in public or, if the work is
unpublished, to publish the work or any substantial part thereof and to authorize any such acts.
Although both copyright and trade-marks are considered intellectual property, trademarks serve commercial pruposes,
while copyright may serve either commercial or non-commercial purposes.
What rationales or policy reasons justify treating copyright as private property?

Michelin v CAW
Facts: The defendants (labour union) organized a campaign to unionized employees at the Nova Scotia plants of Michelin.
Members of CAW stood outside the factory gates and distributed various materials. Among them was a leaflet with a
caricature of the Michelin tire man. This image was also displayed in windows of various CAW offices. The CAW had not
obtained permission to display this character. Michelin sent CAW a letter asserting its interest, and CAW promptly took
down all but one poster. Michelin then initiated an action seeking damages for infringement of its trademark and
copyrights in the term Michelin and the Michelin man, and an injunction restraining the defendants from further use
Issues:
1. Whether CAW infringed Michelins trademarks by depicting the Michelin man and name on its organizing
materials
2. Whether the caricature (modification) was an infringement
3. Whether the restrictions on CAWs use of the plaintiffs intellectual property infringed the defendants freedom of
expression
Decision: copyright infringement finding for plaintiff
Trademark: no infringement

Statute required association during ordinary course of trade Court: the union was not engaging in commercial
activity, and thus did not infringe

Copyright issues: infringement found

Although slightly altered, the Bibendum was substantially reproduced

The defendants tried to argue the fair dealing exception to copyright (which allows reproduction for the purpose
of criticism), but the court found that they had held him up for ridicule rather than providing a meaningful critique

Was there a Charter infringement: No

The Charter does not confer the right to use private property in the service of freedom of expression
o Cites Commonwealth: choosing a public forum of expression can possibly limit the scope of protection
under 2(b).
By analogy, the court reasons that use of private property to convey expression can also warrant
removing the expression from the protection of paragraph
Copyright is an intangible property right: a person using the private property of another must demonstrate that his
or her use of the property is compatible with the function of the property before the Court can deem the use a
protected form of expression under the Charter

Here, subjecting the character to ridicule is not compatible with the function of the copyright

Notes: following this case, in CCH, the SCC held that the exceptions to the copyright act must not be interpreted
restrictively however, no Canadian court has recognized a parody defence against allegations of copyright infringement

D. Rights to Private Property: Charter Protection?

It has been argued that the decision not to have constitutional protection for property evidences a choice to make
legislative bodies, rather than courts, the primary arbiters of the private property/public interest conflict (Donna
Christie)
-the following case is an example of governmental taking governmental action interfering with the rights of private
property owners
Manitoba Fisheries Ltd. v The Queen
Facts: the plaintiffs owned and operated a fish exporting business, and did so successfully until the federal government
enacted legislation giving the exclusive rights to carry on such a business to a statutory corporation. The initiative was
designed to promote better marketing arrangements for freshwater fish in order to enhance the low incomes of Aboriginal
fishers who supplied the fish exporting industry.
Issue: should the plaintiffs be compensated for their property interest in the exporting business (which the government
implicitly expropriated)
Decision: finding for the plaintiffs they are entitled to compensation

The act constituted governmental taking of the goodwill (a recognized property interest) of their business
o The effect of the Freshwater Fish Marketing Act deprived the plaintiffs of their goodwill and rendered
their physical assets virtually useless

Note: this decision seems to have had little impact on other decisions most other governmental regulatory takings cases
have failed (including the regulation of land use, the introduction if rent controls, or governmental changes to marketing
schemes)
Mariner Real Estate Ltd v Nova Scotia
Facts: plaintiffs owned land at Kingsburg Beach, a highly coveted beachfront area. Because this land was designated a
beach, plaintiffs were denied the necessary health and building permits required to build single-family residents on the
lands
Issue: whether the designation of private property as a beach under the Beaches Act constituted an expropriation of
private property
Decision: no expropriation finding for government

to constitute a de facto expropriation, there must be a confiscation of all reasonable private uses of the lands in
question
in evaluating a regulation, it is the actual application in the specific case that must be examined, not the potential
(here they were subject to regulation, and did not have anything taken from them)
the loss of economic value of the land did not constitute loss of land
unless it were established that virtually all incidents of ownership were removed, the effects of the regulation
would not amount to the loss of an interest in land

Tues. Jan. 27: First Possession; Finders

Read: Ch. 1, p. 87; Ch. 2, p. 99-128, 145-149
THE CONCEPT OF FIRST POSSESSION
Three related matters concerning possession:
1. The everyday meaning of the word possession often differs from its legal concept
-courts and statutes often distinguish possession as: actual possession, constructive possession, a right to
possession, or pedal possession
2. The concept of possession demonstrates the basic common law principle that property interests are always relative
principle of relativity of title: even though someone may have title to a chattel or to land, a person who
holds a possessory interest may nonetheless have a superior claim over someone who subsequently interferes with
that possession e.g. by theft
-a plaintiff who can establish a right based on possession that is prior in time to the defendants claim can succeed
in an action against the defendant, even if there is a true owner
Jus tertii: in cases where neither party is the true owner, one cannot rely on the fact that a third party (jus tertii)
has a claim prior to or better than the plaintiffs claim
3. A persons possession of a chattel or land may, by itself, create a proprietary interest (possessory title)

Common law understanding of possession

The current common law understanding of possession brings together two major historical theories: labour theory and
societal consent theory
Labour theory (John Locke): the original owner is the first person to combine his or her human labour with the thing that
comes to be possessed (e.g. the first person to fence in a piece of land owns the land)
Societal Consent theory: people engage in an agreement within a community to define what any individual possesses (e.g.
democratically elected officials create rules about ownership regarding stocks)

The original owner got title through the consent of the rest of humanity (who were, taken together, the first
recipients from God, the genuine original owner).

Clear act theory: The common laws clear act theory of possession combines an act of labour with an act that clearly
alerts society with respect to a claim to possession of property
Problem: what should be considered clear acts for purposes of common law possession? (particularly wrt
Aboriginal communities who were in possession of considerable territory at the time of European settlement)

Carol Rose: Possession as the Origin of Property

The maxim of the common law: first possession is the root of title
o The doctrine of first possession reflects the attitude that human beings are outsiders to nature. It gives the
earth and its creatures over to those who mark them so clearly as to transform them, so that no one else
will mistake them for unsubdued nature.

Communication theory
o There are not unequivocal acts of possession: the act of possession must be understood by an interpretive
community
In order for a statement of possession to have force, some relevant world must understand the
claim and take that claim seriously
E.g. Pierson v Post: the common law of first possession, in rewarding the one who communicates a claim, does
reward useful labor; the useful labor is the very act of speaking clearly and distinctly about ones claims to
property. Naturally, this must be in a language that is understood, and the acts of possession that communicate a
claim will vary according to the audience.
o the common law of first possession makes a choice. The common law gives preference to those who
convince the world that they have caught (the fish) and hold it fast. This may be a reward to useful labor,
but it is more precisely the articulation of a specific vocabulary within a structure of symbols
approved and understood by a commercial people. It is this commonly understood and shared set of
symbols that gives significance and form to what might seem the quintessentially individualistic act: the
claim that one has, by possession, separated for oneself property from the great commons of unowned
things.
o Some objects of property claims seem to be inherently incapable of demarcation in these cases there
may be secondary symbols e.g. intellectual property getting a document and going through registration

From this classical economic perspective, the Indians' alleged indifference to well-defined property lines in land was part
and parcel of what seemed to be their relatively unproductive use of the earth
Critique of Rose: she assumes that vagueness and limited audiences are bad

Possession
2 prong test for possessory interest something less than title
1. Actual physical control
2. Intention to control
-part of how the courts interpret these contexts come from the different theories (they inform how decision-makers make
choices)

Pierson v Post
Facts: Post was hunting a fox one day on an abandoned beach and almost had the beast in his gun sight when an interloper
appeared, killed the fox, and ran o% with the carcass. Post sued the interloper for the value of the fox on the theory that
his pursuit of the fox had established his property right to it.
Decision: the saucy intruder was found to have better title to the fox than the person who organized the hunt for its
capture.
Rule: If neither A nor B has title, then if A can establish a right based on possession that is prior to Bs, A will succeed. To
demonstrate possession, A must show a clear act to demonstrate possession to the world.
Application: The clear act of the physical possession was better clear act to the world. The act itself is the useful labour.
Argument to the contrary: the organizer had put labour into organizing the hunt.
Dissent: reward should be for useful labour (also the idea that we should look to the interpretive community of the
hunters)
Policy consideration: In capitalist society, the useful labour IS the sending of a clear message to your community,
amalgamating the two traditional philosophical approaches to property. Traditional law places strong emphasis on

physical possession. Because Courts gravitate to what is workable/easy to apply

Current status/significance (what implications for law today)
Still the foundation for law of first possession
Critique: This is a very western notion of possession and ownership, and has historically been used to deny claim of
indigenous groups to land, because they often on principle do not make clear acts of ownership legible to colonial
courts (Johnson v. McIntosh)
Notes: Ziff: two basic theories emerged during this time: 1) whoever killed the animal had possession to the exclusion of
all others 2) theory of deemed abandonment addressed the specific practices of sealing findings of deemed
abandonment generally occurred when bad weather made it impossible for the original hunters to return to claim their
seals context and facts are important
Johnson v. McIntosh
Facts: conflict over ownership of land. Plaintiffs claimed through Indian tribes, on the basis of deeds made out in the
1770s; the defendants claimed under titles that came from the US
Issue: which party has the better claim to title?
Decision: finding for the defendants
Marshall based decision on international law (reasons not reproduced in the book)
But: He passed over an argument for first possession
Insofar as the tribe moved from place to place, they left few traces to indicate that they claimed the land no clear act
-through this comparison, we can see that the audience presupposed by the comon law of first possession is an agrarian or
commercial people a people whose activities with respect to the objects around them require an unequivocal delineation
of lasting control so that those objects can be managed and traded.

Coercion and distribution in a supposedly non-coersive state Robert Hale

By enforcing property rights the government is using coersive power against any non-owner who would interfere with the
property of the legal owner
It is exerting coercion wherever that is necessary to protect each owner, not merely from violence, but also from peaceful
infringement of his sole right to enjoy the thing owned
This goes beyond preventing forceful dispossession
The law will prevent people from even entering or accessing etc. the property of another
It is forcing the non-owner to desist from handling the proerty unless the owner consents
The right of property is much more extensive than the mere right to protect against forcible dispossession
But: the most significant aspect of present-day coercion in connection with property is:
the owner can remove the legal duty under which the non-owner labors with respect to the owners property
He can remove it or keep it in force at his discretion

If he keeps it in force then the non-owner, to avoid legal consequences, will obey the will of the owner
This may mean paying the price for the property or working for the owner
Obedience is motivated, not by a desire to do the act in question, but by a desire to escape a more disagreeable alternative
Good Quote: If the non-owner works for anyone, it is for the purpose of warding off the threat of at least one owner of
money to withhold that money from him (with the help of the law)
If the non-owner were to refuse to yield to the coercion of any employer (assuming no altruism and no means to eat
otherwise) he would be under a legal duty to starve
Talk about positive action and when the law enforces them morality
Societal views of morality determine when the law decides to call legal enforcement of positive actions coersion and
when it doesnt

Perry v Gregory
Facts: Perry and Gregory were avid metal detectors. They frequently went on expeditions together and shared the cost,
however they did not operate in a partnership and did not share their findings. One day they found a belt plate from the
1700s.
Differing stories about how it was found:
According to P: he picked up the signal, and asked D to confirm. He dug the hole -2/3. Then D finished the hole.
-gave evidence that this was quite usual in metal detecting, and that it was understood that the results of the
digging belonged to the person who had begun to dig the hole
-then, to prevent machine interference, he stepped away
-after D retrieved the belt plate from the hole, P reached for it and D gave it to him
According to D: they passed close to one another. P mentioned that he received a signal, but hed left the hole, then D
got a signal and dug up the plate. He showed it to the plaintiff, who grabbed it away.

Decision: The breastplate was awarded to P (the person who first detected it and dug 2/3 of the hole).
Rule 1: Expert testimony based on a custom in a given area can help determine who had first possession:
Application: Testimony about finding etiquette in metal detecting communities attested that the first person to detect it
has a right to it
Rule 2: After-the-fact evidence that demonstrates intention of the two parties also credibility and tells us which version
of the facts is more plausible
Application: D later borrowed the breastplate from P and then gave it back, suggesting he accepted it was Perrys.
Current status/significance (what implications for law today):
We now have a much more contextual approach to determining what a clear act requires in a given context (sealing) some
clear acts have been outlined in statute (Bees Act)
Critique: This is a very western notion of possession and ownership, and has historically been used to deny claim of

indigenous groups to land, because they often on principle do not make clear acts of ownership legible to colonial
courts (Johnson v. McIntosh)

Finders of lost Objects

Armory v Delamirie
Facts: the plaintiff, a chimney-sweepers boy found a jewel and carried it to the defendants (goldsmiths) shop, to find out
what it was. The apprentice took it and, on the pretence of weighing it, took out the stones. The goldsmith offered him
money for the socket. The boy refused, and was given the socket back with no stones. The boy brings an action for trover.
Decision: the Chimney sweep was found to have a better title to the jewel than the jeweller who took it from him.
Rule:
1. That the finder of a jewel, though he does not by such finding acquire an absolute property or ownership, yet he
has such a property as will enable him to keep it against all but the rightful owner, and consequently may maintain
trover.
2. That the action lay against the master, who is answerable for his apprentices neglect.
3. As to the value of the jewel several of the trade were examined to prove what a jewel of the finest water that
would fit the socket would be worth; and the Chief Justice directed the jury, that unless the defendant produced
the jewel, and shew it not to be of the finest water, they should presume the strongest against him, and make the
value of the best jewels the measure of their damages: which they accordingly did.
Policy consideration: we need to have a way of distributing property when the true owner cannot be found
Contrast
Current status/significance (what implications for law today)
This is still the law in Canada.
Parker v British Airways Board
Finding: Parker, the finder, was found to have superior title of a gold bracelet over the airport, the occupier who did not
have knowledge of the bracelet.
Rule: In order for an occupier to demonstrate prior possession (and therefore better title than the finder), they must
demonstrate a manifest intent to exercise control (animus possedendi)
(Laskins spectrum approach to property: the higher the level of control the occupier has over the space in general, the less
will be required to demonstrate intent to exercise control)
Rights and Obligations of the Finder
1. The finder of a chattel acquires no rights over it unless (a) it has been abandoned or lost and (b) he takes it into
his care and control.
2. The finder of a chattel acquires very limited rights over it if he takes it into his care and control with dishonest
intent or in the course of trespassing.
3. Subject to the foregoing and to point 4 below, a finder of a chattel, whilst not acquiring any absolute property
or ownership in the chattel, acquires a right to keep it against all but the true owner or those in a position to claim through
the true owner or one who can assert a prior right to keep the chattel which was subsisting at the time when the finder took
the chattel into his care and control.
4. Unless otherwise agreed, any servant or agent who finds a chattel in the course of his employment or agency
and not wholly incidentally or collaterally thereto and who takes it into his care and control does so on behalf of his
employer or principal who acquires a finders rights to the exclusion of those of the actual finder.

5. A person having a finders right has an obligation to take such measures as in all the circumstances are
reasonable to acquaint the true owner of the finding and present whereabouts of the chattel and to care for it meanwhile.
Rights and Liabilities of an Occupier
1. An occupier of land has rights superior to those of a finder over chattels in or attached to that land and an
occupier of a building has similar rights in respect of chattels attached to that building, whether in either case the occupier
is aware of the presence of the chattel.
2. An occupier of a building has rights superior to those of a finder over chattels upon or in, but not attached to,
that building if, but only if, before the chattel is found, he has manifested an intention to exercise control over the building
and the things which may be upon it or in it.
3. An occupier who manifests an intention to exercise control over a building and the things which may be upon
or in it so as to acquire rights superior to those of a finder is under an obligation to take such measures as in all the
circumstances are reasonable to ensure that lost chattels are found and, upon their being found, whether by him or by a
third party, to acquaint the true owner of the finding and to care for the chattels meanwhile. The manifestation of intention
may be express or implied from the circumstances including, in particular, the circumstance that the occupier manifestly
accepts or is obliged by law to accept liability for chattels lost upon his premises, e.g. an innkeeper or carriers liability.
4. An occupier of a chattel, e.g. a ship, motor car, caravan or aircraft, is to be treated as if he were the occupier
of a building for the purposes of the foregoing rules.
Application: P acted honestly, and thus, prima facie, had a full finders rights and obligations. The space was more
private than the main airport thoroughfares, but still somewhat public fits in an in-between space. There was no sufficient
manifestation of any intention to exercise control over lost property. The airport had a policy that employees were to
return lost items to the airport, but they did not meet the test of a physical expression of that policy by having a clear
sign up to notify the public. Nor did they have a policy of regular searching.
Policy Consideration: the law should not discourage people from returning lost property. Law wants to facilitate and not
hinder the reunion of lost chattels with true owners.
Current status/significance (what implications for law today)
- Consolidates (if a bit disingenuously) the case law
- Lays out the rights and obligations of finders and rights and liabilities of occupier\s
Contrast

o If its public, you have to manifest intent to control

o If its private, like a home, the privacy means that you are not inviting finders to come in
The court in BA holds distinguishes South Staffordshire (which distinguished Bridges, saying that the important
part of that case was that it was found in a public part of the store)
If it is attached to or under the land then the occupier will have better title than the finder (South Staffordshire)
o Backed up by Kowal v Ellis
Moffatt v Kazana

Cited: for quick reference South Staffordshire Water Co v Sharman: possession of land carries with it possession of all
chattels in or upon the land
Baird v British Columbia (1992), 17 BCAC 315 and Bird v Fort Frances, [1949] 2 DLR
791 (Ont HC). Criminality and possession: level of criminal intention
In both these cases, finders had attempted to claim money obtained through criminal activities; in Baird, the finder was
unsuccessful, while the finder in Bird was held entitled to the money. Although Trussler J admitted that the distinction
between these two cases remains somewhat ambiguous, she concluded that a difference between the results reflected the
plaintiffs relative levels of criminal intention. Specifically, she noted that Baird involved a cache of knowingly stolen

travellers cheques, while Bird involved a young boy trespassing in an abandoned building and then stumbling on a can
full of money.

Joint Finders cases

Keron v Cashman
Finding: Little boys had possession of the stocking but he didnt have possession of money until the moment that the
finding of the money took place, which was the moment that the stocking broke open.
Rule: Moment of knowledge of object required for possession
Application: All the boys were playing with it when it broke open so all the boys were jointly entitled to the money
inside.
Contrast: Inconsistent with Edmonds v Ronella, which held that intention of the finders to take some action with the
object (clear act was necessary for possession)

Edmonds v Ronella
Facts: While rummaging through trash in a supermarket parking lot on their way home from church, two boys found a bag
with an envelope containing $12300 cash. Ronalla, an older girl came to the boys assistance. She picked up the bag and
the boys went to her house, where her parents called the police, who gave her a receipt as the sole finder of the money.
At trial the boys denied her testimony that they had disclaimed any interest in the money.
Finding: Held that an envelope of money was possessed jointly by the two boys who found it and the older girl who took
control of it.
Rule: clear act of the finders to demonstrate possession requires manifested intent to take some action with the object
Hammer J: A finder has been defined as the person who first takes possession of lost property but to be a legal finder, an
essential element is an intention or state of mind with reference to the lost property
Application: it only was recognized possession once the older girl helped them remove it from the parking lot.
-the Court determined that the lost property was not found, in a legal sense, until the plaintiffs and the defendant had
removed it from the parking lot.

Airports

True owner has 2 years to bring action to recover possession- Limitations Act in Relation to Chattels (s15)
Popov v Hayashi
Facts: Catching baseball case. Popov had the ball in his glove, but a crowd of people tackled him and he lost it. Mr.
Hayashi was forced to the ground, where he found the ball, and then he held it in the air. Important facts remain unknown.
Issue: did Mr. Popov achieve possession or the right to possession?

Principles
1 -the object must be lost or abandoned
2 -intention to control to the exclusion of others
3 -actual physical control
Decision: couldnt determine whether there was actual possession: they split it between the two

Tues. Feb. 3: Intention, Mistake, and Reform of Possession

Read: Ch. 3, p. 154-218
Real Property Limitations Act
s 4: A person (who has a prior claim, including a true owner) shall bring an action to recover land within 10 years after
the right to bring such an action accrued to the person. (Note that the period in which an action to recover possession must
be instituted differs from province to province; in Nova Scotia, for example, the limitation period is 20 years.)
s 5(1): Where the person claiming an interest in land was formerly in possession and was dispossessed or has discontinued
possession, the right to bring an action to recover the land shall be deemed to have accrued at the time of the dispossession
or discontinuance of possession.
Statutes of limitation: define the relationship between a person with an interest based on possession and the person who
is the true owner
common laws historical emphasis on physical possession rather than abstract title and its insistence on the idea
of relativity of title rather than absolute ownership, meant that a person with possession-base interest was
accorded the benefit of some legal protection and recognition
o SofL built on this by providing that the right of the paper titleholder to bring an action to recover
possession did not last forever e.g. Ontario Statute possession of land 10 years
o this does not mean title will be transferred, but that owners interest is no longer enforceable
o SofL added to common law principles by defining time limits within which the paper titleholder must
take action in order to preserve the relative priority of his or her claim
o The statutes of limitation also define the required time period within which the paper title holder must
initiate an action to recover possession and when the time period commences that is, when time begins
to run against the paper titleholder (point of dispossession or discontinuance of possession)
dispossession or discontinuance of possession:

Note that registration statutes may disallow claims of possessory title on land that the original owner has
registered, regardless of how much time has passed. An example of this legislation is Ontarios Land Titles Act,
RSO 1990, c L.5, s 51

Carol Rose, Possession as the Origin of Property

Why is it so important that property owners make and keep their communications clear?
Economists: clear titles facilitate trade and minimize resource-wasting conflict. If I am careless about who
comes on to a corner of my property, I invite others to make mistakes and waste their labour on improvements
Brumagim v. Bradshaw: both parties claimed ownership of the land through a title extending back to an original
possessor of the land
Putting up fence enough of a clear act for AP
-first claim was that ancestor Treat put up a fence and grazed cattle there

The court ruled that the jury should decide whether Treats acts gave sufficient notice to the public that he had
appropriated the property. If so, he had possessed it and could pass it on as an owner.
-is this clear act or labour sounds like clear act here labour seems to constitute a clear act (would signal that land was
occupied)
Possession requires communication (adverse possession means that you need to keep on speaking)
Adverse possession: it might be designed, not to reward the useful laborer, but to require the owner to assert her right
publicly. It requires her to make it clear that she, and not the trespasser, is the person to deal with if anyone should wish to
buy the property or use some portion of it
Why, then, is it so important that property owners make and keep their communications clear? Economists have an
answer: clear titles facilitate trade and minimize resource wasting conflict. If I am careless about who comes on to a
corner of my property, I invite others to make mistakes and to waste their labor on improvements to what I have allowed
them to think is theirs.
Acts of Possession and the Statutory Commencement of the Limitation Period
Posessory title and Land
Perry v Clissold
Finding: Clissold did have title based on his possessory interest in the land and was therefore entitled to compensation
for his expropriation by the government.
Rule: a person in possession of land has perfectly good title against all but the rightful owner. If the owner doesnt come
forward in time, his right is forever extinguished and possessor acquires absolute title.
Application: He demonstrated possession by fencing it in, in 1881, leasing the land to a tenant and regularly paying
municipal taxes. In 1891 the government expropriated it. His estate was entitled to compensation.
Argument to the contrary: He is not the true owner, but it doesnt matter, because neither is the government and the
dispute does not involve the jus tertii
Policy consideration: Policy reasons for recognizing possessory interest in land: At the time, courts were keen to
encourage the use and development of land (might hold less sway now)
On the other hand, there has been a resistance to giving squatters too many rights, lest they take advantage of people.
-

The courts also discourage self-help remedies (Kicking out a squatter instead of bringing an action through the
courts) to minimize the potential for violence
Current status/significance (what implications for law today)
Later cases expand upon these principles (and make a distinction between cases of trespass and cases of mutual mistake),
and are backed up by the Real Property Limitations Act.
Real Proprety Limitations Act s. 15, 4, 5
s. 15: At the determination of a period of the period limited by this Act ot any person
for making an entry or distress or bringing any action, the rights and title of such
person to the land or rent, for the recovery whereof such entry, distress or action,
respectively might have been made or brought within such period, is extinguished. ***
does not transfer title to the possessor!! They must prove possessory interest.
s. 4: Limitation period is 10 years
s. 5: 10 years starts at the time of dispossessionOR at the time the title holder discontinues possession.
Expanded upon in St. Clair beach, Keefer v Arilotta, Wood v Gateway, and Bradford Investments

3 Underlying Justifications for Statute of Limitations

The law is punishing the owner for neglect in relation to land
o For not being aware of what is happening on the land
o Not generally used. Punishment is left to criminal law
Thought to encourage the use of land by rewarding the possessor
o *begs the question of whether we still want to be encouraging land use
o In the 19th C when north America was less settled, this might have made sense
The administrative reason: clearing title to the land
Trying to make the title coextensive with possession
Piper v Stevenson
Fence meant to keep people out constitutes clear act of possession case of mistake
Facts: Piper put up a fence around two extra lots of property that she (mistakenly) thought were hers, her possession was
unchallenged for the limitations period
Finding: Pipers fence constituted a clear act of possession, and therefore dispossession to satisfy the s. 5 of the
limitations act
Rule: Possession must be continuous and exclusive for the purposes of the Limitations Act s. 5.
Argument to the contrary
Policy consideration: At the time, courts were keen to encourage the use and development of land (might hold less sway
now)
Contrast: Leichner v Canada, where the court held that simply having a fence is not itself sufficient to demonstrate
dispossession, and intention to exclude. The purpose of the fence must be to exclude (Fence to keep cows in doesnt
count)
Current status/significance (what implications for law today)
Since Piper, the court has refined the test and made a distinction between trespassers (Keefer v Arrilotta), cases of mutual
mistake (Wood v Gateway), and cases of unilateral mistake (Bradford v Fama)
Re St Clair Beach Estates Ltd v MacDonald (1974), 5 OR (2d) 482 (H Ct J Div Ct)
Facts: Appellants were using part of their neighbours land. She sold it to SCBE which moved to register it they argue
that it is theirs now
Decision: appeal denied
Finding: Possession is a fact must find which party had it

Here they found it only started when they put the birdhouse up not 10 years yet

Rule: For possessory title, possessor must show:

(1) Actual possession for the statutory period by themselves and those through whom they claim;
(2) that such possession was with the intention of excluding from possession the owners or persons entitled to
possession; and
(3) discontinuance of possession for the statutory period by the owners and all others, if any, entitled to possession.
- changed the statutory language, which said dispossession OR discontinuance)
Application: In this case, right of action did not accrue because there was no discontinuance of possession because the
Grants still picked cherries from time to time on the property. They also demonstrated that they knew it wasnt their land
Argument to the contrary: The Appellants tried to argue that they had built all these structures on the property and made
use of it for several years, but their exclusion was insufficient
Policy consideration: Dont want to reward neighbours who are trying to do un-neighbourly things and basically stealing

from their neighbours.

Contrast:
Current status/significance (what implications for law today)
Since St. Clair Beach, the court has refined the test and made a distinction between trespassers (Keefer v Arrilotta), cases
of mutual mistake (Wood v Gateway), and cases of unilateral mistake (Bradford v Fama)
MacLean v Reid (1978), 94 DLR (3d) 118 (NS SC App Div)
Continuous, open, visible and notorious possession of the lands which extinguished the right and title to the
registered owner, his brother, and as a result the appellants, no later than 1968. The respondent was entitled to
possession of the land.
o Even though his brother allowed him to use it
Keefer v Arillotta (Adverse Possession) adds IU test
Facts: the disputed land was a strip of driveway between two houses. The Cloys (Arillotas predecessors) had given the
Keefers right of way on that strip. They allowed them to park their car etc. The Cloys still occasionally had visitors use the
driveway.
Finding: Court found that the use that the Keefers put the property to was not inconsistent with the intended use of the
title holder, and therefore insufficient for the right of action to begin to accrue.
Rule: Court adds inconsistent user test so in addition to the other factors (listed in st clair beach), the use that
constitutes the possession must be inconsistent with the intended use of the title holder.
Application: The previous title holders were very generous with the laneway. They only drove into it sometimes to
unload things, and they went to FLA every winter when the keefers built a skating rink. The garage they build was the
only part of the encroachment that satisfied the inconsistent user test.
Policy consideration: The courts dont want to punish people for being neighbourly and letting their neighbours use their
land for stuff. And they dont want to reward land grabbing.
Contrast
Since then, it became clear that developers who have no intended use of the land are effectively immune from adverse
possession. In Masidon v Ham, the courts used the inconsistent user test to prevent a land grab.
Current status/significance (what implications for law today)
This was the first case that held the inconsistent user test and since then, courts have narrowed the test so that it only
applies to situations of trespass, not cases of mutual mistake (Wood v Gateway) or cases of unilateral mistake (Bradford v
Fama)
Masidon v (1982)
Use not inconsistent with owners intention if the owner has no desire to use the land (i.e. no intent)
Facts: Ham leased land, lessor went into bankruptcy and Masidon bought it. Ham continued to use Masidons land
without permission for planes etc. Masidon sued to remove him from land. He occupied that area exclusively for the
statutory period
Decision: no adverse possession
Reason: Masidon had no intention (i.e. Masidons rights were inviolable) WRT the land, so his occupation could not be
inconsistent with it
---basically, the law must have changed because this is more or less irreconcileable with Piper
Beaudoin v. Aubin (1981) OR

Facts: dispute over strip of land. Beaudoins occupied strip that they thought belonged to them, but it actually was
registered to the Aubins.
Decision: adverse possession granted
Judge: rejected intention test and considered the question of whether the intention and adversity tests were appropriate
elements of the law in Ont. he said no
Curiously different tests: probably irreconcileable inconsistencies
Calaghan:
The tests for the running of a limitations period have been reformulated for modern application. The calls for open,
obvious and continuous usage, peaceful, open and obvious usage and usage as of right are, however, all ways in
which the court seeks to establish whether or not the claimant to a possessory title has in fact been enjoying the type of
estate which the common law protected.
If the analysis which I have been discussing is helpful, the law dealing with possessory interests might be set out under the
following principles:
a) The common law doctrine that a person in peaceful possession of land will himself have a species of seised estate from
the commencement of such possession remains the foundation of our possessory doctrine.
b) The peaceful possession of land which is to be treated as amounting to a possessory estate is the type of possession
which a true owner would himself wish to make. Note, however, that this principle is subject to the qualification that
property which is not in its nature susceptible to some degree of open and continuous ownership will remain the estate of
the paper title holder unless the claimant to a possessory estate takes unusual measures to establish the existence of his
interests.
c) The establishment of a possessory estate can be demonstrated through a variety of indicia, none of which is either
sufficient in its own right to establish the estate or necessary to establish the estate. Among these indicia are the enclosure
of the lands in question, continuous possession, formal repudiation of claims by the true owner and a demonstrated
intention to possess the lands as if the claimant were the true owner.
d) Where the facts with regard to open, obvious and continuous possession are well established an intention to possess
(animus possidendi) will be presumed. Indeed, in such circumstances intention is not an issue. Where the facts with regard
to possession are equivocal, and especially where the lands in question would not in normal circumstances be in
continuous use, the subjective intention of the possessor may be a relevant factor in establishing the existence of a
possessory estate.
e) The analysis which can be employed for the purpose of establishing whether or not a possessory estate would exist at
common law is useful for the parallel purpose of establishing whether or not a suit to recover the land could (and therefore
should) have been brought under the Limitations Act.
f) At common law a person in possession of land with the permission of the true owner did not run a possessory period.
Similarly, except for the specific instances of tenancies and tenancies-at-will set out in the Limitations Act, the fact that a
person is in possession without the authorization of the paper title holder is a necessary element in the establishment of a
right to bring an action to recover the land and, therefore, a necessary element in the running of a limitations period. For
the purposes of the law of Ontario, this is the entire extent of the adversity doctrine insofar as the rights and interests of
the holder of paper title are concerned.
Mistake: Reassessing the Inconsistent User Test
Wood v Gateway of Uxbridge Properties Inc [1990] 75 OR (2d) 769 (Gen Div) (Mutual Mistake)
IU test doesnt apply to mutual mistake
Finding: Court distinguished Keefer from cases of mutual mistake
Rule: The inconsistent user test (which holds that the acts of dispossession must be inconsistent with the intended use of
the title holder) does not apply to cases of mutual mistake but only cases of trespass.
- Evidence of mutual mistake can lead to an inference that the party seeking possessory title intended to exclude (intention
to exclude is inferred unless there is evidence to the contrary).

Acts of user carried out by trespassers which could not be said to be inconsistent with the rightful owners intended use of
the land would not suffice to establish possessory title because they either
(1) carried with them the implied permission of the true owner, or
(2) they negatived a finding of the requisite intent to dispossess
Application: Woods openly/mistakenly enjoyed continuous use of the property for 18 years. They met the common law
test of the Real Property Limitations Act, (For possessory title, possessor must: 1. have dispossessed PTH for the statutory
period, 2. intention to exclude true owners (inferred from acts of dispossession) AND 3. Discontinuance of possession on
part of PTH). SO They get to keep the land that they possessed.
Policy consideration: Where there is intentional trespassing, court should not reward such land grabbing (e.g.
Giouroukos) Purpose of the inconsistent user test is to punish trespassers and is therefore inappropriate in cases where
both parties are mistaken.
Contrast: The SCC applied the reasoning from Gateway in Teis v town of ancaster even though the town had some
suspicion it was theirs.
Current status/significance (what implications for law today)
This case effectively narrowed the inconsistent user test so that it only applies to situations of trespass, not cases of mutual
mistake. SCC adopted this reasoning in Teis v Town of Ancaster. This was later expanded to cases of unilateral mistake
(Bradford)
Bradford Investments v Fama (Unilateral Mistake)
IU test doesnt apply to unilateral mistake
Finding: court found that the Famas had successfully met the test for possessory title and
Rule: The Inconsistent User test does not apply to cases of unilateral mistake.
Application: The Famas met the common law test of the Real Property Limitations Act, (For possessory title, possessor
must: 1.have dispossessed PTH for the statutory period 2. intention to exclude true owners (inferred from acts of
dispossession like fence and garden) AND 3. Discontinuance of possession on part of PTH). SO They get to keep the land
that they possessed.
- The judge made a finding of credibility in favour of the possessors
Argument to the contrary: Bradford argued that they were paying taxes that whole time, and the judge held that paying
taxes is consistent with ownership, not possession
Current status/significance (what implications for law today)
As it stands the court has refined the test and made a distinction between trespassers (Keefer v Arrilotta) where the
inconsistent user test does apply, cases of mutual mistake (Wood v Gateway), and cases of unilateral mistake (Bradford v
Fama) where it does not
Marotta v Creative Investments Ltd, [2008] OJ no 1399 (Sup Ct J)
-AP denied IU test applied

UK reforms: Electronic conveyancing where people have to register in order to get possessory title pursuant to (Land
Registration Act 2002)
US reforms: Proposal of statute that financially punishes bad faith possession, rather than leaving it to the courts to
manipulate it

Brian Bucknall, Two Roads Diverged: Recent Decisions on Possessory Title (1984) 22 Osgoode Hall LJ 375
(footnotes omitted)

PART 3: Fundamental Principles of Property Interests in Land

Tenure
Today all land in Canada outside Quebec is held in free and common socage. In the words of the Ontario Law Reform
Commission, however, in practice this tenurial relationship is of no importance.
One remaining echo of the doctrine of tenure relates to the possibility of escheat this is now governed by statute rather
than the tenurial relationship Ontarios Succession Law Reform Act makes any property (including personal property) of
a person who dies intestate and without heirs the property of the Crown to which the Escheat Act then applies

Tenurial vs Allodial
-allodial land is considered to be owned by those who live and work on it
-allodial title arguably encourages the holder to think in terms of absolute rights over land and to view himself or herself
as the ultimate decision-maker with regard to it. It also encourages a stark division between the public and private spheres,
with the private seen as a zone of minimal state interference.
-By contrast, the tenurial system may encourage (or at least reflect) a less dichotomous view of public and private, such
that state regulation is not seen as an illegitimate incursion into a zone of individual privacy.

Seisin:
the concept of seisin functions as a bridge between the doctrine of tenure and the doctrine of estates. In early
common law, seisin was a term that meant possession. Tenure relied on the concept of seisin in order to establish
who was in possession and thus owed duties (and feudal incidents) to the person on the next higher rung of the
feudal hierarchy. Seisin was also important in determining relative rights to possession of land and in
conveyancing of estates in land. In the early common law, it was possible to speak of being seised of a freehold or
leasehold, or even a chattel. Whoever was currently in possession had seisin and every taking of possession, even
an illegitimate one, gave rise to a new seisin. (prior seisin was better).
-then there came to be a division between real and personal property (still today)

Fri. Feb. 6: Estates 1

Read: Ch. 3, p. 236-267
Estates and ownership contrasted: as the doctrine of tenure receded in importance, the related doctrine of estates took on
more significance. Thus, while the law of tenure set out the general parameters for landholding (e.g. holding an interest in
land), the doctrine of estates described then nature of the interest held that is, the sets of rights that landholders
(those in possession or with a right to future possession) could hold. As noted above, the common law did not identify
an owner of land, but rather what estate in land an owner held. It stated that individuals owned not the land itself,

but estates in land, where an estate was defined as a bundle of rights delimiting the period during which the holder was
entitled to possession.
Freehold v leasehold
-qualitative difference
Fee Simple:
-the largest estate known to the law largest with regard to both its duration (potentially indefinite) and the nature and
extent of the rights granted to the holder.
Life estate: since (1886), you now have to include words of limitation in order to create a life estate presumption is fee
simple
Rights usus, fructus, abusus
3 types of waste
In context of
Voluntary waste (not allowed)
Permissive (through neglect)
Ameliorating (makes it better)
-life tenant not responsible for permissive (expenses of capital), but they are responsible for paying taxes, utilities and
snow removal etc.
Creation of a life estate
Interpretation: not what the testator meant to do when he made his will, but what are his expressed intentionsi.e.,
what the words he used mean in this particular case (Perrin v Morgan/Re McColgan)
Re Walker (1925), 56 OLR 517 (CA)
Cannot give absolute interest and control it upon death of beneficiary
Facts: Walker dies and leaves all his property (except gold watch and jewellery) to his wife. At the time of wifes death
Walker intended to give any remaining property to other persons. Wife dies, still has property remaining from husbands
estate.
Issue: Does the remaining property from Walkers estate pass to the beneficiaries under HIS will or under WIFES will.
Trial judge sided with beneficiaries under Walkers will, case appealed.
Ratio: A person cannot give an absolute interest in property and then try to control the interest upon the death of the
beneficiary. This is seen as repugnant.

Court must decide which intention is predominant.

o If intention to give an absolute gift is predominant, then person receiving it gets property absolutely,
nothing remains.
o If intention to give property to the remaining persons, they would get the property and wife only entitled
to life estate.
Decision: Intention found to be absolute gift to WIFE, voided any further gifts under Walkers will. WIFES will to be
followed.

Court swayed by the fact wife can dispose of the property during her lifetime. Not possible if it was a life estate.
Also a 3rd exception: First named has a life estate but ALSO has the power of sale which may be exercised at any
time during the currency of the estate.
o Nemo dat quod non habet you cant give what you dont have; fundamental property rule

Exception: a person granted a power, has the authority to deal with property, transfer a right that one
doesnt have.
MUST BE STATED CLEARLY BY TESTATOR. Dismissed in Walker

Probate: When a person dies, his or her estate must go through probate, which is a process overseen by a probate
court. If the decedent leaves a will directing how his or her property should be distributed after death, the probate
court must determine if it should be admitted to probate and given legal effect. If the decedent dies intestate
without leaving a willthe court the laws direct the distribution of assets based on hereditary succession. In
general, the probate process involves collecting the decedent's assets, liquidating liabilities, paying necessary taxes,
and distributing property to heirs
Executory (adj.): something not yet performed or done. Examples: an executory contract is one in which all or part
of the required performance has not been done; an executory bequest is a gift under a will, which has not been
distributed to the beneficiary.

Re Taylor (1982), 12 ETR 177 (Sask Surr Ct)

When life interest granted cant expand to absolute interest
Facts: This case is brought by executors of the wifes estate to understand the rights she has in relation to the land
Husband dies and leaves his estate to his wife to have and use during her lifetime but then says that after the wife
dies any estate of which she may be possessed will be divided equally between his daughters.
o But then wife had her own will stating that once she died, the assets of her estate were to be converted to money
and put into two equal funds, one to go to charity and the other to five individuals.
Issue: whether the testatrix (wife) takes an absolute interest under the husbands will or only a life interest. (p. 377)
o

If absolute interest her will prevails.

If life interest husbands will prevails (kind of a gift over situation).
Ratio: Where the testator uses plain language to indicate an intention to give a life interest only, that interest is not
enlarged to an absolute interest because the testator has declared that the done is to have the right in her discretion to
encroach on capital for her own proper maintenance
Reasoning:

Intentions are clear: husband intended a life interest along with giving the wife power to encroach on capital
for her own proper maintenance.
Executors of wifes estate argue:
o Reject above and says that it was clearly given to wife absolutely and that this must be assumed
because of her power to gain capital on estate (to assume otherwise would be ex hypothesi (by
hypothesis) repugnant). (p. 378)
o Argued that right to encroach on capital not subject to any limitation amounts to an absolute interest.
Judge rejects arguments of the executors judge says arguments fail because they assume that just because
the same result can be achieved from absolute interest as the result from right to encroach on capital from the
estate, the two must be identical but this is not true.
o In the present case, the words during her lifetime operate as words of limitation and indicate a clear
intention for a life estate. (p. 378)
o Judge proceeds to look at other cases and the grammatical uses of words (Re Minchells Will Trusts).
Notes: with for her lifetime there arises a prima facie view that the widows interest is a
life interest, BUT the words after her death if anything should be left overcould possibly
be seen as changing it to an absolute interest.
But these words were not used in the present case.
o Executorsargue that the repugnancy did not arise because testator tried to accomplish two things; they
argue that it arose because the gift over of whatever is remaining, essentially gives the beneficiary the
absolute interest therefore, the gift over was void ab initio.

ab initio: (Latin, From the beginning; from the first act; from the inception.) An agreement is
said to be "void ab initio" if it has at no time had any legal validity. Contrasted in this sense
with ex post facto.
o Judge says the executors arguments fail on the grounds that the gift over shows an intention to give a
limited interest only. judge rejects executors arguments re: absolute interest.
Judge says this is not case where testator tried to do something impossible (creating repugnancy). this is a
case where the wording indicates that testator only intended limited interest and, therefore, gift over is NOT
repugnant.
Judge finds that in other cases, the right to alienate property during a lifetime does not necessarily mean the
beneficiary has a life interest.
o A fortiori: (Latin, With stronger reason.) This phrase is used in logic to denote an argument to the
effect that because one ascertained fact exists, therefore another which is included in it or analogous
to it and is less improbable, unusual, or surprising must also exist.

Doctrine of Repugnancy: When testator tries to accomplish two things, which cannot logically stand one with the other
(p. 380).
Example: leaving estate to first named in fee simple (meaning absolute interest) and then trying to gift over to another
after the first named dies. This cannot be done because the first named inherits all the rights to the estate under an absolute
interest, they can leave it to whomever they want or not leave it to anyone.
Remainder: third party who receives land after
CREATING LIFE ESTATESLife Estate vs. licence
Sometimes difficult to determine which of the two a testator intended
Re Waters (ON 1978) (p. 264)Creates Life Estate
Facts: Waters grants wife/girlfriend/spouse (Jones) use of property for as long as she lives, or until she remarries, or gives to my executors and trustees a written notice that she no longer needs and desires the use of the
property
Issue: Does the devise create a licence/personal permission to occupy the premises or a life estate? (NB: If the
former, Jones would not be able to, e.g. rent out the property if she were not occupying it)
Holding: Life Estate.
Analysis:
o Circs in which will was created: Waters was contemplating marriage to Jones, says wishes are the same
regardless of whether they marry
o Words: For as long as she lives creates Life Estate
o Context: Waters says Jones can no longer use the property only if she remarries or gives written notice; no
indication she must occupy premise
Re Powell (1988) licence
Facts: Powell grants mentally ill daughter use, etc., of property: right to the occupation, possession and use of
my house ... for as long as she remains in possession of premises ... and that in the event my said daughter ceases
to remain in possession of the said premises or married or upon her death ... premises ... shall be held ... in trust
for my four (4) children. Daughter was in possession until she entered hospital after suffering stroke and seemed
unlikely to recover
Issue: Does the devise create a licence or life estate (i.e., a vested interest in land)?
Holding: Licence
Analysis
o Words create a licence; does no demonstrate intent to create a vested interest in land

Rules of construction:
Courts will interpret words used by testator according to their plain and ordinary meaning (Perrin v Morgan/Re
Waters)
Courts will construe the words of the will as the testator intended; the Q is not what the testator meant to do when
he made his will, but what are his expressed intentionsi.e., what the words he used mean in this particular
case (Perrin v Morgan/Re McColgan)
Creating a Life Estate
Courts will put themselves in place of testator in attempting to discern her intention; will look at language used,
context in which language is used, and circumstances in which will was made (Re Waters)
Words of limitation such as for life or during her lifetime should be interpreted as creating a life interest (Re
Taylor)
If there are no clear words of limitation, and if the testator intended to give both an absolute and limited interest in his
estate, Courts will give effect to the dominant intention and reject the subordinate intention as repugnant (Re
Walker)
Licence vs. Life Estate
Language such as permit, in the absence of language indicating clear intention to create Life Estate, may be
interpreted as creating a licence only (Re Powell/Moore v Royal Trust)
In the case of a licence, testatrix is granted certain permissions, but the legal estate in the property is in the trustees
of the estate (Moore v Royal Trust)

Tues. Feb. 10: Estates 2

Read: Ch. 3, p. 268-303
Variations on estates
There can be absolute estates, or grantor may add conditions:
Two kinds of conditions
Conditions of forfeiture: if a certain event happens, the grantee will forfeit or lose the estate which she received (by
grant or by will)
These include: determinable estates and estates defeasible on condition subsequent (defeasible b/c capable of being
invalidated/defeated)
Conditions of eligibility: a certain event must happen before the grantee becomes entitled to receive an estate in the
first place
Known as conditions precedent (b/c they precede)

Determinable Estates
The determining event is part of the grant language and defines & modifies the estate itself
Eg: G grants to A in fee simple so long as A continues to practise law

This is a Fee Simple Determinable (FSD), so that G retains an interest known as possibility of reverter.
If A ceases to practice law, then the estate automatically terminates & the FS reverts to G (vested)
If A doesnt vacate, then becomes tenant at sufferance subject to peremptory eviction
Language usually used includes: so long as, until, during, and while
Note that if condition on FSD is void, the whole grant fails (as though there was never any grant, because the determining
event is inherent to the grant itself).
Estate Defeasible on Conditions Subsequent
The condition is added to the grant language and considered external to the estate itself
E.g. G grants to A in fee simple on condition that he continues to practice law
This is a Fee Simple Subject to Condition Subsequent (FSSCS), so that if A ceases to practice law, then G has a right of
re-entry and may re-enter and take possession
As estate is not automatically terminated, but only if G exercises optional right of re-entry (contingent)
Language usually used includes: on condition that, provided that, but if
Note that if condition on FSSCS is void, then only the added condition is void and it will be struck off, leaving the
recipient with an absolute estate (unqualified).
Alienability
All of these interests are now alienable in theory: determinable and defeasible estates; contingent interests; rights of reentry, and possibilities of reverter.
In practice, there may be few purchasers because grantees of determinable or defeasible estates can convey only the
interests that they hold (rule of nemo dat quod non habet).
An estate subject to forfeiture through event beyond control of purchaser likely reduce buyers
Re Tilbury West Public School Board and Hastie [1966] 2 OR 20 (H Ct J)
Facts: grant had been given to a school for a piece of land. Will said: for so long as it shall be used and needed for school
purposes and no longer
Issue

Needed to determine if the grant in question was a determinable fee simple subject to a right of reverter or a fee
simple subject to a condition subsequent, because the cases and authors are not in agreement as to whether the
rule [against perpetuities] applies equally to both such forms of limitations.

Decision: Judge finds that the deed created a fee simple determinable with a right of reverter

Explanation: A devise to a school in fee simple until it ceases to publish its accounts creates a determinable
fee, whereas a devise to the school in fee simple on condition that the accounts are published annually creates a
fee simple defeasible by condition subsequent

Limiting conditions and events

The law limits the kinds of conditions or determining events which may be attached to grants & devises provided that they
are:
Sufficiently Certain

Dont Amount to Impermissible Restraint on Alienation

Dont Contravene Public policy (incl non-discrimination and other policies)
High Degree of Judicial Discretion Inevitable Here
Impact of a Void Condition on Qualified Estates differs:
If condition void on FSD, whole grant fails (inherent)
If condition void on FSSCS, condition is void (added)

Re McColgan [1969] 2 OR 152, 4 DLR (3d) 572 (H Ct J)

Distinguishing btw determinable estates and estates subject to condition subsequent
Uncertainty & void conditions
What estate passed to Kovalchick in the Will? Terminated or forfeited?
Will: To hold my property as a home for Mary Kovalchick, until her death or until she is not residing therein
personally, whichever shall first occur

(SCC had found- Not a life estate, but a mere licence to occupy)

Does will create LED or LESCS?

Fundamental rule in construing language of a will: look to the expressed intention of the testator
Applies test from Tilbury

The Court finds that K has been given a life estate and that the condition (until she is not residing) is a condition
external to the grant (defeasible)

They further find that the condition is too uncertain, and is thus void

LESCS with CS void for uncertainty: absolute LE

-they looked into the nature of their relationship the fact that he knew her financial situation
Limitations on the Power to Create Qualified Estates
Blackburn v McCallum (SCC 1903) restraint on alienation is void
From previously high degrees of dead hand control to more rigorous approach to restraints on alienation
Issue: general prohibition on alienation made good at common law b/c its time-limited?

Time limited restraint on alienation: 25 years

Davies J. found that son took FS absolute

Said that this kind of restraint on alienation would result in what amounts to a new kind of conveyance and
making a new kind of conveyance should be left to the legislature

Restraint on alienation is void: Conditions that are repugnant to the absolute character of the estate (fee simple is
supposed to be absolute), by removing its necessary incidents, are void

This would make it wholly different from what has been made by law it would become something that is
unknown to law
(also, in this case the son had mortgaged the house if this was considered to have violated the terms, then the owner of
the house through the mortgage would be unable to reclaim the land this is an undesirable outcome)
This is an example of total or substantial restraints struck down

Re Millar Estate 1938 SCC (great stork derby)

Will left estate to whichever woman could have the most children in a given period of time

Decision: this is acceptable the line has not been crossed

o

This could bring about the degradation of motherhood, but that doesnt meet the high bar for what they
will void for public policy

Re Canada Trust Co and OHRC (Leonard) (1990 OntCA)

Majority
concurring
1990 OCA; does the trust violate public policy?
Col. Reuben W. Leonard & Leonard Foundation
Recitals of the Trust:

Only: for members of the white race, protestant religion, and with British parentage (could not have allegiance to
a foreign nation)

Applied to: beneficiaries, managers, and institutions (could not be run by people who didnt qualify)

How did the dispute come to court? schools had stopped processing these payments because they found the
discrimination to be distasteful
What was novel about the result here?

Up until this point, a charitable trust had not been found to be void as against public policy

How did the justices support their decision?

How did they limit their decision?

Recitals were important because they were racist

o

Not meant to prevent people from funding particular groups provided that the purpose wasnt specifically
discriminatory

Obiter:

They created a distinction between public and private

o

Distinction between public charitable trust and private family trust

Fox v Fox Estate (1996 ONCA)

Mother was preventing her son from getting money because he married a non-jew
o

She had the power to assign un-allocated money, so she was giving it to her grand-son

Court: held that this was an improper exercise of the power, since the widows decision had been influenced by
extraneous matters, and she had dealt with the estate assets as if they were her own property

Note: This decision seems to contradict Canada Trust, where they created a public-private distinction here they dig
into private matters

Re Ramsden Estate 1996 (PEI SC (TD))

Here there was a Charitable trust for protestant students

School was supposed to be non-denominational

They got around this problem by getting someone else to administer it someone who is not bound by the
universitys non-denominational character

McCorkill v Streed (2013 NBQB)

Testator willed money to the National Alliance, a neo-nazi group
Members of the family are moving to have this declared void this is a motion for an injunction which was
granted
BMO v Spence (2015 ONSCJ)
One of two daughters left out of will
They had had a great relationship, and he promised her that she could have his house when he died, until she
became pregnant with a white mans child and he disowned her
Her bid to have the will declared void for public policy was accepted intestacy would have them spite the estate
Certainty and Uncertainty
Courts historically generous upholding less than clear dispositions
Pew v Lafferty

Condition: continuing to be a steady boy and remaining in some respectable family until he is of age

At 16 he fights in the civil war

Court says that this is sufficiently certain that he violated it by his actions and he has forfeited his entitlement
o

He had exposed himself voluntarily not only to the danger but also to all the temptations of a soldiers
life under such circumstances [and] chose as a mercenary to engage in a contest with which he had
nothing to do

Re Jordan and Dunn (1888) (OAR)

Condition: he abstain from intoxicating liquors and card-playing and be kind and obedient to his mother and be
known among his friends as an industrious man ten years after the death of his mother or face forfeiting the
property

conditions found to be sufficiently certain and the forfeiture was enforced when it was admitted that the son was a
habitual drinker
o

What did the testator mean by requiring Michael to abstain totally from intoxicating liquors? He used a
common vernacular expression, and evidently meant that his son was to be a total abstainer in the well
understood import of that term. That does not and cannot fairly be interpreted to preclude the use of
alcoholic stimulants for bona fide medicinal purposes, any more than an injunction against the opium
habit would forbid the proper use of Dovers powder or paregoric.

Why might the courts have been concerned to uphold such broadly worded clauses? What do these decisions reveal about
the interpretive community and the legal culture within which these clauses were created and understood?
Change with Sifton v Sifton
A different approach to certainty began to appear with the following decision of the Judicial
Committee of the Privy Council.

Sifton v Sifton (1938 JCPC)

Facts: will gave payments to daughter so long as she shall continue to reside in Canada

She left to study abroad this application came because she wanted to leave again but she was afraid that she
would lose the payments

Issue: Determinable or defeasible?

Decision:

They find that it is defeasible subject to a condition subsequent

These words do not qualify the trusts for payment. They are merely designed to abrogate the trusts in a certain
event

Different outcomes with invalidity?

Presumption in favour of early vesting*

Early vesting favours making it a condition subsequent rather than a condition precedent (which would have it
vest later)

(if they follow an interpretation where the estate vests sooner then it will be more certain and less contingent)

Certainty is less strict with conditions precedent (capable of being given some plausible meaning)

Fri. Feb. 13: Estates 3

Read: Ch. 3, p. 316-324
Vested and Contingent Interests
All estates are either vested or contingent.
A vested estate is defined as one that satisfies two requirements:
1. it is held by an ascertained person or persons; and
2. it is ready to fall into possession forthwith, subject only to the ending of prior estates.

In contrast to a vested interest, a contingent interest arises in one of three situations:

Where the interest is subject to the fulfillment of a condition precedent before the interest can come into existence;
Where the holder is not yet in existence; or
Where the holders identity is not yet known
(where theres ambiguity the law prefers vesting)
British Columbia (Public Guardian and Trustee of) v Engen(Litigation Guardian of)
Facts: Will said that house would be kept for 3 unmarried children until they die, at which time it would be sold and the
proceeds would go to her surviving children
-before the last unmarried daughter dies she has to be put in a home
Issue: can daughter disclaim her interest? (This is important, since the will said that it would remain for her use until she
dies, and shes not dead, but could probably use some money)
Decision: she can disclaim, and once she does, the house will be sold and the proceeds will go to all the children alive at
the time that her mother died (or their estates)

The BC Supreme Court decided that the three sisters did take life interests and that Rose could disclaim her interest, after
which the house could be sold. Ross J then turned to the question of entitlement to the proceeds of sale.
There is a presumption of early vestingthat is, whenever the words used in a will permit a construction that results in
early vesting, the gift will be vested rather than contingent: see Re Campbell etc. The presumption will be displaced by
clear language in the will expressing a contrary intention.
The gift to the surviving children was vested. The gift was not subject to an event that might never occur, since it
was inevitable that the life interests granted to the three single daughters would come to an end. I find that there is
no contrary intention expressed in the Will to displace the presumption of vesting. There are, for example, no
words of contingency such is if or then surviving used. Accordingly, I find that the proceeds of sale of the
Property are to be distributed in equal shares to the children surviving at the date of the testators death.

Rules of remainder
The rules are traditionally framed as follows:
Rule 1. A remainder is void unless, when it was created, it was supported by a particular estate of freehold created by the
same instrument (no springing interests). Recall that a particular estate is an estate less than a fee simple that precedes
a remainder. Thus, a grant to A for life, remainder to B in fee simple is valid according to this rule, because there is a
particular estate that is less than a fee simple that supports and is prior to Bs remainder in fee simple.
The following grants, however, would infringe this rule:
To D and his heirs 10 years from todays date.
To Es first daughter for life, where E has no daughter at the time of the grant.
Ds and Es estates are meant to spring up in the future, which the common law does not allow them to do. There is no
one who can receive the seisin from O, the grantor, at the moment of the grant, and this situation creates an impermissible
(in the eyes of the common law) gap in seisin.
Rule 2. A remainder after a fee simple is void. This rule applies to any remainder, contingent or vested, that follows a fee
simple. In part, this is simply a consequence of the rule nemo dat quod non habetonce the grantor has parted with the
fee simple, he or she has nothing further to grant away. However, it also applies to determinable and defeasible fee
simples. Thus the interest created in P in the following grant is void at common law:
To M and his heirs so long as the land is farmed, and afterwards to P and his heirs.
With regard to defeasible and determinable interests, rule 2, in effect, reiterated the common law prohibition on rights of
re-entry and possibilities of reverter being exercised by anyone except the grantor or his heirs.
IV. Present and Future Interests 323
Rule 3. A remainder was void if it was designed to take effect in possession by defeating the particular estate (no shifting
interests).
The concern for an orderly flow of seisin is at the heart of this rule. The following purported remainder to Z was thus
invalid at common law:
To W for life, but if she remarries, to Z and his heirs.
The remainder in Z purports to allow him to cut in, to end Ws life estate prematurely should she remarry. This attempt
to cut short Ws seisin and shift seisin over to Z was considered objectionable by the common law. The interest attempted
to be created in Z is often referred to as a shifting interest, because it was to shift over from W to Z immediately on
the happening of the event in question.
In relation to such shifting interests, however, the law distinguished between defeasible and determinable estates. The
example just discussed featured a life estate defeasible on condition subsequent. A determinable life estate was not
considered to run afoul of this rule.
Consider the following:
To W for life during widowhood, and then to Z and his heirs.
If W should remarry, her life estate would end, but this was seen as the natural end of her estate. Recall that a
determinable limitation (here, the during widowhood clause) is seen as part of the very definition of the estate so
delimited. Hence, seisin was seen to flow smoothly to Z whether W died or remarried, and the vesting of his estate was
not considered to cut in to hers.
Rule 4. A remainder was void if it did not in fact vest during the continuance of the particular estate or at the moment of
its determination.

The concern for an orderly flow of seisin was also at the heart of rule 4, but it was the only rule that had a wait and see
component. The first three were rules of initial invalidity. This rule contemplates a standard disposition such as the
following:
To R for life, remainder to S and her heirs upon her marriage.
If S is married no later than the date of Rs deaththat is, before the particular estate has endedher interest will vest in
time. Note that while R is alive and S is unmarried, her remainder in fee simple is contingent; however, it vests in interest
when she marries, and vests in possession at the death of R. Thus, rule 4 does not invalidate Ss interest. How long can we
wait to see if she does marry? Rule 4 says she must marry before R dies or she, S, will lose her interest through natural
destruction. If she marries a year after Rs death, no matterthe interest, once lost, cannot be resurrected. Upon Rs death,
if S is unmarried, there will be a reversion to the grantor or the grantors estate.
Note, however, that it will suffice if the holder of the remainder is identified at the moment of the particular estateholders death. Thus the following grant is valid:
To K for life and then to her eldest son alive at her death and his heirs.
K may have several sons and we will not know which will be the eldest son alive at her death until she dies. But that
suffices for rule 4: the seisin will flow smoothly from K to her eldest son at the moment of her death. The remainder will
only be void if K is survived by no sons at all.
Read: Ch. 8, p. 753-789; 799-808; see also Course Moodle
Fri. Feb. 27: Special Panel on Aboriginal Title with Profs. Kent McNeil, Signa Daum Shanks, & Jeffery Hewitt
Read: Ch. 8 as above; additional readings at Course Moodle
All sections in Moot Court from 10:30-12:30, Section A in rm 1003 from
12:30-1:30 p.m.
PART 6: Transferring Property Interests by Gifts & Sale: Equitys Role
Tues. Mar. 17: Gifts
Read: Ch. 5, p. 427-467
Introduction & Gift Relationships
Distinguishing between gifts and contracts/sales
Bargain & non-bargain promises

Bargain promises (such as sales) usually take place in the commercial context with the need to enforce the
expectations of the contracting parties

Non-bargain where transfers are made through non-bargain gratuitous promises also known as gifts
o

Gifts are generally unenforceable in the law of contract

Though a legally enforceable unilateral promise might be created if the promise includes nominal
consideration (peppercorn theory)

Usually occurring among friends and family

The social significance of gifts

Wedding gifts

Blurring of the lines marking of status changes ,and

Social significance

Hierarchies
Potlatch/feast halls and Indigenous governance

Illegal under the Indian Act, from 1884-1951

Feast hall was significant to their culture, economy, etc.

Civil code treatment of gifts as contract & revocation for ingratitude

Another counterpoint to the mutual exclusion of gifts and contracts in the common law gifts as obligations
(rather than property)
1836-where donee has behaved in a seriously reprehensible manner

Requirement for a valid gift intervivos (between living persons)

Real property by deed of gift or by declaration of trust
Personal property by a deed, by a declaration of trust, or by delivery (valid so long as there is intention to give by the
donor, a transfer, and acceptance by the donee)
Formal requirements serve to: prevent fraud, to reinforce the donors intention to give away permanently, to provide clear
evidence, especially when the donor has died
The Deed of Gift

Must be signed, sealed, and delivered

Delivery, Intention, and Acceptance

The Declaration of Trust
Capacity
Deed of gift
-signed, sealed, delivered
-must be signed by the donor, seal (but this has not been required in Ontario since 1984), delivered (this has been
interpreted to mean that there must be evidence that the person executing the deed intended to be immediately and
unconditionally bound by it doesnt necessarily have to be physical delivery)

Deed conveys title on delivery and is not mere evidence of the transfer

Schilthuis v Arnold (1991, Ont. Gen. Div. & C.A.):

- where the deed is executed matters and in this case the transfer of the gift was void because the condition to get
married was unfulfilled
Jones v Jones 1979 SKQB:

mere writing does not qualify as a deed

Delivery
Without a deed, gifts of personal property must meet three requirements:
1) intention to make a gift by donor
2) acceptance of gift by donee
3) sufficient act of delivery
Act of Delivery provides proof of gift, but its an independent requirement (not just evidentiary)
Unilateral Promises without Acts of Delivery dont transfer the gift (common law suspicion of gifts)

onus of proof is on the donee

In re Cole
Facts: Man has declared bankruptcy. His house has been sold in order to pay money owing to his business partner. Wife is
claiming that the furniture in the house belongs to her that it was a gift. Her story: when the bankrupt bought the house
he took her to it, brought her into a room, put his hands over her eyes and then uncovered them saying Look. She
looked around and he said its all yours. The house, and its contents (as well as fur and jewellery said to be other
presents) remained insured in his name.
Issue: does bringing the donee to the chattels and speaking the words of gift satisfy the requirements of a gift under the
law?
Decision: Court held no gift in furniture because there was no delivery or change of possession or intention to transfer
necessary to perfect gift between spouses
(p.433 he rejects the argument that her being near the chattels is delivery)
There was no change in possession-although she lived in the house, this does not make her in possession of the furniture
(would a maid then also be in possession?)

there was no delivery, and his words of gift were not sufficient

delivery: things that would work: being put in actual possession of the chattel
Case in context of family and proceeds from husbands bankruptcy sale including sale of articles of furniture said to be
gifted to his wife
Case is important for drawing out some of the principles just mentioned, including validity of gift due to delivery (or lack
thereof) and constructive delivery
Things discussed:
Constructive delivery:
-an act amounting to a transfer of title by the operation of law when actual transfer is impossible
-this encompasses all the acts which, although they do not truly confer a real possession on the donee, have been held to
be construction of law equivalents to acts of real delivery
Delivery & Common Possession
Contrast In Re Cole with:
Langer 1932 BCCA
(held valid gift)
McLeod Estate 2012 ABQB
(jointly occupied premises but still valid gift)

textbook doesnt elaborate makes them look essentially the same

Mackedie Estate 1998 BCSC

(valid gift even though possession was unchanged)

Facts: every year on the sons birthday the father took a painting off the wall, wrapped it, and wrote Happy
Birthday on it. Then they were put back on the wall and kept there. When he died he willed them to someone
else

Decision: the act of giving them wrapped with a note was sufficient to constitute delivery

Constructive & Symbolic Delivery

Delivery does not need to be at the same time - if there is an expression of intention before or after that may suffice

Constructive delivery is permitted where a chattel (e.g. car) is too big to transfer easily in which case transfer of
the means of control may suffice (i.e. car keys)
o

It has been said that constructive delivery is only available for chattels which cant easily be transferred
BUT this is a controversial doctrine

There can also be symbolic delivery: e.g. giving a picture of a new car, along with keys BUT
there is little case authority for this

If keys come up, remember to note how many sets of keys are in play: sole set or duplicates?

If there are duplicates and the donor keeps 1 (or more), it is less likely that this will be accepted

Intention
Intention: requirement for valid gift
Thomas v Times Book (1966, Ch. Div.)
Facts: Welsh poet Dylan Thomas finished years-in-the-making manuscript of Under Milk Wood but lost the original
manuscript in a Soho pub after a BBC producer, Douglas Cleverdon, had a copy made. DT told DC that it was DCs if
producer could find it. DC found it a few days later & DT died few weeks later.
Issue: Was the gift made? Intention and delivery here?
Decision: Court held it was a valid gift on all the evidence
Analysis
Intention: established by the plain meaning of DTs words: words of gift

We have to approach the story with suspicion, given that DT is not alive to tell his side of the story
o

Evidence against: Widow said that it was important to him hed sold manuscripts before and he was
hard up

For: he was impulsive, DC told people about it right away, statements were recorded contemporaneously
with the gift

Delivery:

the fact that DC got possession from the bar (in which it had been left by DT) and that he got possession with the
consent of DT, is sufficient delivery to perfect a gift in DCs favour

Evidence, Presumption, onus

S. 13 of Ontario Evidence Act:
Actions by or against heirs, etc.
13. In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposite
or interested party shall not obtain a verdict, judgment or decision on his or her own evidence in respect of any matter
occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence.
Intention
Intention to Gift vs Intention to Loan

Beaverbrook and fraudulent concealment

Beaverbrook Foundation v NB Gallery
Facts: Lord Beaverbrook had established a foundation and given 133 paintings to a Gallery in NB. The gallery had them
for 40 years thinking that they were just on loan and that the foundation had title. They later realized that they had been
given as gifts. This was in dispute and went to arbitration.
Issue: 1) was it a loan or a gift? 2) should the gallery be barred on the basis of the limitations act?
Decision: Gift, and No
Cory found that title had been given for 85 of 133 paintings. In addition, he found that Lord Beaverbrook had fraudulently
concealed the true situation and breached his fiduciary duty as founding chair of the gallerys board this suspended the
limitation period and negated any estoppels that would otherwise have operated
Intention vs Motive
McNamee v McNamee 2011 ONCA
(trial J. confused motive with intention donor of company shares in an estate freeze transfer of assets to insulate from
creditors does not need to be motivated by altruism may equally be motivated by commercial purposes)
New trial ordered to look at wifes potential constructive trust (see Ch. 6)
Acceptance by Donee
Cory J. in Beaverbrook arbitration and the tempering of acceptance not in fact a prerequisite and need not be express
either to be valid
Acceptance can be presumed until dissent is signified, even if the donee is unaware of the gift (e.g. Beaverbrooks belief
that paintings were on loan for 40 years and thus could never have accepted them)
Standing v Bowring 1883: gift vests immediately
Facts: P secretly set up an account in hers and Ds names. She wanted to take it back, so she told him and asked him to
transfer it to her he refused
Issue: did the gift require acceptance?
Decision: gift was completed it vested immediately (when she gave it, even though he didnt know), and thus she could
not take it back

a gift vests immediately subject to the donees right, on learning about the gift, to decide whether to accept it

-rationale: common law accepts gifts as being unilateral we should be more concerned about the state of mind of the
donor than the donee
The Declaration of Trust
Gifts inter vivos: the declaration of trust
-In addition to gifts by deed and (for personal property) gifts by delivery, intention and acceptance, which deal with the
legal title to property, it is also possible for the donor to retain the legal title and transfer only the equitable title to the
donee
Watt v Watt 1987 Man. C.A.
Facts: Mr. Watt owned Thunderbird boat and gave set of keys to Shirley Watt with a signed document in a sealed envelope
opened after his death stating the boat was jointly owned by the two of them. She had helped him with a variety of things
at the marina, and her husband had helped him to build the boat. The logbook on the boat showed the owners as being
Shirley and RJ.
Issue: what, if any, interest in the boat was given to Shirley

Decision: the note (along with his actions) constitute an executed trust which made him and his estate a trustee of the onehalf interest in the boat
Shirley found entitled to one-half interest in common in the boat (middle of p. 449)
The Court held there was no gift while intention and acceptance were clear here, the issue of delivery was the hurdle
where Shirley was only given a duplicate set of keys indicating use but not constituting delivery
Gifts & Trusts
re Cochrane v Moore (1890)
Facts: owner of horse gave jockey interest in a horse. He then used the horses as collateral for a loan. When making this
deal he told the creditor about the interest, who said that it should be alright.
Issue: was there a gift or a trust created?
Decision: there was no gift because there was no delivery. The statement of the owner to the creditor about the interest
of the jockey was sufficient to constitute a trust.
(P. 450) proceeds of sale of the horse were to go to the jockey
As in Watt, the trust was found to be created in circumstances where the requirement of delivery was not met
Q: does the creation of trust evade the requirement especially if it is said that equity will not perfect an imperfect gift
There are three types of Trusts
1) express trusts
2) resulting trust
3) constructive trust

Express Trusts
Gifts by deed and delivery, intention, and acceptance deal with legal title to property
Additionally, its possible for the donor to retain legal title and transfer only equitable title to the donee
1) Express trusts are created expressly where the settlor transfers property to a trustee to hold for someones benefit
(and must be drafted to avoid the Statute of Uses, see chapter 3)
Distinct from declaration of trust where donor keeps title and declares she holds it in trust for beneficiary

Resulting and Constructive Trusts

Resulting Trusts arise through law in favour of an owner transferring title, but retaining the beneficial interests
This includes circumstances where the grantor/contributor is presumed to retain beneficial rights (presumption of
resulting trust) unless the grantee is their wife or minor child (presumption of advancement for these two groups)

Constructive Trusts:
imposed by equity regardless of the legal owners intentions, including institutional constructive trusts (where certain
conduct occurs, these result automatically) and remedial constructive trusts (where a spouse without title, in the family

farm setting for example, who has contributed to the propertys value may have remedial constructive trust imposed for
unjust enrichment this has only been around since 1980).
Trust obligations that arise in the absence of specific intentions to create to ensure just results
E.g. someone who lacks title but has made significant contributions to acquiring or maintaining property and a mechanism
is needed to prevent unjust enrichment of the title holder

Express involves tripartite

-can be by grant or devise
-needs to be drafted in such a way that it avoids execution via the statute of uses
-can arise statutorily through the succession law reform act executor as trustee assigned
-Language: A grants to the use of B and her heirs in trust for C and his heirs
(B has legal interest enforceable against the world) (C is the beneficiary with the equitable interest)
Declaration of trust: where the donor keeps title and declares that she holds it in trust for the beneficiary
-2 parties
Resulting Trusts and Presumption of Advancement
Resulting trusts arise when there is a transfer of property without the intention to create a gift the recipient holds it in
trust for the transferor

I.e. there is a deed (or other valid instrument of transfer) or act of delivery, but no intention of gift.
o

For example, A may fear being sued and having a judgment issued against his property. He may
transfer land into the name of B, a friend or relative, in order to avoid this result, but with no intention
of making a gift of the equitable interest to B. In a resulting trust, the recipient of the property holds it
in trust for the transferor.

In family context, the traditional presumption was against the resulting trust, but instead was a presumption of
advancement, to a wife or children
Most Cdn statutes have repealed the presumption of advancement from husband to wife (FLA, s. 14)
Pecore v Pecore 2007 SCC

clarified transfers btw parents & adult children in context of joint bank accounts (no advancement to adult
child)

-the reason for the presumption of advancement was that there was a duty to maintain the child that duty ceases when
the child reaches the age of majority
Capacity & Undue Influence
Intentions relevance to gifts and trusts
E.g.: a valid gift will require donors capacity to form the intention to make a gift to the donee
Csada v Csada

the case of two brothers, one with undue influence over his younger brother

Ratio: gifts are only accepted by the law when it is the independent desire of the donor to give them

When, as in this case, you have someone who is mentally weak who gives a gift to someone who is
domineering, you will have a presumption of undue influence this can be rebutted

The easiest way to rebut the presumption is to show that the person had independent (legal) advice this
is not enough you will also need to show that they took that advice into consideration, or acted on it

The doctrine of undue influence is meant to prevent people from being victimized

Equitable doctrine of Undue Influence and Allcard v Skinner (1887) if presumption of undue influence raised, then gift
can be set aside
Was there spontaneity and independence?
The particular context of family members?

The courts have not recognized a presumption of undue influence with family members

Intention and Future Enjoyment

Intention must be for a present gift, rather than an intention or promise to make a gift at some point in the future BUT
the donor can make a present gift thats enjoyed sometime in the future
Title passes at the moment of the gift, but might be enjoyed in the future,
e.g.
Speelman v Pascal (NYCA)

distribution of profits in future from stage and film versions of Pygmalion (My Fair Lady)

Court found expectancy of royalties analogous to contingent remainders in land

Contingent remainder in land

1) it is given to an unascertained or unborn person, (2) it is made contingent upon the occurrence of the natural
termination of the preceding estates
Inter Vivos and Testamentary Gifts
In addition to inter vivos gifts and inter vivos gifts enjoyed in the future, there are
Testamentary Gifts not intended to take effect at all until the donors death
These must meet 2 requirements for succession of property interests at death, usually include a written document signed
by the testator in the presence of 2 witnesses who sign in front of the testator and one another
(SLRA, s. 26 also allows for a holograph will)
Donatio Mortis Causa: valar morghulis

a gift made in contemplation of death

Subject to revocation if the donor recovers and does not die (automatic right to revoke gift on recovery)

Historical background, need for delivery

Zachariuc; Chevrier v Public Trustee (1984)
Sufficiency of delivery and the role of the house key in this decision in combination with other evidence led to judgment
for plaintiff Chevrier for the hidden $16k
Citing 3 part test in Brown v Rotenberger for effective DMC
1) The gift must have been made in contemplation of death
2) There must have been delivery of the subject-matter

3) The gift must be made under such circumstances as shew that the thing is to revert to the donor in case he should
recover
Decision: Here they found that DMC was satisfied
-he showed clear intention for it to be Cs when he died
\\
Delivery & the Donatio Mortis Causa
How would the decision have changed in Chevrier if some of the facts had been different?
What was the purpose of sharing the key?
If it was a case dealing with safety deposit boxes, would it matter if there was more than one key? If there were no
passwords or authorizations given, which were required to open the box?
What if there was only one key?
Intention & Donatio Mortis Causa
Compromise of intention; sui generis
E.g. Newell at 466 and shifting frame of the court, from DMC to inter vivos gift in order to give effect to transfer after
recovery and revocation before later death
E.g. Rosenberger and DMC made in contemplation of death but donor died from something else
Deathbed reconciliations, the inability to change wills in time, and the declaration of a trust in favour of an estranged
daughter: Mennonite Trust Ltd. V Good (2007 SKQB), also applies Pecore SCC
How does this compare to BMO v Spence?

Need for Reform: Donatio Mortis Causa

Are DMCs still necessary when there is seemingly more access to proper testamentary gifts?
Can you think of policy reasons why these remain unreformed? Leaving room for such deathbed reconciliations?
Sen v Headley
-here, anomalously, the court allowed a gift of land through DMC
Donor said: the house is yours, Margaret. You have the keys. They are in your bag. The deeds are in the steel box, and
the court accepted this as sufficient

Fri. Mar. 20: Sales & Mortgages

Read: Ch. 5, p. 468-516

Conveyances and Contracts for Sale

2-step transaction
1) contract for sale of land (agreement of purchase & sale (APS)) creates equitable property interest
2) conveyance of legal title to fee simple estate by deed of transfer on the agreed closing date
Statute of Frauds
1677 -written transfers of interest in land

-to reduce the opportunities for perjury

The Statute of Frauds,
s 1(1) requires that the creation of a freehold estate must be in writing and signed by the parties, and that failure to meet
these requirements will result in an estate at will only.
Similarly, s 1(2) requires that leases are void unless made by deed.
Section 2 provides that no estate of freehold or leasehold can be assigned, granted or surrendered unless by deed
or note in writing signed by the transferor.
Leases (or agreements for leases) for a term not exceeding three years (with a rent that amounts to two-thirds of the value
of the land) are excluded from the operation of these provisions by s 3that is, they are valid even if not in writing.
Other sections extend these requirements to the creation of trusts and other kinds of transactions relating to land. In
particular,
s 4 requires that any agreement to create or assign an interest in landthat is, any agreement of purchase and sale for
land or any agreement to enter into a leasemust be in writing in order for an action to be brought to enforce the
agreement.
Equitable interests in APS
In a modern real estate transaction, it is only when the vendor delivers a deed, or its electronic equivalent, to the purchaser
at closing (along with registration, if required) that the legal estate in land is transferred to the purchaser. This conclusion
may suggest that the purchaser has no recognizable interest in land between the signing of the agreement of purchase and
sale and the time fixed for closing. Yet, although the purchaser may not have a legal estate, equitable principles have
developed to provide protection for both the vendor and the purchaser in relation to their agreement. -These
principles reflect the historical economic importance of land and the availability of the remedy of specific
performance in relation to contracts for the sale of land.
Principle in Lysaght v Edwards
Lysaght v Edwards specific performance:
valid contract for the sale of land creates a trust relationship: vendor holds the legal estate and the purchaser acquires
the beneficial or equitable interest
Facts: Edwards agreed to sell his interest in land to Lysaght. Lysaght paid a deposit and they agreed to a closing date all
parties agreed to issues of title. The vendor died before the closing date and the purchaser brought an application for
specific performance.
Holding: specific performance ordered
Decision: valid contract for the sale of land creates a trust relationship. The vendor holds the legal estate and the
purchaser acquires the beneficial or equitable interest
What is the value of a contract: 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, the vendor having a right
to the purchase-money, a charge or lien on the estate for the security of that purchase-money, and a right to retain
possession of the estate until the purchase-money is paid, in the absence of express contract as to the time of
delivering possession.
-if something happens to the house, the purchaser bears the liability if it is the fault of the seller, then he is liable to the
purchaser

As Jessel MR explained, an enforceable contract for the sale of land results in the creation of a trust relationship between
the vendor and the purchaser. With respect to the interest in land, the vendor holds the legal estate and the purchaser
acquires the beneficial or equitable interest. Similarly, the vendor acquires a charge or lien on the purchase money and

(unless the contract alters the arrangement) the right to remain in possession of the land until closing. In doing so,
however, the vendor as trustee for the purchaser has an obligation to take reasonable care of the property.

The effect of the contract (K) for sale

Equitable effect
Legal consequences
What is the explanation for change of ownership of estate in equity? The equitable remedy of specific performance.
The remedy of specific performance for such a contract also reflects the equitable maxim that equity deems as done
that which ought to be done, so that it is appropriate to award equitable remedies to enforce the agreement for sale.
Specific Performance
Semelhago v Paramadevan (1996 SCC) uniqueness of land no longer taken as given
Facts: seller reneged on sale of house when house prices increased rapidly.
Decision: the plaintiff was granted the difference in price between the value agreed to and the amount that the house was
worth at the date of trial
Sopinka J. and the law on uniqueness, not necessarily assuming parcels of land are unique when seeking specific
performance (SP)
You have to show that its unique there used to be a presumption that land was unique now its not
-a quality that cannot be readily duplicated

Marvost v Stokes (2011 ONSC, affd ONCA 2012)

Facts: The dispute was over a house on Bridle Path. The plaintiffs claimed that there was a long list of characteristics that
they wanted in a house, and that this one was perfect. The defendant argued that this list was made up after the fact. The
defendant pointed to a number of similar properties in the area, but the plaintiff said that none of them fit exactly.
Decision: uniqueness found and specific performance ordered
Applying Semelhago in residential property context
**this case might be exceptional Bridle path home more unique than your average suburb
John E Dodge Holdings (2003 ONCA)
Applying Semelhago in commercial property context
Facts: dispute arose over a commercial property near Canadas wonderland. The plaintiffs claimed that the location was
very important, as it fit with their plans and they wanted the centre to be near wonderland
Decision: specific performance was ordered because a substitute close to Wonderland was not readily available,

Commentators have said that this case shows that the test for uniqueness may not be hard to meet this is a relief
for some, as the Semelhago case was criticized and caused concern

Canamed (2006 ONSCJ): subj/obj test & medical bldg.

Facts: in this case, the dispute was over the purchase of a medical building. This was one of three medical buildings in
Niagara Falls, and the plaintiff already owned one of the others. There was some question about whether it was critical for
the defendant to have a building in NF, but there were certain advantages, such as shared maintenance.
Decision: specific performance ordered
In order to be granted specific performance the plaintiff must establish:
1. The subject property is unique and a substitute is not readily available;
2. The remedy of damages is comparatively inadequate to do justice; and If damages are difficult to calculate,
that is a factor
3. The plaintiff has established a fair, real and substantial justification for the claim of specific performance.
-the fact that the plaintiff was willing to over pay by more than $200000 was also relevant
Valid Contracts for Sale and Statute of Frauds
Equitable interest & specific performance
Requirements of a valid K, incl:
offer, acceptance, consideration and specifying the 3 Ps: parties, price, and property
Statute of Frauds, s. 4: evidence in writing and signed by party charged but two important exceptions to Statute of
Frauds
Exceptions
o Fusion of law and equity
o Doctrine of part performance
The problem of vendors negotiating with multiple purchasers at the same time to obtain the highest sale price and
using the Statute of Frauds to avoid the consequences of their oral agreements has been referred to in England as
gazumping
The English Court of Appeal construed a solicitors letter as meeting the requirements of the
Statute when the letter contained the terms of the proposed agreement, but also expressed the
view that the letter was subject to contract (Law v Jones)
The courts later found that the insertion of the phrase subject to contract into the
message prevented the written agreement from meeting the requirements of s 4 (Tiverton)
Equity has permitted the enforcement of oral contracts concerning land on the basis of the
equitable doctrine of part performance, even though there has been no compliance with the
Statute of Frauds
Fusion of Law and Equity
Walsh v Lonsdale
-demonstrates the legal effect of an agreement to lease: equity may enforce the terms as if the lease had been executed
Facts: Parties enter into an agreement for a 7 year lease of a mill (the agreement for lease, like a contract for the sale of
land, evidenced the parties agreement to execute a leasehold conveyance sometime later). It also stated that the lease
itself would be prepared by the landlords solicitor and would contain the types of conditions that are usually inserted in
leases of a similar nature specifically, one which had annual rent paid in advance. The tenant went into possession and
paid rent quarterly. The landlord demanded payment for the whole year and when the tenant refused the landlord declared
distress.

Decision: the court found that there was a lease at equity

-although this meant that he would have to pay for the year in advance, it benefits him because if means that he cant be
kicked out to allow him that privilege without enforcing the annual payments would not make much sense
-Ability to identify the 3 Ps, meet Statute of Frauds,

Once they found that there was a valid agreement, they assumed that specific performance had occurred

Merger by court of two-step process so tenant obliged to pay rent in advance e.g. of fusion of law & equity
Beyond Statute of Frauds: Equity and Part Performance

Part performance is an alternative means of proving a contract

o

Provided an act has been done which can only be explained on the basis of the alleged oral contract, the
court will overlook that there is inadequate or no written evidence of the contract

E.g. oral agreement and vendor makes improvements to land in preparation for transfer

Bad faith use of Statute of Frauds and the emergence of doctrine of past performance
Maddison v Alderson (1883) the principles of past performance (PP) Oral agreements + acts of part performance
can lead to a valid agreement and specific performance in spite of the Statute of Frauds

The court is called on, the force an equity, arisen by the force circumstances, subsequent to the contract itself,
namely by acts of part performance, sufficient to attract the courts equitable jurisdiction
For evidentiary purposes: The reliance must be shown first, and the existence of the terms of the promise that
resulted in the actions of part performance
Oral agreements + acts of part performance can lead to a valid agreement and specific performance in
spite of the Statute of Frauds

Deglman v Guaranty Trust (1954 SCC) Part Performance unequivocally referable to the contract asserted

Test that acts of part performance must meet

the part performance relied upon must be unequivocally referable to the contract asserted. The acts performed
must speak for themselves, and must point unmistakably to a contract affecting the ownership or the tenure of the
land and to nothing else.
o Paying money alone is not enough

PP must be unequivocally referable to K asserted

Taylor v Rawana (1990 OHCJ): meets Deglman
Facts: plaintiff had moved in and started cleaning up the area
Decision: an agreement existed, that the acts were sufficient
Starlite Variety v Cloverlawn (1979 OHCJ, affd OCA): requirements for PP at p. 488
Facts: oral contract to lease Cloverlawns property. Starlite prepares to move in purchasing signs etc. Before they move
in, C accepts a higher bid from Macs.
Finding: the court finds that the acts by Starlite met the common law test for part performance
Rule: Requirements for Part Performance:
1. Acts of part performance must be unequivocally referable to a contract but also referable to no other title;
(Maddison v Alderson)
2. Must render it a fraud on the part of the defendant to take advantage of the contract not being in writing;

3. Contract must be in its own nature is enforceable by the court (looking here at requirements of specific
performance: promise, property, price)
4. There must be evidence of the part performance which implies the existence of a contract the terms of which
can be given in evidence; (must be more than just a payment)
Application: in this case, starlite had signed the lease but Cloverlawn had not. the court found that Starlites acts
constituted specific perfomance (Starlite has paid the deposit, ordered shelving, asked for air conditioner etc)
- Because the lot was already rented to Max Milk, equitable damages were awarded
(theres a question about how much the acts were done in preparation and how much it was done in performance)
Steadman v Steadman (1974 HL) equally consistent test (not law of Canada)
Competing approach from Deglman: unequivocal vs. equally consistent
Alvi v Lal (1990 OHCJ): aspiring to Steadman
-oral agreement accepted deposit
-because the SCC has not accepted the more liberal Steadman approach they didnt think it would be appropriate here
Neighbourhoods of Cornell: welcomes end of PP
-declined to adopt Steadman
-said it might be welcome if PP was done away with
Hollett v Hollett (1993 Nfld SCTD): applies Steadman; also, common practices of community
further developments in the law at SCC and ONCA
-writing requirement was met by the provision of 4 receipts with these they could determine the three Ps it said that it
was for the sale of land
-they applied Steadman
-because the case typified informal landholding arrangements common in NFLD
-the acts of payment acknowledged here wouldnt necessarily meet Deglman, but they did satisfy Steadman

-community is relevant in the application of the test

-interpretive communities
-think of whos writing the cases and who theyre writing to
Erie Sand (2009 ONCA):
Applying (and clarifying) Hill v N.S. (1997 SCC):
TJ: the acts of Erie qualified for part performance. It satisfied s 4 of SofF
Cory J.: actions speak louder than documents
-farmer
not allow S.of.Frauds to be used as engine of fraud
If one party to an otherwise unenforceable agreement stands by while the other party acts to its detriment by performance
of its contractual obligations, the first party will be precluded from relying on the requirements of the Statute of Frauds
Acts of both parties to an alleged oral agreement may be considered when a court is called on to determine if sufficient
acts of PP take an alleged agreement outside the operation of the Statute of Frauds
-the acts of part performance satisfy s 4 they prevent frauds by preventing perjured evidence

-acts exclude SofF

Para 75: the acts of both parties may be considered when court determines if theres been enough to make an agreement
Priorities at Common Law
A note on priorities and registration

Multiple proprietary interests can exist at the same time (e.g. Starlite v Cloverlawn: one had legal interest from
signing lease and the other had equitable interest based on doctrine of part performance)
o Principles establishing priority are necessary in order to resolve conflicts among competing interest
Recall possession: priority for chattels using concept of prior possession
o Similarly, at CL, principles of priority were developed by courts for legal and equitable interest usually
based on order of creation
These principles have been modified by statutes that create systems for registration of property
interests that accord priority based on order in which documents are registered

Priorities at common law

o Basic principle: nemo dat quod non habet one cannot give what one does not have (with few special
exceptions)
o Transferor cannot confer a title that is greater than what they have
Transferee must ensure that they really have the title they say they have
o Before registration systems (which can confer title), CL developed principles for determining priority
among competing legal and equitable interests principles continue to be important in determining
priority among unregistered interests
Priorities:
If 2 legal in conflict: priority determined by order of creation of interests first in time, first in right
When 2 Equities, prior claim prevails BUT: only if the equitable claims are otherwise equal
E.g. prior gift(Eq interest) and later Eq interest for value, later will prevail bc Eqs not equal
Legal prior to Eq interest, prior (legal) will prevail BUT there may be postponement of legal claim if prior claimant has
engaged in inequitable conduct
If prior Eq interest and later legal claim, prior Eq interest enforceable against everyone except the BFPVWN

Idea that claimant in Eq must come with clean hands

Also, holder of subsequent interest must be a purchaser for value in order to be given the better interest

Notice: actual notice and constructive notice will prevent you from receiving better interest i.e. you must know about the
prior interest OR be in a position where it should have come to your attention (constructive notice)

Purchasers bear risk of ensuring that transferor has title to convey

Hodgson v Marks (1971) EWCA

Facts: elderly woman transferred title to her home to her male boarder so that he could take care of it for her. They agreed
orally that the boarder would hold the property as a trustee for her benefit. Then he transferred title to a purchaser. When
woman discovered this she brought an application to enforce her equitable interest under the oral trust agreementagainst purchaser of the legal estate. Purchaser had inspected premises before transfer and saw elderly woman there.
Purchaser assumed (without asking) that she was the wife of the male boarder.
Decision: womans equitable interest enforceable against purchaser. Purchaser, although bona fide purchaser for value,
was not without notice of the prior interest

Applied constructive notice: purchaser should have known, upon seeing the woman in the house, that she
had the prior interest
Note: emerging class of equities (as opposed to equitable interests) that may give rise to priority problems:
e.g. Inwards v Baker: a father encouraged his son to build a home on land that the father owned, and the son subsequently
sought to enforce a proprietary claim against his fathers widow and her children, who inherited the legal estate in the land
after the fathers death. The court concluded that, because they were not purchasers for value, the sons prior equity was
enforceable against them.

There equity was enforced as if it was an equitable interest

o However, the nature of an equity (in contrast to equitable interest) means that it may not always
be enforceable
Note: Doesnt explain why says equities are in Ch 6

Registration systems
Early registration statutes created systems of deeds registration: created a public record and place of
deposit for documents relating to title to parcels of land. However, putting title documents in a public
register does not confer additional validity on documents
o BUT in some cases failure to register may diminish enforceability of an interest against another
registered interest
Torrens registration
Later, Torrens registration system was introduced: Torrens reg confers validity
o mirror principle: register should be a mirror of all the rights in relation to that land
Basis for the concept of indefeasibility (that it cannot be made void) of title in Torrens
(although statute and judicial interpretation have qualified indefeasibility)
o This means that (in theory) one should be able to examine an abstract of title for a particular
parcel of lands and see all the interests pertaining to that parcel
o Represents more public/state involvement in defining the validity of titles to land contrast with
private process of land transfers in a deeds registration system
o Torrens in Ontario: Province of Ontario Land Registration and Information System (POLARIS)
introduced a computerized system for organizing and managing data related to land holdings
As of 2011, over 99.9 % of parcels in Ontario have been converted to the land titles
system, and electronic conveyancing is spreading rapidly
o BUT: Torrens system does not eliminate all risks inherent in conveyancing: although it
guarantees the quality of title it does not guarantee the quantity or boundaries of the property
As a result, title insurance (which protects loss resulting from varying boundaries as
well as fraud, zoning bylaw non-compliance, and lawyer negligence), is on the rise
Note: similar schemes exist in relation to security interests in personal property. Under provincial acts such as the Personal
Property Security Act, RSO 1990, c P.10, electronic registries have been set up under which security interests in virtually
any form of personal property may be registered and made public.

PART 7: Concurrent Interests and Family Property

Tues. Mar. 24: Concurrent Interests
Read: Ch. 6, p. 521-553
The idea of shared or concurrent interests in property also represents an important challenge to dominant concepts of
individual ownership and private property

(e.g. in relation to env

Traditional Concurrent
Interests
Four forms but emphasis here on Joint Tenancy
(JT) and Tenancy in Common (TC)
JT and TC have significant differences in rights and responsibilities; creating language; and conceptual definitions
Joint Tenancy (JT) and
Tenancy in Common (TC)
McEwen v Ewers and Ferguson (1946 OHCJ)
Facts: Bertha and Janet were given concurrent interests in their fathers lot 18. The will said that the land be given to
Bertha V. McEwen and Janet I.
McEwen jointly and should they decide to sell the said property each of them is to have an equal share of the proceeds of
the said sale. When the property interest vested, Bertha (the executrix of the will) purported to convey lot 18 to herself
and Janel as joint tenants.
Decision: the court finds that they were tenants in common
Under the CLPA, unless an intention sufficiently appears on the face of the will, they will be found to be tenants in
common.
Further, by the use of the words equal share, the testator clearly showed an intention to create a tenancy in common
There are cases where the use of the words jointly and equally has been interpreted by the courts as creating tenancies in
common.
-the court undoubtedly leans towards a tenancy in common and will prefer it where these is a doubt
Anything which in the slightest degree indicates an intention to divide the property must be held to abrogate the idea of
a joint tenancy, and to create a tenancy in common.
What was the form of concurrent interest devised to the two daughters, Bertha and Janet, in FMs will?
Significant difference btw JT and TC b/c only JT has inherent right of survivorship
Former CL presumption, but Statutory Presumption in Conveyancing and Law of Property Act, s. 12 (now 13)
Language here? jointly (JT) but also equal share
(TC) suggests severance and conversion to TC not termination of co-tenancy (as is case w/partition)
The Right of Survivorship
Right of survivorship (jus accrescendi): when one joint tenant dies, the interest of the deceased joint tenant is
extinguished and interest of surviving joint tenant(s) is enlarged
Wright v Gibbons 1949
-describes right of survivorship
-when the last person remains, they have the exclusive rights
JT or TC whats preferable? Common law & equity different approaches here
Common law: sometimes prefers joint tenancies on the basis that they eventually make title searching less complicated
because there will (eventually) be only one remaining owner registered on title. This preference was motivated by
concerns of efficiency and convenience, especially in the context of title searching.
Equity: prefers tenancies in common out of a concern for more certainty and fairness in the co-owners relations, since
each tenant owned a fixed beneficial interest that was immune from survivorship. As well, each had a share of tangible
wealth which could serve as the subject matter of family endowment
Statutory Presumption of Tenancies in Common: CLPA, s. 13
CL presumption of JT reversed by s. 13
13. (1) Whereby any letters patent, assurance or will, made and executed after the

1st day of July, 1834, land has been or is granted, conveyed or devised to two or more persons, other than executors or
trustees, in fee simple or for any less estate, it shall be considered that such persons took or take as tenants in common and
not as joint tenants, unless an intention sufficiently appears on the face of the letters patent, assurance or will, that they are
to take as joint tenants. (2) This section applies notwithstanding that one of such persons is the spouse of another of them.
Result? Need very clear & specific language to create JT now: To A and B in fee simple as joint tenants and not as
tenants in common
Interpretations of S. 13
Mitchell v Arblaster (1964-5 Aus. S.C.)
S. 13 not apply to grants to executors or trustees
Campbell v Sovereign Securities (1957 ONCA)
S. 13 not applicable when language creating concurrent interests in APS b/c not an assurance per wording in the
section
Simultaneous Death of JTs and SLRA, s. 55(2)
Deems to have held as TC unless contrary intention
JTs and Corporations and CLPA, s. 43(2)
Right of survivorship for indiv. when corp. dissolves
The Four Unities: Possession, Interest, Title, and Time
The interest of a joint tenant is a unified interest in the whole, while that of a tenant in common is a fractional sharefor
example, one-half or one-thirdof the whole. A tenant in common holds an undivided share. For example, a tenant in
common who holds a one-third share in land cannot identify any particular part of the land as the one-third share, because
of the unity of possession enjoyed by all the tenants in common.
JT has four unities: possession, interest, title and time
TC has only one unity: possession
JT & TC, as concurrent holders, have undivided rights to possession of the whole of the relevant property, but different
interests in other respects
JTs unified interest in whole vs. TCs fractional (but undivided) share in the whole
JT unities mean must have interests of same quality and duration
The joint tenancys unity of interest, title, and time means that joint tenants must have interests of the same quality and
durationfor example, they must both hold life estates; they must derive them through the same title documentsthat is,
their joint title must not be created through different documents; and their interests must commence at the same time.
E.g. In relation to Finlay McEwens will devising concurrent interests in lot 18 to Bertha and Janet, were there unities of
possession, interest, title, and time?
1. Were the sisters interests the same in terms of size and duration (unity of interest)?
2. Were the sisters titles derived from the same document (unity of title)?
3. Were the sisters interests expected to commence at the same time (unity of time)?
BCLRC has recognized problems with this rigid definition precludes certain types of joint tenancies
e.g. a husband and wife may purchase a matrimonial home with the wife putting up 80% of the money. They find the
notion of a joint tenancy attractive for its right of survivorship, but fear that if the husbands business activities should
lead to his bankruptcy, the trustee [in bankruptcy] would be entitled to half the property. A form of joint tenancy which
recognized unequal interests would seem to satisfy their needs.
BCLRC recommended getting rid of the unity of interest requirement

In Ontario, the LRC recommended getting rid of all of the requirements the fundamental determining factor should
(subject to the relevant presumptions) be solely one of intention: whether the parties intended the right of survivorship. It
also recommended changing the terminology for co-ownership: co-ownership with right of survivorship (formerly joint
tenancy) and co-ownership without right of survivorship (formerly tenancy in common
Tenancy by Entireties & Co-Parcenary
(these two are not examinable)
Tenancy by entireties: due to doctrine of unity of husband and wifes legal personality (a fifth unity, of the person)
seised together as one individual of the whole (unseverable)
Arguably replaced in Ontario, not expressly, but through combined effect of married womens property acts and family
property statutes
Co-Parcenary: concurrent ownership at CL when intestacy and land would devolve to CL heir if no male heir, then
female heirs deemed to be heirs and together entitle as co-parceners (no right of survivorship)
Severance of a Joint Tenancy
General Principles & Williams
Acts that destroy 4 unities sever JT & create TC
eliminates the right of survivorship
if they want, they can agree to switch to TC
one JT can, in certain cases, change the interest to TC
AJ McClean
-Williams is the starting point: JT were held to be severable in 3 ways
Williams v Hensman (1861 Ch D)
Voluntary severance in 3 ways:
1. an act of any one of the persons interested operating unop his own share may create a severance as to that share
2. mutual agreement
Robichaud: negotiations (good faith with lawyers) can demonstrate mutual intention to sever by their intention
they already had a TC, all that remained were the financial details
o BUT Morgan: if negotiations dont lead to perceived agreement on TC, then not severed

3. Any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy
in common
This is through actions
Murdoch v Barry: affidavit and or registration of deed can sever no transfer, just to self its a sufficient act
Test: Re Wilks; Child v Bulmer 1891: requires act that precludes JT from claiming by survivorship any interest in
subject matter of tenancy

Justifications for these rules

Generally, destruction of unities or existence of common or unilateral intentions = severance
But also backgrounds of judicial preference and potential tension with special creation of JT
And, dealings with third party & presumed intention
Severance of JT: Intention, Negotiation, & Completed Acts
Conveyance to 3rd Party
Mutual Agreement
-particularly significant in cases where couple have separated and one dies

Robichaud v Watson (1983 OHCJ):

Facts: couple had separated and were trying to negotiate an agreement to divide their assets. Before any agreement was
reached one of them was murdered
Holding: JT had been severed and TC created
Reason: their negotiations with their solicitors demonstrated a mutual intention to sever
**Contrast
Morgan v Davis (1984 NBQB FamDiv):
Divorce negotiations did not cause severance, no agreement there was an offer and an unreasonable counter-offer, but no
agreement
Course of Conduct
Murdoch v Barry (1975 OHCJ):
Facts:
Decision: test for course of conduct made out here re affidavit on deed & registration of deed
-these acts were more than mere evidence
Course of conduct test: Re Wilks; Child v Bulmer 1891: requires act that precludes JT from claiming by survivorship any
interest in subject matter of tenancy

Severance of JT, cont.

Course of Dealing
Hansen Estate v Hansen (2012 ONCA):
Facts: they were in the process of separation/divorce. Husband had made a new will leaving his entire estate to his four
daughters
Finding: the evidence was sufficient to intimate that the interests of all were mutually treated as constituting a TC
evidence of separation, equalization process, and husbands new will sufficient that interests mutually treated as TC
-evidence, and courts assessment of the evidence really decides the case
Murder
-court prevents the guilty party from acquiring property unlawfully
Schobelt v Barber (1996 ONHCJ)
Here the court applied Pupkowski (1956 BCSC): four options considered and applied the fourth: apply normal rule so
estate accrues to survivor, subject to constructive trust of undivided interest for victims estate (avoid acquire
property unlawful way)
R v Ford (2010 BCCA) & CDSA, s. 16: forfeiture can sever JT
Facts: Ford convicted for having marijuana grow-op. Land was concurrently owned through a joint tenancy.
Issue: can the JT be severed by the government in situations where its carrying out forfeiture?

The Crown has laws regarding forfeiture they can acquire persons interest in land even when it means severing
a tenancy
They will only acquire the interest of the offending JT

Unintentional Severances too: e.g. bankruptcy; partnership ppty; purchase price advanced in unequal proportions

In addition, a joint tenancy at law may also be held as a tenancy in common in equity in the context of partnership
property or where the purchase price of property is advanced by joint tenants in unequal proportions.
For example, if A and B are grantees as joint tenants and A has paid $30,000 while B has paid $10,000 of the total
purchase price, A and B will be joint tenants in law and tenants in common in equity (with A having a three-quarter
undivided share and B a one-quarter undivided share).
Severance of JT, cont.
Severance by Conveyance
A, B, C as JTs in FS and A conveys interest to D?
-B and C would become JTs in relation to each other with respect to D they are tenants in common
Why does D have a different interest?
-no unity of time
What happens when D dies?

When B dies?
-C would get it right of survivorship
A, B, & C where A conveys to B and B conveys to A,
what are the interests? (Wright v Gibbons 1949)
-all become tenants in common they had conveyed land to each other in an
Severance of JT, cont.
Severance in a Family Context
Knowlton v Bartlett (1984 NBQB Fam. Div.):
Facts: Mr. and Mrs. B were joint tenants on land granted to him by his parents. They divorced and planned to trade her
interest for money, but this never happened. Mrs. B executed deed to herself before death, with brother Mr. K as
beneficiary in will K asserting TC and seeking order for partition or sale; Mr. B opposed
Court cites Williams v Hensman at common law did not allow parties to convey land to themselves
BUT NB statute allowed Mrs. B to convey land to herself
Decision: the severed the tenancy and her estate should therefore receive her half
Also: partition in sale is this an appropriate remedy?

Murdoch v Barry (1975 OHCJ):

-did execution of deed by wife to herself destroy unity of title, sever JT, and let beneficiary of will hold interest as TC?
Yes, per ss. 40 & 41 of CLPA, allowing vesting in herself (additional evidence of affidavit as irrevocable act, too)
In Bartlett, held Mrs. Bs executed deed severed unity of title with
Mr. B and conversion of JT to TC with interest to brother, Mr. K
-Because of the affidavit she signed, even if she hadnt signed the deed to herself, she would have been held to have
severed the tenancy
Severance, Statutory Principles, Notice, and Consent
Policy discussion
Discussion and debate about whether JT can sever without notice to other joint tenants (McClean; OLRC)

McLean
There should be a requirement of consent
Problem with possible fraud
OLRC
Shouldnt require consent, but there should be notice
Cardinal right of JT is survivorship without notice this shouldnt be lost
Is reform necessary?
-which proposal seems most reasonable?
Recap of Voluntary Severance: unilateral act or dealing; mutual agreement; course of conduct
Recap of Involuntary Severance: statutory severance (SLRA & survivorship, s. 55(2)); bankruptcy/judgment; murder
Severance & Consent in Family Property: Horne v Horne
Estate (1987 ONCA), FLRA and confirms Lamanna (1983 OHCJ)
Court held conveyance by joint tenant to self for purpose of severing JT & remove survivorship does not constitute
disposition under FLRA and not inconsistent with matrimonial home provs. (so not covered by FLRA here)
Rights & Obligations of Co-Owners
Co-owners interests in unity of possession as only unity common to both JT and TC
What if some co-owners out of possession?
Occupation rent in 3 situations (ouster or constructive exclusion; contract re occupation & rent; agency)
1705 Statute of Anne required co-owner to account for benefits received as co-owner from third parties (but not those
achieved from own efforts) action for acct.
No share profits where no ouster
(Henderson) held that farmer did not have to share profits of farming on shared land because other tenants had chosen to
be absent
Room for reform
Termination of Co-ownership by Partition & Sale
Partition Act RSO 1990, s. 2
The courts may order parties to divide the interest into separate parcels
How does court decide btw ordering partition or sale?
Exercising judicial discretion
Cook v Johnson (1970 OHCJ) partition where appropriate
Facts: Appeal of order granting partition; appellant sought sale but on evidence division seemed more advantageous
here
Decision: Partition ordered. Court given discretion, and it should not be interfered with lightly
Court: sales are appropriate when partitions when land cant be easily divided, but without a reason, the court should not
order a sale.
-really driven by the facts of the case
Cf Rouse v Rouse (1999 ONGD): sale appropriate
Partition & Sale for Spousal Co-Owners: two older women

 Knowlton v Bartlett (property not lend to partition here)

In determining whether to grant sale, consider relative hardship to parties; offsetting expenses
citing Davis 1954 ONCA; Melvin 1975 NBCA
Key: consider relative hardship to parties; offsetting expenses
Partition & Sale in Commercial Context (Garfella (2010 ONSC)
-reasonable expectation of the union holders limited the bases to deny partition or sale
-not entitled to a partition
-he had been abusive and created hardship and Greenbanktree (2004 ONCA))
Fri. Mar. 27: Family Property
Read: Ch. 6, p. 561-591
Property Interests in the Context of Married Spouses
Note that, as of 2005, all of the following principles apply to same sex marriages.
Historically
Before the reforms, in marriages the husband and wife were one person in law. The condition of the woman in a marriage
is called coverture, meaning that the husband and wife are one, and that one is the husband.
In effect, the husband gains possession and control and is entitled to all of the womans earnings.
In the common law, the dower ensured that a married woman was entitled, if she survived her husband, to a life interest
in one-third of lands for which her husband was seised (that is, a legal estate) in fee simple during his lifetime. If the
husband had owned lands and then sold them and died, the purchasers would be bound to recognize the wifes dower
interest. This could be avoided in two ways:
(1) Through the use of a conveyance to uses in granting the interest to the husband so that he received only an
equitable interest;
(2) The other was to request to bar her dower every time the husband transferred a legal interest in land
In equity wealthy fathers of daughters had the possibility of arranging a trust (or settlement) at the time of the
daughters marriage. Through this arrangement, either the father or one of his sons was named the trustee and the daughter
the beneficiary.

Statutory Reform Regarding Married Womens Property Rights

In the 19th century, statutory reforms respecting certain separate rights of property of married women came into effect.
Most of the statutes, however, were enacted to protect husband debtors rather than recognize wives equality. In any case,
these statutes conferred property rights on married women for the first time.
In 1968 the federal government introduced divorce legislation, but did not address economic re-adjustment. The
provincial legislature dealt with economics regarding property sharing and entitlement at the time of separation.
The first legislation regarding divorce was not enacted until 1968, although some provinces had previously introduced
English legislation.
The Divorce Act made it safer to divorce when a marriage was unhappy; prior to the Act, marriages would generally come
to an end when a death occurred.

The Early Jurisprudence Regarding the Divorce Act

The first major case after the Divorce Act, 1968 was Murdoch v Murdoch, which involved a married couple than ran a
successful ranch that had worked hard together to maintain and increase their holdings, all of which were in the
husbands name at the time of the divorce.
The majority in Murdoch held that the wife could not get an interest in the property because she was just a ranch wife
and did not contribute substantially to the property. She received only spousal support.

The majority held that there was no resulting trust because the wife did not contribute money

Laskin J, writing for the dissent, suggested that Mrs. Murdoch should be entitled to a beneficial interest pursuant to the
doctrine of constructive trust on the basis of unjust enrichment.
the ranch wife reasoning of the court spurred controversy and subsequent reform.
The principle of unjust enrichment was not recognized until 1978 in Rathwell v Rathwell, in which the court imposed a
constructive trust.
Defining Property Under the Family Law Act
Note that, in divorce, the title of property does not pass, but there has to be an equalization of value.
Section 4 of the Family Law Act states that Property means any interest, present or future, vested or contingent, in
real or personal property and includes:
Property over which the spouse has, alone or in conjunction with another person;
Property disposed of by a spouse but over which a spouse has, alone or in conjunction with another person, a
power to revoke the disposition or a power to consume or dispose of the property;
Entitlement under a pension plan
Professional Degrees and Property
In lower court decisions, there was some confusion regarding whether professional degrees should be considered property
or not. A LLB degree was deemed to be property in Corless, but MD and PhD degree were not recognized as property in
Keast and Linton respectively. All of these decisions were remedied with an order for spousal support; even though the
LLB degree was recognized as property in Corless, the court held that it had no value.

Caratun v Caratun: -professional degrees not property

In 1992, the Ontario CA concluded that professional degrees were not property (overturning the trial judges decision
that the dental degree in question was property because of a constructive trust).
The Ont CAs decision that professional degrees are not property was based on three premises:
(1) Professional degrees are not transferable;
(2) Professional degrees require the personal efforts of the holder; and
(3) The only difference between such a license and any other right to work is in its exclusivity
a. Embedding in this final consideration is a concern about the floodgates that would be opened
otherwise;
b. Because licenses are not property they cannot be subjected to a constructive trust
The court was also concerned about the inherent difficulties in valuing these licenses in the equalization process and the
fact that professional degrees are inherently non-transferable.

Caratun was critiqued for a number of reasons:

While pensions are included within the definition of property pursuant to s. 4 of the Family Law Act, they possess
similar issues with professional degrees (difficulty in valuation; not transferable);
Valuing professional degrees is not that much more difficult than valuing a tort claim;
Contrast with the US where there are three basis approaches: reimbursement of costs; sharing in an enhanced
capacity; opportunity costs;
o Remember that Mrs. Caratuns claim is based on the assertion that she supported Mr. Caratun while he
was pursuing his dental degree
There is a critique that Caratun is not a good property analysis because its treatment of professional degrees is
inconsistent with the notion that property is about the relationship among us with respect to objects
There is a concern regarding the fact that Mrs. Caratun would have been better off in a business relationship.

Woodworth & Weitzman:

-law degree as property
Reimbursement of costs
Sharing enhanced earning capacity or benefits
Equivalent opportunity
Knetsch: the family unit, the individual, & wider context
E.g. Wider context: Divorce-Poverty Nexus
family property history: Quebec community property

Equity & Property Reform for Cohabitees

Married spouses at separation/divorce versus cohabiting couples
Nova Scotia v Walsh 2002 SCC
no Charter discrimination from exclusion of cohabiting couples from provincial property sharing laws at
separation/divorce); also Quebec v A 2013 SCC
Cohabitees and Equity
None of the principles regarding equalization apply in the context of cohabitees.
Cohabiting spouses and constructive trusts
Two steps:
1. Is there unjust enrichment?
2. What is the appropriate remedy?
Quantum meruit (monetary remedy)
Constructive trust
Joint family venture
Note that the key elements are whether it is a spousal relationship and whether there is a clear connection between the
contribution and the property (nexus).
Pettkus v Becker 1980 SCC
The Facts: Unmarried Support through Wages, Rent, Labour, Care

Test for Unjust Enrichment: enrichment, corresponding deprivation, & absence of juristic reason for enrichment
(Rathwell)
a. This last element involves juristic discretion
b. Mr. Pettkus unsuccessfully argued that the reason was that Ms. Becker enjoyed living with him

Where one person in a relationship tantamount to a spousal relationship prejudices herself in the reasonable
expectation of receiving an interest in property and the other person in the relationship freely accepts the
benefits conferred by the person in circumstances where he knows or ought to have known of that reasonable
expectation, it would be unjust to allow the recipient of the benefit to retain it

Applying rqmts. to facts: benefit of 19 years unpaid labour; little or no compensation; unjust to allow recipient of benefit
to retain it where reasonable expectation of property interest by person prejudicing themselves in spousal-like
relationship)
Remedy of Constructive Trust
(Following from Laskins dissent in Murdoch)
Purpose = to prevent unjust enrichment
Remedy in equity for property division of unmarried individuals contributing to acquisition of assets
Indirect & direct contributions to acquisition of property
Interest proportionate to contribution; any diff. here was small
Not disturb interest of C.A. here; equality is equity
Concurring judgments by Ritchie J. and by Martland J. (and Beetz J.) agreed with conclusion, but on the basis of
resulting trust (incl. requirement for common intention to share property) [presuming it]
Lack of enforcement, quest for justice, legal fees & Beckers suicide
They questioned using C trust because there was the Family Law Reform Act, which did not extend the presumption of
equal sharing to common law spouses BUT they say that this is because this would be unnecessary, as equity could
always solve this

Unjust Enrichment & Constructive Trusts (post-Pettkus v Becker)

Defining Contribution
Sorochan 1986 SCC
extended unjust enrichment to include contribution to maintenance of property, not just acquisition

Peter v Beblow 1993 SCC

Household work creates constructive trust
Facts: woman had been helping around the house
Man argued: no causal link btw domestic & other work and property
Court: constructive trust awarded
reqd to consider appropriateness of quantum meruit (monetary) remedy before proprietary trust

Mans argument discriminates against the type of work women tend to do

Kerr v Baranow; Vanasse v Seguin 2011 SCC

Joint family venture
no quantum meruit, but no connection between contributions & property, so Joint Family Venture

Joint family venture: new remedy

Contributions of both parties over time have resulted in an accumulation of wealth
Unjust enrichment occurs following the breakdown of the relationship when one party retains a disproportionate
share of the assets which are the
Factors the court will look for: mutual effort, economic integration, intent, priority of the family
Decision: Miss Vanasse did help she was given interest
Criticism: because it is so fact driven (based on exact type of work dome etc.), it is really complicated
People have to jump through many more hoops to receive a remedy if theyre not married
Same-sex couples are entitled to remedies under Family Law Act