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Property Law Exam Summary J. Martin

PROPERTY CAN2014 – 2015

Professor Pavlich

Table of Contents

GENERAL PRINCIPLES OF LAND LAW................................................................................................................................... 5ABORIGINAL TITLE – CHAPTER 3............................................................................................................................................................5THEMES AND HISTORY OF LAND LAW..................................................................................................................................................5

Themes in Property Law................................................................................................................................................................................. 5Theories of Property......................................................................................................................................................................................... 5Sources of Real Property Law...................................................................................................................................................................... 5

Real and Personal Property................................................................................................................................................................................................................ 6REASONS FOR STUDYING THE LAW OF REAL PROPERTY...........................................................................................................6

Dispositions.......................................................................................................................................................................................................... 6Use of Land........................................................................................................................................................................................................... 6

Common Law............................................................................................................................................................................................................................................. 6Private Arrangements........................................................................................................................................................................................................................... 7Legislation.................................................................................................................................................................................................................................................. 7

SOME BASIC PRINCIPLES OF LAND LAW..............................................................................................................................................7Feudal Concepts of Land Ownership.............................................................................................................................................................................................. 7

Corporeal & Incorporeal Interests in Land, and the Doctrine of Estates..................................................................................7Corporeal Interests................................................................................................................................................................................................................................. 7Incorporeal Interests............................................................................................................................................................................................................................. 8

Legal and Equitable Interests...................................................................................................................................................................... 8Origin of Equitable Interests.............................................................................................................................................................................................................. 8The Use: An Equitable Interest.......................................................................................................................................................................................................... 8Statute of Uses.......................................................................................................................................................................................................................................... 9Emergence of Modern Trust............................................................................................................................................................................................................... 9

Freedom of Alienation.................................................................................................................................................................................. 10Freedom of Disposition...................................................................................................................................................................................................................... 10Restraints on Alienation.................................................................................................................................................................................................................... 10Mechanics of Transfer......................................................................................................................................................................................................................... 10

Possession: It’s my Land! Get off!.............................................................................................................................................................. 10REAL AND PERSONAL PROPERTY.........................................................................................................................................................11

Tenure.................................................................................................................................................................................................................. 11The Doctrine of Estates................................................................................................................................................................................ 11Alienability......................................................................................................................................................................................................... 11Devolution on Death...................................................................................................................................................................................... 11

THE RELEVANCE OF ENGLISH LAW.....................................................................................................................................................11

THE LEGAL CONCEPT OF LAND: PHYSICAL DIMENSIONS............................................................................................12CUJUS EST SOLUM, EJUS EST USQUE AD COELUM ET AD INFEROS.......................................................................................12

Airspace Rights................................................................................................................................................................................................ 12AD INFEROS / Below the Land.................................................................................................................................................................. 13

FIXTURES.......................................................................................................................................................................................................... 14Test: Has the chattel become a fixture? (Stack v Eaton, 1902).........................................................................................................................................14Test: Has the fixture become "part and parcel of the land"?..............................................................................................................................................14Canadian principles for fixtures (Stack v. Eaton, 1902).......................................................................................................................................................14Tenant’s fixtures: articles affixed to the land by a tenant...................................................................................................................................................14

WATER RIGHTS.............................................................................................................................................................................................. 16Riparian Ownership Rights to Water Itself......................................................................................................................................... 16

Professor Pavlich 2014-20151


Percolating Water / Ground Water........................................................................................................................................................ 18Ownership of the Beds of Watercourses, Lakes and Ponds........................................................................................................... 18

Non-Tidal Riparian Rights (Freshwater)....................................................................................................................................................................................18Tidal Riparian Rights (Saltwater).................................................................................................................................................................................................. 18Access by Riparian Owners.............................................................................................................................................................................................................. 18

Accretion / Erosion........................................................................................................................................................................................ 19SUPPORT........................................................................................................................................................................................................... 19

Lateral Support: right of support between adjoining surface owners....................................................................................19Vertical (Underneath) Support:............................................................................................................................................................... 19

ABORIGINAL TITLE................................................................................................................................................................... 20HISTORICAL CASELAW ON ABORIGINAL TITLE............................................................................................................................................. 20

Aboriginal Title vs Aboriginal Rights..................................................................................................................................................... 21What is an Aboriginal Right?............................................................................................................................................................................................................ 21What is Aboriginal Title?................................................................................................................................................................................................................... 21Elements of Aboriginal Title (Delgamuukw)............................................................................................................................................................................22Rules of Recognition: Test for Aboriginal Title (Adapted from Van der Peet)...........................................................................................................22Inherent Limits on Aboriginal Title.............................................................................................................................................................................................. 23TEST OF JUSTIFICATION for infringement of right............................................................................................................................................................... 23

ACQUISITIONS OF INTERESTS IN LAND............................................................................................................................. 25CROWN GRANT.............................................................................................................................................................................................. 25INTER VIVOS TRANSFER........................................................................................................................................................................... 25

The Contract of Purchase and Sale or EXECUTORY STAGE (transfers equitable interest)............................................25The Transfer Form / THE TRANSFER OR EXECUTED STAGE (transfers legal interest).................................................26

Standard Forms..................................................................................................................................................................................................................................... 27REGISTRATION................................................................................................................................................................................................ 27

Writing & Sealing.................................................................................................................................................................................................................................. 27INTER-VIVOS TRANSFERS: Gifts.............................................................................................................................................................. 28

4 Steps Required For Completed Gift:.......................................................................................................................................................................................... 28Presumption of Resulting Trust / Presumption of Advancement...................................................................................................................................30

Transfers to Volunteers (Use/Trust)...................................................................................................................................................... 30What is the difference between legal title and equitable title?...................................................................................................30

WILL OR INTESTACY................................................................................................................................................................................... 31Interpretation of Deeds and Wills........................................................................................................................................................... 31

General Rules Re Testamentary Transfer..................................................................................................................................................................................31Statutes Governing Testamentary Gifts...................................................................................................................................................................................... 31Testacy....................................................................................................................................................................................................................................................... 31Intestacy................................................................................................................................................................................................................................................... 32

PROPRIETARY ESTOPPEL........................................................................................................................................................................... 32Unjust Enrichment......................................................................................................................................................................................... 33

REGISTRATION OF TITLE.......................................................................................................................................................................... 33Historical Background: Different Methods of Transferring Interests in Land.....................................................................33

Common Law Conveyancing: Livery of Seisin..........................................................................................................................................................................33Torrens Land Registration System.......................................................................................................................................................... 33

Effect of Torrens.................................................................................................................................................................................................................................... 33Torrens in BC Today............................................................................................................................................................................................................................ 34

What can be Registered?............................................................................................................................................................................. 34Prohibition of Registration of Common Law Interests.........................................................................................................................................................34Mechanics of Registration................................................................................................................................................................................................................. 35Processing Gap: From Pending to Final Registration............................................................................................................................................................35Registration of Non-Common Law Interests (registrable as charges)..........................................................................................................................35

Basic Scheme of Registration..................................................................................................................................................................... 36The Legal Fee Simple........................................................................................................................................................................................................................... 36

Charges................................................................................................................................................................................................................ 37



Caveats LTA, Part 19 (ss. 282-294)............................................................................................................................................................................................... 37Effect of registered certificate of pending litigation (LTA Part 14 ss. 215-217).......................................................................................................37Effect of registered CPL (s.216) HALTS ALL DEALINGS WITH LAND:..........................................................................................................................37Judgments LTA Part 14 (ss.210-214)........................................................................................................................................................................................... 383 Underlying Principles of the Torrens System.......................................................................................................................................................................38

Failure to Register: If I don’t register, is my interest still protected?.......................................................................................38The General Principle: s.20 Except as against the person making it..............................................................................................................................38Prohibited Transactions.................................................................................................................................................................................................................... 38

The Role of the Registrar (LTA, s.10)..................................................................................................................................................... 39General Duty & Role of the Registrar........................................................................................................................................................................................... 39

The Assurance Fund....................................................................................................................................................................................... 40Review of Mortgages........................................................................................................................................................................................................................... 42

REGISTRATION – CHAPTER 6..................................................................................................................................................................... 42Registration: The Fee Simple..................................................................................................................................................................... 42

The General Principle of Indefeasibility......................................................................................................................................................................................42Indefeasibility and Adverse Possession......................................................................................................................................................................................43Statutory Exceptions to Indefeasibility....................................................................................................................................................................................... 44Boundaries............................................................................................................................................................................................................................................... 44Fraud.......................................................................................................................................................................................................................................................... 45Forgery...................................................................................................................................................................................................................................................... 45Void Instruments – Interest Acquired or Not Acquired.......................................................................................................................................................46Notice of unregistered instruments..............................................................................................................................................................................................47In Personam Claims............................................................................................................................................................................................................................. 48

Registration: Charges................................................................................................................................................................................... 49Meaning of Registration..................................................................................................................................................................................................................... 49Indefeasibility?....................................................................................................................................................................................................................................... 49Priorities................................................................................................................................................................................................................................................... 50

FAILURE TO REGISTER – CHAPTER 7..............................................................................................................................................................50General Principle............................................................................................................................................................................................. 50Except As Against the Person Making It............................................................................................................................................... 51

Judgments................................................................................................................................................................................................................................................ 51Other Interests....................................................................................................................................................................................................................................... 51Prohibited Transactions.................................................................................................................................................................................................................... 51

APPLICATIONS TO REGISTER – CHAPTER 8...................................................................................................................................................52Priority of caveat or certificate of pending litigation s.31............................................................................................................ 52

THE FEE SIMPLE – CHAPTER 9........................................................................................................................................................................53Creation............................................................................................................................................................................................................... 53

Common Law.......................................................................................................................................................................................................................................... 53Statute........................................................................................................................................................................................................................................................ 53

Problems of Interpretation - Repugnancy........................................................................................................................................... 54Gifts of Heirs: Wills Act s.25............................................................................................................................................................................................................. 54

Words Formerly Creating a Fee Tail...................................................................................................................................................... 55The Common Law................................................................................................................................................................................................................................. 55The Rule in Wild’s Case...................................................................................................................................................................................................................... 56

THE LIFE ESTATE – CHAPTER 10................................................................................................................................................................... 56Creation............................................................................................................................................................................................................... 56

By Act of the Parties............................................................................................................................................................................................................................. 56By Statute................................................................................................................................................................................................................................................. 57

Rights of a Life Tenant.................................................................................................................................................................................. 57Obligations of a Life Tenant to those Entitled in Reversion or Remainder............................................................................57

Waste.......................................................................................................................................................................................................................................................... 57Liability for Taxes, Insurance Etc................................................................................................................................................................................................... 58

FUTURE INTERESTS – CHAPTER 12................................................................................................................................................................ 58Nature of Future Interests.......................................................................................................................................................................... 59Common Law Future Interests.................................................................................................................................................................. 59



Vested Interests................................................................................................................................................................................................ 59Defeasible and interminable interests................................................................................................................................................... 60Contingent Interests...................................................................................................................................................................................... 60

Condition Precedent – “if”................................................................................................................................................................................................................. 61Condition Subsequent – “but if”...................................................................................................................................................................................................... 61Determinable Fee Simple – “until” / “when” / “as long as”................................................................................................................................................61

Vesting of Future Interests.......................................................................................................................................................................... 63Why do the Courts favour early vesting?....................................................................................................................................................................................64

Types of Common Law Future Interests............................................................................................................................................... 64Reversions............................................................................................................................................................................................................................................... 64Rights of Entry and Possibilities of Reverter............................................................................................................................................................................ 64Consequences of distinction between Rights of Entry and Possibility of Reverter:................................................................................................65Remainder................................................................................................................................................................................................................................................ 66

Common Law Remainder Rules:............................................................................................................................................................... 66Destructibility of Contingent Remainders................................................................................................................................................................................. 66

Equitable Future Interests.......................................................................................................................................................................... 67Governing Rules.................................................................................................................................................................................................................................... 67Creation of Equitable Interests....................................................................................................................................................................................................... 67

Attributes of Future Interests.................................................................................................................................................................... 67Protection of the Land........................................................................................................................................................................................................................ 67Alienability of Future Interests....................................................................................................................................................................................................... 67

Registration of Future Interests............................................................................................................................................................... 68CONDITIONAL AND DETERMINABLE INTERESTS – CHAPTER 13...............................................................................................................68

Crown Grants.................................................................................................................................................................................................... 68Uncertainty........................................................................................................................................................................................................ 68

Jarman Rules – Consequences of Invalidity...............................................................................................................................................................................69Human Rights Legislation........................................................................................................................................................................... 69

RULE AGAINST PERPETUITIES – CH 14......................................................................................................................................................... 70Common Law Rule............................................................................................................................................................................................................................... 70The Modern Rule Against Perpetuities........................................................................................................................................................................................71Perpetuity Act (BC).............................................................................................................................................................................................................................. 71Steps for a Grant/Devise.................................................................................................................................................................................................................... 72

CO-OWNERSHIP - CONCURRENT ESTATES CH 11........................................................................................................................................73Registration of Title for Co-Owners..............................................................................................................................................................................................74

Two Impliedly Abolished (by modern statute) forms of co-ownership....................................................................................74Coparcenary............................................................................................................................................................................................................................................ 74Tenancy by the Entireties................................................................................................................................................................................................................. 74

Two Remaining Forms of Co-Ownership.............................................................................................................................................. 74Tenancy in Common............................................................................................................................................................................................................................ 74Joint Tenancy.......................................................................................................................................................................................................................................... 75

Creation of Concurrent Interests.............................................................................................................................................................. 75Common Law.......................................................................................................................................................................................................................................... 76Equity......................................................................................................................................................................................................................................................... 76



GENERAL PRINCIPLES OF LAND LAW

ABORIGINAL TITLE – CHAPTER 3

Feds have jurisdiction over aboriginal peoples, but provinces have jurisdiction over property rights St Catherine’s did not recognize that AT preceded Crown ownership Royal Proclamation 1762 declared ownership over NA, but said that land possessed by FN stayed with them – AT was never

abrogated Section 109 provides that all lands belong to provinces subject to any interest other than that of the provinces – leading

category is that of AT Aboriginal land can only be put into private property system through treaty negotiated with government or through

surrender to Crown (Delgamuukw) Section 35 of the Constitution preserves existing AT and rights Government of Canada cannot do things that will impair AT except where it is substantial and compelling to do so

THEMES AND HISTORY OF LAND LAW

Themes in Property Law Interests which run with land Registration: what can be registered? How to register? What happens if no registration? Indefeasibility: Title that cannot be defeated, revoked or made void. Alienability: Common law alienability versus Aboriginal inalienability Possession: exclusivity Land law attempts to:

Control the disposition of land Control the use of land

Real and Personal PropertyTwo types of land:

1. Land or real property Fixed/static

2. Personal property (all property other than land) Movable (i.e. from one jurisdiction to another)

Real action = recovered the actual subject matter (Realty)Personal action = P recovered money judgment (Personalty)

Theories of PropertyProperty is culturally based, a physical object of value and a collection of enforceable rights and responsibilities. A common law property holder can freely alienate their land either inter vivos or upon death. Multiple owners can own the same piece of property. Property can be held either publicly or privately.

Sources of Real Property LawIn 1066, common law began in England. The First Nations people in BC have occupied the land since before 1790s when the Europeans came. Reception of English Law into BC occurred in 1858 (Law and Equity Act, s.2) – all British statutes and law in existence before 1858 are of legal force and effect in BC. In 1870, BC passed the Land Registry Ordinance, giving us the Torrens Land Registration System. In 1871, BC joined Confederation.

Property rights are under provincial jurisdiction via the common law, equity and statutes: Land Title deals with Crown land, Crown grants (s.50), the 7 land districts and surveying.



Land Title Act sets up BC Torrens land registration system and requires that all transfers must be made on the prescribed form (Form A) and on a single page (s.185). However, s.185 does not apply if another statute allows a different form, or the Registrar accepts the different form.

Property Law Act deals with everything else (statutory provisions with land issues). Land Transfer Form Act (ch.4-12) deals with the meaning to be given to words in prescribed forms.

Real and Personal PropertyHistorically, real & personal property had different actions (in rem v in personam) and intestate distribution schemes. Today, there is no distinction btw. real & personal in intestate distribution. Personal property operates under absolute/allodial ownership (owner is absolute). No concept of tenures for personal property. But courts can create equitable interest in personal property, which essentially creates estates (e.g. car leases). Personal property is free alienable both inter vivos and upon death. No registration required for a completed gift of personal property.

Real Property Personal PropertyCan recover the actual subject matter in dispute, the res (thing).Either corporeal/tangible (right to possession) or incorporeal/intangible (right to use).

The judgment is against a person, not related to any specific piece of property, can obtain a money judgment.Either choses in possession/tangible (chattels) or choses in action/intangible (intellectual property, money, stocks etc.)

A holder of a life estate in personalty owes a fiduciary duty to preserve the estate for the ultimate recipient (Re Fraser, widow-can’t-encroach-on-property-if-not-granted-that-right).

REASONS FOR STUDYING THE LAW OF REAL PROPERTY

DispositionsProperty (realty or personalty) owner may dispose of property:

Inter vivos: a transaction between living persons Sold (by contract of sale) Gift (given in various forms)

Death: disposed of by will (testamentary) Disposed by will If there’s no will, intestate succession, set out in Part 10 of the Estate Administration Act

Tax considerations of great concern in both situations Document of transfer must transfer what party intends to transfer Technically, no one owns land – only own an interest in land Interests may be owned singly or jointly with other people Determine what interest the vendor has and what is being transferred Necessary to draft document called a transfer

Use of LandLandowner may want to know what limitations are on its use. Restrictions fall into three categories 1) common law (from law of torts, nuisance, trespass and negligence), 2) the law governing private arrangements (from the law of contracts: protecting interests of a neighbourhood through restrictive covenants) and 3) legislation (federal and provincial statutory restraints in connection with air space, environment, particular uses (e.g. agriculture) as well as municipal regulations (e.g. zoning)

Common Law Mainly through law of torts, common law exercises some control over the use of land Nuisance controls noise, smell etc that may cause friction between landowners



Private Arrangements Law of restrictive covenants developed in 19th and 20th centuries enabled private landowners to exercise a greater measure

of control over their neighbour’s use of land without direct public interventionLegislation Federal and provincial statutory restraints on use of land (airspace, environment)

o Agricultural Land Act controls use of land in BCo Designates ALR – can only be used for agricultural and related purposes

Municipalities also exercise extensive control over land Zoning power conferred to them through provincial municipal legislation

Land law encompasses: Contract Tort Tax Laws of wills & successions Municipal bylaws Land use statutes Expropriation statutes

Raises two questions: a) what types of interest can exist in relation to land? and b) what must be done to effectively transfer such interests from one person to another?

SOME BASIC PRINCIPLES OF LAND LAW

Feudal Concepts of Land OwnershipHistorical Background William the Conqueror took land unto himself, parceled it out among his followers, who then parceled it out amongst

tenants, subtenants etc. This process was called subinfeudation King never parted with absolute ownership – this remains theoretical basis in land law today that Crown is an absolute power

that an individual cannot own land; instead, he can only have an interest in land NB: What implications does this have for the aboriginal title claims? Particularly in BC, aboriginal right over territory has

never been ceded.

Crown owns all the land. Two remaining concepts of land ownership: Tenure: Conditions under which land was held. Only free and common socage exists today (Tenure Abolition Act, 1660

abolishes knight service, sergeantry, frankalmoin). Only remaining conditions are forfeiture (treason) and escheat (no heirs).

Corporeal & Incorporeal Interests in Land, and the Doctrine of EstatesEstate: How long an interest in land could be held [freehold versus leasehole]

Freehold Estates Leasehold EstatesIndefinite, uncertain (almost forever) time period

Certain, ascertainable, limited time period

Exclusive possession In possession of land [landlord retains some residual possessory rights]

Example: fee simples, life estates Example: leases

Corporeal InterestsInterests that entitle a person to possession of the land. Only Crown is absolute owner of the land. Everyone else holds land directly or indirectly from the Crown. Owner owns an estate in the land.



Estate: an interest in land which entitles its owner to exercise proprietary rights over that land for a prescribed period.

Fee Simple“Fee” means it was inheritable / did not die with present owner. “Simple” no qualification on type of heir – descendants and ascendants and collaterals could inherit. All fee simples are held directly from the Crown.

Fee TailFee tail was still inheritable but heirs who could inherit were cut down. Required heirs to be direct descendants of the owner. Abolished by the Property Law Act, s. 10

Life EstateTime in the land for the lifetime of the holder of the estate. Upon death the estate ends.

Estate Pur Autre VieLife estate, but not the life of the owner of the estate but some other life (i.e. until death of widow).

Leasehold EstatesFreehold estates developed in feudal system. Time in the land for a fixed duration.

Incorporeal InterestsDo not confer the right to possession of the land: easements, covenants, profits a prendre, mortgages

Legal and Equitable InterestsLegal interests: ‘in rem’; come through the common law and are enforceable against the world: upon completion (registration) in BC, you receive the legal interest. Equitable interests originally came from the Court of Equity, but were not as secure as legal interests: upon signing of the Contract of Purchase and Sale, you receive the equitable interest (as you have entered into a binding contract).

Origin of Equitable Interests Brand of justice dispensed by the Chancery became known as equity Application of rules was a matter of discretion in 1600s Conceived as a means of perfecting common law Designed to improve and supplement, but not supplant, common law Equity became more predictable in 17th-19th centuries but still separate from common law Equity developed further remedies (than damages granted under common law) In 1870s courts of law and equity were fused - single court can apply both sets of rules Incorporation of principles of equity into common law in Canada was straightforward – not so smooth in some provinces

The Use: An Equitable Interest Modern trust came from the use, a concept with feudal origins Use was a device which legal title was granted to one person to hold for the benefit of another A (feoffor) transferred land to B (feoffee) to be held for the benefit of C (the cestui que use) Goal was to place legal title in B, who was intended to hold it for uses destined to serve C (but C had no legally enforceable

claim)o Used when expedient to separate legal title from the person who was intended to have the real benefit of the land

(usually because of some attendant disadvantage or disability) Eventually Chancery recognized C’s rights in the use Enforcement became Chancery’s central function B’s title was purely managerial – obligations were imposed in favour of C (these were paramount)

Why would a person want to create a use to benefit a person rather than a direct transfer?



1) Religious influence: Fransiscans vow of poverty 2) Mortmain “dead hand”: laws prohibited transfer of land to ecclesiastical corporations3) Departing for Crusades – transfer land to friend for wife and family’s use4) Made it possible to make transfers not permitted by law

Created new types of future interests Allowed a person to dispose of property after death before that right was recognized

o Problem: feoffee not honouring trust implied upon himo When cestuis que use sued feoffee, common law courts refused to look behind the legal title of the

feoffees to useso King and Lord Chancellor through Chancery more receptive – said feoffee had to use his legal title to

benefit of cestui que use – known as equitable interest5) Avoid feudal tax and other burdens like escheat and forfeiture

Danger – if feoffee was guilty of treason, land was forfeited to Crown Tax avoidance component of the use hurt King – so King Henry VIII forced Parliament to pass Statute of Uses

Statute of Uses Aimed at eliminating the use, esp. passive uses where feoffee was mere holder of legal title with the cestui que use

exercising all the rights of ownership Statute turned the equitable title of cestui que use into a legal title – eliminating the feoffee to uses Courts resurrected the use within 100 years of the Statute under its modern name, the trust

Statute of Uses failed to force equitable beneficiaries to assume legal title as it did not apply to active uses (uses with obligations e.g. feoffee had to collect rents), or to a person who was seised to his own use (A is both beneficiary and trustee – ideal way to avoid Statute), or to a use upon a use (A holds interest for B for the use of C for the use of D – Statute would only move legal title from B to C and stopped there), or if a corporation had possession of a freeholder (seisin) – statute applied to “any person.”

o Statute did not apply if the feoffee to uses was not seised in land o Only freeholders had land, not leaseholders

Emergence of Modern TrustThree Aspects of Modern Trust:

1) Legal title always remains with the trustee The beneficiary still relies on courts to see that the trustee holds the legal title for his benefit

2) Interests created in Equity correspond to those that can be created at common law Can create equitable fee simples, life estates, estates pur autre vie, and equitable leasehold and future interests

3) Trustee being legal owner may transfer legal title to a third party Are beneficiary’s equitable rights enforceable against a third party?

o IF THEY KNEW at the time of transfer that the property was a trust property, beneficiary could still enforce trust

o IF THEY DIDN’T KNOW at time of transfer, 3rd party had “clear conscience” and beneficiary could not enforce trust

Common law established in relation to legal title: that you can’t give what you don’t have Nemo dat quod non habet (no one may give that which one does not have) Even in an honest mistake, true owner could always recover property from the transferee Equitable interest is less vulnerable than might appear:

o Doctrine of constructive notice in practice gave equitable interest a wide measure of protection o By notice means:

What transferee knew What transferee should have known – reasonable person

Freedom of AlienationOne aim of English land law is to ensure that land is freely alienable. Must satisfy three requirements to transfer:



1) An owner must have technical freedom of disposition2) In disposing of property, owner must NOT have the power to impose excessive restraints on the freedom of

alienation of any transferee3) The actual mechanics of transfer must be as simple as possible

Freedom of DispositionThe Quia Emptores, 1290 allowed free disposal of land (except that which reverted back to the Crown). The Statute of Wills, 1540 and Tenures Abolition Act, 1660 also allowed land to be freely willed – freedom to alienate inter vivos was fully established. Life tenant can’t leave estate by will (estate came to end when he died).

Restraints on AlienationPeople used their freedom of alienation to try to limit the freedom of others. By imposing direct restraints, fee tails, future interests and strict settlements so that the owner couldn’t freely dispose of his land inter vivos or by will.

Direct RestraintsNot valid in law to attempt to restrain alienation by putting in a clause in the transfer to prohibit disposition.Exception: restraints on the assignment of a leasehold are VALID.

Fee TailsTransfer “to A and the heirs of his body.” Attempt to ensure land stayed in family. So much of England was tied up in fee tails, land crisis developed. Common law courts allowed the conversion of the fee tail into fee simple.(Statute De Donis Conditionalibus)

Future InterestsLong series of future interests could prevent alienation Courts made impossible a series of life estates running within a family – (barred by rule against perpetuities Whidby v Mitchell, 1890; Statute of Uses).

Strict SettlementsRelied on family and social pressure to tie up land within the family (broken by BC Land (Settled Estate) Act).

Mechanics of TransferMust consider: 1) by what means does the intended transferee (or transferee’s solicitor) ascertain precisely what interest in land is held by the intended transferor (establishing good root of title) // 2) by what method or documents (i.e. conveyancing) is the actual transfer of an interest in land effected?

Establishing Good Root of TitleA conveyance could establish “good root of title” upon making a search of title (going back 60 years) // Safe-holding title: gives an owner rights against the world in terms of exclusive possession, even though he has no proof of his title // Marketable title: Gives an owner rights against the world to freely alienate his title, and provides the owner with proof of that title.

Methods of TransferOriginally, transfer was made by “feoffment with ‘livery of seisin’ – public, physical delivery of property // Statute of Uses moved legal title regardless of whether there had been livery of seisin (lease and release, enabled gifts between relatives).

Possession: It’s my Land! Get off!Right of Possession: An intention to possess and an ability to exclude others. Corporeal interests have the right of possession.Common law rule: Possession depended on the nature of the land and manner in which land was commonly enjoyed. Intermittent / sporadic possession may be adequate for title. Exclusivity did not preclude consensual arrangements that recognized shared title to the same parcel of land.Law of Finding / “Finders keepers, losers weepers”The finder of the chattel (personal property) acquires title that is good against the entire world except for the true owner. Not indefeasible title since true owner can always reclaim his interest.



Aboriginal titleAboriginal title is sui generis (of its own class or kind). Exclusive occupation of land is sufficiently similar to the common law concept of possession to impose aboriginal title.

Adverse Possession AKA “Squatter’s Rights” If a person occupies land for the required period of time as set out in provincial limitation acts and, during that time, no legal action is taken to evict or in trespass, the ownership in the land goes from the legal owner to the squatter. Land Title Act, s.23(3) abolishes the concept of adverse possession in BC, except against land which has never had an indefeasible title imposed before (i.e. a Crown Grant) (LTA, s.23(4). The Court can adjudicate adverse possession claims (Land Title Inquiry Act, s.171). Acquisition of title by adverse possession can arise both through mutual mistake and where adverse claimant is a knowing trespasser. In order for a successful adverse possession claim to title, the act of possession must be open and notorious, adverse (not with the permission of the owner), exclusive, peaceful (not by force), in general actual possession (as opposed to constructive) and continuous.cr

REAL AND PERSONAL PROPERTY

TenureNo longer used.

The Doctrine of Estates Does not apply to personalty [based on absolute (allodial) ownership] Fungibles: property consumed in use – not given equitable interests (fruit etc) Convenient to consider legal and equitable title separately

Re Fraser BCCA 1974Testator died and left his life estate (which consisted of realty and personalty) to his wife and wished to give the remainder to a Christian Society after she died. Does the widow have the right to encroach on the property?

Two beneficiaries: life tenant (widow) and remainder (Christian society) – legal title given to person with the life estate (widow)

Held: Widow has a fiduciary duty to preserve the personalty in its entirety for ultimate recipient or remainder (Christian

Society). Life interest: recipient can enjoy revenue derived from the corpus and no more unless testator expressly or impliedly

indicates an intention that recipient have power to encroach. Will in this case does not indicate any such intention

AlienabilityPersonalty is freely alienable. Modern selling techniques: have a registry system for personal property like Land Title System.

Devolution on DeathBoth realty and personalty can be disposed of by will. BC Estate Administration Act rules for disposition where person dies intestate (no will). Their property reverts to Crown: called “unclaimed goods” – same effect as escheat.

THE RELEVANCE OF ENGLISH LAW

Law and Equity Act, s.2 British law was formally received in BC on November 19, 1858 by proclamation of Governor Douglas (substance of which now appears in Law and Equity Act, 1996). British statutes and case law that were in existence before this date are of legal force and effect in the province. Includes: Tenures Abolition Act, Quire Emptores, Statute of Use



THE LEGAL CONCEPT OF LAND: PHYSICAL DIMENSIONS

Land is measured on both the horizontal plane and vertical plane. Horizontal boundaries of land are fixed at the moment of surveying, but can change by accretion or erosion.

Surveying required in BC (LTA, s.58): Surveying assists in giving certainty of ownership as the physical description clearly spells out boundaries of land. Normally, surveying produces a plan which divides the land into a lot // block // district lot // section // township // meridian.

Registrar can also accept a Metes and Bounds description with or without a reference plan (LTA, s.99)

Indefeasible title is subject to right of a person to show that land is wrongly described (LTA, s.23(2)(h))

No obligation on lawyers to investigate whether the plan or boundaries of land are correct ( Winrob v. Street, lawyer-does-not-obtain-plan).

CUJUS EST SOLUM, EJUS EST USQUE AD COELUM ET AD INFEROS

Common Law Rule: whomever owns the title to the soil also holds title all the way up to the heavens and down to the depths of the earth.

Airspace RightsAn owner has a right in the air space above his land only in the enjoyment of that land, and in preventing anyone else from acquiring a right in that airspace.

Owners & leasors who have possessory interests in the building can also have possessory interests in the airspace above the building (Kelsen billboard-over-building). But common law must yield to technical advances, airspace rights extend only up to the “ordinary use and enjoyment” of the plaintiff (Skyviews aerial-photographer). Owner has no property right or legislative jurisdiction in relation to airspace above his land (Manitoba v Air Canada Manitoba-tries-taxing-AC-for-airspace-use). Owner has a right to fell overhanging branches and remove protruding roots of trees grown on a neighbouring property.

Kelsen v Imperial Tobacco Co.P’s landlord allowed D to display advertisements on top of building that protrudes by several inches. P alleged trespass (rights in rem), sought injunctionAD COELUM MAXIM AFFIRMED. THOSE WHO HAVE POSSESSORY INTERESTS IN THE BUILDING CAN ALSO HAVE POSSESSORY INTERESTS IN THE AIRSPACE ABOVE THE BUILDING. Not a nuisance, mandatory injunction granted. Test for substituting equitable damages in lieu of injunction:

1. Injury to P's legal rights is small2. Injury can be estimated in money3. Injury can be compensated by small monetary payment4. Would be oppressive to D to grant injunction

*Kelsen could have asked for a decree of prohibitory injunction—which would have prevented Imperial Tobacco from erecting sign in the first place. Bernstein (Lord of Leigh) v SkyviewsD took aerial photography of P’s house and offered it to P for sale. P alleged trespass into his airspace and invasion of privacy. Is movement of plane through airspace considered trespass?No trepass. Bernstein distinguished from Kelsen based on height and ordinary usage, balancing rights of public and owner. AIRSPACE RIGHTS DID NOT EXTENT TO MORE THAN WHAT WAS NECESSARY FOR ORDINARY USE AND ENJOYMENT OF THE LAND AND STRUCTURES ABOVE IT

Manitoba v Air Canada



Manitoba gov’t wanted AC to pay taxes on aircraft that landed in or flew over the province. Can airspace be owned? Airspace not the subject of ownership, air space is incapable of demarcation or delineation (exception: condos). Right of province does not extend beyond the property within the province, followed Bernstein – ownership of airspace only extends to ordinary usage. AIRSPACE CANNOT BE OWNED, BUT LIMITATIONS CAN BE PUT ON WHO CAN OCCUPY IT.

Statutory Principles:Civil Aviation Statutes recognizes air space parcels and air space plans and rights by parties other than owner.Land Title Act

s.138: recognizes air space parcels and air space plans s.139: Title to airspace is recognized s.140: A grant of an airspace parcel to a grantee does not allow that grantee to interfere with that grantor's interest

in land or remaining airspace parcels s.142: Minister of Transportation can grant airspace parcels above highways for power lines, billboards, Skytrain,

etc. Title: Fee simple owner of airspace parcel receives a separate title. Does not normally appear as a charge on the

surface landowner in question, but will appear as an easement if one is required to access the airspace.

Strata Property Act: Recognizes that an owner may subdivide into smaller parcels not only the surface of the land but also buildings on or the air space above it.Administers the creation of strata titles in British Columbia. Each owner owns his or her own personal space, and also jointly owns common areas.

Grants a strata lot owner an airspace unit. Each strata lot owner gets a series of rights (access, support, services) Bare land strata plan permits the subdivision of the horizontal plane only Building strata plan allocates strata lots to individual owners (vertical) Title: Strata owner's title includes both the condo & a part-interest in the common area. No separate title for

the land on which the condo building sits. Generally the strata owns can sell, mortgage, lease or otherwise deal with their individual spaces, but they

cannot do the same with their shares in the joint facilities. Act also provides for a form of government Strata Councils.

Property Law Act, s 36 6-10ENCROACHMENT ON ADJOINING LANDWhere a building or fence encroaches on adjoining land, section 36 authorizes the BCSC to either:(a) declare an easement and give compensation,(b) give title to the encroacher and compensate the original land owner(c) order the owner to remove the encroachment or the fence

AD INFEROS / Below the LandLandowners own elements below surface to an undefined depth subject to:

1. Prerogative rights in the Crown2. Terms and reservations in the original Crown grant3. Extensive statutory restrictions

Bottom Line: Everything of value stays with the Crown. Check title for mineral rights

Common Law: Crown retained rights to gold & silver, but remaining mineral rights passed to the grantee. Post-1897: Base metals reserved to Crown Post-1899: Coal & petroleum reserved to CrownPost-1951: Natural gas reserved to Crown



Mineral Tenures Act allows free miners with proper licenses to come onto public and private land to prospect for Crown mineral rights. You must obtain a license first to prospect on private land (but you don't need permission from actual owner).Mineral Rights: Fee simple owner of mineral rights appears as a charge on the fee simple surface landowner in question.

FIXTURES

If object was attached for better enjoyment of the building as a building, it is a fixture. If it was for the better enjoyment of the chattel as a chattel, it is a chattel (Re Davis bowling-alleys-aren’t-fixtures!)Chattel became fixture when it is affixed to the land by more than its own weight and the purpose of the attachment is for the

better use of the building as a building and not for the better use of the chattels as chattels (La Salle, carpet)Large equipment may be chattel if you can remove it easily (without damage to building) & install somewhere else.

3 possibilities for personal property: (1) Chattel (2) Fixture (3) Part & Parcel of the Land

Fixture: A chattel so fashioned or connected to the land that in law it forms part of the land. Common Law Rule: A transfer of an interest in land included all the fixtures on the land. Bottom line: Evaluate the degree of annexation and the object of the annexation.Onus of Proof: The opposing party must rebut the Stack presumptions.

Test: Has the chattel become a fixture? (Stack v Eaton, 1902)1) What is the degree of annexation?

o If a chattel rests on its own weight, it is presumed to be personal property.o If a chattel is attached, it is presumed to be a fixture.

2) What is the object or purpose of the annexation? o Objective Test: Would a reasonable person, familiar with the customs of the time and place, conclude that the

parties intended that the item remain a chattel, or become part of the real estate?a. Intention is only important for considering the degree/object of annexation

Test: Has the fixture become "part and parcel of the land"? Whether an object is part and parcel of the land must be determined by examining the degree and object of the annexation, to infer whether the annexation was intended to be permanent or temporary (Elitestone, bungalow-on-concrete-pillars-for-50-years).

Canadian principles for fixtures (Stack v. Eaton, 1902)1. Articles attached to the land by their own weight are chattels unless intended to be fixtures 2. Articles affixed to the land slightly are considered fixtures, unless intended to be chattels.3. Must examine degree and object of annexation in order to rebut the presumption. 4. Intention is only relevant if it can be presumed from the degree & object of annexation. 5. Tenants' Fixtures: Tenants' fixtures (attached for trade) become fixtures unless the tenant wants to take them back.

Tenant’s fixtures: articles affixed to the land by a tenant When an owner adds a chattel, it improves the land. When a tenant adds a chattel, it merely improves the chattel. Test: Was it affixed by the tenant? Can be removed with no material damage? If yes, then tenant's fixture. If tenant wants to take her fixture with, must be removed during the lease, subject to the terms of the lease.

Re Davis


Equitable maxim: “Whatever is affixed to the soil belongs to the soil; “quicquid plantatur solo, solo credit”

14


Calculating a widow’s claim to husband’s real property. Home included bowling alleys, question of whether these were to be included in calculation of dower interests. Are the bowling alleys chattels or fixtures? BOWLING ALLEYS WERE ONLY AFFIXED SO THAT BOWLING ALLEYS COULD BE BETTER USED, NOT FOR THE BETTER ENJOYMENT OF THE BUILDING = CHATTELS.

Degree of affixation:• How well is the object affixed to the building• Consider the how easily it can be removed, how permanent the object is Degree of annexation: • If object is to improve the freehold, even if only slightly affixed it becomes part of realty• If the object is for the better enjoyment of a chattel, then it is not part of the realty

La Salle Recreations Ltd v Canadian Camdex Investments Ltd - operative testDispute between creditors over the right to repossess wall-to-wall carpeting. Carpet itself under a payment plan, and the building itself was under mortgage. As per the Conditional Sales Act, where the chattel becomes fixed to the land, there is no binding interests against a subsequent mortgagee of the land unless the agreement was properly registered in the land registry office ) . This was step was not taken. Was carpeting a fixture or a chattel?

Stack v Eaton test applied (see above). Carpet became fixtures and La Salle could not reclaim. Intention of the person affixing object is material only insofar as can be presumed from degree and object of annexation.

CMIC Mortgage Investment Corp v RodriguezRodriquez purchased 2 Cover All buildings, mortgage goes into default. CMIC claims coverall 2 as part of the land within its scope of security. Cover-All company reclaims cover all 2 as its property during the foreclosure proceedings. Cover-All #1 is indisputably a fixture (secured to buried concrete); Cover-All #2 was secured to concrete blocks resting on the ground. Cover-All #2 was delivered but did not pay for or use for the purposes of her business.

A thing affixed to the real estate will be presumed to be a fixture unless evidence shows it is affixed for the purposes of making better use of it as a chattel as opposed to being an integrated part of the property as a whole; a thing not affixed will be presumed to be a chattel unless evidence shows that its presence on the property is intended to make it an integral part or enhancement of the property as a whole

Royal Bank of Canada v Maple Ridge Farmers Market Ltd. (BCSC 1995)RULES FOR DIFFERENTIATING CHATTELS FROM FIXTURES Dispute between trustee in bankruptcy and a mortgagee as whether certain items of restaurant equipment should be classified as fixtures or chattels.

Chattel - If an item is unattached and can be removed w/o damage to the item or land. Chattel - If an item is only plugged in and can be removed w/o damage to the item/land Fixture - If an item is even minimally attached (i.e. not just plugged in) Fixture - If an item would be useless without a certain removable part Tenant's Fixture - A fixture may only be removed if it is a tenant's fixture, provided the premises are restored Purpose test - If the item is unattached, but the party can establish that the intent was that it be a fixture, then it is a

fixture

Elitestone v MorrisBungalow rested on concrete pillars for 50 years. Was it a chattel or a fixture?

An object brought onto land may be characterized as 1) a chattel; 2) a fixture; 3) part and parcel of the land. Terms expressly or implicity agreed between fixer of chattel and owner of land cannot affect determination of whether in law the chattel has become a fixture. Such agreement cannot prevent the chattel, once fixed, becoming in law part of the land and as such owned by the owner of the land.

WATER RIGHTS

Sources of Water Rights Common Law/Riparian Rights: percolating groundwater; water which has never been licensed Water Act: Use of flowing water (must be licensed, unless s. 42 exceptions)



Land Act: Water bed rights Land Title Act: Rights upon accretion or erosion

Riparian Ownership Rights to Water ItselfCommon Law: Rights relating to use of water (from English CL). Riparian owner (bordering stream) had proprietary rights in flowing water and percolating water (groundwater). Acquisition of an interest in water not based on prescription (rights by use).

Common law rights to water: Right to water flow, quantity and quality in its natural state Still apply to unrecorded water, although licenses take away this right Use of unlimited water for domestic purposes while on your property, even if your use affects the rights of other

riparian owners Water can be drawn for extraordinary purposes (limited crop irrigation or manufacturing) but right is limited and

obligation to not cause injury to other riparian owners by diminishing the flow, quantity or quality of water for downstream riparian owners

If supply exhausted through ordinary use, cannot complain Use of the water must be connected to the property where the water exists - cannot grant use to another

Statutory Modifications: In BC, the Water Act governs and has eroded riparian rights. Riparian rights, if any, can only exist for a person lawfully using the water. The only way to acquire the right to the use and flow of water in any stream in BC is under the provisions of the Water Act. Right to use and flow vested in Crown. Domestic use of unrecorded water (=not regulated under licenses) permitted.

Water Act, ss 1-2, 4-6, 93, 94, 42S1=definitionsDomestic purpose: means the use of water for household requirements, sanitation and fire prevention, the watering of

domestic animals and poultry and the irrigation of a garden not exceeding 1012 m adjoining and occupied with a dwelling house.

Ground water: means water below the surface of the groundStream: includes a natural watercourse or source of water supply, whether usually containing water or not, and a

lake, river, creek, springUnrecorded water water the right to the use of which is not held under a license or under a special or Private Act.

WA s. 2: The right to use and flow of all water in stream in BC are vested in gov’t except when licenses issued or approvals given under leg. An interest in water cannot be acquired via use.

WA s.3: Percolating water governed by CL, not Water Act. Owner entitled to flow, quantity and quality of percolating water on his property in its natural state (Steadman, spring-fed-dugout-gets-polluted)

WA s. 4: Except for a s1 purpose, a person who is not registered under the WPA must not divert, extract, use or store any water from a stream

WA s. 5: License is required to acquire an interest in water bordering riparian land. Unused licenses are subject to cancellation Priority between licenses determined by dates of licenses. Diversion: License-holders can divert their water to other users and expropriate land on which to construct

pipelines to divert water. A license entitles its owner to:

divert and use beneficially for the purpose and during the time stipulated, the quantity of water specified in the license

store water construct, maintain and operate the works authorized under the license and necessary for the proper diversion,

storage, carriage, distribution and use of the water or the power produced from it alter or improve a stream for any purposes



WA s. 42: (1) no license required for use if firefighting, domestic purposes or prospecting for minerals

Remember those common law rights: The Water Act does not completely negate common law riparian rights. A riparian owner maintains the common law rights to clean flowing water on his land until the Crown issues a license removing those rights (Johnson v Anderson, unauthorized-diversion-of-stream-from-unlicensed-domestic-use; Steadman unlicensed-spring-fed-dugout-gets-polluted). But if the water is used contrary to the license granted under the Water Act, no enforceable rights exist (Schillinger, no-protection-for-polluted-unlicensed-fish-farm-water).

Water Protection Act, purpose: foster sustainable use of BC’s water resources (conserve & protect environment). WPA s. 3: property in and the right to the use and flow of all water at any time in a stream in BC are for all purposes vested in government, except only in so far as private rights have been established in the Act, or under licenses issued or approvals given under the Water Act.

Johnson v AndersonD diverted a stream, the natural flow of which was through P’s property. P used the water for domestic purposes and stock watering purposes. P sought damages, an order for the demolition of the works diverting the flow, and an injuction. P had no water licence, the D had a license but it did not authorize the diversion in question.

Riparian owner is entitled to make use of water, and had a remedy against wrongful and unauthorized diversions of the stream as it deprives him of a right (unless barred by statute) to use water for a domestic purposes

If the D had not diverted the stream, the P could have made use of the water flowing by or through his land in a way which did not interfere with the water rights of the D.

Basically, Common law prevails for unrecorded water (riparian); you can protect your riparian rights against other unlicensed users. Riparian owner has a remedy against a wrongful and unauthorized diversion which deprives him of the opportunity which he would otherwise have to use water for domestic purposes w/o committing any offence. Johnson was successful against Anderson because his unlicensed use was domestic

Unlicensed domestic user will be protected so long as no one has right to use water that conflicts with unlicensed domestic uses.

Act pre-empts riparian rights, but does not remove them. Crown (unrecorded water vested in Crown) licenses under the Water Act common law riparian rights non-licensed/non-riparian users

Schillinger v H Williamson Blacktop & Landscaping Ltd (No. 2)Schillinger operated a fish hatchery, which is a commercial use of the water. He was diverting water from Barrie Creek (the wrong creek). He exceeded his license using it for an industrial purpose where he had no right of access. P claims damages for alleged negligence and nuisance on the part of the D whose gravel pit compromised the quality of the water by introducing sediment and killed P’s fish.

Riparian rights can exist only for a person using the water in a lawful way, and the only way to acquire the right to the use and flow of water in any stream in BC is under the provisions of the Water Act

P did not have a right to divert the water, cannot claim damages The claim is based on damage that was the consequence of the diversion, diversion was unlawful, so no rights No right to quality of water for unlicensed commercial user.

Steadman v Erickson Gold Mining CorpMine company builds road, road caused sediment to enter Steadman’s water (which he had piped to his house) was no longer drinkable (unpotable). Steadman sues Erickson gold mining company argues Erickson has no basis for polluting this water. Erickson argues it’s groundwater, no one owns it.

Riparian rights exist except where explicitly stated that they do not (i.e. where there is a license) Can use water to point of exhaustion but cannot pollute it, D polluted for industrial purposes (distinguished from

Schillinger where P was using water for non-domestic purposes without a license, but in Steadman the purpose was legitimate – domestic purposes)

P has a right to use and enjoy the water until the Crown issues a license in respect of that water, until that has happened P is entitled to claim that D must not make the water unusable



In contemporary times the law has changed and even unconfined ground water is owned by the provincial government. Case re-affirms Johnson and Anderson.

Percolating Water / Ground Water

Percolating water = The phase where the water is going through the soil; Ground water when it is going through the stream. WPA has meant that percolating water (in its unconfined state) is owned by the Crown—also when it goes to a larger body of water.

The body of rules applicable to riparian owners did not extend to water that percolates, flows through the soil or flows in an unascertained channel- it became property of the first person to draw it lawfully to the surface. But in BC the effect of CL has been affected by both the Water Act and the Water Protection Act

Ownership of the Beds of Watercourses, Lakes and Ponds

Non-Tidal Riparian Rights (Freshwater)Common Law:

ad medium filium: land bordering on a non-tidal, non-navigable body of water riparian owner owns land up until the middle of the water bed (Canadian Exploration Ltd. V Rotter (1961) SCC confirmed that the principle of ad medium filum may apply to properties in BC)

land bordering on a non-tidal navigable body of water no right to the water bedToday in BC: In BC, riparian owners have no rights to the navigable or non-navigable river bed of shore (Land Act, ss.55(1)) unless specifically granted or where those rights were never taken away (s.56).

Tidal Riparian Rights (Saltwater)Common Law: gave riparian owners rights of access to the foreshore (between high water & low water mark), but right of ownershipToday in BC: Foreshore is owned by Provincial Crown. Riparian owners get rights to the high water mark. Can anchor vessels on the shore. Riparian owner must not interfere with public rights of navigation, can’t impede public access by building structure on foreshore (Murray v North Saanich, Murray-builds-wharf-which-blocks-foreshore)Access by Riparian OwnersRiparian owner’s right of access stems from his ownership of land which abuts water. This right of access is distinct from the public right of navigation and does not depend on ownership of the water bed.

Right to moor vessels on the shore Riparian owner must not interfere with any public right of navigation and cannot impede access by building structure on

foreshore (North Saanich, rich-guy-in-Saanich-builds-wharf) A pier/causeway is an acceptable means of access as long as it doesn’t interfere with foreshore owner’s rights

North Saanich (District) v Murray (rich-guy-in-Saanich-builds-wharf)Murray owned land that fronted sea, constructed wharf on and across the foreshore adjacent to his land. Saanich claimed trespass. Does riparian owner have a right to construct wharves or other structures on the foreshore?No, riparian owners don’t have right to construct wharf, cannot impede public access, owner of the foreshore could claim in trespass.

Accretion / Erosion Accretion: the process by which land bordering on a tidal water body is increased by the silting up of soil, sand or other

substance. Erosion: the process by which land bordering on a tidal water body is decreased by the permanent withdrawal/retreat

of the waters.Accretion/Erosion applies to both riparian owners and leaseholders, and to inland lakes as well (Theosophy, leaseholders-apply-for-accreted-land). Accretion must be gradual and imperceptible. Human action (except that of owner) can produce accretion. Accretion can only be produced by natural substances, though those substances need not be carried by water.



Riparian owners are entitled to an increase in accretion , or may suffer a decrease by erosion (LTA, s.94-96). A new plan must be registered to show a change in boundaries.

Southern Centre of Theosophy Inc v South AustraliaA is the registered proprietor of a perpetual lease. A claims a declaration that the high-water mark of the lake forms the eastern boundary of its land. In 1911, when the lease was granted, the proprietor’s land at the boundary adjoined the lake, but since then the high-water mark has receded, exposing about 20 acres. A seeks to establish that the land still has a water frontageAffirms doctrine of accretion: Where land bounded by water, forces of nature changing boundary in gradual and imperceptible way will be given effect in considering title to land; if divulsion, lose land. Applies to inland lakes.

SUPPORT

Common Law Rule: An owner of land is entitled to have his land left in its natural state or condition without interference by the direct or indirect action of nature facilitated by the direct action of the owner of adjoining land (or subsurface owner) ( Cleland, removal-of-sand-causes-neighbouring-lot-to-shrink). Right of support is an absolute right that exists independent of any claim in negligence (Rytter v Schmitz basement-excavation-causes-chimney-wall-to-collapse).

Lateral Support: right of support between adjoining surface ownersNo one can interfere with the land by removing lateral support (Rytter v Schmitz). Note that loss of lateral support can occur even when the movement is vertical.

The right of support does not extend to actual title in dirt (Bremner v Bleakley, digging-holes-to-steal-sand). Limited to land in its natural state: Does not include support for the additional weight of any structures which would have been on the land unless obtained by easement or prescription or unless it can be shown that subsistence would have occurred even absent the buildings on that parcel (Gillies v Bortoluzzi, collapsing-grocery-store).

Land with no building is entitled to both lateral and horizontal support.

Vertical (Underneath) Support:Subsurface owner has a duty to support the surface owner. Limited to land in its natural state. Can be extended to vertical support for a building by applying the rules of trespass rather than support (because removal of support requires trespass underneath the soon-to-collapse building). Tort – strict liability. Just have to prove causation.Right of support does not extend to actual title in dirt (Bremner, digging-holes-to-steal-sand). Limited to land in its natural state UNLESS obtained by easement or prescription or unless it can be shown that subsistence would have occurred even absent the buildings on the parcel. (Gillies, grocery-store-wall-collapse). Note: loss of lateral support can occur even when the movement is vertical.

Cleland v Berbarick (sand-removed-from-adjoining-lot)D drew a large quantity of sand from his adjoining lot, D’s wife who owns the lot on the other side also drew sand from her lot. Resulted in large portion of the sand being washed away from P’s beach, making it of little use. P claims destruction of his property has been brought by the act of D in removing the sand from his property. Is D legally responsible for the destruction of P’s property?

Yes. Each land owner must use his own land that he shall not interfere with or prevent his neighbour enjoying their land in its natural condition. Property right to have land left in its natural plight and condition without interference by the direct or indirect action of nature facilitated by the direct action of the owner of the adjoining land.

LATERAL SUPPORT:Bremner v Bleakley (digging-holes-to-steal-sand)P complains that the removal of sand from his property was occasioned by the making of holes on D’s land – the sand was driven by the wind and waters from Ps land and holes prevented the sand from being driven back. P seeks damages and an injunction against making holes.



Distinguished from Cleland – digging of holes did not cause or contribute to the movement of the sand. It did no injury or damage to P in itsel, and no action can therefore be found in it. Sand is a chattel – it’s the property of whose land it lies on. P had no property in the sand after it was driven from his lands. No evidence that but-for the existence of the hole, sand would have been brought back to P’s land (lack of chain of causation).

VERTICAL/SUBJACENT SUPPORT: Subsurface owner’s duty to support surface ownerLimited to land in its natural state, BUT can be extended to vertical support for a building by applying the rules of trespass rather than the support doctrine (because removal of vertical support requires trespass underneath the soon-to-collapse building).

Gillies v Bortoluzzi (grocery-store-wall-collapse)D excavated a basement, 3-4 days after D was finished, the wall of the building standing on the land adjoining the west of the excavation collapsed into the excavated basement. The building was leased by P for a grocery store- lost shelves, products, furnishings, fixtures. P claims damages

P is, as a matter of law, entitled to lateral support for its land in its natural state but not entitled to support when there is superimposed upon the land the weight of the building. D would be entitled to excavate on its own premises up the west boundary of P’s property and would be liable in connection with such excavation for lateral support sufficient to maintain the soil on the adjacent property in its natural state

Rytter v SchmitzP and D own adjacent buildings. In the process of excavating on his lot, D dug along the property line between the two lots. Removal of the soil caused a subsidence by loss of lateral support for P’s property, allowing the subsoil to fall away and so leaving no support under the western side of P’s building. As a result, a chimney and a wall collapsed. P alleges trespass and claims damages

P had a claim for damages. The right to lateral support for the building is established in CL (right to support for property in its natural state - Dolton v. Angus). P was denied lateral and vertical support to which he was entitled for both land and building. The right to protection by way of support is a strict one (doesn’t need to show negligence or trespass). There was deliberate trespass and the excavation went well over P’s property.

ABORIGINAL TITLE

Historical Caselaw on Aboriginal Title

Historically, the courts held that the Royal Proclamation of 1763 had extinguished Indian title. Aboriginals had only a “personal and usufructory right” to land (St Catherines, timber-license, 1889). This right was not equivalent to a legal and equitable interest in land.Personal: a right or interest less than a fee simpleUsufructory: a right of enjoyment of some land owned by another

Royal Proclamation of 1763 held that treaty needed to be “government to government” or at least a surrender of the Crown 1860-64 Douglas Treaties in British ColumbiaConstitution Act s.109: land belongs to provinces subject to Aboriginal entitlement s.35(1): Aboriginal title is distinct from other aboriginal rights, confers right to land itself.

St Catherines was overturned by Calder: the courts no longer consider aboriginal title to be a “personal and usufructory right.” Likewise, RP 1763 does not apply to aboriginal title in BC because the British weren’t present in or aware of BC at the time of the Proclamation (Calder).

Calder (SCC, 1973, Nisga’a-claim-Nass-River-Valley-based-on-use-for-time-immemorial) held that Aboriginal rights and title have always existed under the common law. The Constitution didn’t create aboriginal title, but it does protect it now under s.35 (Van



der Peet, 1996, SCC aboriginal-fishing-rights). Aboriginal title is not prescriptive (Calder). It is grounded in the reality of pre-sovereignty occupation (FN-were-there-when-the-Europeans-arrived) (Calder).

The Crown owes a fiduciary duty to Aboriginal peoples (Guerin, Musqueam-golf-course).

Aboriginal Title vs Aboriginal Rightss.91(24): Federal government can extinguish aboriginal rights and title.

What is an Aboriginal Right?Refers to the customs, practices and traditions of a band: fishing, hunting, gathering rights etc. They are rights that run with the land // a band may not have title but still have rights to engage in site-specific activities.

Van der Peet originally held that in order to be an aboriginal right, an activity had to be an element of a practice, custom or tradition integral to the distinctive culture of the group claiming right. However, the “integral” requirement was overturned by Delgamuukw which held that a use of aboriginal lands under title did not have to be integral to the group.

Factors in deciding whether an activity is integral to the distinctive culture: Perspective of aboriginal people themselves The precise nature of the claim being made Central significance to the society in question Continuity is required [from pre-contact traditions to current times ] Must consider the rules of evidence, and the evidentiary difficulties in determining aboriginal traditions – oral history is

allowed (Delgamuukw) Specific rather than a general basis – success for one community may not lead to success for another community Distinctive versus distinct – the activity must be a feature of the culture, but it does not need to be unique to that

culture

What is Aboriginal Title? Title is a kind of aboriginal right but it is distinct. Right to exclusive use and occupation of land for a variety of purposes: not confined to traditional practices and customs

which are integral to distinctive aboriginal bands (Delgamuukw) Does not amount to fee simple as aboriginal title has inherent limits // while fee simple can have limitations, they do not

result from ownership (contrary to life estate where there are restrictions inherent in the title that arise as a result of that form of ownership)

Aboriginal title has 3 main characteristics: inalienability // source // held communally (Delgamuukw) Inalienable: cannot be transferred to anyone else Source: pre-sovereignty occupation Held communally by the group for the use of the group [inherent limit on land use]

Elements of Aboriginal Title (Delgamuukw)

1. Sui generis (in a class of itself): different from fee simple, can’t be explained by common law rules, distinct from other aboriginal rights – arises where connection of a group with a piece of land “was of a central significance to their distinctive culture” – courts must take into account both common law and aboriginal perspectives (Delgamuukw)Pre-sovereignty aboriginal practices will be translated “faithfully and objectively” into modern legal rights/title. However, only aboriginal practices that indicate a degree of possession similar to common law possession will impose aboriginal title (Marshall/Bernard). Common law recognizes aboriginal title for groups with pre-sovereignty occupancy who never ceded right to land. Note that LeBel in Marshall/Bernard differed on the test for aboriginal title: aboriginal title can’t simply reflect common law concepts of property and ownership; must reflect diversity of pre-sovereignty land use patterns was well as aboriginal practices.



2. Inalienable except to Crown: cannot be transferred, or sold to anyone other than crown. Alienating land would destroy its relationship with the band (aboriginal title ‘personal’)

3. Held communally: cannot be held by individuals, bands have collective right to use of land, decisions in respect to it are made by entire community.

4. Source of title: arises from prior occupation of Canada by Indians before the assertion of British sovereignty; grounded in both common law and aboriginal perspective on land.

Aboriginal title includes the right to use the land for a variety of uses beyond practices integral to the group (Delgamuukw). There is an inherent limit on the land use due to the nature of the group’s attachement to the land (Delgamuukw). This distinguishes aboriginal title from regular fee simple lands: if a native band wants to use lands for non-reconcilable uses, they must convert the land to fee simple.

Rules of Recognition: Test for Aboriginal Title (Adapted from Van der Peet)In order to establish aboriginal title, FN must show pre-sovereignty physical occupation and exclusive possession in the sense of intention and capacity to control is required to establish aboriginal title.

Exclusion can be shown by the right to control the land, and if necessary, to exclude others. Semi/Nomadic peoples can demonstrate physical occupation by showing regular occupancy/usage.

Continuity between pre-sovereignty and current practices must be established. Connection to land must have been of central significance to their distinct culture. Colonial separation will not affect continuity.

This links aboriginal title to the basic common law conceptions of property: occupation, possession, exclusion and control (Marshall/Bernard, Mikma-q-Indians-want-to-fish).

Delgamuukw v British Columbia (1997) SCCWHAT IS ABORIGINAL TITLE. SCC HELD THAT THERE WAS A CONSTITUTIONAL GUARANTEE TO ABORIGINAL TITLE AND RIGHTS.Gitxan and Wet-suwet’en Hereditary Chiefs initiated proceedings against BC claiming ownership (extinguished AT) and resulting jurisdiction (entitlement to govern by aboriginal laws). Did Aboriginal rights exist and continue to exist with bands that covered territory in BC.Aboriginals argued that AT is the equivalent of EIFS (“the big bundle”). Crown argues can have rights but not land rights of EIFS; easements to fish, etc.TEST:

1. Land has to be occupied prior to sovereignty (1846 in BC) May be established in a variety of ways: construction of dwellings through cultivation and enclosure of fields to regular

use of tracts of land for hunting, fishing or otherwise exploiting resources.2. If present occupation is relied on as proof of occupation pre-sovereignty, there must be continuity between present

and pre-sovereignty occupation Have to show “substantial maintenance of a place”3. At sovereignty, occupation must have been exclusive Can have joint title, if can show joint exclusivity (as per United States v Santa Fe Pacific Railroad Co (1941))

General Features of AT at CL: Sui generis unique, distinguished from “normal proprietary interests” It is unalienable only to the Crown It is the source

Prior occupation Common law principle that possession is proof of occupation

Inherent Limits on Aboriginal Title Subject to “inherent limit” – title lands cannot be used in a manner irreconcilable with the nature of the attachment

/relationship which forms the basis of aboriginal title (Ex: if band hunted on land they can’t now use it for strip mining) Importance of continuity of relationship between community and land over time Land has an inherent and unique value in itself



Land uses not restricted to traditional activities, but subject to overarching limit Ex: can’t destroy land used for hunting to make a shopping centre To use land in a way that is limited by aboriginal title, land must be surrendered to Crown on terms

permitting that use; then Crown can put it to that use (ex: turn over lands to fed to build shopping mall, FN gets all the revenue)

Policy: attempt to balance aboriginal title alongside societal concerns? Who decides on the limits?

TEST OF JUSTIFICATION for infringement of right1. Infringement must be in furtherance of a legislative objective that is compelling and substantial:

Reconciliation between Aboriginal societies and broader political communities2. Assessment of whether infringement is consistent with the special fidicuiary relationship between the Crown and

Aboriginal peoples Fiduciary duty does not mean that aboriginal rights are always given priority, consultation however

3. Justification and Aboriginal title Range of legislative objectives are quite broad: forestry, agriculture, mining, hydroelectric power, general economic

development of BC interior, protection of environment or endangered species, infrastructure, settling foreign populations

Settled on a case by case basis

Legislative objectives for justifying infringement: development of agriculture, forestry, mining, and hydro power, general economic development, protection of environment or endangered species, building infrastructure and settlement of foreign populations (analyzed on case by case basis).

Mitchell v MNR (2001) SCCABORIGINAL TITLE v ABORIGINAL RIGHTSChief Mitchell went to states to buy some stuff (some for gifts, some for resale), refused to pay duty on the way back. Argued that he was exercising aboriginal right. Is there an aboriginal right to purchase goods for the purpose of resale (on the southern side of the St Lawrence (USA) and sell it on the north (Canada)?Must prove three questions of the Van Der Peet Test (to characterize the right)

1. The nature of the action which the applicant claiming was done pursuant to an aboriginal right2. The nature of the governmental legislation or action alleged to infringe the right i.e. conflict between the claim and

limitation3. The ancestral practices relied upon to establish the right

TEST for establishing aboriginal right (Modifying the test in Van Der Peet):1. Aboriginal claimant must prove a modern practice, tradition or custom has a reasonable degree of continuity to a

practice which existed prior to contact2. Custom must have been “integral” to the “distinctive culture” of the aboriginal peoples lay at the core of their

identity3. Must be defining feature that without, the culture would be fundamentally altered4. Excludes practices which are marginal or incidental

Evidence Flexible application of the rules of evidence must be used in aboriginal cases Includes admitting evidence of post-contact activities to prove continuity with pre-contact practices, and meaningful

consideration of oral histories Oral histories may offer evidence of ancestral practices that would otherwise not be available Oral histories may provide the aboriginal perspective on the right claimed

Case at bar: insufficient evidence to prove a right

Haida Nation v BC (2004) SCC



Haida had claimed title to land but not yet resolved negotiations with the government over it. Government issued licenses to a company to cut down trees on the land without consent of the Haida. Does government have a duty to consult with Haida or accommodate their concerns?

Honour of the Crown (CL concept): Government has duty to consult with the Aboriginal people and accommodate their interests – both are essential to

reconciliation that s.35 demands Gives rise to fiduciary duty if Crown assumes discretionary control over specific aboriginal interests Cannot be delegated to 3rd parties: (not to company in this case) Honour of the Crown and treaties: Crown must act with integrity to avoid “sharp dealing.” Until treaties are signed,

bands are at risk as Crown can exercise acts of sovereignty (in the form of resource disposition). These can render meaningless any subsequent treaty finalized between Crown and a band. This problem is especially significant in BC where there are few treaties in effect

Potential but unproven Aboriginal interests: Crown duties start before final settlement of aboriginal title over land Crown may be required to consult/accommodate pending resolution of claim if Crown has knowledge of potential

existence of aboriginal right or title and contemplates conduct that might adversely affect it Duty to consult and accommodate is proportionate to (and its scope is determined by): (a) strength of case // (b)

seriousness of potential adverse effects on the right or title claimed Vulnerability of band determines how careful the Crown must be in negotiations

Held: Haida had a very strong prima facie claim to the land and right to use trees. Government was aware of their claim when issuing the license and were required to consult and accommodate (under the honor of the Crown). By failing to do so, they breached s.35 and licenses were invalid.

R v Marshall; R v Bernard (2005) SCCNARROWS BROAD PRINCIPLES OF DELGAMUUKWTwo different claims, prosecuted for cutting trees without a license -> prosecuted but asserted not bound by the laws. Attempted to assert right to land and title.Analysis: Must understand there is a difference between aboriginal perspective and the common law. When considering aboriginal title must consider both (occupation is a key point through, CL idea). Application of the Delgamuukw Test:

1. Land occupied prior to sovereignty2. If present occupation is proof, must show continuity3. Exclusive occupation

Only need “effective control” and still fails on this point

Skeetchestn Band v BC (2000) BCSCFIRST CASE TO DEAL WITH THE CONFLICT BETWEEN FEE SIMPLE AND ABORIGINAL TITLE. AT IS NOT AN ESTATE OR INTEREST IN LAND REGISTRABLE UNDER THE LTA.Band had outstanding land claim on 1000 acres of land but registered owner of land wanted to build a resort. Band applied for certificate of pending litigation and caveat. Registrar ruled that claim was not an estate or an interest in land and therefore was not registrable under LTA (as per LTA s.311). Band appealed. The Torrens system of land registration covers interest in land that have a clear identity recognized by the rules of property

law. AT is not derived from fee simple interests which are registrable. AT is sui generis and not alienable, it could only be surrendered to the Crown – it is likely not safe-holding and marketable. It

is not recognized by the ordinary rules of CL. The Torrens priority system does not accommodate AT, which was based on occupancy and use of lands prior to the

assertion of Crown sovereignty.



A claimant may not file a LP if his claim is for an unregistrable interest in land; AT is not registrable under LTA s.23(2) as LTA only deals with EIFS which must be alienable. AT is not registrable as an encumbrance.

Court has not stated how conflicts between AT and indefeasible title should be resolved Need a full hearing to decided whether Charter is violated by preventing registration of the LP Registrar has quasi-judicial power Not all interests are registrable

Proclamation of 1763: Has to be a "government to government” treaty, or at least a surrender of the crown 1860-64 Douglas Treaties in British Columbia Constitution Act

o S. 109: Land belongs to provinces subject to Aboriginal entitlemento S. 35 (1): Aboriginal title is distinct form other aboriginal rights, confers right to land itself

Delgamuuk v British Columbia [1997] SCCWhat is aboriginal Title? Facts: Gitxan and Wet’suwet’en Hereditary Chiefs initiated proceedings against BC claiming ownership (extinguished AT) and

resulting jurisdiction (entitlement to govern by aboriginal laws) Issue : Defining Aboriginal title Analysis :

o Aboriginals argue AT is the equivalent of an estate in fee simple (“the big bundle”)o Crown argues can have rights but not land rights of EIFS; easements to fish, etc.

Test :o 1) Land has to be occupied prior to sovereignty (1846 in BC)

May be established in a variety of ways: construction of dwellings through cultivation and enclosure of fields to regular use of tracts of land for hunting, fishing or otherwise exploiting resources

o 2) If Present occupation is relied on as proof of occupation pre sovereignty, there must be continuity between present and pre-sovereignty occupation

Have to show “substantial maintenance of a place”o 3) At Sovereignty, occupation must have been exclusive

Can have joint title, if can show joint exclusivity (as per United States v. Santa Fe Pacific Railroad Co, (1941)) General Features of AT at CL

o Sui Generis Unique; distinguished from “normal proprietary interests”o It is unalienable only to the Crowno It is the source

Prior occupation Common law principle that possession is proof of occupation

o It is held communally Content of Aboriginal Title

o Subject to “inherent limit” – title lands cannot be used in a manner irreconcilable with relationship which forms basis of aboriginal title

Importance of continuity of relationship between community and land over time Land has an inherent and unique value in itself Land uses not restricted to traditional activities, but subject to overarching limit Policy: Attempt to balance aboriginal title alongside societal concerns? Who decides on the limits?

Infringement of aboriginal title: Test of Justification 1) Infringement must be in furtherance of a legislative objective that is compelling and substantial

o Reconciliation between aboriginal societies and broader political communities 2) Assessment of whether infringement is consistent with the special fiduciary relationship between the Crown and

Aboriginal peopleso Fiduciary duty does not mean that aboriginals rights are always given priority, consultation however



3) Justification and Aboriginal Titleo Range of legislative objectives, quite broad: forestry, agriculture, mining, hydroelectric power, general economic

development of BC interior, protection of environment or endangered species, infrastructure, settling foreign populations

o Settled on a case by case basis

Mitchell v MNR (2001) SCCAb Title vs Ab Rights Facts: Chief Mitchell went to states to buy some stuff (some for gifts, some for resale), refused to pay duty on the way back.

Argued exercising aboriginal right Issue: Is there an aboriginal right to purchase goods for the purpose of resale (on the southern side of the St. Lawrence River

(USA) and sell it on the north (Canada))? Analysis: Must prove the three questions of the Van der Peet Test

o A) The nature of the action which the applicant claiming was done pursuant to an aboriginal righto B) The nature of governmental legislation or action alleged to infringe the right i.e. conflict between the claim and

limitationo C) The ancestral practices relied upon to establish the right

Test (Modifying the test in Van Der Peet)o 1. Aboriginal claimant must be prove a modern practice, tradition or custom has a reasonable degree of continuity

to a practice which existed prior to contacto 2. Custom must have been “integral” to the “distinctive culture” of the aboriginal peoples lay at the core of

their identityo 3. Must be defining feature that without it, the culture would be fundamentally alteredo 4. EXCLUDES practices which are MARGINAL or INCIDENTAL

Evidence: o Flexible application of the rules of evidence must be used in aboriginal caseso Includes admitting evidence of post-contact activities to prove continuity with pre-contact practices, and meaningful

consideration of oral histories Oral histories may offer evidence of ancestral practices that would otherwise not be available Oral histories may provide the aboriginal perspective on the right claimed

@Bar: Insufficient evidence to prove a right

R v Marshall; R v Bernard [2005] SCCTitle Claim Facts: two different claims, prosecuted for cutting trees without a license prosecuted but asserted not bound by the laws

o Attempted to assert right to Land AND Title Analysis Must understand there is a different between aboriginal perspective and the common law

o When considering aboriginal title must consider both (occupation is a key point though, CL idea) Application of Delgamuukw test

o 1) Land occupied prior to sovereigntyo 2) If present occupation is proof, must show continuityo 3) Exclusive occupation

Only need “effective control” Still fails on this point

Issue How does Delgamuukw work for nomadic peoples?

Tsilquotl’n Nation v BC (2007) BCSC, [2014] SCC



ACQUISITIONS OF INTERESTS IN LANDCROWN GRANT

1866: Provincial crown of BC created and acquired ownership of all land in BC 1870: Land Registry Ordinance Act (Land Title Act) sets up present system of land ownership

As a result, all lands in BC are owned by the Provincial Crown, except: Federal Crown lands (public harbours, national defence lands, Indian reserves, some railway lands Privately owned lands (though Crown still “owns” fee simple lands) Aboriginal title lands (granted via treaty, or lands contingent on settlements)

Crown grants normally given for leases / rights of way / licenses of occupation ( Land Act). If you get a fee simple Crown grant (rare), Land Act s.50 establishes what rights the Crown still holds to your land.

INTER VIVOS TRANSFER

Common Law: Livery of seisin or sealed document / deed required to transfer landConveyance/Conveying: An instrument in writing which creates/transfers an interest in land

Today in BC: Transfer of equitable and legal interest takes place by sale/contract via 1) the Contract/Executory Stage (transfers equitable interest) and 2) Transfer/Executed Stage, respectively (transfers legal interest)

The Contract of Purchase and Sale or EXECUTORY STAGE (transfers equitable interest)An inter vivos transfer (transfer during one’s lifetime). Can be a contract with purchaser, or a gift (made voluntarily and without consideration)

Contract of Purchase and Sale: A contractual agreement between the vendor and purchaser which results in a legally binding contract.

Equitable interest passes: Vendor becomes a trustee for the purchaser (beneficiary) of the transferred estate. Vendor retains legal interest until completion (registration)

Rights of vendor: Vendor retains right to possession until purchase money is paid. Vendor has right to purchase money and can sue for breach of contract or impose lien on property if unpaid.

Obligation of Purchaser: Purchaser must pay purchase money. Purchaser has right to sue for specific performance. At common law, purchaser bore risk of loss, but s. 6 of Contract Purchase and Sale holds that vendor bears risk of loss until completion. Purchaser should ensure that insurance begins upon completion, where both legal and equitable interest has transferred.

Law and Equity Act, s. 59 (general rule that covers the enforceability of contracts)(3) A contract respecting land or a disposition of land is not enforceable unless:

a) there is, in writing signed by the party to be charged or by that party’s agent, both an indication that it has been made and a reasonable indication of the subject matter.

Requirements known as the “Three P’s” – property, price, parties There must be a valid contract [implicit] There must be writing that indicates the contract has been made and gives a reasonable indication of the subject matter

[s. 59(7): writing can be sufficient even though a term is left out or wrongly stated] Contract must be signed by the party being sued or that party’s agent

Predecessor of s.59 was s.1(1) of the Statute of Frauds



Contract must be valid Writing can take any form It must be signed by the party to be charged or the party’s agent It need not have come into existence to satisfy the statute and it may come into existent after the contract has been

entered into Two documents, if they expressly or impliedly refer to each other, may be combined to satisfy the requirements of the

section

a) A agreed to sell Blackacre to B. A signed the following document. “I, A, agree to sell Blackacre to B for $10,000”. B refuses to complete. A sues B. [B didn’t sign, so B would win.]

b) A agreed to sell Blackacre to B. B signed the following document: “I, B, agree to buy Blackacre from A for $10,000.” B refuses to complete. A sues B. B testifies that it was agreed that a purchase price was to be paid oer a period of 5 years, any amount for the time being unpaid to carry interest at 7% per annum. [A wins]

c) A agreed orally to sell Blackacre to B for $10,000. A day later C offered A $11,000 for the property and A accepted. A then wrote to B, “My dear B, I have had a higher offer than the $10,000 we agreed upon for Blackacre and I am therefore cancelling our contract. With all good wishes, A.” [B wins. There was no agreement until A put in writing that he was cancelling the agreement.]

d) A was a member of the firm of barristers and solicitors A, B & C. A was acting as the administrator of D’s estate, which consisted in part of Blackacre. A agreed to sell Blackacre to XYZ Property for $10,000. XYZ made out a cheque to “A, administrator of D’s estate,” this being a deposit. A gave a receipt to XYZ, “Received from XYZ, $1,000 being the deposit of a sale of Blackacre for $10,000 (signed) A, member of the firm of A, B & C.”

i) A refuses to complete. XYZ sues.ii) XYZ refuses to complete. A sues.

The Transfer Form / THE TRANSFER OR EXECUTED STAGE (transfers legal interest)At common law, freeholds in possession could only be transferred by Livery in Seisin (actual giving up of possession to the transferee. Always was possible to transfer non-possessory interests by grant (document under seal).

Completion: Carries out the binding contract reached at the Executory State, and transfers the legal interest from the vendor to the purchaser. Under Torrens, completion = Form A registration.

LTA, s.185: transfer must be in writing in prescribed form and on single page (Form A). s.185(2)(a)-(b) (Other Forms): Registrar has discretion to accept alternate forms and/or historical documents for

registration. s.43-45 (Witnessing): officer’s signature required to certify identify of transferor as a person named in title (individual >

corporation > POA) s.186(2) (Meaning of Words): Words of Form A deemed to be words in Part 1 of Land Transfer Form Act with the

meaning given in Column 1 of Schedule 2 s.186(4) (No Express Words of Transfer): Form A legally transfers the interest even without express words of transfer (X

transfer to Y)

Standard FormsLand Transfer Form Act, ss. 2-4

Form A is required to transfer a freehold estateo Includes: ID of applicant, ID of property, market value, consideration, transferor, freehold estate transfer (e.g.

fee simple, w/ or w/o conditions), transferees, execution Relatively simple form, but qualified by other documents that preserve legal underpinnings



REGISTRATIONThis area is normally dealt with under contract law (becomes significant for gifts). Under common law, deed takes effect immediately after “signed, sealed, delivered” (intention given). Under Torrens system, there must be a physical act of registration.

According to Part 3 of LTA: unregistered instrument does not pass estates.20(1): Except as against the person making it, an instrument purporting to transfer, charge, deal with or affect land or an estate or interest in land does not operate to pass an estate or interest, either at law or in equity, in the land unless the instrument is registered in compliance with this Act

“Except as against the person making it” – between transferor and transferee, registration is not necessary for interest to pass (they have binding contract)

Example: A (registered owner) -> B (doesn’t register) … A then -> (does register) Under common law: B is protected by doctrine of nemo dat (A can’t give to C what A does not have) Under Torrens system: C’s interests prevail // B is vulnerable to a third party – may have claim against A, but no

claim against C

Writing & SealingProperty Law Act, ss.4-7: general requirement is that a transferor deliver to a transferee a registrable transfer. To determine what is registrable, look at Land Title Act.Property Law Act: additional Form A requirements

s.5(1): Vendor must provide Form A s.5(2): Leases over 3 years must be registered s.15: Transfer need not include the word “grant” or other terms. Transfer may occur without livery of seisin (no actual

entry required) s.16: Instrument need not be executed under seal

Land Title Act (LTA) s.39: instrument sufficient to pass or create an estate in land is registrable unless the use of a prescribed form is

required. s.185(1): a transfer of a freehold estate must be in the prescribed form and on a single page.

INTER-VIVOS TRANSFERS: GiftsGift: a voluntary and intentional transfer of property from owner (donor) to another (donee) without consideration – is normally not enforceable by donee. Can be transferred inter vivos, upon death, or as donation mortis causa (gift on occasion of death). Testamentary gifts are always revocable, up until death/completion.

4 Steps Required For Completed Gift:1. Intention: Donor must have “sufficient intention” to donate. Donor must have mental capacity to appreciate the nature

of what they are doing (parting with ownership). Words, or actions, must be “unequivocable” or unambiguous. Must clearly point to intention to part with ownership. Matter of evidence: circumstances, donor – done relationship, size of gift, relation of gift to donor’s total assets.

2. Acceptance: The donee must accept the gift. Anything short of outright refusal = acceptance. Usually assumed that the donee is accepting, but sometimes donee might not want obligations tied to gift. Donee must decide within a reasonable time if they don’t want to accept.

3. Delivery: Transfer of possession (or its equivalent) of the gift from donor to donee is required to complete the gift. Delivery is both evidence of intention/acceptance, but also a required element of the gift on its own.

Physical delivery of a deed to grantee is not necessary to constitute effective delivery and enforceability of a transfer. Must examine the intentions of the grantor (Ross, deed-in-grandma’s-purse).

A document operative upon death is not a deed but a testamentary document (i.e. a will). The court will look at intention at time of transfer (Zwicker, land-giving-overly-multi-wife-stepdad)

A gift that is not delivered can still be effective if you can show intention to be immediately and unconditionally bound (once you start giving bits and pieces away, don’t meet this criteria) (Zwicker)



4. Registration: (LTA s.20): The donor must have done everything that needs to be done in order for the transfer to take place. This includes both delivery of deed and registration. A written Form A is required to transfer an interest in land (no oral gifts). Donor must provide Form A (Property Law Act s.5). Unregistered gifts are valid between the original parties, but not against subsequent beneficiary parties (s.20)

Donor is obligated to do everything required to enable transfer of property // equity will not force a volunteer to complete that which is not complete (McLeod, no-duplicate-title).

Perfectly enforceable gift: Gifts in writing under intentional seal are enforceable even without consideration (Romaine, pissed-off-uncle-tries-to-get-out-of-sealed-gift-document, 2001 BC). Otherwise, gifts aren’t enforceable until transfer is complete (delivery).

Enforceable gift despite no physical delivery: delivery is a required element of completed gifts. Delivery can be something other than parting with physical possession of the document. You must examine the intentions of the grantor (Ross, grandma-died-with-deed-in-purse, 1977 NS). A deed is still operative even though the grantor may have retained it in his possession for many years and up to the time of his death (Zwicker et al v Zwicker, 1899 SCC). Gift is enforceable even if the donee does not know that the deed has been registered (Xenos v Wickham).

Unenforceable gift due to lack of delivery: Gifts explicitly held to be delivered or recorded upon death are not enforceable, as testamentary gifts are always revocable (Zwicker, overly-marrying-stepdad-tells-lawyer-to-hold-onto-deed-until-death, 1975 SCC). In the absence of a “completed” gift, the donee cannot enforce the gift (Re Waite, husband-promises-wife-car).

Unenforceable gift due to lack of registration: Donor must do everything they are required to do in order to effect the transfer (MacLeod, no-duplicate-title, 1980 AB CA)

Ross v Ross, 1977 NSSC (grandma-died-with-deed-in-purse)PHYSICAL HANDING OVER OF DEED NOT NECESSARY TO EFFECT DELIVERY. INTENTION OF IMMEDIATE AND UNCONDITIONAL EXECUTION OF DEED MAKES IT EFFECTIVE.Grandmother went to lawyer’s office to prepare a deed conveying property to grandson. Deed stated: “Signed, sealed, delivered”. Deed was executed, witnessed, but not recorded in LTO. Grandma did not physically hand it (deliver) to grandson, rather he found it in her purse after she died. Issue: Should the non-delivered deed be considered valid?

Physical delivery of a deed to grantee is not necessary to constitute effective delivery and enforceability of a transfer. If Grantor has intention to be immediately and unconditionally bound then execution of deed becomes effective.

Grantee need not be aware of gift. She did not intend for it to take effect after her death – it took effect immediately. She only intended to retain

possession of the evidence of what she had done until after her death. If a doc has words “signed, sealed and delivered” it creates a rebuttable presumption that there has been delivery and

title has passed under common law system of transfer Court will attempt to fulfill intention of grantor (based on circumstances, behaviour) The transfer was complete and immediately operative though the grandson was not aware “In the first place the efficacy of a deed depends on it being sealed and delivered by the maker of it, not on his ceasing

to retain possession of it.” (Xenos v Wickham) “Execution of the deed in the presence of an attesting witness is sufficient evidence from which to infer a delivery.”

(Moore v Hazelton)

REQUIREMENTS OF A WILL: Signed document, witnessed by two people over the age of 19, neither of which are beneficiaries

Zwicker v Dorey, 1975 A DOCUMENT OPERATIVE UPON DEATH IS NOT A DEED BUT A TESTAMENTARY DOCUMENT (I.E. A WILL). HE DID NOT INTEND TO BE IMMEDIATELY BOUND - SUBSEQUENT BEHAVIOUR IS EVIDENCE OF THAT.



Father Z conveyed lands to stepson D in a deed stating “signed, sealed, delivered” but with clause it was not to be registered until father’s death. Father then conveyed promised lands to his 4 th wife P through a deed. The father died, and wife claimed husband said he would give her everything. Issue: Who was the land conveyed to?

Facts imply that Z did not intend to be unconditionally and immediately bound by his deed to D A deed is classified as a will and cannot transfer the land if its purpose is to have a future operation after the death of

the person making it: Z asked D to not record deed until he dies Deed was intended to be a will but did not comply with the Wills Act thus has no effect in law

o Wills Act requires two witnesses when the testator signs will, there is only one person for deeds You cannot have a condition in which a deed is held in escrow until a person dies Wills by definition are changeable and Z clearly changed the transfer to D by his conduct – he gave away his interest to

other people and gave his deed to his fourth wife Held: Title passes to P // Court looks at intention at time of transfer.

MacLeod v Mongomery, ABCA 1980EQUITY WILL NOT FORCE A VOLUNTEER TO COMPLETE THAT WHICH IS NOT COMPLETEGrandmother A executed transfer to granddaughter R as a gift. Transfer document given to R (equitable title) and duplicate title promised, but never actually turned over. R brought action to compel A to hand over the duplicate title promised, but never actually turned over. R brought action to compel A to hand over the duplicate title. Issue: Does the execution of the transfer constitute a complete or incomplete gift?

If duplicate CIT (indefeasible title) is not with registrar of LTO (someone else possesses it) no transfers on the land will be registered. Holding onto duplicate CIT prevents land transactions from going on title.

For gift to be complete: (1) intention (2) acceptance (3) delivery in which the donor is obligated to do everything required to enable transfer of property (in this case the delivery of transfer form and duplicate CIT) // GIFT MUST BE COMPLETE TO BE ENFORCEABLE

Equity will not force a volunteer to complete that which is not complete Held: there was not a complete gift. A’s decision to hold onto CIT shows she might have changed her mind. R does not

get the house.

Presumption of Resulting Trust / Presumption of AdvancementVoluntary transfer: is a gift // a transfer where there has been no consideration // not a transfer caused by a contractPresumption of Resulting Trust: Common law presumes that a gift (transfer w/o consideration) transfers only the legal interest and not the equitable interest: Donee holds gift in trust for donor (trust results back to donor). No one gives away something for nothing. Can be rebutted by:

Sealed gift document (Romaine): shows intention to transfer both legal/equitable interest Presumption of advancement: gifts to spouse/children presumed to transfer both interests Some other evidence

Property Law Act s.19(3): A voluntary transfer need not be expressed to be for the use or benefit of the transferee to prevent a resulting

trust. no need to use specific language to state gift; can use supporting documents (does not change presumption of resulting

trust, just eliminates need for specific language)

Transfers to Volunteers (Use/Trust)Trusts: Fragment ownership of estate in fee simple into two types: 1) Management and administration and 2) Beneficial interest or enjoyment of the property.

Pre-Statute of UsesA transferred to B (volunteer)

Equity presumed that B now held to the use of A (resulting use) If B wished to claim an absolute interest, the onus was on B to prove that was A’s intent (would have sai “unto and to

the use of B”



Statute of UsesA transferred to B (volunteer)

It was presumed B now held on resulting use of A The use was executed and legal title was back with A B still had to show intent to make it an absolute gift

The TrustUnto and to the use of B on trust for C

Confirm the location of legal title, and by analogy, the resulting uses Presumption of resulting trust for the transferor But, also said that the fact that the transfer was to the use of the transferee was a sufficient indication that the

transferee intended to have an absolute title

What is the difference between legal title and equitable title?Legal title: refers to the duties and responsibilities of maintaining and controlling some propertyEquitable title: refers to the benefits and enjoyment of that property. Trust: splitting the legal title and equitable title in some piece of property such that one or more people (the trustees) have the legal title and control the property while others (the beneficiaries) own the equitable title and get the use and enjoyment of the property.

These titles can be split in many ways among different individuals - the key is that no single person should own all of the equitable title and the legal title (in such an event, there is no trust). But a person can own all of one title and a part of the other, or parts of both titles. The following three examples help to understand this point:

1. Assume I put my brother in charge of a bank account to give money to my son until my son turns 25, at which time my son gets the rest of the money. For the purposes of a trust, this is a valid split of the legal title (which has been given fully to the brother) and the equitable title (which has been given fully to the son).

2. Assume that I put my brother in charge of a bank account to give money to both himself and my son until my son turns 25, at which time they evenly split the rest of the money. This is also a valid split of the titles because the legal title has been given fully to the brother while the equitable title has been split between the brother and the son - so while the brother has all of the legal title, he only has a portion of the equitable title.

3. Assume that I put both my brother and my son in charge of a bank account to share the proceeds from that account. This, too, is a valid trust because the legal title and equitable title have been split - while the brother and the son each hold a part of both titles, neither holds all of the legal and equitable title.

WILL OR INTESTACY

Interpretation of Deeds and WillsDeeds: Court focuses on Form A (prescribed form) to determine transferor’s intentionWills: Court focuses on all the words used in the will [not just the clause in question] and all relevant surrounding circumstances in deciding testator’s intentions (Cielein).

Armchair rule: What facts were known to the testator at the time the will was made?

General Rules Re Testamentary TransferAny person may dispose of their real and personal property by will. Any person can acquire an interest in real or personal property as the result of a death of another person.

Death triggers transfer Testamentary gifts revocable up until death Testamentary gifts are subject to debts against estate (but insurance/RRSP/joint tenancies are safe) Real property may be sold off in order to provide assets for descendants



Transfer of assets: When testator dies, the legal interests in their assets are transferred to the Personal Representative/Executor who must distribute the legal and equitable interests according to the will or Estate Administration Act (EAA).

Statutes Governing Testamentary GiftsCommon Law Rule: personal property to Executor, real property to eldest male heir (modified by EAA, s.77(1))

Wills Act s.3&4: Basic requirement for validity of will with regard to form (very strict in BC): Writing: will must be in writing to be valid Signature: signed by testator or by another in his presence and by his direction Witnesses: at least two must be present when testator makes/acknowledges signature Signature of witnesses: at least two must sign in presence of testator

Estate Administration Act: Intestacy (die without will) s.77(1): Both real and personal property go to personal representative Part 10 (ss.81-99): distribution of intestate estate

Trustee Act: governs how trustees (executors/administrators) actWills Variation Act: Allows the court to vary an otherwise valid will if current/separated spouse or biological/adopted children have not been adequately provided for – considers both legal obligation and moral obligation

TestacyWill: A declaration made by a testator in writing in the form required by law of what s/he desires to be done after his or her death. May contain a codicil. May establish a trust.

Personal representative: Executor chosen by deceased and named in the will Will speaks from the date of death (not the date of signing): Wills Act allows for the PR to dispose of all property

acquired by the deceased both before and after the signing of the will Contains name, division of assets, funeral arrangements, children’s guardian, etc. No special words required Intention must be unequivocal and express desire to dispose of assets only after death Witnesses/Signature: Testator and two witnesses (+19 years) must sign in front of each other Holograph Wills not valid in BC (entirely handwritten by the testator)

IntestacyIntestacy occurs when the deceased dies without a will. Governed by the EAA which determines administrator and division of estate

Administrator: spouse > next of kin (beneficiaries) > other individuals > government official Distribution: (EAA, s.10): 1) spouse if two years before death and 2) lineal issue

If no spouse/issue, the intestate’s estate goes to parents Survivorship and Presumption of Death Act: if two people die close in time, but you can’t tell who died first, it is

assumed that the oldest person died first

Example: A (24) and B (25) are spouses with no children. A’s parents are still alive. Only B’s brother and sister are alive. While driving up to Whistler, A & B die in a car crash together.

If B dies first (assumed), then B’s estate A, and then A’s parents If A dies first, then A’s estate B and then B’s brother and sister

Cielein v Tressider (1987)ANY RESTRAINTS OR CONDITIONS ON AN ABSOLUTE GIFT ARE VOID AS THEY ARE REPUGNANT TO THE ABSOLUTE CHARACTER OF THE ESTATEMr E died, was survived by 5 kids of previous marriage. Also was CL with Mrs R who had a son. He made a will leaving his land to Mrs R on a standard form used to convey EIFS but included a note: upon sale or disposal or property, proceeds were to be distributed between his five kids and her son. Issue: Is this a life estate?

TJ: Will granted Mrs R a life estate and on her death proceeds were to be divided equally between his and her children.



CA: Overturns TJ: testator clearly intended to give Mrs R not a life interest but an absolute interest. Any restraints or conditions on an absolute gift are void as they are repugnant to the absolute character of the estate. E’s kids don’t get anything.

PROPRIETARY ESTOPPELWhere it would be inequitable for a D to assert his rights, the P can claim proprietary estoppel as a cause of action (Zelmer, reservoir-gets-built-D-changes-mind). The following conditions must exist:

1. P must have made a mistake to his legal right2. P must have expended money or act on faith of his/her belief3. Defendant must know of his legal right and that it is inconsistent with P’s claimed right4. Defendant must know of the P’s mistaken belief of right5. Defendant must have encouraged P in expenditure of money or other actions either implicitly or by abstaining from

asserting his/her legal right6. D’s actions were unconscionable, inequitable or unjust equitable fraud

Where you are asserting rights in land (generally in easements) because of the D’s behaviour, can use as a sword.

Zelmer v Victor Projects Ltd, 1997 BCCAZ owned land he wanted to develop, needed water supply, to get a permit he needed a reservoir constructed on higher land; this land was owned by D. Z and D meet, D agrees to grant Z an easement over the specific spot needed for the reservoir for free. Z builds, D claims it is in wrong spot and denies forming agreement. Issue: Should Z be granted an easement through proprietary estoppel to build a reservoir?

Proprietary Estoppel: When A to the knowledge of B acts to his detriment in relation to his own land in the expectation, encouraged by B (through his words or conduct), of acquiring a right over B’s land, court will order B to grant A that right

Denning: basis of proprietary estoppel is equity, mitigates rigor of strict law by preventing individuals from relying on their strict legal rights. It can give rise to a cause of action!

Held: Z relied on words and acts of D to give him permission to build. Proprietary estoppel applies and Z is granted an easement (that was properly registered).

Stiles v Tod Mountain Development (1992) BCSC“Where a party expends money on the land of another under an expectation created or encouraged by the owner, or even where the landowner merely stands silent, the authorities establish that proprietary estoppel may found a cause of action, a revocable license may be rendered irrevocable, or the party’s interest may be found in a license coupled with an equity, the circumstances may establish a contract between the parties, or equity may require that the fee simple be transferred. The equity is enforceable against a successor in title who takes notice.”

Unjust EnrichmentUnjust enrichment can be remedied by monetary compensation or real property (Crick, flight-attendant-girlfriend-fixes-up-house). Elements:

1. There has been an enrichment (D received benefit)2. There must be a deprivation (P has given up something)3. There must be the absence of a juristic reason (i.e. lack of contract)

REGISTRATION OF TITLE

Historical Background: Different Methods of Transferring Interests in Land

Common Law Conveyancing: Livery of Seisin



The Historical Feudal System: Only the legal interest exists, and can be transferred via livery of seisin, a physical and public act. Documentation later introduced as a record of the transfer taking place. Livery still required to affect the transfer of the legal interest.

The Even Later Feudal System: Legal interest continues to pass under livery of seisin. Equitable interest develops (Use/Trust), and can be transferred without public ceremony (i.e. after death). Statute of Frauds requires that enforceable agreements with respect to land must be in writing. Increasing use of documentation.

Recording System: Livery abolished – ceremonies no longer required to transfer possession. Written deed required to transfer ownership. In order to effect transfer, both the written document and delivery are required [intention > acceptance > delivery}. Recording System records these deeds, but has no legal effect on the title. Good root of title established by searched deeds, mortgages, transfers, wills (standard conveyancing practice = 60 years). Recording systems still exist in some Canadian jurisdictions (parts of ON, NS).Creates active and profitable insurance industry – title insurance – insure against lawyer error in creation of abstract.

Torrens Land Registration System

Effect of TorrensTorrens imposes registration system which (1) records the written document and (2) gives legal effect to the document via registration. Legal effect given to the title by virtue of 2 elements: (a) Registrar contains all relevant information related to title, and (b) the fact of registration creates indefeasible title (s.23). Prescribed form required to register the transfer [s.185; Form A or its equivalent]. Registration is required (s.20) in order to effect transfer of legal interest and to protect that interest against the world ~ except as against the person making it. Equitable interest transferred upon forming a binding contract (CPS).Title insurance not necessary (abstract of title prepared by civil servants and Assurance Fund in place to compensate).If there is a financial encumbrance, duplicate indefeasible title must stay with LTO.Note: primary function of mortgages – interest in property conferred by borrower (mortgagor) on lender (mortgagee) for purpose of providing a fall-back if repayment obligations not met.

Torrens in BC TodayTorrens System comes from Australia. In 1860, Land Registry Act imposes Torrens on colonies of Vancouver Island and Vancouver. Today, the Land Title Act governs the Torrens System. Common law rights and obligations remain except where explicitly modified by the LTA. Two stage process:

1. Upon initial application to register, if Registrar was satisfied by examination of docs that applicant prima facie had good title, title registered in Registrar of Absolute Fees.

2. After 7 years if no challenges, RO could apply for CIT. Absolute fee concept abolished in 1921. If unregistered land is acquired from someone other Crown, may be necessary to secure reg of any unregistered FS owners.

Quasi-Torrens: Register is not complete mirror (s.23 exceptions); possible deferred indefeasibility 7 Land Title Districts: (LTA, s. 4.) Kamloops, Nelson, New West, Prince George, Prince Rupert, Vancouver, Victoria. There are four LTO at locations designated by Lieutenant Governor in Council – four in total. No central registry in BC: you need to know the location of the land in order to determine the specific LTO (i.e. name /

BC Region / Lot #) LTOs are only open Monday to Friday, 9am to 3pm: title that is not registered during those hours remains unregistered

until the next business day. Registrar: Each LTOs Registrar performs quasi-judicial and administrative role: determines whether title can be

registered (good safe-holding and marketable title). Not all land is under Torrens: federal lands / national harbours / Indian reserves / provincial Crown lands may not be

registered. Pre-Torrens Rights: apply to the registry with your pre-Torrens documents > receive a preliminary registration of your

title in the Register of Absolute Fees > 7 years later, transfer your absolute fee to an indefeasible title (LTA, s. 174.)



What can be Registered?The General Principle: only those interests which were recognized as interests in land at common law (including equity) (Kessler) can be registered under LTA: fee simples, leases, life estates, easements, mortgages, trusts, mineral rights.

Two categories of interests will appear on the land title search: 1) fee simples: the fee simple owner with the indefeasible title 2) charges: covenants, mineral rights, life estates, mortgages, etc.

Neither licenses nor zoning bylaws can be registered as interests in land: Licenses give some rights of occupation, but are not a valid interest in land Zoning bylaws do not need to be registered in order to have effect (R v Kessler, zoning bylaws are not to be registered in

a Torrens system – not an interest in land).

R v Kessler, 1961 (BC Mag Ct)A ZONING BYLAW, ALTHOUGH IT MAY AFFECT THE USE OF LAND, IS NOT AN INTEREST IN LAND AND CANNOT BE REGISTERED. K argued zoning and development bylaws should be registered in LTO as they “affect the use of land.” Interests must be registered under land title act to have effect, thus zoning bylaws should also be registered to have effect.

Held: Only interests in land are registrable under the Land Registry Act. A zoning bylaw is not an interest in land and cannot be registered.

Registration may be refused unless the instrument sought to be registered conveys an interest in land.

Prohibition of Registration of Common Law InterestsYou cannot register the following interests:

1) Equitable mortgages (LTA, s.33): where you provide security by leaving your duplicate CIT with the lender. [Second mortages can be registered, and they are a different type of equitable mortgage].

2) Details of Trust (LTA, s.180): while the trustee is listed on the title, you cannot specify who the trust is being held for. But the trust document is usually deposited at the LTO.

3) Sub-right to purchase (LTA, s.200): all sub-rights after 1979 cannot be registered. A sub-right to purchase occurs where an agreement for sale is registered on a title, and the owner of that agreement for sale enters into another agreement for sale with a 3rd party (the subsequent agreement cannot be registered)

4) Aboriginal title: because aboriginal title is inalienable except to the Crown, it does not provide good safe-holding and marketable title and therefore cannot be registered. Caveats and CPLs: relating to aboriginal title also cannot be registered. But encumbrances relating to Nisgas’s lands

can be registered (LTA, s.1).5) Agreements to sell (future agreements to sell)6) Leases under 3 years.7) Licenses: agreement to use land (e.g. parking food truck on property)

Mechanics of Registration LTA, s.153 Time of Application: applications for both fee simples & charges are date/time-stamped upon receipt and given a

serial number (s.153(1)(a)-(b)). For the purpose of determining priority, the time/date recorded by Registrar is “real time” (s.153(2)).

s.28: Priority of Charges is determined by time/date of pending registration – that is, when the application is received [not the time/date of final registration]

s.27: Actual notice of charges occurs upon registration s.31: If registered caveators or CPL-ers are successful, their claim will gain priority over all other titles/charges/claims

registered after the date/time which the caveat/CPL in question was registered s.168: Registrar has the right to reject an application upon receipt, but can also inform applicant of mistakes and give her

time to correct them s.154: Form A is required for fee simple registration s.155: Form B is required for mortgage registration. Fee simple registration is required before mortgage registration can

occur, but in practicality, they move from pending to final registration almost simultaneously.



Processing Gap: From Pending to Final RegistrationThere is a gap between pending registration and final registration. The processing gap can vary in length (up to a year). What happens if a caveat or a CPL is lodged during the processing gap? Delays caused by LTO administration will not affect a purchaser’s right to title (Rudland).

Registration of Non-Common Law Interests (registrable as charges)1) Caveats (LTA, s.282-294) Can be lodged by any person who claims to be entitled to an interest in registered land that is

not reflected on CIT.2) Certificate of Pending Litigation (lis pendens): (LTA, s.215-217)3) Judgments (LTA, s.210-214)4) Statutory right of way (LTA, s.218): allows certain government bodies and others to acquire a right to use another’s land

for a certain purpose. Different from the CL easement which allows adjoining land owners to obtain access through their neighbour’s land.

5) Restrictive Covenants: (LTA, s.219): Imposes restrictions on the use to which land may be put. Frequently restrictive, but may also be positive (benefits)

6) Statutory Building Scheme: (LTA, s.220): restricts use of land. Enforcement comes from adjacent property owners (or developers) rather than the municipality.

7) Agricultural land reserve parcels (Agricultural Land Commission Act): while zoning bylaws are not registrable as an interest in land, ALR parcels are. Appears on title under “notations.”

8) Marriage / co-habitation agreements: (Family Relations Act, s.17): rarely used agreements which allow non-titled individuals to acquire some interest in the property (i.e. veto rights over land dealings, prevent severance of joint tenancy).

Skeetchestn Indian Band v BC, 2000 (BCSC)ABORIGINAL TITLE IS NOT DERIVED FROM FEE SIMPLE. It is sui generis and does not lend itself to categorization. It is not alienable; it can only be surrendered to the Crown. It does not fit within the scheme of current real property law in that it is not an interest in land contemplated by the LTA and is not registrable (Delgamuukw).

Encumbrance: definition of encumbrance in LTA indicates that only encumbrances emanating from the indefeasible fee or those specifically authorized by legislation are included.

Basic Scheme of RegistrationAll registrable interests can be divided into two categories: 1) the legal fee simple and 2) all other registrable interests, designed by the Act as “charges.”

LTA, s.153 (Time of Application): applications for both fee simples and charges are date/time stamped upon receipt and given a serial number (s.153(1)(a)-(b)). For the purposes of determining priority, the time/date recorded by Registrar is the “real time” (s.153(2)).

The Legal Fee SimpleWhen the title is being registered for the first time, the procedure to be followed is governed by LTA Part 11, Division 1 (ss 169-174).

Initial applicationLTA, s.169: If an application is made for registration of IT, registrar must be satisfied that a) the boundaries of land are sufficiently defined // b) a GOOD SAFE HOLDING AND MARKETABLE TITLE in fee simple has been established by the applicant

This section requires the satisfaction of 2 Preconditions to Registration:a) Boundaries are sufficiently described: requires a survey acceptable to the Registrar (Part 7, ss.58-120 contains the

details)b) Registrar must be satisfied that the instruments produced by the applicant confer a “good safe holding and

marketable title in fee simple” // safe-holding: a title conferring possession that is safe from attack and cannot be



displaced // marketable: a title that is freely alienable, and not so defective that a reasonable purchaser could refuse it.

LTA, s.169(2): Registrar may give notice that they’re intending to register the title of the applicant unless someone registers a caveat or certificate of pending litigation contesting the applicant’s right

LTA, s.169(3): If caveat or LP is registered the registrar must defer consideration of application until caveat expires / withdrawn and the LP claim is disposed of

Applications Received by the Land Title Office: Application is deemed to have been received when s.153 has been complied with: applications for both the fee simple

and charges are date/time stamped upon receipt and given a serial number Application is scrutinized by examiner of titles (i.e. good safe holding and marketable title) Final step involves production of an indefeasible title // Can take two forms (LTA, s.1). Traditionally, certificate of

indefeasible title (when signed by the Registrar, title was demed to be issued). Today: computerized system.

When fee simple is registered, the Registrar must issue the owner a duplicate indefeasible title (LTA, s.176(1)). The duplicate must contain all the information in the register relating to the land in question, including all conditions, exceptions, reservations, charges, liens or other interests (LTA, s.176(2)). But, DIT cannot be issued if the title is subject to either a registered mortgage or an agreement for sale (LTA, s.176(1)).

Once title has been registered, it becomes “conclusive evidence at law and in equity” that the person named in the title is “indefeasibly entitled to an estate in fee simple.”

Transfer Inter Vivos Same process as for initial registration Registrar must be satisfied there is sufficient description of land, instruments confer good safe holding and marketable

title upon applicant

Transmission on Death Dealt with in Part 17, Div 2, ss.263-268 Title vested in personal representatives who hold it in trust as fee simple owners Executor or administrator registered as owner Transfer them made to person entitled to take under will or on intestacy See also: Estate Administration Act, ss. 77-78

ChargesProcedure for the registration of charges is set out in LTA, Part 14 (ss.197-237).

s.197(1) Registered charges must show: a) that the applicant has good safe holding and marketable title // b) the charge claimed is an estate or an interest in land that is registrable under this Act

Caveats LTA, Part 19 (ss. 282-294)Can be lodged by any person who claims to be entitled to an interest in registered land that is not reflected on CIT. Allows them to assert their right – note; may also be lodged by Registrar (s.285) or registered owner

s.288: Effect of a caveat once a caveat is lodged, the Registrar must not: (a) register another instrument affecting the land unless the instrument explicitly subject to caveator’s claim or (b) change the boundaries affecting the land // temporary “freeze” on registration process // buyer beware: prevents future land transactions: no one wants to buy land with potential law suit attached.

s.288(2): Title cannot be registered if the claim of the caveator, if successful, would destroy the root of title of the person against whose title the caveat has been lodged // Ex. A grants fee simple to B and then C. If B lodges caveat, C cannot register.



s.293: Privately-filed caveat expires after 2 months unless proceedings have commenced in this time, one can bring action affecting title of land (lis pendens).

s.287 (a)-(c): Upon receiving caveat, Registrar must endorse date/time of receipt, enter endorsement into register, and send copy of caveat to titleholder in question

Example: A sells Blackacre to B with a CPS, but not Form A. In the meantime, A sells Blackacre to C. B files a caveat on Blackacre. C registers her Form A on Blackacre subject to the caveat. If B succeeds against A and successfully registers Blackacre, C is screwed.

s.239: Privately-filed caveat expires after 2 months s.285: Registrar has the power to lodge a caveat himself which never expires unless expressly provided for s.286: Individual may lodge a caveat, if caveat is in the prescribed form

Effect of registered certificate of pending litigation (LTA Part 14 ss. 215-217)Allows litigants to freeze disputed title and provides notice to potential buyers that land is being litigated. A CPL can be registered as a charge against the disputed land by a person who has commenced or is party to litigation involving interest in land (s. 215(a)). The test for CPL is far less stringent than a caveat; however it is a much slower process because it involves filing lawsuit. Can be registered by any person who has commenced or is a party to a proceeding (s.215(1))

Registrar must give copy of LP to owner against whose title the LP was registered (s.215 (3)) Restrictive covenants/building schemes (s.215 (5)) dissolution of marriage or declaration that marriage is null and void

(s.215 (6)) actions under Wills Variation Act (s.215 (7)).

Effect of registered CPL (s.216) HALTS ALL DEALINGS WITH LAND: Registrar may not enter anything into register that has effect of charging, transferring or otherwise affecting land NO ONE LIKES TO DEAL WITH LAND THAT HAS A CPL ON IT. Does not apply to: lodging a caveat or registration of indefeasible title or charge Individual may proceed to registration subject to CPL but Registrar must be satisfied that purchasers of interests

affecting the land know about the LP and that they are subject to outcome of litigation

Judgments LTA Part 14 (ss.210-214)

Judgments are governed by LTA s.210-214. Judgments are enforced by Court Order Enforcement Act.Someone who has obtained a judgment against a land owner (judgment creditor) can have that judgment registered as a charge against the land

Judgment creditors are asserting a priority over the land in the event it is sold in execution of that judgment // note: priority is measured according to when an interest is registered

Registered the same way as charges When a judgment is registered, Registrar must notify owner of land or charge against whose title the registration has

been effected Money judgments: claim by P results in Certificate of Judgment against D ordering that “judgment creditor is owed x

dollars by judgment debtor” Effect of registered judgments Court Order Enforcement Act (s.86 (3)).

o Forms lien and charge on the land of judgment debtoro Ex. K sues C and wins but C doesn’t pay because he has no cash. K does a land title search and finds out C owns a

house. K wants to force C to sell her land to get payment. To prevent C from selling it to someone else, K can register her judgment as a charge against the land.

A judgment is registered against the equitable interest. Judgments are subject to the rights of a new BFPFVWON who, prior to the registration of the judgment, acquires the legal interest in the land (COEA

3 Underlying Principles of the Torrens System1. The Mirror Principle: Title is a complete and accurate reflection of all interests affecting the land. If it is not on a register,

then it is not binding on a 3rd party.a. s.23 – exceptions to the mirror principle (events which may revoke indefeasibility)



b. s.20 – unregistered documents may have an effect2. The Insurance Principle: If mistake or fraud occurs, compensation is available (Assurance Fund.)3. The Curtain Principle: Under pure Torrens, the curtain drops upon registration. Immediate indefeasibility in BC for fee

simples, but not for charges.

Failure to Register: If I don’t register, is my interest still protected?

The General Principle: s.20 Except as against the person making itTranslation of s.20: No registration = no transfer of legal interest. But an unregistered instrument is operative against the person making it [that is, one of the parties to the instrument]. (Stonehouse v Attorney General, wife screws husband by giving unregistered Form A to daughter, 1962 SCC). But if you don’t register your interest, you run the risk of a BFPFVWON (Bona-fide purchaser for value without notice) registering their interest in land and screwing you.

Leaving an unregistered Form A with a lawyer to be registered is sufficient for intention to register (Feinstein, 2005, BCSC).

Gifts: A Form A which is executed for a gift, but left unregistered, will be enforceable against the giftor, but not against any subsequent purchasers.

Easements: An unregistered easement cannot be enforced against a subsequent purchaser (Sorenson v Young, P tries to enforce easement, 1920, SCC)

Prohibited TransactionsParties cannot claim protection of s.20 for unregistered transactions which are prohibited for reasons of illegality or public policy. s.73 prohibits 3 year+ leases of portions of land without subdivision. s.73(3) does not apply to buildings – you can lease parts of buildings for 3+ years without subdivision (Top Line, landlord screws tenant, 1996, BCCA).

The Role of the Registrar (LTA, s.10)

General Duty & Role of the RegistrarGeneral Duty: Administer the LTA with respect to the lands within their Land Title District. Registrar’s powers are derived from the LTA – they aren’t a s. 96 Constitutional judge, and therefore can’t adjudicate the contested rights of parties – you need to go to court for that (Heller, husband realizes mistake, tries to cancel wife’s transfer, 1963, SCC).

Quasi-Judicial Role: Act on principles of law to determine whether interests are registrable [good, safe-holding and marketable title]. In this role, the Registrar is bound by established law because they can only apply the facts to the law.

1) Not all interests are registrable: Torrens only registers interests which are good, safe-holding and marketable; therefore, Aboriginal title is not registrable, nor are charges relating to aboriginal title registrable (Skeetchestn, FN tries to register CPL against aboriginal title lands, 2000, BCSC).

2) Don’t perpetuate errors in title: Registrar has duty to satisfy himself that the title is good, safe-holding and marketable when registering any instrument (Evans, westerly 40 feet, 1960, BCSC).

3) Power to refuse bad documents: Registrar can refuse to register, if the documents and evidence produced fail to produce either a prima facie or good safe-holding and marketable title (Shaw, son scams dad, 1915, BCCA)

Administrative Role: Act on policy and/or expediency. In this role, the Registrar has the discretion to make the rules. 1) Discretionary power to cancel or correct instruments (s.383): If an instrument has been issued in error by the

Registar, contains a misdirection, or an endorsement has been made or omitted in error on a register/instrument, Registrar “may” cancel/correct (Heller).

2) No obligation for non-Registrar errors: Registrar is not obligated to correct errors which are not the fault of the Registrar (Heller).

3) Cannot prejudice BFPs: Power of cancellation occurs only if it doesn’t prejudice rights acquired in good faith and for value (s.383 (1)).

4) No appeal or discretionary decisions: You cannot appeal discretionary decisions of the Registrar, but you can appeal a refused application (Basque Improvement District v Lischa, 2003, BCSC).



When an instrument/application is submitted to the LTO, the Registrar must determine (1) whether the instrument deals with an interest in land (Re Kessler) and (2) whether the interest is properly derived from the owner/applicant and (3) whether the transaction and instrument are, prima facie valid (Shaw; Heller).

Re Land Registry Act, Re Evans Application, 1960 (BCSC)Land parcel registered as 66 feet ‘more or less’; ½ is transferred to S, ½ to Evans; Mr E dies so Mrs E applies to update CIT; Registrar refuses to register land until uncertainty of exact boundaries is rectified.

Not the duty of Registrar to determine: a) boundaries b) adjudicate on property rights; this is under inherent jurisdiction of CL (provincial and Supreme Courts).

BUT Registrar doesn’t have to perpetuate errors with the boundaries and can step in to attempt to correct them; he has an option not an obligation to correct register. Registrar has quasi-judicial duties as he must be satisfied of good safe-holding and marketable title before issuing CIT (cannot do this until boundaries are fixed).

Re Land Registry Act and Shaw, 1915 (CA)REGISTRAR HAS AUTHORITY TO LOOK BEHIND AGENCY AGREEMENT. REGISTRAR CANNOT DETERMINE IF THE DOCUMENT IS VOIDABLE (COURTS MUST DO THIS). Shaw’s dad gave him power of attorney to sell and dispose of his property; Shaw tried to use this to assign Dad’s interest in a mortgage to himself. Registrar refused to register transfer until notified by Dad as on its face, the transaction was improper. Registrar was right to refuse to register the transfer as there is not good safe-holding and marketable title.

Property Law Act s.27 Attorney cannot sell to himself Person granted POA (Shaw), cannot transfer land from the person granting the POA (his dad) to himself unless a): POA

expressly authorizes it or b) the person granting POA (his Dad) ratifies it; Burden of proof is on Shaw to show evidence of full disclosure, fair consideration and good faith Ex. If you’re holding a trust for yourself, you can’t transfer it to yourself

Heller v BC (Registrar, Vancouver Island Registration District, 1963 (SCC)H tried to transfer land to wife, Registrar registered it with no duplicate CIT on file. Duplicate already given to someone who already had a ½ interest transferred. H tried to reverse transfer to his wife due to error of allowing the registration to proceed without the duplicate CIT in the office, but Registrar refused. This is a discretionary matter; as Registrar cannot affect the rights of others by correcting something or adjudicate the

rights between parties he cannot investigate. This matter should be left to provincial or supreme courts. Registrar was right to refuse.

As H gave the deed to his wife this showed the intention to transfer the land to her (acquired gift in good faith), to restore his title H will have to show this was void, otherwise the registrar will not affect the wife’s rights she acquired by changing the register.

LTA s.383 Registrar to correct or cancel instruments If the registrar finds an instrument is issued in error/has a misdescription or an endorsement is made/omitted in error, the

Registrar MAY, so far as practical, without prejudicing rights acquired in good faith and for value cancel the registration/instrument or correct the error

Registrar “may” exercise their powers: no duty to enforce the rights of a party if an error exists

The Assurance FundThe Curtain Principle of Torrens provides security to those who register by imposing immediate indefeasibility upon all registered titles (LTA s.23). However, the security provided by Torrens means that some common law rights are lost under the LTA. Under the common law, a BFP (bona-fide purchaser) taking land under a void instrument would lose that land to the original owner. Under the LTA, the new owner would be protected if they registered that void instrument – because registration provides immediate indefeasibility.

The Assurance Fund is a statutory scheme that protects equitable rights and compensates people who lose their common law property rights as a result of the LTA . Recovery is dictated by the terms of the statute. The Assurance Fund is funded via



percentages taken from each land transaction. While successful AF claims are rare, the Assurance Fund is not to be regarded as a citadel which no one is allowed to scale (Gordon v Hipwell, fake diamonds for land and mistake of Registrar, BCCA). However, as McCaig shows, there are severe limits to liability under the Assurance Fund.

The Assurance Fund covers two situations: 1) Person deprived of interest in land: A person has been deprived of land in certain circumstances [involving fraud]

by reason of the conclusiveness of registry (s. 296)2) Fault of Registrar: A person has sustained loss solely as a result of an omission, mistake or misfeasance of the

registrar (s. 298; Gordon v Hipwell). Registrar owes no duty to unregistered claimants (as an unregistered title will not appear whe Registrar

determines GSHM title). Registrar’s duty is to those seeking to use Registry. A successful claim against the Assurance Fund must show that the P’s loss flowed naturally and directly from the mistake of the Registrar (Royal Bank v BC, AF claim for defaulted equitable mortgage fails, 1979, BCSC).

Successful claim against Assurance Fund:Claimant must show that (s.296; McCaig v Reyes):

They have been deprived of land or interest therein The loss was occasioned by the operation of the Land Title Act (and not the common law) The loss was occasioned by fraud, misrepresentation or wrongful act in registering of another person as having an

interest in the land and They are barred for bringing an action for rectification of the register (cannot ask the Registrar to put the title back in

your name).

Other Rules for Assurance Fund: s.296(3): AG must be joined as a party in any claim against the Assurance Fund s.296(8): 3 year Limitation Period s.303: Liability is limited: the following owners cannot claim against AF:

s.303(a)(i): Undersurface rights owners s.303(a)(ii): Equitable mortgagees by deposit of duplicate indefeasible title s.303(d): Errors in airspace plan s.303(f): Contributory negligence: New LTA amendments will lower P’s damages in the event of contributory

negligence (previously, contributory negligence would bar a claim)

Example: Y impersonates X and transfer’s X’s land to himself via forged Form A. Y then transfers the land to Z, a BFPFVWON. Z registers transfer and becomes RO. Because of fraud, the transaction between X and Y is void. At common law, Z would not have received title because nemo dat quad non habet (one cannot give what one does not have). But Torrens gives Z indefeasible title because of registration. Under s. 25.1, Z can keep the land and X can claim against the Assurance Fund because he has lost his land because of fraud (s.296) and the conclusiveness of the register.

McCaig et al v Reys et al, 1978 (CA)STANDS FOR OPERATION OF STATUTE.R purchased land from M and registered his interest. R gave M an unregistered option to buy back some land. R sold land to Rutland, who knew of option but sold to Jabin without disclosing it. M sued R for breach of K, Rutland for fraud and inducing breach of K and AF for defeating option. IN ORDER TO BE SUCCESSFUL AGAINST AF CLAIMANT MUST SHOW: a) They’ve been deprived of land or interest therein, b)

loss was occasioned by operation of Land Registry Act c) loss was occasioned by fraud, misrepresentation or wrongful acts in registering of another person as having interest in the land d) he is barred for bringing an action for rectification of the register (cannot ask the Registrar to put the title back into your name).

MCCAIG CANNOT ADVANCE CLAIM AGAINST AF: To advance claim against AF claimant must show: he has been deprived of land/an interest resulting from the

operation of the Land Title Act – in this case loss did not result from operation of statute – so McCaig cannot rely on AF



McCaig only had equitable interest in his option: in CL an equitable interest is lost where person is a bona fide purchaser for value (does not know of fraud and pays purchase price). Under CL, Jabin is a bona fide purchaser for value so McCaig lost his equitable interest. As McCaig would not be successful under CL he cannot make claims under AF.

Note: Intention in the sale agreement is to give legal title to the purchaser; it goes to them on conveyance and registration but prior to this the buyer has an equitable interest in land and it is registrable (you can register both equitable and legal interests in land).

(An equitable interest is a limited in rem right!) – this worked against McCaig and for Jabin. Jerome knew of McCaig’s unregistered option and ensured purchaser Jabin didn’t find out. Jerome argued McCaig had an

unregistered interest but under s.29(2) that he didn’t have to take notice of this unregistered interest. Court said no. S29(2) didn’t apply/support Jerome due to his dishonesty. Court wants clear evidence of dishonesty component however to rule 29(2) – in this case there was. As Jabin did not know of McCaig’s option when he became new RO his registration was fully indefeasible.

Royal Bank of Canada v BC (AG), 1979 (BCSC)W became RO of land in ’73. LTO gave him duplicate CIT, which he deposited at RBC (P) as security for loans they gave him. LTO did not mark delivery in their books. 74: W was granted mortgage from BNS, when it was registered with LTO they noted they thought duplicate CIT was on file but couldn’t locate it. After this, RBC advanced W the loans but couldn’t recover them from W. RBC argues Registrar erred by accepting W’s mortgage registration without the duplicate CIT in his possession; RBC wants compensation from AF. Can equitable mortgage holder recover from the assurance fund with mistake from registrar?RBC CANNOT RECOVER FROM AF: Registrar owed no duty of care to RBC as it did not utilize their services; they accepted security as a CIT but did not avail

themselves to the safeguards under the Act. Giving RBC protection would give them protection only afforded to registration RBC’s loss does not flow naturally and directly from Registrar’s mistake (s.298) (this was a substantive mistake)EQUITABLE MORTGAGES are not registrable so banks will have no claim with AF. THOSE WHO SEEK TO RELY ON EQUITABLE MORTGAGES MUST ACCEPT RISKS INHERENT IN SUCH SECURITIES. STRICT ADHERENCE TO/USE OF TORRENS SYSTEM PROVIDES HIGHEST FORM OF SECURITY AND CERTAINTY.

Review of Mortgages 1st Mortgage a.k.a. Legal Mortgage: conditional transfer of one’s EIFS (condition: when you pay in full you automatically get

back your EIFS). The homeowner is left with an “equity in redemption” (equitable interest in land); if he fails to pay bank he does not immediately forfeit his property to bank; bank must first sue homeowner to “foreclose” his equity of redemption

2nd Mortgage a.k.a. Equitable Mortgage: 2nd bank gets an equitable mortgage; homeowner gives them their “equity of redemption”

REGISTRATION – Chapter 6

Registration: The Fee Simple Nothing in the Act compels registration but it is wise to register because of its advantages. Although unregistered docs have

some effect it is dangerous not to register. Exception: Delivery and Registration of Crown Grants (Land Act s.54): After 1968, purchasers of Crown land were required

to register. Effect of indefeasible title: (Land Title Act s.23): indefeasible title is conclusive evidence at law and at equity – important!

LIMITS: if you are an innocent party who has acquired an EIFS, through no fraud of your own you will be protected bona fide purchaser of value.

Exceptions and Reservations: (Land Act s.50): specific provisions are retained by the Crown even if nothing is stated in the original Crown Grant. Crown has right to use private land 1/20 for public work

Agricultural Land Commission Act: Sets up regulatory body that freezes land use to farm use; only way you can do something other than farming is to get land taken out of Land Commission. Must find out if land is ALR and follow regulations. All land issued after 1973 subject to ALR



(Land Title Act s.23(3)): “Squatters Rights Abolished” – for both private and Crown land subject to small window (before 1975 if Crown grant)

The General Principle of IndefeasibilityCOMMON LAW RULE: A forged transfer document was null and void, even if the “purchaser” was BFPFVWON. The same situation is true under a Recording System.

THE CURTAIN PRINCIPLE: (s.23(2)).: The Torrens system provides security for purchasers against the effect of forged documents, based on the principle of immediate indefeasibility. The fact of registration is conclusive proof of indefeasibility. The “curtain is lowered on previous transactions” and thus BFPFVWON receives immediate indefeasible title (s.25.1(1)-(3)). The registered owner is thus safe from any previous defects in the title. A certificate, while unaltered or unchallenged by the Registrar, is one which every purchaser is bound to accept. To allow an investigation into whether a person has the right to appear on the register would defeat the purpose of the LTA (Creelman v HBC, HBC has good title because of registration, 1920, PC).

Effect of s.25.1: A rogue who obtains land via their own forgery acquires no interest upon registration (codifies the common law rule). A BFPFVWON who receives a fee simple interest via a forged (registered or unregistered) instrument will acquire immediate indefeasible title upon registration (strengthens s.23 and asserts pure Torrens rule of immediate indefeasibility – cancels out any effect Gibbs might have had in BC on fee simple interests.)Note: only applies to fee simple interests – does not apply to gifts of land acquired under a forged instrument (since there is no value / consideration transferred in a gift.)

MIRROR PRINCIPLE (QUASI-TORRENS): The exceptions noted in s.23 modify the pure Torrens System by allowing some interests which do not appear on the title to challenge indefeasibility. Other exceptions include s.29 unregistered interests, in personam claims, caveats/CPLs, and interference with title by reason of court order (s.23(2) & s.34).

INSURANCE PRINCIPLE: The Assurance Fund compensates those who have lost their land through forgery/mistake as a result of the conclusiveness of the register. Under a pure Torrens system, the public (via the LTO and the AF) bear the risk of forgery, rather than the registered owner.

Example: A forges a transfer of B’s title to C (a BFPFVWON): Common law: C loses out as the A C transfer was null and void. If C tries to mortgage his “interest” the mortgagee

loses out due to nemo dat (C can’t pass on an interest that he doesn’t actually hold). Torrens: C is protected due to immediate indefeasibility (s.25.1). B loses his land but can claim against the Assurance

Fund.

Practical Note: s.23 is central to the conveyancing done by lawyers: is your client getting the interest they think they’re getting? Are there any restrictions/encumbrances on the land?

1. Dealings in land involve more than the horizontal plane2. Dealings in land involve a description/plan3. A title search is required before commencing any real estate transaction4. The title is never ultimately conclusive (s.23 exceptions)5. The title may change over time [title searches are time-sensitive]6. Not all charges and interests will affect your client/purchaser: but discuss them all7. Section 23 lists all the exceptions your client must worry about.

Creelman v Hudson Bay Insurance Co, 1978 (CA)HB owned land, had EIFS title registered; Creelman made a K with HB to buy the land and put down a large deposit. Creel backs out, HB wants to keep deposit, claiming C breached K. Creel argues: land was given to HB under federal legislation for purpose of ‘use or occupation of HB’s company’; thus, Creel should recover deposit.

The register is conclusive. Allowing investigations into the right of a person to appear on the register when he holds a CIT would defeat the purpose of statute of registration. AG can still take steps to rectify the register but if you get on title, curtain comes down and you can’t look behind it! Land Title Act s.23(2)



Held: Creel is bound to accept the CIT from HB and had to comply with their K Note: even if HB shouldn’t have been on title as they didn’t use the land for the right purpose, it is an efficient solution to

sell the land to C who can now use it for another purpose.

Indefeasibility and Adverse Possession Squatter’s Title/Adverse Possession: if land owner doesn’t bring an action to recover possession of land from a wrongful

occupier within a specific period (defined by statute) the right to do so is lost (statute barred). Squatter is given possessory title which courts protected.

Adverse possession is inconsistent with the indefeasibility of registrable title Land Act s.8: cannot acquire title to Crown land or any land via adverse possession unless exception (own land for 20 years

before 1975 applies)

Claiming Adverse Possession in BC: 1. Transitional Provision: (Limitations Act s.14):

Can only make claim for right/title if acquired by adverse possession before July 1, 1975 Had to live on land for 20 years to adversely take it from another person (or 60 years from Crown) Note: claims are rarely made (almost doesn’t exist in BC)

2. Effect of Indefeasible Title: (Land Title Act s.23(3)(4)): Possible to acquire title by adverse possession where: a) no IT has been raised to subject land b) where claimant is challenging first IT registered (no claim if original holder transfers title). Acquisition of title by adverse possession can arise both through mutual mistake and where the adverse claimant is a

knowing trespasser. For a claim to title based on possession to succeed, the act of possession must be open and notorious, adverse (not with

the permission of the owner), exclusive, peaceful (not by force), in general actual (as opposed to constructive) and continuous.

Example: commonly used if land owner tries to bring trespass against party, and party claims adverse possession as a defence.

Statutory Exceptions to IndefeasibilityEIFS: fullest relationship one can have in respect to land: total control in perpetuity; one may assume its absolute but some restrictions can make it “qualified”

LTA s.23(2): lists interests which qualify an EIFS absolute; “INDEFEASIBLE TITLE IS SUBJECT TO:”…

LEASES (LTA s.23(2)(d)) A lease or agreement for lease for a term not exceeding 3 years (doesn’t have to be registered) if there is actual occupation

under the lease or agreement (lease only needs to be registered if over 3 years) Ex: If T is lessee and S is lessor selling the land to B buyer; T has lease for 2 years // Any buyer of land has to wait until lease

expires until they are able to move into the premises // Grant of indefeasibility of B does not protect him as T is a tenant, occupying his land with a lease of less than 3 years. Thus, B cannot kick T off his land before his lease is up.

CHARGES AND OTHER ENTRIES (LTA s.23(2)(g)) A caution, caveat, builder’s lien, condition, entry, exception, judgment, notice, LP, reservation, right of entry, transfer, other

matter noted or endorsed on the title or after registration of title Each charge on a piece of land has to be lawfully justified (depends on nature of charge) Registrar checks to make sure every charge is authorized

Carr v Rayward 1955 (BC Co Ct)P did plumbing work on land, filed lien with registry but original owner already sold land to D (who didn’t know about P). D got a CIT from registry without the lien on it. Original owner did not pay P; now P is suing the new owner D to get his payment.



A mechanics or builders lien is effective against lands if not filed in land registry office after owner for whom the work was done sells the land and purchaser has obtained CIT from LTO

Builders Lien Act (1997) (s.2): workers have a lien against the land for $$ not paid for their work. This gives workers a real interest in land + personal interest (under their K).

o s.20: a lien may be filed within 45 days of completion of work; if not it is extinguished o Lien has effect from time work began and has priority over all judgment, executions, attachments and receiving

orders recovered, issued or made after that date s.23(2)(g): a builder’s lien put on title before/after date of registration is a restriction on IT Held: D has to pay P under s.23(2)(g)

BoundariesLTA s.23(2)(h)The right of a person to show that all or a portion of the land is, by wrong description of boundaries or parcels, improperly included in the title.

LTA s.36(1) insert from Jamie’s CAN – page 14

Phillips v Keefe, 2012 (BCCA) Indefeasibility and boundaries does not extend to the location on the ground of the boundaries as depicted in the

registered map or plan (Phillips v Keefe, 2012 BCCA 123)

Winrob v Street, 1959 (BCSC)P was buying house and retained D lawyer; D searched title but didn’t check maps in LTO to determine its dimensions; transaction went through and 2 years later P discovered part of their lot was owned by Van City and they have to pay rent/vacate it. Does the exercise of due care require the lawyer to ascertain the dimensions of a lot? Exercise of Due Care: must determine

1) What “general and approved” practice of lawyers is [general practice was not to check – 1950s]2) If this is consistent with provident precautions against a known risk [not a solicitor’s job to determine dimensions

of land their client is purchasing: this should be left to surveyors unless lawyer explicitly accepts to do so] Held: D wins, P cannot recover

FraudLTA, s.23(2)(i): The right of a person deprived of land to show fraud, including forgery, in which:

a) RO has participated in any degreeb) Person from/through whom the RO derived their right or title otherwise than in good faith and for value has participated

in any degreea. A is RO. B forges A’s signature and becomes new RO. A can recover title under s.23(2)(i)b. A is RO. B forges A’s signature and becomes new RO. B sells to C, who knows of forgery. A can recover title.

Literal meaning of s.23(2)(i): If you haven’t participated in fraud and you take for value, you get IT No statutory definition for fraud in Act, must be able to prove fraud though! False representation of a matter of fact, by words or by conduct, by false or misleading allegations, or by concealing that

which should have been disclosed, which is intended to deceive or does deceive another person who acts on it to his or her legal detriment.

Forgery A is RO. B forges A’s signature, becomes new RO. A can recover title under s.23(2)(i) A is RO. B forges A’s signature, becomes new RO. B sells to C, who knows of forgery. A can recover title. BUT: A is RO. B forges A’s signature, becomes new RO. B sells to C, who doesn’t know of forgery – what now?

Gibbs v Messer 1891 (Australia)



Mrs M is RO of land; her husband gives her DCIT to their lawyer C. C then concocts transfer form of their land to “Hugh” (a fictitious person) forging Mrs M’s signature. C then arranges with the Ds (McIntyres) for a loan to be secured by mortgage from “Hugh”. They pay “Hugh,” land is transferred to them on another transfer form. C takes the money and disappears.

Held: Mrs M is reinstated on register as the RO. McIntyre’s mortgage is invalid. Registration in the fictitious name cannot impede the right of the true owner; Mrs M, who has been defrauded, to have

her name restored to the register Torrens system gives deferred indefeasibility (law in BC): while McIntyres don’t get good title, if they were to pass it on

to a bona fide purchaser for value, that person would get good title This case goes against the literal meaning of s.23(2)(i)

So the person who deals with the fraudulent party C (i.e. doesn’t matter if it comes directly from a void deed or not) is vulnerable because they are in the better position to be able to check that they are dealing with a fraudulent person – in Australia, second innocent party could be vulnerable. A can recover title.Frazer v Walker 1967 (PC) New ZealandAN OWNER OF INTEREST IN LAND WHICH WAS ORIGINALLY OBTAINED FROM THE RIGHTFUL OWNER THROUGH FRAUD, STILL OBTAINS AN INDEFEASIBLE INTEREST IN THAT TITLE IF THEY WERE UNAWARE OF THE FRAUD.Mr and Mrs F had an EIFS with a mortgage on it. Mrs F arranges a £3000 mortgage from the Radomskis, using the jointly owned property as security (w/o his knowledge). For the mortgage to be legally valid for a jointly owned property, the mortgage contract needed both owners' signatures (and for them to be witnessed). Mrs Frazer forged her husband's signature (without his knowledge) and persuaded the solicitors' own law clerk to falsely witness the forged signature of Mr Frazer. She uses this to pay out their first mortgage and keep the rest of the $. Mrs F made no repayments on the new mortgage, resulting in the R’s selling the farm in the following year for ₤5,000 at a mortgagee sale to Mr Walker, who was totally unaware of the defect in the title to the farm (as were the Radomskis). Mr Walker was duly registered as the new legal owner of the farm on the property title. After the farm was sold however, Mr Frazer refused to recognise Mr Walker's claim to legal ownership to the farm, leaving Mr Walker having to file an action for possession of the farm with the courts.PC ruled that while the legal interest in the land may have been originally obtained by fraud, because Mr Walker was unaware of any fraud at the time of purchase (BFPFVWON), meant that he had indefeasible title to the farm. Case affirms the immediate nature of indefeasible title.

Court distinguished Gibbs v Messr, which dealt with a bona fide purchaser for value of a fraudulent title from a fictitious party (B pretended to be A). This case deals with an adverse claim made in good faith on a fraudulent instrument. If mortgage is valid, it follows that sale also is valid.The register is conclusive. Where a person acquires a registered interest, it grants him title with respect to that interest which is immune from adverse claims other than those specifically stated in s.23(1). In this case, immediate indefeasibility is given.

The file transfer form was clearly a null deed as Mrs F forged Mr F’s signature, but the second transfer form (from 2nd R to 1st R) was protected as the 2nd R registered his mortgage giving him immediate indefeasibility under the Torrens system.

This case is in line with the literal meaning of s.23(2)(i)

So if you haven’t participated in fraud, and you are a bona fide purchaser for value, you get indefeasible title. A cannot recover title because C is a BFPFVWON, but A can recover from the Assurance Fund because under CL, A could have recovered title (nemo dat).

HOW YOU PERFORM THE FRAUD MATTERS! Under Frazer: immediate indefeasibility – if you were in good faith, you’re okay Under Gibbs: deferred indefeasibility – even if you were in good faith, if the way in which you got the ownership was

through a void/null deed, you’re in trouble

Void Instruments – Interest Acquired or Not Acquired

Land Title Act s.25.1



Immediate indefeasibility is given to fee simple and deferred indefeasibility is given to charges Subject to this section, a person who purports to acquire land or an estate or interest in land by registration of a void

instrument does not acquire any estate or interest in the land on registration of the instrument – Transferee does not get a charge if Form A (transfer form) void

Even though an instrument purporting to transfer a fee simple estate is void, a transferee named on the instrument who is a bona fide purchaser for value (in good faith) and has acquired the estate on registration – transferee gets fee simple even if Form A (transfer form) is void

LTA s.25.1 (2) and (3) sounds like it is going towards Frazer

ADVICE TO GIVE TO ORIGINAL OWNER WHO LOSES THEIR INTEREST DUE TO VOID (FORGED) TRANSFER:1. Judges may go out of their way to find a way for original RO to keep their interest (if you can show your client has the

biggest sob story)2. Original RO can apply to AF3. Best way to protect yourself is to get duplicate CIT and put it in safety deposit box!

a. The registrar cannot do anything to affect your title without this4. If taking out a mortgage, recommend that they request mortgagee obtain insurance5. To confirm that someone is who they say they are and what they promise is true, then get credit reports and check their

passports

Gill v Bucholtz, 2009 (BCCA)SAFEGUARDS THE TORRENS SYSTEM OFFERS TO BONA FIDE PURCHASERS MAY NOT BE FULLY EXTENDED TO MORTGAGE LENDERS.Mr. Gill was the registered owner of the property. An unknown fraudster forged his signature and transferred the property to a female accomplice named Mrs. Gill. Once Mrs. Gill became the registered owner, she applied for a loan and granted a mortgage over the property in favour of the lenders, Mr. and Mrs. Bucholtz. The lenders verified the identity of Mrs. Gill, completed a title search through the Land Title Office, and registered the mortgage against the property before advancing $40,000 to Mrs. Gill.Soon after this, Mrs. Gill granted a second mortgage in favour of another private lender. In this case, the lenders advanced funds ($55,000) before registering the mortgage in the Land Title Office, and Mr. Gill, who had learned of the fraud, filed a caveat which prevented the second mortgage from being fully registered. The fraudsters then disappeared with the proceeds of the loans. Will Mr G’s title be subject to mortgage interests of B and the Co who are both bona fide purchasers? (short answer: nope) A mortgage granted by a fraudster over a property that did not rightfully belong to him was not an effective charge against

the property, and as such the mortgage lender was unsecured and out of luck. Although the LTA protects the genuine owner or purchaser of property who is relying on the register in respect of title to the

property, it does not protect someone who has a lesser interest in the land such as a registered mortgage. The court concluded that the plain meaning of section 23 of the LTA reveals that mortgage lenders do not obtain the same

protection of “indefeasibility” upon registration of their mortgage. LTA s.25.1(i) exception to indefeasibility applies. “Void Instrument” in LTA s.25.1(1) includes mortgages from persons

obtaining title via fraud/forgery. B and Co don’t acquire an interest on registration as GG had no interest to give when granting their mortgages; void at CL and under LTA s.25.1(1)

Gibbs v Messer and LTA s.25.1(1) only applies to EIFS and not to charges Note : judge only states this in regards to mortgages so it is obiter that this applies to all charges, but as this is the most

recent and only case we would follow this law NEMO DAT STILL APPLIES TO REGISTERED CHARGES: Charges are not indefeasible and are subject to fraud; if acquired under

void instruments they are invalid. Charge-holders do not obtain protection of indefeasibility that bona fide purchasers obtain upon registration

In this case the mortgagees did not acquire any estate or interest as it was granted by a person who had no interest to give Policy: in BC costs of frauds against mortgagees and charge-holders should not be borne by the public (via the Assurance

Fund) but by lenders and other charge-holders themselves (get title insurance)



So: indefeasibility does not apply to charges. If you are a charge-holder (mortgagor) and you got that through some form of fraud (doesn’t matter if you’re in good faith) then you are vulnerable and are not protected with indefeasibility.

Notice of unregistered instrumentsEffect of notice of unregistered instrument (LTA s.29(2)): If a person applies for registration and becomes RO they are not affected by notice (express, implied or constructive) of

unregistered interests affecting their land unless participating in fraud: if affect of acquiring their interest is to defeat another’s interest they are subject to theirs

Actual notice: real knowledge or circumstances Constructive notice: facts or circumstances one ought to understand

To make unregistered interest binding on subsequent purchaser, owner must show:1. New owner had actual knowledge (notice) of it before purchase (CPS is executed (signed)) – not constructive notice2. PLUS element of dishonesty: additional fraudulent behaviour; one is cting out of the ordinary course of business or

natural course of dealings or transactions (HB v Kearns)

First West Credit Union v GiesbrechtIF THE CONVEYANCES ARE VOIDABLE, THE PROPERTY REMAINS SUBJECT TO THE CHARGES OF THE MORTGAGES. DISTINCTION BETWEEN OTHER TYPES OF FRAUD THAT RENDER A TRANSACTION VOIDABLE AS DISTINCT FROM FORGERY WHICH RENDERS A TRANSACTION VOID.On the certificate of title EIFS (779 Inc) which was controlled by Mr B (he doesn’t own the land, just the company that owns the land). G, who has an interest in the company, convinces Mr B who is being chased by creditors, transfer interest to me and let me deal with the difficulties. Barton causes 779 Inc to transfer the land to G. G takes a number of mortgages, some for $1 million, one of them from First West Credit Union. Mr B then believes he was defrauded and 779 did not give the mortgages, G did. Barton argues: Transfer form: From 779 to G (valid, not void) Transaction to G was fraudulent Under s.23.2(1), he can get G taken off title If G goes off, then by “parity of reason” (as in Gill v Bucholtz), the charges of mortgage have no security in respect to loanCourt says not fraudulent. If conveyances are voidable, the properties will remain subject to the charges of the mortgages. Unlike in Gill v Bucholtz, this transfer was voidable, not void Construes Gill: interpretation is confined to void transactions even though language such as fraud and forgery is used in the judgment Fraud creates voidable, unless forgery in which case it is a nullity

Hudsons Bay v Kearns and Rowling 1895 (CA)KNOWLEDGE WAS NOT ENOUGH TO SHOW FRAUD FOR CHARGE CLAIM, P LOSES (BUT DISSENT SAYS SMELLS OF FRAUD.) Mrs Kearns owed HBC $800 – agreed to secure loan by handing over duplicate CIT (so could then have a mortgage in favour of the Bay representing the balance). Solicitor took 15 months to do this however! In the interim, Kearns went to Rowling and promised property to him for $300. He gave her promissory note for a third and asked for the “deed” and all other documentation. She didn’t give it to him, but she did give him the transfer of title and he paid her managed to get registered as a charge holder (couldn’t do this today). HBC doesn’t want this charge! It was on title when HBCs interest was finally registered.

Vancouver City Savings v Serving for Success 2011 (BCSC)CCMH purchased and became RO of land with hotel on it. KKBL and D under unregistered leases of 4 years with option to renew on land. P advanced loans to CCMH, secured by registered mortgages on land. CCMH defaulted. P petitioned for order for foreclosure with vacant possession. KKBL and D claimed right to remain as tenants under their unregistered leases.TO PROVE EQUITABLE FRAUD, IT MUST BE ESTABLISHED THAT THE PARTY ACQUIRING A REGISTERED INTEREST IN LAND HAD SUFFICIENT ACTUAL KNOWLEDGE of conflicting interest in property to cause a RP to make inquiries as to terms and legal implications of prior instrument. There must also be some other circumstance to take the matter out of the ordinary course of business or to show some clear intention to use s.29 LTA to defeat unregistered owner’s interests in circumstances contrary to common morality such that it would be inequitable for the court to allow reliance upon the statute as protection.



Finding in favour of P. No evidence of fraud on the part of P. No objective test.

Greveling v Greveling, 1950 (BCCA)

Re Saville Row Properties Ltd, 1969 (BCSC)

In Personam ClaimsRegistration (and indefeasibility of title) does not give immunity for contractual (in personam) claims Example: B and A make K, A becomes RO, B alleges breach of K. Their K is not extinguished after A is registered so B can still

claim monetary damages from A but A keeps land. A cannot rely on their indefeasibility of title which they have obtained to defat rights in personam (contract) which they have

created, or subject to which the interest has been taken

Pacific Savings and Mortgage Corp v Can-Corp Developments, 1982 (BCCA)

McRae v McRae Estates, 1994 (CA)Family situation where Dad in will gives life estate to wife who is to hold property “in trust” for three children (John, Kathy, Farquar) until she passes – then will they get EIFS. Mrs Fraser then transfers it to Farquar trust notification is removed, Farquar gets an EIFS. When Fjr’s bro and sis learn terms of their dad’s will, they bring action claiming title be vested in them. TJ set aside transfer to son and returned property to executor of H to be disposed of according to law. A gets 1/3 of the land F Jr was given under the trust. If property reaches hands of someone who knows of the existence of trust, that person is bound by the terms of that trust –

H could not give all land to one son Whether you know or don’t know – doesn’t matter. It’s on the register, and it’s your obligation to read it You are deemed to have knowledge because it is registered – that’s the whole point of having a registration system!! It wasn’t hers to give – the wife was encumbered by John and Kathy’s future interest

Example: When B becomes RO of A’s land, any in personam claim (in this case, trust) A has against B is not extinguished by registration (where B is not a BFPFVWON). RO is good against world, except A!

Registration: Charges

Meaning of Registration s.197: registration requirements of charges: Form B (mortgage), Form C (other charges) s.180: recognition of trust estates (requirements for registration) Trusts can be noted on CIT by including the words “in trust” (trust endorsement) – owner of fee simple has “legal fee

simple”; beneficiaries of trust have equitable interest s.180(7): interests affecting the land cannot be registered if prohibited under the trust document or will (if will forbids a

mortgage, trustee cannot later register one as it would be directly in conflict with will/trust doc)

Dukart v Surrey (District), 1978 (SCC)Co developed land near Bay; between lots and Bay was “foreshore reserve” which lot owners were given right of access (easement) to; land was transferred from developer to transferee “in trust,” the easement was not registered as a charge. The Foreshore reserve was transferred again but taxes on it weren’t paid so Surrey took land in a tax sale and built ‘comfort station’ on it. Mrs A (lot owner) claimed it interfered with her easement and sued for injunction to have it removed. If a city acquires land in a tax sale it gets it free and clear of all charges except for any easement registered against the land A trust that creates an easement and is registered in accordance w/ provisions of LTA will survive a tax sale, despite

easement being registered as a trust and not a charge (s.180 LTA). Held: Mrs A wins, the easement exists.

Indefeasibility?Registration of a charge s.26(1):



RO of a charge is deemed (i.e. rebuttably presumed – does not give indefeasibility as with EIFS) to be entitled to the estate, interest or claim created or evidence by the instrument in respect of which the charge is registered (see Credit Foncier).

Charges are subject to s.23(2) exceptions. s.26(2): mere fact of registration says nothing about a charge’s validity: charge can still be void

Notice given by registration of a charge s.27: Registration in effect gives notice to world of your claim (party can’t claim they didn’t know about it!) s.27(2): making payments on a mortgage is not a dealing on land

Credit Foncier Franco-Canadien v Bennett, 1963 (BCCA)A mortgage was forged outright (no forged transfer) and registered against D’s property – mortgage then assigned to P. P (having checked mortgage was registered) sued D, on default, who was unaware of forged mortgage. D was always registered owner, never got the $ from the mortgage.Held: D not held liable for mortgage. Presumption rebutted: mortgage was a nullity by virtue of forgery and remained a nullity notwithstanding registration.Void from the onset due to forgery (non est factum) – if it was a transfer Credit Foncier would get it. Nemo dat applies: even though the mortgage is registered, it does not give P indefeasibility as D had no interest to give them

(due to null mortgage) s.26: RO of charge deemed to be entitled an estate or interest in respect which he is registered

o “deemed” only creates a rebuttable presumption of indefeasibility s.23 LTA: fee simple is conclusive evidence in law and equity

o “conclusive” creates irrebuttable presumption of indefeasibility Relates to Gill: s.25.1 immediate and deferred indefeasibility

Canadian Commercial Bank v Island Realty Investments, 1988 (BCCA)PME registered owner of land; mortgage is given to PME by Imperial Life, a 2nd mortgage from IR (all of these are valid). PME also approaches A to ask for 3rd mortgage but they refuse. PME forges a discharge of IR mortgage (this would only normally be produced by IR if PME paid them). After PME shows this to A, they decide to come on title. What is the effect of the forged discharge? Registration of forged discharge has no effect. But court held in this case, that A’s mortgage was a new mortgage and moves

up into second place in front of IR. Even though it was an invalid discharge, A was not aware or a party to forgery and got good 2nd mortgage/valid interest (mortgage itself was not forged) gets indefeasibility

Held: Courts pay out Imperial Life and A but not IR; matter over IR is sent back to trial – may get $ from AF. A 3rd party who acquires an interest bona fide for value from RO is not affected by a fraudulent discharge of another

interest. A mortgagee must be able to rely on the LT system.

Priorities

Priority of charges based on priority of registration s.28: If 2 or more charges are on register affecting same land, priority is given to charge registered first Date and time of registration always included on registrar when registration of charges is received

Failure to Register – Chapter 7

General PrincipleUnregistered Interest Does Not Pass Estate (Land Title Act s.20) “except as against the person making it” a transfer of interest does not pass until instrument is registered

o Unregistered interests are only valid between parties to the transaction – unless notice of unregistered interesto Does not apply to a lease of 3 years or less if actual occupation



o Unregistered interests in land in favour of bona fide purchasers for value takes precedence

Sorenson v Young (1920) BCSCILLUSTRATES S.20 APPLYING LITERALLY – DOES NOT INVOLVE APPLICATION OF “EXCEPT AS PERSON MAKING IT”P owns Lot 1 and Lot 2, P sells Lot 1 to R but reserves an easement (right of way) over it in the deed that is not registered. R sells Lot 1 to D who becomes registered owner without easement. D later doesn’t get along with P so he blocks him from his easement. Is D bound by the unregistered easement? NOPEP doesn’t get an easement as it was not registered properly on the deed (s.26) and P and D were not original parties to the transaction creating the easementIf R had blocked P, P would successfully be granted easement as R and P were parties to the transaction creating the easement (D is 3rd party).

Interest or Right Reserved to Transferor: s.181 was created after Sorenson v Young: if you have a deed in which an easement is reserved which is discovered at a later

stage then original IT is cancelled and interest is registered as a charge against new IT. If an owner has an easement and they sell the property it must be registered as a charge against the new owner.

Except As Against the Person Making ItThese words expressly make operative an unregistered instrument against the party making it.

JudgmentsExample: A owns Blackacre, A transfers FS or gives mortgage to B who doesn’t register. C registers judgment debt against A.

Yeulet v Matthews (1982)Mrs M held an equitable mortgage from her son (not registrable) by deposit of his duplicate CIT; after it’s created P registers a judgment against the son. If Mrs M held a registrable interest she would have priority but as her interest isn’t registrable, who is preferred?If an earlier, unregistered interest is found to be bona fide and validly executed, it is entitled priority over a registered interest. A judgment creditor cannot obtain any more rights than a judgment debtor. “A creditor can only attach that interest which exists in the execution debtor.”Registered judgment yields to unregistered instruments in land. Registration of judgment is lowest priority.Held: Mrs M’s prior unregistered interest (equitable mortgage) is preferred over P.

Court Order Enforcement Act, s.86When registered, a judgment is a lien and charge on land of judgment debtor(s) subject to rights of a purchaser, who, before its registered, acquires an interest in the land in good faith and for valuable consideration under an instrument not registered at time judgment is registeredExample: with gifts there is no valuable consideration so this won’t apply!!

Other Interests

Timber CasesA profit a prendre is both an interest in land and a contractual right. “Except as against the person making it” also applies to assignees. An assignee is in direct privity, and therefore can enforce the right as though he were the original grantee ( L&C Lumber, profit a prendre assigned and enforceable against new assignee, 1942, BCCA).

L&C Lumber v Lundgren (1942 BCCA)Lundgren sold profit a prendre (right of entry + timber) to M; M assigned his rights to L&C and gave notice to Lundgren; not registered. L&C move onto cut trees, Lundgren claims they’re trespassers. Profits a prendre (getting timber and right of entry) is another kind of unregistered interest in land which stands up against

subsequent purchasers. S.20 is applied to another kind of interest!



L&C are assignees (stepped into M’s shoes) acting as an immediate party to the action, and thus have same rights as original purchasers (M) – s. 20 exception applies: failure to register is not a defence when dealing with the 2 parties who created the interest in land.

Prohibited Transactions

International Paper Industries v Top Line Industries (1996 BCCA)TL is landlord and RO; IP leased land for more than 3 years, but was not registered. They developed poor relations and TL was desperate to have IP removed from lease. TL refused to renew lease on expiry. IP claimed it was a “renewable lease” and sought court enforcement. TL claimed lease was illegal in the first place as it contravened LTA s.73: No one shall subdivide land for purpose of leasing it/agreeing to lease it unless it complies with subdivision rules… They were trying to use the lease as an excuse to get out of their lease agreement Held: courts agree breach of s.73 renders lease void; IP were trespassers and had to vacate Wrong judgment in light of s.73.1!!!

LTA s.73.1 It is possible to subdivide a parcel of land and lease parts of it out (not sell); the lease in top line should have been enforced

according to BC Rail v Domtar If you are only dealing with a building lease, subdivision doesn’t matter Preserves s.20 except as against the person making it Reinstating s.20 by reason that lease/agreement doesn’t comply with subdivision requirements

Applications to Register – Chapter 8

There is often a lag between application to register and registration itself.Courts take the approach of treating application for registration as the same as a registration [provided application has met all the requirements needed to complete/qualify for the registration].

Priority of caveat or certificate of pending litigation s.31(a) if a caveat has been lodged or CPL registered and if their claim is subsequently established by a judgment or order or admitted by an instrument, they are entitled to claim priority over other applications made after the date of the lodging of the caveat or CPL (lets you “get in line” while you perfect your interest – either leads to a more substantial interest or expires.)Lis Pendens is always subject to the status of the title.

LTA s.288: Effect of Caveat

Peck v Sun Life Assurance Co (1904 BCCA)DOCTRINE OF LIS PENDENS DOES NOT APPLY TO PERSONS WHO HAVE ACQUIRED INTERESTS BEFORE COMMENCEMENT OF LITIGATION, SO AS TO AFFECT SUCH INTERESTS. IT DOES APPLY TO SUCH PERSONS IN RESPECT OF INTERESTS

Get off of Vera’s CAN or somewhere else

Rudland v Romilly (1958 BCCA)Rom is the RO, he transfers it to L who becomes RO; L sells land to Rud who applies to become RO; a few days later Rom files an LP as he wants to reclaim title and asserts L was fraudulent. Does Rud have an interest in land upon filing application prior to Rom’s LP?There was overlap between Rudland applying for registration/hasn’t received it before Rom applies for LP. Can this CPL trump Rudland’s application to register? NO. Application to register is as good as registration itself. Good faith for that to operate Delays due to the administration of LTO do not affect one’s right to title. How can delays in a busy LTO that has put your

app on hold be to your detriment? Date/time stamped. In absence of fraud, a clear right to registration (application to register) = register itself if:



1. Person claiming right is BFPFVWON2. Right has been acquired and registration applied for prior to LP filed3. Such a purchaser is not party to the litigation

Held in favour of Rud. Result of Rudland v Romily is subject of s.142 of Land Registry Act

Canada Permanent Mortgage Corp v BC (Registrar of Titles) (1966 BCSC Chambers)VO, FS RO, transferred interest to Vi by deed. Vi granted mortgage to P, part of $ was advanced by P to Vi. Vi applied to register transfer. P applied to register mortgage. VO filed lis pendens in respect of proceedings against Vi for recession of transfer. Registrar refused to register mortgage. P appealed. Cannot compel registration of Vi’s deed in face of lis pendens. P loaned money in good faith and for value. Once mortgage/value was given a number, reg should have been completed and petitioner really took no risk in making an advance. Nothing to indicate petitioner was aware of adverse claim until action was started, by which time mortgage in question had already been given a number. C: No order for Vi’s transfer to be registered. Direct registrar to register the P’s mortgage.

Breskvar v Wall (1971 Australia HC)B is RO on CIT. Transfer form from B to ____. W forged his name in the blank and became recipient on Oct 15 (not registered). W negotiated transfer with A and executed transfer to A on Nov 7. A applies to become RO on Jan 8. B learns of A’s application, realizes he was defrauded, applies to LTO to register a caveat on Dec 13. Should B or A become the RO? While B is an unregistered owner; statute preserves the equitable (not legal) rights of victims of fraud; B has an equitable

right against W (in his caveat) to ensure W does not benefit from fraud While A has not registered A also has an equitable interest as a BFPFV, which is given priority A is equity’s darling as a BFPFV and wins; B is the author of his own misfortune since B applied for the caveat after the

transfer form from W to A was executed

Summary: If a client acquires an interest with facts like Rudland – likely gets title free of LP This supports idea that you acquire rights before registration – somewhat at variance w/ s.20 There is a gap in time between receipt of application and final registration – this raises issue of registrations lodged in this

gap

s.153(1): it is the time of registration which becomes the basis for priority s.28 refers to priority based on the date and time of registration s.168 there is a possibility created under the statute for ‘queue jumping’ because LP and caveats which can get in the gap

and which despite the fact by time alone, they are farther down queue, they may get to jump ahead – however, case law shows this does not always happen

The Fee Simple – Chapter 9

Creation

Common LawInter Vivos Transfer/Disposition (Who is getting what?)At common law to create a fee simple it was necessary to use correct words (now changed by statute) “to A in fee simple” was construed as only creating a life estate “to A and his/her heirs” was construed as created a fee simple words of purchase = “to A” – who was transferee/acquirer? (even in a gift) words of limitation = “and her heirs” – what is nature of the estate? What kind of interest being given?

Transfers on Death In Absence of Will: CL regulates who your heirs are with assistance of statutory modification



In Presence of Will: Courts are more flexible and will look at intentions of testator // If words of limitation are used, courts will give effect to them; if they’re not used, but it’s clearly the testator’s intention, the courts still construe will as conferring fee simple on beneficiary

StatuteCL insistence on use of correct words of limitation created certainty but often created life estates where fee simples were intended so the legislation was passed to modify CL rules.

Words of Transfer (Property Law Act s.19)1. It is sufficient to state “in fee simple” without the words “and his/her heirs” to transfer an EIFS2. If words of limitation aren’t included in a transfer, the fee simple or the greatest interest in land is passed unless

expressly stated otherwise

Default = fee simple or greatest interest transferor has (not life estate) Recognizes that when an EIFS is transferred it may not be an EIFS absolute, but bundles of rights given to other parties or

with conditions or with reservations attached

Land Title Act s.186:186(4): A transfer of freehold estate in prescribed form and completed in prescribed manner, transfers it to transferee whether or not it contains express words of transfer186(5): If transfer does not contain express words of limitation default provision = fee simple186(6): If it contains express words of limitation, follow those words186(8): s.186(4)-(7) don’t transfer a greater interest than the transferor has

Wills Act s.24 If no contrary intention in will, if real property devised to person without words of limitation, the will passes to them in fee

simple or the whole of any estate the testator had power to dispose of by will. Do not need to use words “and his heirs” just “I give to Joan Blackacre”

Tottrup v Ottewell Estate (1969 SCC)WORDS OF LIMITATION NO LONGER NECESSARY TO CONVEY FEE SIMPLE OWNERSHIPFrank left his estate to his twin brother Fred. Frank had never had any children. Fred had a daughter. Frank dies – but Fred had already died (if you leave property to somebody who has predeceased you, they don’t get it, unless you make a special provision leaving it to their heirs). Frank had no other heirs, which meant this property would now devolve on the intestate heirs (common law are: descendants; then ascendants then collateral sin the same degree – brothers, sisters, and their children). There were several brothers and sisters and children of those brothers and sisters still alive. So that group of 10 people had to share the $253,000 that was in Frank’s estate. Fred’s daughter is dissatisfied – if Frank had died first, she would have gotten the whole thing. Furthermore, a significant amount of that estate actually came from Fred when he had died. Disposition given to Fred in Frank’s will (the second to die): I bequeath to my brother my estate, to hold onto him, his heirs absolute and forever. Result: property goes to all collaterals as Fred is dead and can’t receive the estate and phrase is just a word of limitation (not

a word of purchase) Words of limitation no longer necessary to convey fee simple ownership , but their inclusion should not infer different

meaning than intended (note: will was drawn up by lawyer) A will should always be interpreted first on the words used – if they are clear, subsequent circumstances cannot alter their

meaning Doctrine of lapse: you must be alive to take the gift. Lapsed gift goes into residue. Lapsed residue, will goes intestate.

Problems of Interpretation - RepugnancyRepugnancy: inconsistency of clauses in one or more document Often arise when grantor attaches a condition to the grant, which is inconsistent with the outright grant. “I give Blackacre to

George (fee simple) and when he dies, he must give it to Mary (life estate).” Racial covenants, restraints on marriage are against public policy and can be struck down



Gifts of Heirs: Wills Act s.25 Unless a contrary intention appears in the will, if property is devised or bequeathed to the heir or next of kin of the testator

or of another person, it takes effect as if it had been made to persons among whom and in the shares in which the estate of the testator or other person would have been divisible if the testator or other person had died intestate

Gift over: if A wants to give his EIFS to B but ensure that his kids get something too then he can write “gift over”

A gift over can fall into two classes: First gift of fee simple prevail and “gift over” fails as repugnant First gift of life estate prevails and the “gift over” prevails

Re Walker (1925 BCCA)Husband leaves his property to wife in will giving her an EIFS with qualification: “should any portion of estate remain undisposed and in hands of my wife when she dies, such a remainder will be divided as follows…” Widow also has her own will giving the land to her heirs upon her death. Wife’s heirs want will interpreted so that she gets EIFS Husband’s heirs want wife to have a life interest, so they can take gift (remainder interest) over on her death Held: testator (husband) gave the wife an EIFS and that his will cannot attempt to impose restrictions or conditions on this –

to do this he must have instead used a life estate Wife gets EIFS, the qualification is a repugnancy (an attempt to deal with the property remaining undisposed by the wife in a

manner repugnant to the gift to her) it is struck out as invalid

Re Shamas (1967 BCCA)THE RECIPIENT OF A LIFE INTEREST CAN ENJOY REVENUE DERIVED FROM THE CORPUS AND NO MORE UNLESS TESTATOR EXPRESSLY OR IMPLIEDLY INDICATES AN INTENTION THAT RECIPIENT HAVE POWER TO ENCROACH (in this case there was implied intention to encroach). Testator left his estate to his wife and 8 kids, but needed family business to keep running so wife could support kids. Will states that “everything goes to the wife until the last kid turns 21.” If wife remarries, she gets a share (same as kids). Wife works in the business under the assumption that everything is hers. Kids seek direction on what interests are theirs and what interests are the widow’s. Held: wife gets a life estate with ability to encroach, at her discretion, upon the capital of the estate to support herself and

the kids until they’re all 21 and if necessary, to continue to support herself until she dies – then the estate is divided amongst the kids

In construing wills, entire document and relevant surrounding circumstances are considered to determine interest intended to be granted.

In this case, the court looked at the fact the wife would need money to support herself and she had been running business when husband was alive, no reason why that shouldn’t continue

Cielein v Tressider (1987 CA)ANY RESTRAINTS OR CONDITIONS ON AN ABSOLUTE GIFT ARE VOID AS THEY ARE REPUGNANTMr E died; was survived by 5 kids of previous marriage; also was CL with Mrs R who had a son. He made a will leaving his land to Mrs R on a standard form used to convey EIFS but included a note: upon sale or disposal of property, proceeds were to be distributed between his 5 kids and her son. Is this a life estate?TJ: Will granted Mrs R a life estate and on her death proceeds were to be divided equally between his and her children.CA: Overturns TJ: testator clearly intended to give Mrs R not a life interest but an absolute interest; any restraints or conditions on an absolute gift are void as they are repugnant to the absolute character of the estate // E’s kids don’t get anything.

Words Formerly Creating a Fee Tail

The Common LawFee Tails: wanted to limit those who could inherit to direct descendants, as opposed to fee simple where anyone can inherit.



Property Law Act s.10 abolishes fee tails: attempt to create fee tail is automatically converted to a fee simple Restraints on alienation are void as a matter of policy

TECHNICAL WORDS OF LIMITATION Inter vivos transfer: “to A and the heirs of his/her body” Absence of these words “and the heirs of his/her body” created life estate (so only “to A” would create LE)

INFORMAL WORDS OF LIMITATION In cases of wills or equitable interests, courts would give effect to the intention of testator or person creating trust “to A and his/her issue” “to A and his/her offspring” “to A and his/her seed” Remember: “to A and his/her heirs” = fee simple What happens if its not clear what the intention is? – could be interpreted in two ways:

o If words of limitation, then it creates fee tail = fee simpleo If words of purchase, and A has heirs, all would own fee simple in co-ownership

The Rule in Wild’s Case Rule of construction, not rule of law – if there is anything to suggest otherwise, the otherwise would apply Only applies in wills, not inter vivos transfers

Wild’s Case (1599)Testator wanted to leave estate “to Roland and his wife and after their decease to their children”; Testator died, then Roland, wife and son died, leaving daughter. Is this a life estate or a fee tail? Did “after their decease to their children” constitute words of limitation?

Wild’s Rule of Construction: applies only to wills (not inter vivos grants) to determine who the recipient of an interest is if the will states “to A and his/her children”:

o If A had kids at the time the testator executed his will, then A and kids get a joint life estateo If A did not have kids at the time the testator executed his will, then assume they are words of limitation and A

gets a fee tail (= fee simple now) At CL was that if it was unclear you would point to a life estate, now you point to fee simple If you think this rule of construction should not operate, you have to explain why – statute, intention, etc.

THE RULE IN SHELLEY’S CASE Was an absolute rule // not the case today Today – rule of construction (if you made it clear in some other that these words of purchase) // courts would look to

intention, if they can’t find intention, rule in Shelley’s case would still apply strictly Only applies in wills, not inter vivos transfers

“to A for life, remainder to his/her heirs”o Looks like a life estate:

Words of purchase: “to A” Words of limitation: “for life”

o “remainder to his/her heirs” – words of purchase or limitation? “to A and his heirs” = fee simple so “his heirs = words of limitation”

Rule in Shelley’s case: “remainder to her heirs” = words of limitation // A gets fee simple

The Life Estate – Chapter 10

Creation



By Act of the Parties

Not inheritable: as it doesn’t include “fee” Duration uncertain: limited to lifetime of person (either LE holder or other (pur autre vie)) Remainder: future interest arising in a third person. Example: A transfers “to B for life, and on his death to C in fee simple” –

C gets ‘remainder’ interest Must be expressly stated “to A for life/life of B”: otherwise PLA s.19(2) and Wills Act s.24 presume that transferor or

testator is disposing of the greatest estate they own (fee simple)

By Statute CL doctrines of dower or courtesy were replaced by formal statutes Now a spouse only automatically acquires rights of success if spouse dies without willEstate Administration Act s.96 If your spouse dies intestate and surviving spouse is not on title, they get a life estate in spousal home and all “household

furnishings”Wills Variation Act Courts have created life estates in resolving a contested willLand (Spouse Protection) Act Spouse can file entry in LTO against a “homestead” // Any disposition made of the property without their consent is void //

On death of spouse, filing spouse gets LE in property

CIT: Life estate appears in charge section because only fee simple can be in RO section

Rights of a Life TenantOCCUPATION, USE AND PROFITS: Entitled to occupy and use the property to retain any profits arising from its exploitation Possessory, freehold interest (like fee simple) actual possession & management of property Right to remove fixtures during lifetime of LE holder or on death of LE holder. Chattels fixed to land (that have become

fixtures) can be removed by LE holder.

TRANSFER INTEREST INTER VIVOS Can sell a life estate (transfer inter vivos), but still tied to person X’s life as dictated by LE

TRANSFER ON DEATH If LE is tied to another person’s life (pur autre vie), if LE holder dies and other person is still alive, you can grant the interest

by will; the heirs can only enjoy it for the duration of the measuring life though.

Reversionary Interest: If you give life estate to a person, and there is no remainder interest (so it reverts to grantor) the grantor has a reversionary

interest Reference to a future interest that the grantor has in the property; but the grantor can give it to another

Obligations of a Life Tenant to those Entitled in Reversion or RemainderReturn in Same Condition: the Life Tenant’s obligations are based on the principle that the property should return to the fee simple owner in substantially the same condition as it was received by the life tenant. You can’t put too much limitation because then you’re impeding There is a balance to be struck between maximizing freedom of life tenant but limiting it so it doesn’t seriously affect

remainder person

Waste



After term of LE, property should be given to the remainder in substantially the same condition as when they were granted LE. The life tenant is a “steward” of the land.

Permissive waste: (LT Not Liable) Neglect which permits decay, like allowing building to deteriorate. LT not responsible for repairs and maintenance unless terms of K says otherwise.

Voluntary waste: (LT Liable) LT is responsible for commission or act that diminishes value of asset (permanently damages land) // 4 categories: (a) removing timber (b) removing minerals (c) demolishing buildings (d) changing land use, ex: from

agricultural to residential May be required to pay damages to those entitled in reversion or remainder or restrained by an injunction from

committing acts of waste “without impeachment for waste” – signifies that she is not liable for permissive waste or for voluntary waste

Equitable waste: (Liable) Creator of LE may want to help life tenant by saying he won’t be liable for any waste, by expressly permitting LT to

commit voluntary waste; “given to life tenant without impeachable for waste” But even so, equity may still restrain LT from making unconscionable use of the apparent legal right to commit waste at

will – where you spitefully knock the hell out of the property to the detriment of the remainderment (Vane v Lord Barnard)

Law and Equity Act s.11: estate for life without impeachment of waste doesn’t give LT a legal right to commit equitable waste unless the instrument infers intention to do so

Ameliorating waste: (Not responsible – unless burden is created) LT may be responsible for improvements/changes to character of property if changes made:

a. Increases burden on remainder LT responsible (Ex: add maintenance cost)b. Improves land: damages and injunction usually not awarded

Vane v Lord Barnard (1716) – Equitable WasteD gave himself a castle under LE without impeachment of waste – ultimately his son was to get property – got upset with his son and stripped the castle.An LE without impeachment for waste does not give tenant right to commit equitable waste.Law and Equity Act s.11: Estate for life without impeachment for waste does not give tenant right to commit equitable waste – this statutory provision resulted from this case.

Liability for Taxes, Insurance Etc. LT pays the taxes, and therefore entitled to Home Owner Grant Costs should go to the person living in the premises No obligation to insure the property against losses (Verdonk) No duty to repair the estate (as LT is not responsible for permissive waste) Responsible for current interest on a mortgage debt – if you pay some of the principle, you may have a claim to get it back Strata bylaws: LE holder qualifies as owner. Some strata buildings prohibit renters to get around this

Mayo v Leitovski (1928)LT HAS OBLIGATION TO PAY PROPERTY TAXES; THEY OWE A TRUST-LIKE DUTY TO REMAINDEROld woman was granted LE on property owned by her son (he gave her LE and retained a reversionary interest). Son transferred his reversionary interest to Leitovski (that was the remainder person, and paid for it). Mayo (Mom) did not pay taxes so it went up for tax sale – daughter bought property in tax sale and tried to assign title to her mother, thereby getting around LE.When you buy on a tax sale, you buy an EIFS. Tax sale has the effect of wiping out Mrs Mayo’s LE, and the remainder. It then presents an EIFS (by virtue of statute) and title would go to the daughter. Then they transferred EIFS to Mrs. Mayo by way of gift. LT has obligation to pay property taxes; they owe a trust-like duty to remainder. An LE holder cannot use a tax sale to circumvent a life estate. Couldn’t profit by engaging in a process that got rid of the remainder’s interest. Neither LT, nor anyone claiming under him, who allows property to be sold for taxes, can acquire title. In general, LT can do nothing to impair remainder and remainder holder can do nothing to affect LE.



Future Interests – Chapter 12

Where the right to possession is postponed until a future time. A future interest is a possessory interest which will or may be obtained at a future time. Note that the law assumes the reversion and remainder persons have presently existing interests.

Purpose of future interests: to widen the range/ability to identify interests in property law.a) Legal interests

Recognized by CL courtsb) Equitable interests

Not recognized by CL courts by recognized by the court of ChanceryNote that on death: always have a trustee -> movement of legal title of property to executor/trustee

Nature of Future InterestsAn interest where possession will, or may, be obtained at a future time.

When title to an interest in land is carved up into smaller interests, one or more people invariably have the immediate right to possession while others may only have a future right.

“will”: To A for life, then to B “may”: To A for life, then to B if she graduates with a JD.

o Note: if B predeceases A, then it would go to B’s estate in both cases

Reversions and Remainders are examples of future interests: Reversion: A grants to X for life. When X dies, A gets the reversion. Remainder: A grants to X for life, then to C. C receives the remainder.

Vested interests: interest which WILL be granted [to a certain person upon a triggering event]. There are two types of vested interests:

Vested in possession: grants an immediate entitlement to possession Vested in interest: when the owner has an unqualified right to take possession as soon as the preceding estate (or

estates) becomes vacant (i.e. an unqualified and immediate transfer of interest)

Common Law Future InterestsDeterminable Fee:

The grant of the fee contains words of limitation based on an event: i.e. A grants Blackacre to B for life, then to C The event “determines” the duration of the estate There is certainty as to the event [death] and the vested interest [C] Met the common law requirement that land always had to be seised: someone had to be in possession Generally, determinable fees don't create problems, because the vesting is certain

Conditional Fee: The entire fee is granted to the transferee, but it is made defeasible [that is, will end] if a specified event occurs Example: X grants Blackacre to A, unless A begins to smoke. If A begins to smoke, the X can re-enter Blackacre Common law held that while the grantor had a right of re-entry, this right need not be exercised A conditional fee creates a contingent future interest: no vesting in the remainder person at this time. We don’t know if

A will smoke, so we don’t know for sure that Blackacre will vest in X (the remainder) Conditional fees create problems because the vesting is unknown

Common Law remainder Rule: No remainders can exist after a fee simple transfer.

Vested Interests



If an unqualified and immediate transfer of an interest is made to A, A is vested ‘in interest’ and A is also vested ‘in possession.’ Vested when no condition or limitation stands in the way of enjoyment.If a transfer is made to B for life, remainder to A in FS, A is vested in interest, but not vested in possession – B is vested in interest and possession.

An interest can be vested in interest or in possession and interest.There are three options:

1) may be vested absolutely, that is it can never be lost to the holder of the estate; 2) it may be vested, subject to divesting [if condition is resolved, then the interest goes to someone else]; 3) it may be vested, without there being any prior estate, but with a provision which purports to keep the holder of the

estate out of possession. May look like it’s not because of a condition attached, but law attempts to favour early vesting -> differentiates

between interest an the enjoyment of that interest Illustrated in Re Squire

Defeasible and interminable interestsDEFEASIBLE INTEREST: An interest is defeasible if it may be brought to a premature end on the occurrence of a specified event. Language such as “on condition that,” “but if,” “provided that,” “if it happens that” denotes a condition subsequent which indicates a defeasible interest.“To A in FS, on the condition that if the property shall no longer be needed for school purposes, my estate may re-enter.”A gets a defeasible interest (in this case a fee simple defeasible upon a condition subsequent). Descendant’s estate retains a right of entry, which may be exercised if the event comes to pass.

DETERMINABLE INTEREST: A determinable interest often connoted by “while”, “during”, “so long as” and “until.” Words of duration.“To A in FS, until the land is no longer required for school purposes.”A gets a present possessory right. Should the determining event occur, the fee will end and the property will pass to the grantor (or their estate). The interest that is retained is called a possibility of reverter.

Contingent InterestsAn interest is contingent (non-vested in interest), when it is dependent on occurrence of some event which may/may not occur – subject to a condition precedent which must be satisfied before it can become a vested interest.AN INTEREST WILL REMAIN CONTINGENT UNTIL: (1) property is identified; (2) identity of grantee/devisee is established; (3) right to interest does not depend on occurrence of some event (doesn’t matter if right to possession does); and (4) in case of a class gift, exact share of each member of class is ascertained.‘When’/’upon’ instead of ‘if’ do not establish condition precedent. Property will be held to be vested unless a condition precedent is expressed with reasonable clearness. (Re Squire)

Condition Precedent: you have to meet the condition to even get the propertyCondition Subsequent: you get the property, but if the condition is met in the future, you’re out

Ex: To A and B for their lives and then to the survivor of them in fee simple = A and B have a joint LE, vested in interest and possession. While they are both alive, they also have a contingent interest in the remainder in FS.

Ex: To A for life and then to C in FS if C marries D. A has a LE vested in interest and possession. C has a contingent interest, non-vested in interest, if C marries D.If C does marry D, his former contingent interest becomes a vested interest, vested in interest. Upon termination of A’s life estate, C’s interest becomes an FS interest vested in possession.

To A for life and then to B in FS if, and only if, B attains the age of 19 years. = A has a LE vested in interest and possession.B has a contingent interest, non-vested in interest until he reaches 19. Upon B turning 19, B’s interest becomes vested in interest, which at the termination of A’s LE would become vested in possession.



In the case of ambiguity as between a contingent interest and a vested interest, courts prefer construction which leads to the conclusion that an interest is vested [i.e. prefer early vesting].

Condition Precedent – “if”“To A in fee simple if at the end of my death, A is not married to B” – putting conditions on disposition

“to A” - words of purchase “in fee simple” – words of limitation “if at the end of my death, A is not married to B” – condition precedent

Condition Subsequent – “but if”“To A in fee simple, but if A marries B, to C in fee simple”

“to A” – words of purchase “in fee simple” – words of limitation -> “fee simple defeasible” on a condition subsequent “but if A marries B” – condition subsequent “to C” – words of purchase – BUT the interest C gets is a future interest called right of entry

So two people who have interest in the land – C can sell his interest (if anyone would buy it) “in fee simple” – words of limitation implied are: “right of entry on a fee simple” future interest

Two things must happen for C to get her interest: (1) A must marry B – so the condition must be met (2) C must exercise a right of entry (i.e. tell A to get out)

Determinable Fee Simple – “until” / “when” / “as long as”“to A in fee simple until A marries B” (grantor = T)

“to A” – words of purchase “in fee simple” – words of limitation “until A marries B” – A is getting a determinable fee simple

If A in fact does marry B, the person who gets the property is T or T’s heirs T, then has a future interest called possibility of reverter

“to A in fee simple until A marries B, then to C” (C is specifically mentioned) – C gets right of entry “to A in fee simple until A marries B” (no one specifically mentioned) – T gets possibility of reverter

Right of entry: C has to do something to get the property after condition subsequent is met (within limitation period) – i.e. tell A to get out // Possibility of reverter: it automatically terminates so don’t have to take action (unless A won’t move, in which case you take them to court) – rules around statute of limitations don’t apply

CONDITIONS LIMITATIONSCondition precedent: you have to meet the condition to get the property“if” -> subject to condition precedent

Determinable FS: “to A in FS until A marries B”If A marries B, then X/X’s heirs get the possibility of reverter

Condition subsequent: you get the property, but you lose it, if the condition is met“but if” -> defeasible upon a condition subsequent(also subject to divestment)Words: if, subject to, on condition that, but if Words: until, when, as long asCondition subsequent RIGHT OF ENTRY Limitation Possibility of Reverter

Browne v Moody (1936) PCVESTED LIFE ESTATE SUBJECT TO DIVESTING (ON DEATH) TO VESTED INTERESTS OF CHILDRENGIFT OF THE REMAINDER WILL BE TREATED AS VESTED IF (A) IT IS POSTPONED IN THE WILL SOLELY FOR THE CONVENIENCE OF THE TESTATOR’S ESTATE OR (B) IT IS POSTPONED BY THE CREATION OF SOME PRIOR INTEREST, SUCH AS A LIFE ESTATE



Watt is the trustee in estate of the testatrix (Browne who is dead) and manages the fund. LE has been given to her son, William Browne. Remainder interest: half to William’s daughter Enid and the other half split three ways between her daughters: Flo, Constance, Helen. “In the event Enid Browne, or any said daughters predeceasing me, child should take the interest of their mother if she had survived.” At the time testatrix died, son took vested interest (LE) BUT did Enid and other daughters take a vested remainder interest?PC held that this was an immediate gift.

Have to make a distinction between vesting of interest and postponement of the distribution v postponement of the actual vesting of the interest.

Property identified, identities of grantee identified, right to interest doesn’t depend on some event (right to possession does but that is okay)

Jarman on Wills: “Even though there be no other gift than in the direction to pay or distribute in the future; yet if such payment or

distribution appear to be postponed for the convenience of the fund or property, the vesting will not be deferred until the period in question. Thus, where a sum of stock is bequeathed to A for life; and after his decease, to trustees, upon trust to sell and pay and divide the proceeds to and between C and D, or pay certain legacies thereout to C and D; as the payment or distribution is evidently deferred until the decease of A for the purpose of giving precedence to his life interest, the ulterior legatees take a vested interest at the decease of the testator…”

CONTINGENT REMAINDER: dependent on an event that may never occur

VESTED IMMEDIATE REMAINDER: the enjoyment is postponed; vested means it can never be lostRULE IN BROWNE V MOODY:A gift of remainder is treated as vested IF:

a) It is postponed in will solely for the convenience of the T’s estateb) It is postponed by the creation of some prior interest, such as a LE.

Phipps v Ackers (1842)LAW FAVOURS EARLY VESTINGIf enjoyment is postponed, law will prefer to say that interest is vested w/ only enjoyment postponed. When there is a gift to a person when/if a specified event occurs, with a gift over if event does not occur: on application of the rule, interest of donee may be treated as vested subject to divesting.

Festing v Allen (1843)Land devised to trustee to hold for Mrs. F for life, and on her death for her children “who shall attain the age of 21 years” with a gift over “for want of any such issue”. Children took no interest on Mrs F’s death as they had not reached 21 years.Contingent interest no gift to anyone who does not answer whole of requisite description. Example of court not favouring early vesting. Interest was contingent, so there was not really an organization of the estate of trying to take care of the people. Wasn’t like Mrs. Browne -> the key thing was actually meeting the qualification of 21.

Re Squire (1962)EARLY VESTING APPLIES. PROPERTY WILL BE HELD TO BE VESTED UNLESS A CONDITION PRECEDENT IS EXPRESSED WITH REASONABLE CLEARNESS.Two legacies of a trust to grandsons Arthur and Teddy. Gives each a piece of real estate. “I give, devise and bequeath all the rest, residue and remainder … unto my trustees upon the following trusts…” Property is to be held in trust until they are 30 (legal title to trustees) and then give them everything. Rental income should be invested until grandsons are 30, and proceeds given to them when they turn 30. BUT if go to higher education at 18, then his needs should be paid for out of proceeds. If $ runs out, then property should be sold and proceeds paid to him for school. Is this contingency affecting the interest that Teddy is getting, or does Teddy hold equitable title in this property as soon as grandpa dies, but he is only entitled to enjoy when he turns 30? Did grandsons become entitled to conveyance of property upon attaining 21 years?

Rule in Saunders (Trust Law): Regardless of age set by grantor/testator -> entitled to exercise all the rights of ownership at the age of majority (19 in BC). Thus question is: Is it vested or not? (Saunders only applies if vested).



Courts prefer early vesting! Will look to find it Here, since they have access to the funds earlier than age of requirement (for school) – interests are vested! NOTE: there was also the absence of a gift over. In the case the primary recipient is unavailable, unable or unwilling to

accept a bequest, an arrangement nominates a secondary recipient Where there has been a suspension of the enjoyment, the court says that if there has been a contingency which

suspends enjoyment of property that is already vested in you, and it’s done on the basis of an age contingency, you can call for the trust (i.e. you can call for legal title to the property when you become a legal major)

Property will be held to be vested unless a condition precedent to vesting is expressed with reasonable clearness . ‘When’/’upon’ instead of ‘if’ do not establish condition precedent. Where interim interest is given, presumed that testator meant immediate gift. Presumption fails when T has expressly declared that legacy is to go over, in case of death of legatee, before a particular period. CAN IGNORE 30-YEAR AGE CONTINGENCY. GIFT VESTED UPON T’S DEATH.If T gives property to A absolutely, but directs his trustees to retain possession and accumulate income for a certain number of years and then transfer property and accumulations to A, trust for accumulation is worthless, and A is entitled to have property transferred to him at once – if gift is contingent and defeasible, or if any other person may, by possibility, be interested in trust, this principle does not apply.

Vesting of Future InterestsFuture interest either has to be vested now, or if its not vested now, it must vest within a certain period of time, set at “lives in being + 21 years”

If it is vested now, don’t have a perpetuity problem // If it is not vested, you have a perpetuity problem and you have to refer to Perpetuity Act // If C was not alive when that interest was given to A, then C’s interest is only an interest in land if C can get a vested interest within that perpetuity period (lives in being + 21 years) // Note: the perpetuity is around the issue of remoteness of vesting, not the future interest itself

Ex: if C is X’s great-great-great-great-great grandson, C is not alive at the time this gift is given, so C does not have a vested interest because you have to be around to be fully clothed. So this future interest is a non-vested future interest (it’s a hope) – you can’t get hope to get a great-great-great-great-great grandson in lives in being + 21 years – there’s no way it would meet time restriction, so that comes to an end and A gets a fee simple absolute.

The issue around remoteness of vesting afflicts B, afflicts right of entry, afflicts estate in fee simple subject to condition subsequent, it does not afflict determinable fees: “to A in fee simple until A marries B” – the possibility of reverter was not subject to perpetuities (it is not because of legislation)

Future interests are registered as charges reflecting right of entry / possibility of reverter / remainders

Future interests: fee simple // Fee simple defeasible/conditional – on a condition subsequent // Fee simple determinable – possibility of reverter // Remainders // Reversions // Fee simple condition subsequent

A gift to a person ‘at’, ‘if’, ‘as soon as’, ‘when’ or ‘provided’, he attains a certain age, w/o further context to govern meaning, is contingent and vests ONLY on attainment of required age.

Re Carlson (1975)WILLS SHOULD BE CONSTRUED TO GIVE EFFECT TO INTENTION OF TMr Carlson died, surviving him was his wife, Paul (son), Janice (daughter), Chris (son).

Disinherited wife (not an issue here) Will organized to prefer a particular beneficiary while he was in a situation of minority Eldest son (wash out) gets nothing but later on 10% of residue (only to pay debts) Chris gets jackpot: “I give this property to my testator to hold the residue of my estate in trust for the education,

maintenance and advancement of my son, Christopher, and to use such portion of income and/or capital for said education, maintenance and advancement of my son …



o Upon my son turning 21, divide 90% of the then residue into two equal parts and pay one share to Chris and one share to Janice for their use absolutely; to stand possessed of the remaining 10% of the residue of estate to use to cover debts of P. Leave $1 to wife.”

Do these gifts vest immediately (upon death of T) or do they vest when Chris turns 21?Analysis:

“upon” is important because it is a condition on the then residue (in the future) Suggestion was that Mr Carlson was leaving a future interest

Even though law prefers early vesting, cannot go against a clear purpose (which was to provide for C’s education) A gift to a person ‘at’, ‘if’, ‘as soon as’, ‘when’ or ‘provided’, he attains a certain age, w/o further context to govern

meaning, is contingent and vests ONLY on attainment of required age. Word ‘upon’ here = contingent – T’s intention was to take care of C

Can’t use Saunders (because contingency was all about enjoyment) -> this is about taking care of son, which was testator’s intention.

Why do the Courts favour early vesting?Coke CJ: "the law always delights in the vesting of estates, and contingencies are odious in the law, and are the causes of troubles, and vesting and settling of estates, the cause of repose and certainty." Construing interest as vested insulates interest against rules that may vitiate contingent interests (including rule against

perpetuities which applies only to contingent interests) early vesting allows for the early distribution of a deceased's estate into the hands of the ultimate beneficiaries preference for vesting promotes free alienation of property (when interpretation removes ostensible contingencies) - leaves

the property unfettered

Types of Common Law Future Interests1. Reversion2. Right of Entry3. Possibly of Reverter4. Remainder

First three rests in the hands of the grantor. CL eventually recognized remainders.Problem for the CL was primarily an issue of seisin (possession/control – not necessarily occupation). Contingent remainders were problematic because what would happen with seisin? Not averse to having remainders.

ReversionsInterest that remains with a transferor who has not exhausted the whole of the interest by a transfer

Status quo: rests in the grantor Right to possession (if didn’t give all rights that he or she had) Reversion is the first future interest Rights of succession mean reversion goes to heirs

Ex: A (owner in FS) transfers Blackacre to “B for life” then B gets a freehold interest [vested life estate] (able to take possession and occupation of Blackacre). A is no longer in possession but A has a future interest in land (he gets to enjoy the possession of Blackacre at some

point in the future, when B dies). A has an immediately vested future interest and it’s called a reversion. A can dispose of the reversion (by gift, sale or will) and interest of the recipient is still called a “reversion”

Rights of Entry and Possibilities of Reverter

RIGHT OF ENTRY:An interest is given to B but there is a condition attached that has the effect of divesting the interest from B - > so the grantor has a right of entry.



Arises in transferor when he conveys an apparent absolute EIFS but adds a condition subsequent which will divest interest of transferee in favour of transferor and his heirs (or a third party).

A (an owner in FS) transfers Blackacre “to B in fee simple, but if B marries C, then Blackacre will be returned to A and his heirs.” Here B gets LE subject to condition subsequent A only gets property if B marries C.

The condition subsequent is a resolutive condition, which divests it from B, if B marries C. Means that what B is getting a fee simple, but it is a fee simple defeasible upon a condition subsequent. What A gets is not a reversion, but a right of entry. It is a future interest in which there is a hope that he will be able to utilize it (only in the circumstance that B marries C).

Right of entry rises in a transferor when he conveys an apparent absolute interest (EIFS) but adds a condition subsequent which will divest the interest of the transferee in favour of the transferor and his heirs

-> “fee simple absolute, defeasible upon a condition subsequent” May arise after any estate Key words: “but if”

“right of entry” derives from the fact that if condition is broken, A or his successors in title, has the right to enter on the land and resume possession

an action can also be brought to recover possession if neither of these occurs, B continues to enjoy Blackacre notwithstanding the condition has been broken action has to be brought within 6 years of condition being broken, or is statute barred (Limitation Act s.3(6)(f))

POSSIBILITY OF REVERTER: Instead of creating an absolute interest, subject to a right of entry, a transferor may create a determinable interest Arises when transferor creates a determinable FS

To A in FS until she is called to the Bar of Province of BCTo B for life until he is called to the Bar of Province of BC

Words in italics are (along with FS) words of limitation of the estate A is said to have a determinable fee simple B is said to have a determinable life estate Their interests are not absolute, to be divested by a right of entry, but are by their very words of limitation of a limited

duration from the outset A possibility in reverter arises only when transferor creates a determinable fee simple (i.e. not when it’s a determinable LE)

A (an owner in fee simple) transfers Blackacre “to B in fee simple until B marries C” If and when B marries C, B’s interest comes to an end and automatically reverts to A A’s interest is known as possibility of reverter A has to bring action to recover possession unless B voluntarily gives land up When 6 years have elapsed after the condition has been broken, an action to recover possession is statute barred

(Limitation Act s 3(6)(f)) Cannot go to a third party

Not a condition but rather property interest that is determinable after certain identifiable events Key words: “until, upon as”

Unlike “right of entry”, the interest reverts immediately (although the right to bring an action expires after 6 years – Limitation Act s.3(6)(f))

Consequences of distinction between Rights of Entry and Possibility of Reverter: Same limitation period applies to both Rule against perpetuities applies to bothBUT



At common law, both a right of entry and a possibility of reverter could only arise in favour of the transferor FIND OUT MORE ABOUT THIS FROM PAVLICH!!!!

Property Law Act s 8 – Disposition of Interests and Rights(2) a ROE affecting land, exercisable on breach of condition of for any other reason may be made exercisable by a third party or someone claiming under a third party.(3) The exercise of ROE under subsection (2) is subject to the Limitation Act

RemainderTo A for life, then to B in fee simple. Interest conveyed to B is a remainder. Instead of reverting to the grantor on the death of A, the property moves to B to be enjoyed in possession when the prior particular life estate given to A has ended.

Common Law Remainder Rules:Remainder is a future interest where possession is postponed until some prior freehold estate expires and which does not operate so as to prematurely determine the prior estate.Future interest in a third person.Generally CL didn’t like remainder interest going to a third party and didn’t want gaps in seisin. Practically caused problems: attempts to control future dispositions as well as potential gaps in seisin All of these CL Remainder Rules could be circumvented by creating EQUITABLE FUTURE INTERESTS.

1. A remainder must be supported by a prior estate of freehold created by the same instrument as the remaindera. Blackacre to B and his heirs if B turns 21 (bad because property in limbo until 21. No preceding estate of

freehold to support contingent interest. At CL a “springing interest” can’t be created.)b. Blackacre to B for two years and then to C and her heirs if C reaches 21 (here, C gets nothing because the prior

estate is a leasehold) this rule is based on the idea that you can’t have a gap in seisin

2. A remainder must be limited so as to be capable of vesting, if it vests at all, at the latest at the moment of termination of the prior estate of freehold

a. Blackacre to B for life remainder to the first child of B to reach 21, provided that the child reaches 21 during B’s lifetime.

Now you have defined it as it must vest in child, by the time of B’s death. this rule is based on the idea that you can’t have a gap in seisin okay to have contingent interest but must ensure you do nothing to prevent the creation of a future interest

which might vest outside the termination of the prior estate of freeholdb. Blackacre to B for life, remainder to the first child of B to reach 21.

deals with gap in seisin3. LIFE ESTATES: The remainder is void ab initio if it takes effect in possession by prematurely defeating the prior estate

of freehold (i.e. gives a ROE to third parties)a. due to Property Law Act s 8(2) this rule does not operate at all anymore

4. FEE SIMPLE: A remainder after a fee simple is void. (This includes both POR and ROE).a. due to Property Law Act s 8(2), this rule does not apply to ROEb. therefore, a POR after a fee simple is void

Destructibility of Contingent RemaindersRemainder may be destroyed after it has come into existence because person entitled to it is not qualified to take possession of property on termination of prior estate of freehold.

Natural Termination If person entitled to remainder cannot take possession at time that prior estate of freehold terminates, then there is a gap in

seisin and remainder is thereby destroyed – title goes back to grantor.

Could avoid gap in seisin and destruction of contingent remainders through: Executory Future Interest



Can be created expressly by vesting legal title in trustees and creating the equitable interests behind that legal title By vesting title in trustee, you wouldn’t get a gap in seisin (A with LE dies before B is 21, trustee waits to see if B meets

contingency, no gap in seisin because title is with trustee. B gets equitable interest.) If case law is to be followed (Re Robson) then all wills are treated as equitable future interests

Re Robson 1916ALL INTERESTS CREATED BY WILL ARE TO BE TREATED AS EQUITABLE. FUTURE INTERESTS UNDER TRUSTS = EQUITABLE REMAINDERS. NOT NECESSARY TO CREATE TRUST TO PROTECT AGAINST NATURAL DESTRUCTION BECAUSE TRANSMISSION AUTOMATICALLY GOES TO PERSONAL REPRESENTATIVE.Testator gave life estate to daughter Helen and “upon her death, to the use of such of her children, as shall attain the age of 21 years” -> Helen dies with 4 kids. Two have reached the age of contingency, two haven’t met contingency. Are the two kids under the age of 21 out of luck? Under the remainder rules, they are. Remainder Rule #2 violated and gap of natural destruction kills their contingencies, due to being a CL remainder. HOWEVER because it was a will, there was a personal representative in place. Automatic transfer to personal representative (transmission) occurs when T dies. That representative holds title for the benefit of the legatees that the testator has named. All future interests are under a trust. Contingency in a trust is never a problem (for having a gap in seisin) because legal title is always held by someone. Court considered WESA s.162. No gap in seisin because legal title is with personal representative. Two older children are not entitled to land to exclusion of infants.

Equitable Future InterestsEquitable future interests allow one to get around the common law remainder rules. Created in express or protective trusts.

Governing RulesYou can break with impunity all rules that constrain creation and operation of future interests at CL.

Creation of Equitable InterestsNormally have to be expressly created by vesting legal title in trustees and creating equitable interests behind that legal title. BUT Re Robson: all interests created by will are to be treated as equitable. Creating a trust allows circumvention of CL future interest rules – trust continues w/ endless stream of trustees holding legal title. No gap in seisin or shifting interest.

WESA s 162 – Devolution and Administration of Land(1) Unless there is a right to land by survivorship, on death of owner land is vested in personal rep of deceased – legal title transmits to personal reps (trustees)(2) Subject to this Act:

a) A personal rep to whom land devolves holds the land as a trustee for the person beneficially entitled to it.b) A person beneficially entitled to the land has the same power as a person beneficially entitled to personal property to require a transfer from the personal rep.

Attributes of Future Interests

Protection of the LandOwners of future interests will want to make sure value of land is not diminished by current possessor. Apply doctrine of equitable waste (when actually getting the property)In case of equitable interests, right of owner of future interest is generally against trustee, who if not protecting land is probably in breach of trust.

Alienability of Future InterestsFuture interests are alienable and are therefore property!At CL, some types of future interests could be disposed of inter vivos and others could not. On death all types of future interests devolved on intestacy and what could be disposed of by will depended to a large extent on interpretation of various Wills Acts.

Property Law Act s 8 – Disposition of Interests and Rights



Following interests can be disposed of: (a) contingent, executor or future interest in land or possibility coupled with interest in land; (b) right of entry on land, immediate or future, vested or contingent.

WESA s 1 – DefinitionsEstate: property of deceased personPersonal Property: every kind of property other than landProperty: land and personal property

WESA s 41 – Property that can be gifted by willA person may, by will, make a gift of property to which he/she is entitled at law or in equity at time of death, including property acquired before, on or after date will is made.

Registration of Future Interests

LTA s 172 – First Estate of Inheritance necessary to registration of FSIf 2+ persons are owners of different estates/interests in the same land; (a) first owner must be registered as owner in FS (not according larger estate than that to which they are entitled); (b) other estates etc. must be registered as charges according to priority.

LTA s 180 – Recognition of Trust EstatesIf land vests in personal rep or trustee, that person’s title may be registered, but particulars of a trust created/declared in respect of that land must not be entered in the register.

Conditional and Determinable Interests – Chapter 13

A person disposing of property can impose three qualifications:1. By making the vesting of an interest subject to a condition precedent

To A in FS if, at the date of my death, A is not married to B (A will take an interest only if the condition precedent is met)

2. By attaching to an interest a condition subsequent To A in FS, but if A marries B to C in FS (A takes a fee simple subject to a condition subsequent)

3. By creating a determinable limitation To A in FS until A marries B (A takes a determinable fee simple)

Crown GrantsSection 11 Minister may dispose of Crown Land under the Land Act In a disposition of Crown Land, Minister may impose terms, covenants, stipulations and reservations they consider advisable,

including that a) applicant must personally occupy and reside on the land for a set period; b) applicant must do work and spend money for permanent improvement of Crown land within required period

Uncertainty

Noble v Alley (1951) SCCRESTRICTIVE COVENANTS MUST RESTRICT THE USE OF THE LAND; CANNOT BE USED TO MERELY RESTRICT ALIENATIONIn 1935, F sold various parcels of land, which were developed by purchasers as private summer resort. Sales included requirement that grantees that sell their property will impose the same restrictions on it as are imposed on them. Clause (F) states that land cannot be sold, occupied etc. by any person of Jewish, Hebrew, Semitic, Negro or coloured race or blood. In 1948 then owner of one of the parcels agreed to sell to purchaser. Purchaser required vendor to obtain a court order declaring clause (F) void. Is covenant unenforceable for uncertainty for purposes of specific performance? Not valid (but not for public policy, but because they are void for uncertainty).



Enforceable covenants run with the land in equity and constitute equitable servitude, a burden on the land. Covenant not directed to the land but the transfer of a future purchaser. This attempted to set limits on the bloodline of all future purchasers (at bar, was for Black or Jewish blood).Enforceable covenants must touch/concern land as opposed to a collateral effect. In this case, the collateral is directed to transfer by act of purchaser – it is a restraint on alienation. Where a vested estate is to be defeated by a condition subsequent, Court must be able to see, from the beginning, precisely and distinctly, (from the time you get presented) what clearly and precisely and distinctly is being prohibited.

Racial covenants or conditions will fail for reasons of uncertainty. They would also likely fail as undue restraints on alienation (can’t restrict alienation).

MacDonald v Brown Estate (1995)IF MOTIVE IS TO SUPPORT AND CARE FOR SOMEONE, PUBLIC POLICY WILL ALLOW FOR IT TO OCCUR. PUBLIC POLICY WILL STRIKE DOWN A CLAUSE PUT IN BY A TESTATOR WITH THE PURPOSE OF CAUSING A DIVORCE BECAUSE HE OR SHE DOESN'T LIKE SPOUSE.Will gives estate to niece in trust until she is widowed or divorced from her present husband, at which time capital should be paid to her for her own use absolutely. Annual income from capital should be paid to niece during her lifetime, until conditions of absolute vesting are met. If she dies without being widowed or divorced from present husband, then her share should go to grand-nephew. Does this fail on uncertainty? No. Here the Court is protective (was not to encourage the murder or divorce of the present husband. Motive was to give her added security in the event that one of those situations occurred - to give her the capital and lodge it entirely to her disposal).Whether the testator's motive was pure inducement to divorce or whether it was protective is determinative on a case by case basis. Provisions here are supportive, and not coercive/punitive/intending to induce divorce.IF MOTIVE IS TO SUPPORT AND CARE FOR SOMEONE, PUBLIC POLICY WILL ALLOW FOR IT TO OCCUR. Re Piper (1946): clause inducing a child not to associate with a parent is invalidRe Neeld (1962): clause inducing a person to assume name of testator are valid in EnglandRe Kennedy Estate (1950): condition that a person must/must not marry a person of a specified religion is valid; conditions that a person must not drink intoxicating liquor, or play cards or continue steady are valid; condition against smoking is valid.

Jarman Rules – Consequences of InvalidityAt Common Law: Void condition and condition precedent = whole transfer is void Void condition and condition subsequent = transfer is absolute, cross out condition

At Equity: If condition precedent is originally impossible or illegal, then treat condition precedent as a condition subsequent Where performance of condition is sole motive of bequest, or its impossibility was unknown to T, or condition has become

impossible or condition is illegal because it is morally wrong, then Equity agrees with CL and holds the gift and condition void Limitations are treated in same way as conditions subsequent with regard to uncertainty

Human Rights Legislation

Canadian Charter of Rights and Freedomss. 15 – Equality before and under law and equal protection and benefit of laws.15 (2) – Does not apply to affirmative action programss. 32 – Charter applies to the government of Canada

Human Rights Code (BC) – Discrimination in accommodation, service and facilityCannot discriminate in provision of accommodation, service or facility. Does not apply to discrimination on basis of sex if it relates to maintenance of public decency or to determination of premiums, benefits under Ks of life/health insurance. Does not apply to discrimination on basis of physical/mental disability if relates to determination of premiums/benefits under Ks of life/health insurance.



Human Rights Code (BC) – Discrimination of purchase of propertyCannot discriminate in allowing purchase of commercial/dwelling units; OR opportunity to acquire land/interest in land; OR regarding term/condition of purchase/acquisition.

Human Rights Code (BC) – Discrimination in tenancy premisesCannot discriminate in right to lease space or in lease terms/conditions. Does not apply if: space is to be shared with another person; as it relates to family statute/age if unit is reserved for persons 55 years or older; if rental unit is in a prescribed class of residential premises; as it relates to physical/mental disability if rental unit is designed to accommodate persons with disabilities and conforms to prescribed standards.

LTA s 222 – Discriminating covenants are voidProvides that covenants that discriminate on the basis of sex, creed, colour, nationality, ancestry or place of origin of a person are void and of no effect. Registrar may cancel a discriminatory covenant on application. If registrar has notice that covenant is void due to discrimination, it may cancel without application.

Canada Trust Co v Ontario Human Rights Commission 1990 ONCAWHERE A TRUST IS PUBLIC AND DEVOTED TO CHARITY, RESTRICTIONS CONTRARY TO PUBLIC POLICY OF EQUALITY WILL RENDER IT VOID.In 1923, Leonard established a trust to provide scholarships for white Christians only . Freedom of setting limits is important, but needs to be limited for policy reasons. Fails on public policy.

UNCERTAINTY: Court says that it actually is certain (although the terms seem quite uncertain. Because it was a condition precedent it was okay). Definition of a class of beneficiaries is deemed to be a condition precedent: CP is one in which no gift is intended until the condition is fulfilled.If it is a condition precedent (a suspensive condition): the condition will not fail for uncertainty unless it is clearly impossible for anyone to qualify. Enough of a definition to know that someone will qualify.A condition precedent will not be void for uncertainty if it is possible to say with certainty that any proposed beneficiary is or is not a member of the class.

PUBLIC POLICY: Freedom to dispose of the trust in a racist way must give way to current principles of public policy. Where a trust is public and devoted to charity, restrictions CONTRARY TO PUBLIC POLICY of equality will render it void.This is not applied to trusts devoted to ameliorating inequality by helping disadvantaged groups advance.Rules that seek to eradicate offensive elements of private transactions.

Doctrine of cy pres allows the trust to continue, but now without the restrictions. Because it was a charitable purpose trust, the court didn't have to unravel the entire trust, they just severed the objectionable clauses.

A determinable FS that is void operates like a condition precedent: if the condition is void, the grant fails because the determining event is integral with the fee (Eisenhower v Eisenhower 1945 NSSC). Courts try to construe limitations as conditions subsequent for the reason that it wants to give a FS absolute by striking out the offending

Rule Against Perpetuities – Ch 14

Because Uses and Trusts were equitable interests, they were not affected by the common law rules regarding remainders. So land could be tied up indefinitely. The courts eventually decided that control of future interests should be cut off, as alienability of land was becoming restricted: this gave birth to the rule against perpetuities.

Basic Principle: to permit a wide variety of future interests, but to impose a limit at some point.

Common Law Rule



An interest is valid if it must vest, if it’s going to vest at all, within the perpetuity period. The perpetuity period is calculated by taking the lives in being at the date the instrument takes effect + 21 years. Failure to vest within the perpetuity period means the interest is void. Vesting is required Vesting must occur within the perpetuity period Requires that it must be clear from the date that an instrument creating a disposition takes effect that vesting, if it is to take

place at all, can take place only within the period (this is called certainty of vesting) PP: lives in being at the date the instrument takes effect + 21 years

Example: X leaves the residue of their estate to the Communist Party of Canada, which is unincorporated. Gift was construed as a “gift to the present and future members of the Communist Party of Canada.” Because any future member may exist outside the perpetuity period, the gift is void.

Approach: 1. Apply the modern Rule against Perpetuities (as per 6(1) of Perpetuity Act) first; and then2. Look to remedies in Perpetuity Act

The Modern Rule Against PerpetuitiesCL Rule: No interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest.

Lives in being = those alive at time that instrument takes effect – when title in property vests in trustee or on death of T if interest comes from will

RESULTING TRUST: if a future interest is not good because it violates rule against perpetuities then it reverts back to grantor.*** Despite the reforming statute, must still know the modern rule because:

i. the operation of the Act is generally only prospective in effect (s.2), ii. even for the future, the Act confirms the rule but provides modifications of its operation in certain circumstances (see

s.6) and iii. the Act is only applicable where a future interest infringes the rule – potentially saving the future interest from being

void in whole or in part.

If a future interest has been created, then it must vest within lives in being plus 21 yearso Lives in being = anybody in the world who is alive at the day the interest was created

When is the interest created?A. When the title vests in the trusteeB. If the interest is created in a will, on the death of a testator

If violates the rule of perpetuitieso Equitable interests revert back to the grantor --> called a resulting trust

TEST: The ability to see whether the interest must vest, if it vests at all, within lives in being plus 21 years, requires you to be absolutely sure that it will happen! If you can construct a hypothetical where the interest may not vest, then the interest is void as a perpetuity (ab initio)

Perpetuity Act (BC) s. 6(1): Preserves the common law, except as otherwise modified by the statute, but lessens the impact of the common law

rule ("Except as provided in this acts, the rule of law known as the modern rule against perpetuities continues to have full effect")

o Means apply the rule and then ... s. 6(2) Abolishes the rule in Whitby v Mitchell prohibiting the disposition after a life interest of an unborn person s. 7: 80 year perpetuity period: “lives in being” requirement cancelled, and replaced with an 80 year perpetuity period:

interest must vest 80 years after the date the instrument is created



s.8: Possibility of vesting beyond period: no disposition creating a contingent interest in property is void as violating the rule against perpetuities only because of the fact that there is a possibility of the interest vesting beyond the perpetuity period

s.9: Presumption of Validity: Every contingent interest in property that is capable of vesting within or beyond the perpetuity period is presumed to be valid until actual events establish that the interest is incapable of vesting within the perpetuity period, in which case the interest, unless validated by the application of section 11, 12, or 13 becomes void

o “Wait and see” provision: if you have a potential problem under the perpetuity rule, you can wait until the perpetuity period is over before the gift must be declared void

Section 3 Application of Remedial Provisions must be applied in the following order: s.14 (capacity to have children):

o Girls can't have children before 12 and after 55o Boys fertile from 14 to forevero -> Can introduce evidence of sterility (for both men and women)

s.9 (wait and see)o List of statutory lives in being (set out in s.10) excludes royal lives clauseo remember s.7 Eighty year Perpetuity Provision

s.11 (age reduction)o Lower age to reach perpetuity period (add current age to 21)o If still doesn't work too bad -> revert to grantor or to whom if it is divested (if divesture class)

s.12 (class splitting)o don't worry about for class!

s.13 o Cy Pres: Doctrine gives court general discretion to try and rearrange/restructure the qualification in the

contingency. But you must be able to justify that it is within overall conformity with the intention of the testator or the grantor.

o

Steps for a Grant/Devise1. Need to see what type of grant/devise it is

inter vivos, will, trust?2. Identify the words of purchase

Need to look at interpretation found in s.10 Example: "to his heirs / to A in FS" both mean EIFS

3. Identify the words of limitation What kind of limitation are we talking about? Is there something that produces a possessory interest?

o Is it freehold? (FS or LE absolute or determinable?)o is it leasehold?

Is it something that creates a future interest?o expressly stated?o in a will (Re Robson)

[Depending on the type of grant/devise, the same words may be either words of purchase or words of limitation]4. Ascertain whether or not the interests are absolute: are they vested or contingent?

VESTING:a. may be vested absolutely, that is it can never be lost to the holder of the estateb. may be vested, subject to divestingc. may be vested, without there being any prior estate, but with a provision which purports to keep the holder of

the estate out of possession CONTINGENT until:

a. The property is identifiedb. The identify of the grantee or devisee is estabished



c. The right to the interest (as distinct from the right to possession) does not depend on the occurrence of some event

d. In the case of class gift, the exact share of each member of the class is ascertained If contingent --> will they reach the vesting/absolute stage within the Perpetuity Period?

5. Is the actual condition or limitation legal? Will not be legal if:

i. Restraint on Alienationii. Public Policy

iii. Uncertainty1. If condition precedent: open to scrutiny, court welcomes evidence2. If condition subsequent: if cannot see right away the circumstances which divestures can

take place then struck out immediately6. Jarman Rules

"Where land is devised upon a void condition, and the condition is precedent, the devise is itself void"o If the condition is subsequent, the devise is absolute

Personal estate is bequeathed on a void conditiono Subsequent: bequeath is absoluteo Equity will treat Precedent differently:

If impossible or illegal (malum prohibtum - wrong due to statute) then bequest is absolute BUT if performance is at the sole motive of the bequest, or impossibility unknown to testator,

or condition was impossible due to Act of God or where illegal (malum in se - morally wrong) --> Gift and condition is void

Practice Note: if disposition is valid under common law rule, no need to check statute. But if disposition is void under common law, see if it can be saved by the statute. When creating contingent future interests, pay attention to possible perpetuity problems.

Example: A (fee simple of Blackacre) grants to B (fee simple owner of Whiteacre) an easement over Blackacre. No problem, since it vests immediately.Example: A (fee simple of Blackacre) grants to B (fee simple owner of Whiteacre) an easement over Blackacre, if a house is built on Whiteacre. Perpetuity problem, since you don't know if the house will be built before perpetuity period ends. But under the PA you can wait out the 80 year perpetuity period to see if the house is built: if the house isn't built, then the gift is void.

Example: Blackacre is left to the Vancouver Bar Association, but if the premises cease to be used by lawyers, then Blackacre is to be left to the SPCA.

If SPCA has a right-of-entry, this right of entry could aries outside the perpetuity period, and VBA ends up with the gift outright.

Example: Blackacre is left to the VBA until the premises cease to be used as a club for lawyers, then Blackacre is to be left to the SPCA.

This is a determinable reversion and vests with certainty. No perpetuity problem.

Co-Ownership - Concurrent Estates Ch 11

Types of Ownership: in severalty = ownership by a single owner // unity of possession = co-owners = concurrent estates

General Principle: Co-ownership exists when you have two or more people [or corporations] with concurrent rights to possession of real or personal property.Multiple owners > same interest > same land > same time

Only two forms of co-ownership exist today: (1) Tenancy in Common and (2) Joint Tenancy. Both forms share the same unity of possession (co-owners who have concurrent interests).



Unity of possession: 2 or more persons, by virtue of the interests they own, are simultaneously entitled to possession of the property as a whole // land is undivided // tenants are treated as ‘single owners’ Unity of interest is not necessary – can have different shares (contributed or profits) No right of survivorship in tenancy in common Right of survivorship in joint tenancy No consent required: no consent of co-owners required to dispose of interests

Registration of Title for Co-Owners LTA, s. 173 requires that the title reflect the nature of the co-ownership (either JT or TIC). The default setting is “tenancy-in-

common.” LTA, s. 173 requires the title specifically indicate “joint tenants” in order to create joint tenancy

Two Impliedly Abolished (by modern statute) forms of co-ownership

CoparcenaryAt CL, on intestacy the heir of deceased succeeded to his real property. In absence of male heir, property descended to female relatives, and if there were more than one in same degree of kinship, they succeeded jointly as coparceners. Impliedly abolished in BC by the Estate Administration Act

Tenancy by the EntiretiesAt CL, when land was transferred to a husband and wife in circumstances where, if they had not been married, they would have taken as joint tenants, they took as ‘tenants by the entireties.’ Title regarded as a single and indivisible title, survivor taking title to property absolutely. Abolished by Married Woman’s Property Act and Property Law Act s 12 [A husband and wife must be treated as 2 persons for the purposes of acquisition of land.]

Two Remaining Forms of Co-Ownership

Tenancy in Common When 2+ people, by virtue of interests they own, are simultaneously entitled to possession of property. Apart from unity of

possession, law treats tenants in common in the same way as it would single owners. Historically CL preferred JT but legislation has changed this:

o Tenancy in Common Property Law Act s. 11:o “If, by an instrument executed after April 20, 1891, land is transferred or devised in fee simple, charged or

contracted to be sold by a valid agreement for sale in which the vendor agrees to transfer the land to two or more persons, other than personal representatives or trustees, they are tenants in common unless a contrary intention appears in the instrument.”

o “transferred” includes vesting by declaration of trust or order of courto if the interests of the tenants in common are not stated in the instrument, they are presumed to be equal

fixed with a share -> can deal with your share as you like

SHARES OF HOLDINGS ONLY MATTERS FOR THREE SITUATIONS: Any co-tenant can call upon the other to contribute to expenses for the property according to their proportionate share.

Note: this only applies for expenses essential to maintaining the land. Share profits according to the share owned: if co-owners don’t put up risk capital then they may get nothing if land creates

income. Note: different story if one owner excludes the others from participating in the investment. Partition: if co-owners are irreconcilable and cannot use the property together court under CL can order a subdivision of land

according to their respective shares. Note: under Partition Act courts are empowered to order sale of property and divide proceeds according to shareholding.

If you use words such as “equally” or “2/3 to 1/3”, it denotes TENANCY IN COMMON since JT is viewed as a whole.



Joint Tenancy No consent required: no consent of co-owners required if JT wishes to dispose of interest (only inter vivos), or sever JT

unless required by K. Right of survivorship: (jus accrescendi) is most significant characteristic: A and B may convert joint tenancy into tenancy in

common during their lifetimes (if they want to sever the joint tenancy) BUT if one dies before it is converted, then the survivor becomes absolute FS owner.

To abolish unity to make it your share a tenancy in common:o Could transfer your share to someone, to hold it in trust (an effective way to give the interest to a third party if you

don’t want to give it to someone right away)o Is a device to abolish unityo Can transfer something to yourself – allowed by statute (shuts out Wills Variation Act)o Requires formal transfer – anything less than a transfer does not work (Sorenson)o Equitable transfer will work too

JT can dispose of their interest inter vivos freely, but cannot dispose of interest upon death as right of survivorship holds that surviving JT will inherit deceased JT’s interest

Deceased JT cannot dispose of his/her interest by will, and any attempt to do so will be of no effect. Applies to both real and personal property

Common Law favours creation of JT over TICEquity favours creation of TIC over JTProperty Law Act s. 11 agrees with equity so courts will opt for tenancy in common over joint tenancyProperty Law Act s. 18 allows me to transfer to another person

A transfers Blackacre “to B, C and D as joint tenants for the life of A.” D dies. Who is entitled to Blackacre and why?

THREE UNITIESEach is essential to existence of JT (in addition to the unity of possession). If any one is missing, then co-ownership is tenancy in common and not joint tenancy.

1. Unity of title: co-owners must derive their titles from same instrument. i.e. same Form A or same will. If one JT transfers their interest JT is severed since the operative instrument is no longer the same Severance only changes right of survivorship aspect, not proportion of ownership

2. Unity of interest: interests of joint tenants in property must be the same All co-owners must have equal interests in property. Interests must be of same quality (legal/equitable, or both). If

one JT mortgages their interest, JT is severed since the legal interest has changed. Owners can be joint tenants in the legal interest, but tenants-in-common in the equitable interest Ex: A and B are JT, and B sells ½ their interest to C – A has ½, B and C each have ¼ - severs JT between A and B, but B

and C could have a JT Ex: If A and B are JT, A goes bankrupt and trustee takes the interest, JT is severed. A’s interest passes to trustee in

bankruptcy.3. Unity of time: interests of co-owners must all vest simultaneously

Does not apply in a transfer to uses, nor in a gift by will – if an interest arises in either of these two ways, and if the other unities exist, a joint tenancy will be created.

Ex: if will gives property upon children reaching age 21, they acquire interests at different times – TIC4. Unity of Possession: Co-owners are entitled to undivided possession of the whole property (like TIC)

Historically, CL preferred JT but three ways to have it not apply:A. Show one of the unities wasn’t thereB. Expressly clear not a joint tenancy (even if all the unities are met)C. Implied most commonly through words of severance



Creation of Concurrent Interests When concurrent interests are created, it follows there is unity of possession. If the other three unities are also present, the

CL presumption is that a JT has been created. If one of the three unities is absent, concurrent interests must be TIC. Grantor can indicate intention to create TIC even if all the unities exist (may be done expressly – To A and B in FS as tenants

in common). Transferor may also create TIC by the use of words of severance (language of specific shares in the undivided title). Ex: To A

and B in FS equally”.

Common LawThe common law favours creation of a joint tenancy. In the absence of any words to indicate otherwise, it was assumed that a JT was created (Re Bancroft, will-doesn’t-specify-TIC-or-JT). But the slightest hint towards intention to divide will create a tenancy-in-common (Re Bancroft).

Re Bancroft, Eastern Trust Co v Calder (1936)ANYTHING WHICH IN THE SLIGHTEST DEGREE INDICATES AN INTENTION TO DIVIDE PROPERTY MUST BE HELD TO ABROGATE IDEA OF A JOINT TENANCY AND TO CREATE A TENANCY IN COMMON.T’s will stated that residue of estate should be divided into 2 equal shares – one should be paid to widow and other should be divided for term of widow’s life into 4 equal shares to P, A, F and children of M (T’s daughter who pre-deceased T), P1 and J. No problems until P1, one of M’s children, died. P1 has 4 children.Does P’s share go to P’s sister J or to estate or to children of P? Did M’s children take as JT or TIC?No words such as “equal” qualified bequest to children of M. Nothing in will indicates intention to divide income between children of M and which can be held to abrogate idea of JT and create TIC. Language is indicative of intention of testator. Used word “equal” when talking about everyone else split equally (severing) When talking about P1 and J “and the other of the said shares to the children of my deceased daughter M” Omission of language that is present through the rest of the willShare paid to P1 should now go to surviving sister J (M’s children took as JTs). [No longer applies in BC because of PLA s. 11 which holds that a TIC is the default position for FS unless the transfer specifies otherwise].

EquityCommon Law Rule: without words to the contrary, a JT is assumed. But equity preferred tenancies in common by interpreting the documents broadly – looked at intention.

Courts of Equity would presume that a TIC arose in 3 categories: (Robb)1. Where the parties contributed purchase money for property in unequal shares [can be rebutted by evidence of

contribution]2. Where property was a mortgage and the co-owners were mortgagees. But if one mortgagee died, equity would compel

surviving JT to hold legal title arising as result of operation of right of survivorship on trust for deceased’s estate and survivor.

3. Where parties were business partners, prima facie TIC in equity.

What do you do if someone wants to sell and the other doesn’t. Under CL you seek partition – Court will use discretion. Today the Court could partition land successfully. Statutory provisions will allow the Court to


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