PROPERTY CAN

Chapter 3: Aboriginal Title

Chapter 5: Land Title Registration

Chapter 6: Registration

Chapter 7: Failing to Register

Chapter 8: Applications to Register

Chapter 9: The Fee Simple

Chapter 10: The Life Estate

Chapter 12: Future Interests

Chapter 11: Co-ownership

1

Chapter 3: Aboriginal Title

Royal Proclamation [1763] – recognized AT until it is ceded to the Crown in treaties First Nations need to deal with federal government in a treaty process if they want title to their land

Aboriginal title - a bundle of aboriginal rights derived from aboriginal groups proving they have used land for discrete rights pre-sovereignty into the present continuously and exclusively Courts must take into account customs / local laws / practices of the group with respect to the understanding of

‘exclusive possession’; must look at where the land is located Aboriginal title is sui generis, the nature of aboriginal title depends on the band and what their practices are Innate rights (hunting and fishing) can combine together to the point of occupancy / use / benefit (AT) Fiduciary duty that BC had under declaration of sovereignty to honour treaties and aboriginal title was denied

through most of the 20th century, but jurisprudence emerged toward end ultimately leading to recognizing ATGeneral Timeline: aboriginals here first – colonials come and claim governance over all land - Canada became independent in 1931 under statute of Westminster – but the land is encumbered by pre-existing title that is more fully recognized later (1996)

Delgamuukw v BC [1997]F: A claimed title to 58,000km2 of land on basis that aboriginal title was never extinguished; originally claimed ownership but later amended to “self-government and aboriginal title”; dismissed at CoAA: Aboriginal title is inalienable – cannot be transferred to anyone other than the Crown; held in common by band Source: prior occupation of the land by aboriginal peoples (not the Royal Proclamation) Inherent limit: cannot use the land in any way which affects future generations’ ability to use it, or which is

incompatible with traditional relationship with the land (eg. mining on traditional hunting grounds) Aboriginal title is given full protection under section s 35(1) of CA 1982 Aboriginal rights like practices, customs and traditions are non-land rights

o Activities that take place on particular piece might give rights to only that piece (site-specific activity)Test for if title exists: (i) the land must have been occupied before sovereignty (sufficiency) (ii) there must be a continuity between pre-sovereignty and modern times (continuity) (iii) at the time of sovereignty, the occupancy must have been exclusive (but can be jointly exclusive between

more than one party/tribe (exclusivity) can still allow people to come onto land and share it; control must be exclusive though If the test is satisfied, title exists; if only a few are established than there may be a claim less than titleCan be infringed by the test (Sparrow, modified in Gladstone): (i) the infringement must be in furtherance of a legislative objective that is compelling and substantial (ii) the infringement must be consistent with special fiduciary relationship between aboriginal peoples & Crown

o Government must allocate resources with AT as priority o There is a duty for the Crown to consult aboriginals on how land is usedo Compensation is usually required in dealingso The relationship is special because of the overlap between common law and aboriginal legal systems

Only federal government can extinguish aboriginal title (ultra-vires provincial)

Mitchell v MNR [2001]F: Mitchell was member of the Mohawk First Nation; attempted to bring goods (blankets/oil/bibles/cleaning supplies etc.) across the US/Canada border, declared them but refused to pay duties because aboriginal rights exemptA: Van der Peet test to define the right being claimed:

(1) the nature of the action that the appellant is claiming was done pursuant to the right

2

(2) the nature of the government legislation/regulation alleged to infringe that right; and(3) the ancestral traditions and practices relied upon to establish that right

right claimed is to bring goods across St. Lawrence and trade with particular aboriginal group, because border did not exist for ancestors

Court writes that evidence in these cases is flexible, and can include oral histories to offer evidence of ancestral practices and aboriginal perspectives on the right claimed

o Cannot be prejudicial and must be reliable sources of information; should not be artificially inflated to have more weight that it can reasonably support (as opposed to traditional evidence)

Geographical restrictions are important to claims dealing with a particular area (hunting/fishing/etc.) but not relevant for general rights claims like trade

Crown can potentially overrule legitimate aboriginal rights that are incompatible with Crown sovereigntyR: Even if Mohawks occasionally traded across this river, was not a defining feature of Mohawk culture or

vital to Mohawk collective identity – must pay duties, right does not exist(i) Define the actual right being claimed (can use Van der Peet test)(ii) Is that right vital to the collective identity, is it a defining feature of that particular group with

respect to pre-contact times and modern times?

R v Marshall; R v Bernard [2005]F: Marshall and Bernard both cut trees for commercial purposes on Crown land, claiming aboriginal rights to commercial logging on land of aboriginal titleA: Majority held that the group did not occupy the land to a sufficient extent (as the test is stated in Delgamuukw) Discussed balancing of common law and aboriginal law at length But ultimately found that to occupy land, must show that the group regularly used the land for a certain

purpose, which was not the case here (strict interpretation of occupancy) Even though, court discusses when creating common law right out of aboriginal practice, must be generous with

interpretation of that aboriginal practiceR: Must show that group regularly used the land for a specific purpose to claim aboriginal right

Xeni Gwet’in First Nations v BC [2014] (Tsilhqot’in / William)F: Xeni was against clear-cutting in their traditional territories, sought a declaration prohibiting logging in the area and asserted aboriginal title over the land; Land was considered inhospitable and very large for only 400 people under common law principlesA: Using Delgamuukw test, must be sufficiency (look at common law and aboriginal law – carrying capacity, size, use of land, etc.), continuity (reliance on occupation from pre-sovereignty to present, not necessarily completely unbroken chain) and exclusivity (only people occupying – or with other tribes) Can use archaeological evidence as well as oral evidence from elders Need not be intensive use for the entire time, just regular use Aboriginal title is a beneficial interest in the land, an encumbrance on Crown land as it retains underlying

control – the Crown’s underlying title is what is left when aboriginal title is subtracted from in ito Crown does not retain beneficial interest, what remains is a fiduciary duty to negotiate with aboriginals,

and right to encroach if in broader public interest Rights conferred are rights to decide how land is used; to enjoy, occupy and possess land; and to manage the

land including its natural resources, profit from economic developmentMechanism for Crown overriding this beneficial interest: (1) the Crown must have carried out consultation and accommodation(2) the Crown’s actions must have been supported by a compelling and substantial objective; and(3) the Crown’s actions must have been consistent with fiduciary obligation to group in questionR: Delgamuukw must take aboriginal perspective into account; title not confined to intensive use: regular use

3

Note: Trial Judge makes deep investigation into lands claimed, with respect to culture and practices of semi-nomadic group to ensure that the land is actually being used in some way If judge did not see any evidence of use, would exclude it from lands claimed Leasehold surrender of aboriginal land may be subject to different statutes than traditional landlord-tenant K Parliament could legislate to expunge title except that which is constitutionally protected under section 35 as of

1982 (up to that point is protected)

Cannot give EIFS, because it contradicts collective rights (but can be avoided by treaty – Nishga)Ways you can get rid of aboriginal rights: (i) through conquest (but did not happen in Canada)(ii) Cession – by treaty where group cedes claim to the Crown (removes encumbrance)(iii) Can also declare that sovereignty expunges aboriginal title (did not happen) Delgamuukw decision rejected the assertion that it did happen

o Section 35 of CA 1982 – existing rights are entrenched Can only be infringements of title with justification (eg. restriction on fishing for conservation purposes)

Haida Nation v BC [2017]F: Haida nation seeks declaration of AT over Haida Gwaii, which contains EIFSs granted to private citizens; want compensation for EIFS as well as AT declaration over islands; Also want compensation from government over licenses (logging rights, etc.) givenA: If your land is registered in land title office, may have right to have voice heard in court (EIFSs) but judge says that would not be fair to Haida as it would extend trial length unnecessarily Private citizens may bring individual actions against estate in fee simple if they choose after First, we must deal with aboriginal title and establish it, if it exists, then address other issues later Conflicting law here though – EIFS is inherently alienable and aboriginal title is inalienable – which wins? Xeni case had explicit statement that judgement would not effect few EIFS on their landR:

Graben Article - deals with situation with a treaty that recognizes EIFS (Gives tribe opportunity to give EIFS to anybody) Pavlich asks – is this a good thing? Pursuant to Nisga’a agreement, it is now possible for them to sell, lease, mortgage, etc. aboriginal lands

demarcated in the agreement; moreover, Nisga’a citizens have power to obtain small parcels of residential lands with EIFSs

20 years of negotiations leading to completion of agreement – a significant event; defining moment for Nisga’a Grant can only be made to: Nisga’a citizen; the Nisga’a Nation; a Nisga’a settlement trust established by the

Nation; or a Nisga’a housing service provider; Must be registered in Nisga’a register system similar to Torrens Pros: this is a significant step towards true property ownership for Nisga’a individuals, it will give freedom of choice to their people and allow them to make decisions about the property for themselvesRisks: Property loss for individuals (divestment) – defaulting on mortgages which foreclose to banks Judgements issued by courts could require liquidation of assets if issued against a citizenProperty loss for communities (impoverishment) – individual ownership rather than communal ownership could result in social dislocation, and diminished rights to occupy the land, especially if there is influx of non-Nisga’aMoney flowing into mortgage payments to owner who resides elsewhere may risk money flowing out of Nisga’a territory (no reinvestment) – this spirals into lower rent payments and lower property values

As sub-infuedation came to an end and black death took its toll, labour became more valuable and people could start negotiating with land and negotiate sale of land, will land to heirs (alienate) Aboriginal title is community, no right to alienation Then there is the fierce capital system which is highly dependent on private rights to property

4

Ejectment argument (for existing EIFS) – nemo dat – Crown couldn’t give authority to give EIFS because recognizing aboriginal title treats it as if it has always existedCounter-argument – prior to 1982 the Crown could have given land as an act of sovereignty (before section 35) If you do not have aboriginal title declaration, can be difficult to ask it back because of Delgamuukw test Can seek compensation though, because it was taken without your permission

Chapter 5: Land Title Registration

Common law recording system – nemo dat was in full effect as you had to ensure that person selling had the interest that they purported to sell; have to pay conveyancing solicitor to confirm Just because a solicitor made an error, did not mean that the holder of the interest lost that interestVariation proposed – instead of getting title insurance, State takes over role of going through ‘bins’ and guaranteeing interests reflected in indefeasible title (lower transaction costs, standard forms, etc.) Sir Robert Torrens proposed thisMain factors with land title system: (i) Registration issue – must be registration, which means you need office/system for it to take place (s 20

requires this) (ii) Indefeasibility (iii) Assurance principle – because indefeasible title is ‘absolute’ in what it says, it means that someone could

lose interest in land that the common law would’ve protected – Crown will usually compensate for that loss (iv) Land transfer forms - lowering transaction costs – standard forms

o Serious erosion of nemo dat (not complete destruction though)

Registration issue - What can be registered, what can appear on the indefeasible title? General form shows name/description of property and then who holds EIFS

o Then qualifications (charges) appear below – mortgage (and holder), easements, leases over 3 years, etc.

R v Kessler [1961] - all interests in land (bundles with names) are recognized and can be registered F: Kessler prosecuted for violating zoning bylaws; K argued that bylaws “affect the use of the land” and must be registered to be enforceable R: Land use rules do not need to be registered because they are not interests in land;

Only interests need be registered (with exceptions)

Interests in land that do not need to be registered – equitable mortgage – s 33 (handing DIT to holder as security – informal relationship created when you have ‘free and clear’ ownership and can give DIT) If the borrower doesn’t pay, could lose house / interest; if debt is paid, the interest in land is discharged In a trust, beneficiary cannot register equitable interests s 180 (written on DIT as trustee, recorded as “in trust”)

o then there is a reference number to see limits on trustee’s ownershipo sub agreement for sale may not be registered – option to purchase from registered owner (s 200)

LTA Section 169(2): Registrar may give notice that they’re intending to register the title of the applicant unless someone registers a caveat or lis pendens contesting applicant’s right Section 169(3): If caveat/LP is registered the registrar must defer applications until caveat & LP claim is disposed ofLis pendens / caveat - if you think transaction is about to take place, over land you think you have interest in, first apply for caveat (beware) Is put on title for 2 months, during, that person must be action in court in which their title will be investigated Bring writ to registrar who will issue a certificate ‘pending litigation’ or lis pendens If lis pendens is sought as strategic choice to abuse process – other party can claim damages

5

Skeetchestn Indian Band v BC [2000]F: Province handed rights to developer to develop parcel of land near Kamloops; Skeetchestn band claimed this land, but Crown had already given EIFS to owner; no declaration or agreement with province, so only a claim to title at this point; Band wanted to halt purchase of area but registrar refused to grant lis pendensA: Crown argument: S 215 of LTA requires a claim of registrable estate or interest in land and AT is neither s 282 - a caveat can only be lodged if a person is “entitled to land” which means either having an interest or

estate in the land Cannot have lis pendens for AT that is not registrable Registration is only for private, marketable interests Court accepted arguments, says aboriginal title is different from EIFS title from English common law

o Because LTA was constructed to deal with recognized interests in land; aboriginal title does not fitR: Aboriginal Title cannot be registered; registration is only for private, marketable interestsNote: Pavlich says ‘not marketable’ claim is fallacy because it can be surrendered and therefore is marketable

Charge – any interest in land or an encumbrance (Pavlich thinks this could include aboriginal title)

What is indefeasibility? An interest that cannot be defeated or annulled or rendered void or undone – even by the application of nemo dat To register and be entered into DIT - must give registrar a good, safe-holding (cannot be attacked at law) and

marketable title (can be moved from inefficient to efficient user, etc.) Judgements sounding in money can be registered as well if EIFS owner owes money – stops other interests in

land from countering that debt (discounts price of property)

LTA s 179 – Rights of owner of surface (1) Only owner of surface of land is entitled to be registered as FS; Owner of part of land above/below

surface registers interest as charge (except as provided in Strata Property Act)(2) If no Crown grant of surface registered – Crown registered as owner

LTA s 141 – Subdivision of land into air space parcels (1) Owner in FS may create 1+ air space parcels and obtain indefeasible titles(2) Air space parcels may be transferred etc. – dealt with in same manner as other land registered(3) May be subdivided under Strata Property Act

Strata Property Act s 239, 244239: Strata lots treated in same manner as other land titles registered - Each strata lot has its own CIT244: Strata plan requirements

Re Evans Application [1960]F: Subdivision of land had caused confusion on exact dimension (“66 feet more or less”); Registrar became aware of issue on 2nd or 3rd generation of transactions - New registrar refused to register in this form; said there cannot be two indefeasible titles when exact proportions of lot is not knownA: Indefeasible title requires good, safe-holding and marketable title If boundaries are not adequately described in certificate, it is not safe-holding and marketable

o Need proper dimensions that have certainty There is a linkage between boundaries and ‘safe-holding’ interest Duty of registrar is to provide clear description of interest and not perpetuate errors, to be correctR: Registrar should not issue CIT on an interest that is not properly defined

Would contravene meaning of safe-holding and marketable titleLTA s 169 (1) – boundaries must be sufficiently defined; GSHMT must be establishedRe Land Registry Act and Shaw [1915]

6

F: general power of attorney given to an agent to sell property; the agent (son of the principal) construed power widely and attempted to register mortgage in home to himself - executed a deed, took to LTO, registrar looked and saw power of agreement but couldn’t find provision that actually allowed agent to purchase the propertyA: Agent has inherent conflict of interest – must get highest price for principle but wants low price to purchase Registrar was right not to register this; was not safe-holding title to allow agent-purchaser to buy due to the risk

of principal being able to avoid the contract Agent must bring principle that is on other side of transaction, or see special power of attorney in agreement (not

general) – greater assurances before registration can take placeR: Registrars have discretionary power to halt registration in certain circumstances

Need assurances sometimes to ensure safe-holding and marketable title – eg. approval of principalProperty Law Act s 27 - Attorney cannot sell to himself; Person granted POA cannot transfer land from person granting POA to himself unless: (a) POA expressly authorizes it or (b) person granting POA ratifies it Burden of proof is on attorney to show evidence of full disclosure, fair consideration and good faith

Heller v BC Registrar [1963]F: Husband held EIFS, transferred deed to wife, who registered it, but had second thoughts; found that when wife registered, DIT was not at registry office, was with 3rd party – a friend of Mr. Heller (error in registry office); Registrar refused to correct wife’s registration (would not transfer because it was no longer in husband’s name) Trial found Registrar should correct with powers under s 383; overturned on appeal as the wife was not

fraudulent and there was no issue with validity of deed or deliveryA: Registrar acted on his own discretion when registering title though DIT was not mentioned Section 383 gives registrar discretion to make the change If the registrar chose to attempt to make change, are they empowered to do so? The scope of discretion is to correct errors that are ex facie an instrument (entered wrong interest into IT; typos)

o As soon as the error affects substance, that is ultra vires the constitutional power of the registraro Matters around title and fraud are reserved for courts of original jurisdiction (royal courts)o Therefore, if the registrar chose to correct error – would be acting beyond jurisdictiono Registrar COULD choose to correct a minor error if they choose; but, mistake in not providing DIT was

husband’s, not the wife’s No evidence that wife was fraudulent in registering title – she is protected person, complied with section 20 –

nothing that warrants an exception to the indefeasibility that she has (section 23) (eg. fraud)R: Registrar has discretion - able to correct minor things after error has been made, but not required

Errors of substance – corrected by courts of original jurisdiction in cases where there is fraudulent intent or transfer from void instrument

LTA – s 383 – If Registrar finds (a) an instrument is issued in error/has a misdescription or (b) an endorsement (rubber stamp) is made/omitted in error, registrar MAY, so far as practicable, without prejudicing rights acquired in good faith and for value (c) cancel the registration/instrument or (d) correct the error

Summary: ROLE OF REGISTRAR1) Not all interests are registrable: (AT not registrable, nor are charges relating to it [Kessler/Skeetchestn])

“nothing can be registered the registration of which is not expressly authorized by statute” (Heller in Skeetchestn Band) - AT is not registrable because inalienable

2) Don’t Perpetuate Errors in Title: Registrar has a duty to satisfy himself that title is good, safeholding and marketable when registering the instrument (Evans) Registrar has power to correct and has power under the statute to insist on defined boundaries (Evans)

o must ensure title is of good safeholding and marketable quality as per section 169o Section 27 PLA (attorney can’t sell to himself) – renders such a transfer (Shaw) invalid unless expressly

provided for in the power of attorney or ratified by the principal

7

3) Power to refuse bad documents: Registrar can refuse to register if docs & evidence produced fail to establish either a prima facie or GSHMT (Shaw)

o if the situation disclosed is such that the document relied upon must be supplemented or receive some further ratification/approval to make it effective, no prima facie title is established (Shaw)

4) Registrar’s has discretion and limits on what he can do to correct an error (Heller)

Assurance Fund - allows for compensation when indefeasibility overrides old common law principles like nemo dat and someone is left in an unfair position (eg. lost in rem rights because of fraud)LTA s 296 – remedies for person deprived of land

Before you can make a claim under the assurance fund, you must: o Bring action against person who’s holding your land now o File LP (lis pendens) – if unsuccessful after litigation, then launch action in BCSC (s 296(2)) against person

who defrauded you; simultaneously join attorney general as nominal party defendanto If fraudulent person cannot be found, or cannot pay full damage award, or is dead, then claimant can try

to collect from assurance fundo Claimant must prove deprivation – must show you lost your land for 3 reasons:

o Lost your land due to conclusiveness of register? Would claimant have succeeded in CL if the Torrens system hadn’t been enacted? Fraud operating? Claimant barred by the Act or any other Act, or otherwise precluded from recovering or

having title rectified?

LTA s 297 – Protection of purchaser in good faith and for value (1) In this section, "transferee" means a transferee who, in good faith and for valuable consideration, acquires an estate or interest in land less than a fee simple estate(2) Despite anything to the contrary in this Act, no transferee is subject to a proceeding under this Part in respect of an estate or interest in land of which the transferee is the registered owner, for

(a) recovery of land,(b) deprivation of land, or(c) damages in respect of land on the ground that the transferor(d) may have been registered as owner through fraud, error or a wrongful act, or may have derived title from or through a person registered as owner through fraud, error or a wrongful act

LTA s 298 – Fault of registrar If someone has lost "solely or partially, as a result of an omission, mistake or misfeasance of the registrar" they can claim against assurance fundNote: this is another way to claim in addition to s 296Limitation period: within 3 years after the loss or damage is discovered by claimant

LTA s 303 – limitation of liability of assurance fundAF or Minister are never liable for loss, damage or deprivation:

(a) occasioned to or suffered by (i) the owner of undersurface rights, an equitable mortgagee by deposit DIT (b) occasioned by (i) breach by the registered owner of a trust, (ii) land being included under an IT with a misdescription of boundaries, (iii) improper use of seal by a corporation or an authorized signatory who exceeds her authority, (iv) the dissolution of a corporation or its lack of capacity to hold/dispose of land; or(c) land in question was included in 2+ Crown grants(d) an error or shortage in an area of a lot/block/subdivision/air space parcel according to a plan deposited at the LTO

8

(e) the P was served with notice or had knowledge that the Registrar or a person under the Registrar’s direction was about to commit the act through which the P suffered damages unless they took and maintained the proper proceedings to prevent the act(f) in respect of the portion of loss caused or contributed to by the act, neglect, or default of the P(e) if the loss arises out of a matter in respect of which the Registrar was not required to inquire or(g) occasioned by an act or omission of the government in relation to s. 250 of the Strata Property Act

McCaig et al v Reys et al [1978]F: Farwest owns EIFS, agreed to sell it to South Transport (McCaig) Agreement for sale – ST equitable owner but only becomes legal owner once seller is paid

o Goes on CIT as a charge but Farwest retains EIFS ST sells equitable interest by subagreement to Reys but McCaig retains option to purchase part of the land for

personal use – 20 acres (option not registered though as land is not subdivided accordingly – saves money) Reys sells equitable interest to Rutland by further subagreement; Rutland (Jerome) is aware of option and

agrees to honor (note: purchase price recognizes option and is lower) Rutland (Jerome) buys everyone out and sells property to Jabin free and clear of all encumbrances

o Rutland transferred the land fraudulently using scheme with two solicitors (as option was expunged without McCaig receiving any notice) but Jabin was bona fide purchaser for value – protected

A: Reys clearly had full knowledge of option agreement, which he passed onto Jerome, who appears to know as well Jerome deceitfully expunged the option by executing a deed with South Transport But, to recover from assurance fund, claimant must show:

o that he was deprived of land or an estate or interest therein; o that the loss was occasioned as a result of the operation of the statute (Land Title Act); o that the loss was occasioned by fraud, misrep., or some wrongful act in respect of the registration of any

other person as owner of the land or interest in land; and o that he is barred from bringing an action for the rectification of the register

In this case: McCaig did not meet (2) of the test, as his option would not prevail against Jabin even without Torrens system; the option was an unregistered equitable interest; Jabin was “equity’s sweetheart” as bona fide purchaser for value, and therefore McCaig could not recover at common law under rules of equity

Equitable interest is always vulnerable to BFPFVR: Key in recovering from Assurance Fund is that the loss was occasioned by Torrens system

RBC v BC [1979]F: Walsh was registered owner of land, gave DIT to RBC as security for loans; later Walsh granted mortgage to Bank of Nova Scotia and clerk at LTO wrote “cannot locate” on file assuming DIT was at office but not found; when RBC couldn’t recover loans from Walsh it made a claim against Assurance FundA: (1) registrar owed no duty to RBC, only to those seeking to utilize services of registrar in accordance with LRA – ludicrous that someone who chooses to accept security in this way and not to use protections under Act can obtain from Assurance Fund(2) to accept submission would be to indirectly give plaintiff protection as if they were registered (3) loss did not flow naturally from the mistake of the registrar – the claim is: RBC would not have given further loans if it had learned of NS mortgage, which is the result of the mistake of registrarR: Those who seek to rely on equitable mortgages must accept risks inherent in such securities

Encourages strict adherence to Torrens system to give certainty and security

Chapter 6: Registration

9

LTA s 20– you don’t get an interest in land unless it is registered Land Act s 54 – Crown grants must be registered if issued after April 6, 1968

Indefeasible – not able to be lost, annulled, or overturned

Land Title Act s 23 – effect of indefeasible title with the estate in fee simple(2) An indefeasible title, as long as it remains in force and uncancelled, is conclusive evidence at law and in

equity, as against Crown and all other persons, that person named in title as registered owner is indefeasibly entitled to an EIFS to land described in indefeasible title, subject to:

(a) conditions in original grant(b) fed/provincial tax, rate or assessment(c) municipal charge, rate or assessment (d) lease/agreement for lease not exceeding 3 years if there is actual occupation (treated as registered;

but based on total term, not initial term eg. 2 years with option for 2 more)(e) highways, etc. – public easements (f) right of expropriation/escheat under an Act (g) any charges etc. noted/endorsed on title or later noted on title (h) if third party shows that there was wrong description of boundaries

No guarantee on indefeasibility if wrong boundaries were registered (i) if third party shows that there was fraud which the registered owner participated in (j) restrictions under Forest Act

(3) (No Squatting) - After registration, title adverse to/in derogation of title not acquired by length of possession(4) (Limited Squatters rights) - BUT in case of first indefeasible title registered, title is void against title of person

adversely in actual possession of and rightly entitled to land included in indefeasible title at time of registration

Land Act s 50 – exceptions and reservations – 1/20 public works, natural resources, conditions of Crown grant, etc.

Adverse possession (squatter’s rights) - Common law concept that recognizes that nemo dat will come to an end after passage of certain period of time (problems of evidence mount overtime) If owner hasn’t asserted rights, with opportunity to assert them for enough time, then possessor becomes RO Court will not allow person to assert in rem right when they have not done so for:

o 20 years in private land, and 60 years for Crown land (in BC, varies by province) Other criteria are dealt with in Mowatt - possessor must show they were holding land with no violence, not

secretly (occupation openly), without owner’s consent Adverse possession not huge in BC because indefeasible title is king

o Maintained slightly in Land Title Act, as it pertains to first owner of Crown grant (deals with confusion in change to land title system)

Creelman v Hudson Bay Insurance Co [1920]F: HB brought action against Creelman for breach of contract of sale; defence = due to federal act it was incorporated under, HB couldn’t acquire or hold real property unless required for purpose/use/occupation of company; because R wasn’t holding it for these purposes and had no power to dispose of or hold the landA: although argument may have worked at common law, Torrens system says HB is the owner and there are no exemptions or qualifications to section 23 that apply hereR: If someone registered, their right is indefeasible: it is not open to scrutiny whether they should be

registered because that would undermine the Torrens system

Property Law Act s 36 – Court’s Power to Fix Encroachment (important)If a building or fence encroaches on land, court may:

(1) grant an easement for a period of time (combined w/ compensation),

10

(2) vest title to land encroached in owner of land encroaching (combined w/ compensation), or (3) order owner to remove encroachment

Because court has wide discretion, it is important that you as an advocate make a compelling narrative as to why they should bless you with their god-like powers

Nelson (City) v Mowatt [2017]F: Mowatts claiming title via adverse possession to property that has been occupied family since early 1900sA: onus on Ps to show continuous possession on BoP possession must be open and notorious, adverse, exclusive, peaceful, actual and continuous evidentiary gap on continuous possession running from 1916-1920 – not continuous

o possession can allow for brief interruptions, does not have to be at all times occupied, but this exceeds

Builder’s lien – if you perform work on property and don’t get paid, you have right as worker to put lien on property for the amount they owe you Need to put on property within 45 days and sue within a year (or lose lien) Registered as a charge Lien has priority over all judgments, executions, attachments, receiving orders recovered, issued/made after lien There are also tax and other liens that have rules set out by legislation

Carr v Rayward [1955]F: Plumber did work for D as owner of EIFS; D didn’t pay so Plumber registered lien within 45-day period; D sold property to P whose title retains builder’s lienA: lien stays effective through transfer of property – s 23(2)(g) […] subject to claim of builder’s lienR: Builder’s lien (or any charge) is effective even if filed after sale so long as governing statute allows it

Must be per statutory requirements (45 days from completion of work in case of builder’s lien)Note: how do you protect yourself? Can hold back 10% of the price (or more via contract) for purchase if work is being done on property

Forgery LTA s 25.1 - Void instruments – interest acquired or not acquired

(1) Person who acquires land by registration of void instrument does not acquire interest on registration Reaffirms 23(2)(i), but only in terms of a void instrument (non est factum) – not in respect of a

fraudulent instrument fraud without forgery = voidable)Exemptions for EIFS(2) BUT transferee named in instrument who acquired interest in good faith and for valuable consideration is deemed to have acquired interest on registration(3) AND transferee named in instrument who is registered owner of interest and acquired it in good faith and for valuable consideration is deemed to have acquired interest on registration (retroactive when leg in force)

Aggrieved party here must make claim against Assurance Fund S 25.1(1) only applies nemo dat to ‘void’ as distinct from voidable transactions in non EIFS transfers

Fraud/forgery committed in one of four ways:(a) The seller fraudulently misrepresents the property in a way that is a material breach of contract; if the

buyer/registered owner shows this the seller is compelled to repay the price and take back title(b) The buyer fraudulently misrepresents facts that induces the seller to sell; 23(2)(i) allows court to restore

registered title to the seller(c) A third person (X) forges the registered owner’s signature (Y) and secures registration as owner X. X sells and

transfers to Z (who is bona fide and for value buyer) using a transfer form that is not a forgery: X is the registered owner; Z takes transfer using a validly executed instrument; s 20 governs: Y must look to the assurance fund

11

Land Title Act serves to erode nemo dat in this situation (d) A third person representing themselves as the registered owner forges the owner’s signature on the transfer

form and secures registered title for the buyer; the buyer/registered owner has secured registration under a void deed - section 25.1 governs: no interest transferred unless EIFS and buyer has registered

Gill v Bucholtz [2009]F: EIFS owned by Mr. Gill; Ms. Gill, assisted by other party, transfers title to her name using forged signature; she then sought out people, including Bucholtz, gets 50K mortgage loan from him; Mr. Gill reclaims title but question as to if mortgage is honoured A: Mortgage is always subject to the state of accounts; the land is real security for the debt of person who is ON title if Mr. Gill comes on, he is not subject to the loan Argument that assurance fund should reimburse Bucholtz, but policy question: should taxpayer guarantee loan? Solution: with mortgage, take out land title insurance R: Nemo dat preserved in respect of charges which originated by void instrumentNote: wrongly brings up fraud with respect to mortgage – his mortgage was given by valid, non-void instrument

First West Credit Union v Giesbrecht [2013] R: Fraudulent misrepresentation might render the transfer voidable, but until it has been set aside, the transfer

stands as validBCCA rejected TJ reasoning that forgery is distinct from fraud and that Gill does not apply to voidable as distinct from void mortgages

Pavlich: The effect is different - If it is void, someone claiming an EIFS will keep their title if they took under either Someone claiming a charge will lose if taking under a void instrument but not a voidable instrument

LTA s 29 – Effect of notice of unregistered interest (2) Except in the case of fraud in which he or she has participated, a person contracting or proposing to take from a registered owner

(a) a transfer of land, or (b) a chargeis not affected by notice (express, constructive, or implied) of an unregistered interest affecting the land or charge other than:(c) an interest for which registration is pending, (d) a lease not exceeding 3 years with actual occupation under the lease, or (e) the title of a person against which the IT is void under s. 23(4) (that is when IT is registered for 1st time

and person already in occupation by adverse possession)

Hudson’s Bay Co v Kearns & Rowling [1895]F: K was registered owner of EIFS; K owed P $800, and assigned mortgage to P; K delivered DIT to P’s solicitor but mortgage wasn’t prepared for another 15 months; In interim, K sells title to R for low low price; R registers charge claim for EIFS (not allowed anymore) after finding title was unencumbered in registryA: R’s EIFS is unencumbered - R didn’t have notice of P’s mortgage and did not participate in fraud as required by 29(2)(c) – when you’re doing something outside the ‘normal course of business’R: Gives effect to s 29 - Unregistered charge does not encumber the title of a BFPV without notice

Vancouver City Savings Credit Union v Serving for Success Consulting Ltd [2011]F: P forecloses on property whose owner had defaulted, wants to kick out D in foreclosure, using s 29 to disregard D’s unregistered 5-year lease; D says this is equitable fraud so s 29 should not allow disregard of D’s interestA: Law requires more than just notice of unregistered interests in the property - knowledge isn’t enough

12

In order to prove equitable fraud there must also be some circumstance to either take the matter out of ordinary course of business

Or, shows some clear intention to use the statute to defeat the respondent’s interests in circumstances so contrary to common morality that it would be inequitable for the court to allow P the protection of s 29

R: In order to prove equitable fraud (to stop s.29 being used to disregard unregistered interests) one must show there was knowledge + dishonesty (eg. attempt to use the statute against common morality) with interests

McRae v McRae Estate [1994]F: F: husband dies, leaves property to wife in trust (in effect remainder for 3 kids); Wife is registered as EIFS owner with “in trust” notation on title; Wife transfers title to son, but new title doesn’t say “in trust”; Son dies, gives it to his wife, sets siblings as heirs, sibling wants transfer set aside I: was the trust extinguished through the transfer? Could the son eliminate the provisions in the trust deed because his registration was not encumbered by the “in trust” notationA: Cannot wipe out other siblings’ interests by simply having ‘in trust’ taken off the title, deemed to know provisions (deemed to know what he is taking transfer of, or what is registered) because trust deed was registered with # Here, that the transfer from wife to son was ex facie registered in indefeasible title as ‘on trust’R: Under Torrens system, if a title is registered (with notice) with “in trust” notation, no further interest may be

registered or be able to defeat the trust unless authorized by the instrument that created it, and so the trust may still be performedyou are imputed to have the knowledge of what was in the register before you went on title

LTA s 180 – Recognition of trust estates (1) Personal rep’s or trustee’s title may be registered, but particulars of the trust should not be entered in register. (2) Registrar must add endorsement identifying the estate to the register (3) Registrar may add endorsement containing ‘in trust’ in registering trustee’s interest, w folio number

Everything that qualifies the EIFS equitably is regarded as registered (everything on the trust instrument) (4) Trust instrument must be filed with the registrar with application for reg (5) Certified copy of trust instrument can serve purpose for (4) if original is required outside BC (6) Copy has same effect as original(7) Transfer/mortgage etc. of a land with an “in trust” endorsement per ss 2/3 cannot take place unless expressly authorized by law/instrument or by order from Supreme Court

Easement – interest that diminishes the scope of the EIFS Must be a dominant and servient tenement (must be different persons – easement disappears if you own both) Must be in similar area so the two parcels have intelligible link Very wide range of things – could get an easement for bathrooms, tennis courts, etc. Must be identified with certainty – cannot impose a positive duty on the servient tenement Cannot be so large and broad that it completely destroys EIFS

Dukart v Surrey [1978]F: A housing development abutting beach with many parcels – each parcel given easement over beach area (Ius spatiandi – right to wander); easements registered in trust document, trustee owned beach and had to ensure easement was available, but stopped paying taxes and Surrey claimed title through Municipal Act; Surrey wants to build bathroom in front of Dukart’s house – she claims interferes with easement; Surrey says never registered

A: the easement is incorporated onto the indefeasible title, by the words “in trust” Servient tenement was trustee; terms of trust were not listed as charges but transferees knew that it was

registered with “in trust” when transferred

13

Municipal Act claiming of title actually preserves easements/restrictive covenants, does not preserve financial encumbrances like mortgages

The Act clearly contemplates two forms of registration – registration as a charge but also not necessarily as a charge in another provision – nothing in act that requires that it must be a charge

o The word registration is not actually defined – so it can be interpreted more broadly o If title says “in trust”, you must look at trust document to see terms

R: If “in trust” notation on registered title and accompanying memo detailing easement exists, the easement laid out under the trust instrument will be registrable and therefore:(1) not subject to be erased upon tax possession of land(2) treated as registered

LTA s 26 – Registration of a charge Registered Owner of a charge is deemed (i.e. rebuttably presumed) to be entitled to the estate, interest or claim created or evidence by the instrument in respect of which the charge is registered, subject to other registered charges Mere fact of registration says nothing about a charge’s validity; charge can still be void

LTA s 27 – Notice given by registration of charge Registration in effect gives notice to world of your claim If the charge is on title, people can’t claim they didn’t know that

Credit Foncier v Bennett [1963]F: Bennetts held EIFS on blackacre; had a mortgage but paid it off; unknown to them, Allen forged a mortgage transfer form, and puts property into name of Todd Investments (he is officer of company, void instrument); then assigns the mortgage to Stuart who seems to be innocent, pays Allen; Stuart then assigns mortgage to P who pays Stuart; P writes to Bennetts to make payments, they think its just a mistake; receive more letters and P foreclosesA: At common law, nemo dat would hit Allan, Stuart and Foncier and mortgage would be invalid But, with land title act, could be stopped by s 26 and Bennetts may have to go to Assurance Fund Court says that provision only says ‘deemed’ to have interest if registered, not that it is conclusive, which means

that you are rebuttably presumed o The presumption is rebutted here as registration was result of fraud o Once the title is defective, it continues to be defective

R: A registered charge is rebuttably presumed to be indefeasible, not conclusively (rebutted with fraud)Note: Foncier not allowed to recover from assurance fund because would not have been successful at common law

Canadian Commercial Bank v Island Realty Investments Ltd [1988]F: PME is registered owner of EIFS; PME had two mortgages on property – 1st to Imperial, 2nd to Island Realty; P was potential 3rd, but refused to advance funds until 2nd mortgage was paid off as equity too thin; PME’s lawyer (Cowan) registered P’s mortgage and registered a forged discharge of 2 nd mortgage; P advanced funds to PME on the strength of the discharge; Cowan disappeared; PME declared bankruptcy - only enough money to pay one of 2 and 3A: distinguished from Foncier – if nemo dat applied in this instance, D would win, since PME had no interest to give However, unlike in Foncier, this mortgage began validly—the transfer itself involved no fraud P was a bonafide purchaser for value, and finding against them would mean that the LTA does not protect

mortgagees who acquired their interest from the registered owner legitimately (P can claim from AF) POLICY: this would go against the purpose of the LTA; forces mortgagees to do more due diligence but also goes

against the certainty the LTA is designed to bring (instead, get insurance)R: Foncier reasoning only applies if fraud goes to the root of the interest - If an interest in land (including a

charge) has a valid root, registration is conclusive evidence of its validityFraud here does not rebut the deemed entitlement of P to the interest, as no fraud in its creation

14

LTA s 28 – Priority of charges based on priority of registration If 2+ charges on register, charges have priority according to date received by registrar (not date executed) unless contrary intention is provided by instruments creating the charges makes importance of timely registration clear

Chapter 7: Failing to Register

LTA s 20 – Unregistered instrument does not pass estate Except as against the person making it, an unregistered instrument does not pass estate unless registered - this does not apply to leases not exceeding 3 years when there is actual occupation.

Sorenson v Young [1920]F: P owned 2 lots. Sold lot 1 to R, reserved an easement of right of way; easement not registered; R sells to D; For 4 years, D let P use, D then erected fence blocking the way; D says he looked at CIT and nothing thereA: s 20 – Young would only have to take into account what is on title s 29 – even if Young knew, he would not have to take it into account if not registered

o But, showing fraud would favour Sorenson - must show some immorality / manipulation to suppress an interest in land, which was not present here

D purchased in good faith and for value, CIT was clear of all encumbrancesR: Unregistered interests are unenforceable unless trying to enforce against person who made itNote: original buyer would have had to honour the unregistered interests 181 – if you are selling and want to preserve an easement, you, the applicant, must specifically apply to the registrar (not onus on registrar)

Yeulet v Matthews [1982]F: D loaned money to her son in exchange for equitable mortgage (deposit of DIT); P registers judgement against sonI: Which prevails between registered judgement (non-interest) and a “first-in-time” unregistrable, equitable mort?A: Jellett v Wilkie: An execution creditor can only sell the property of his debtor subject to all charges, liens and equities: the same as it was in the hands of his debtor Entwisle v Lenz: Legislature intended to convey to creditor only what the debtor has in real or beneficial interest

o Bank of Hamilton v Hartery: Distinguishes Entwisle, but mortgage was granted before judgement but registered after - first in time to register wins

Gregg v Palmer: criticism of Entwisle from Bank of Hamilton was nullified by two statutory changes: (1) Addition of “except as against the person making it” (2) Series of sections which requires the creditor to justify her priority to the Registrar - took this to mean that the priority is unregistered interests (first in time > judgments)

equitable mortgage can lead to some registration (if they foreclose they can register EIFS) judgement only entitles you to an interest in what the debtor actually has – if, before you register judgement,

there is an encumbrance (even if unregistered) on their interest, you can only get what they haveo “except against person making it” means debtor, and therefore creditor must honour equitable mort

s 86 – a judgement creditor who registers against judgement debtor gets only the debtor’s beneficial interest

L&C Lumber Co Ltd v Lungdren [1942]F: Downed land with a forest on it; transfers a ‘profit-a-prendre’ (right to enter land and ‘take fruits’) to MacDonald, giving him in rem right to go onto the land and take lumber; MacDonald did not register the interest - instead assigns to P, and gave notice to D (passes on rights); P does not register either; D refused to allow P onto propertyA: s 36 of Law and Equity Act - for the assignment to be effective, assignor has to give notice to other party

15

exception in s 20 of LTA - helps MacDonald as he is the original transferee, but does not necessarily help L&C But, court find that assignment puts P into same category as MacDonald – assignments included in exception Assignee ‘steps into the shoes’ of the assignor, becomes the same identity for the purpose of the sectionR: Unregistered interests are enforceable against the person who made them (s 20)

When an interest is assigned from B to C, C “becomes” B in a contractual sense and therefore can enforce the unregistered interest because they are privy to the contract which created the interest

International Paper Industries v Top Line Industries Inc [1996]F: P sold building to D - as part of deal, D moved building to D’s property and leased a portion of land to P; they did not get the subdivision approved, just laid it out in the contract; therefore illegal/unregistrable (no good safeholding marketable title); lease was for 51 months, therefore must be registered (LTA); K had seeming right of endless renewal; P wanted to renew but D denied that it had agreed to a perpetually renewable lease, said lease was unenforceable/void because of non-compliance with s 73 of LTAI: Does this unregistered lease avail against the person making it (so must honour renewable clause)?A: s 73 LTA - Need to subdivide under compliance of part 7 of LTA Purpose of s 73 is to ensure that municipal authorities retain control over subdivision s 73 says that instruments executed in contravention do not confer rights of registration, but does not say that

they are void (lease still valid under contract law) o There was no duty on the parties to bring the lease in compliance with s 73

Court found that, on particular facts, it would defeat the purpose of s 73 to give a license Therefore, parties have a lease that is valid, but not registrable under LTA or enforceable even against the

person making it (non-compliant sub-divisions are not honoured)

LTA s 73.1 – Lease of part of a parcel of land enforceable (Responds to Top Line)A lease or an agreement for lease of a party of a parcel of land is not unenforceable between the parties by reason only that

(a) the lease does not comply with this Part (requiring subdivision) or(b) an application for the registration of the lease may be refused/rejected

Chapter 8: Applications to Register

General Rule: procedural delays at the LTO should not harm the priority of your interests

Distinguishes application to register from actual registration (separate events) Registration is when officers are done reviewing documents and approves, gives effect to registration Application to register happens before, and process can take some time when market is liquid

Rudland v Romilly [1958]F: D executed deed to AL for consideration; AL executed deed to P covering the same land; D alleges that first sale was fraudulently induced by AL; D placed a lis pendens on title, but not until P had already applied for registrationA: s 44 of the LRA (old) specifies that ‘registered owner’ includes someone who has applied for registration and became registered laterR: In the case of a BFPFV, registration is effective from the time the application to register is madeLTA s 155 – Application for registration of charge (1) If title to an EIFS has been registered/registration has been applied for, a person not entitled to be registered

in FS, claiming to be RO of a charge must apply for registration of the charge, and if registration of the FS has been applied for by an application that is pending, the application for registration of a charge must await the result of the application for registration of the FS

16

LTA s 198 – Registration of person creating chargeAn instrument purporting to create a charge on land executed by a person who is entitled to be registered as owner of the fee simple must not be registered unless that person has first been registered as the owner of the fee simple

Breskvar v Wall [1971]F: Breskvars were broke and borrowed money from Petrie in exchange for a signed blank transfer form as security for the loan; Petrie fraudulently inserted name of grandson D on that transfer form who secures registration as FS owner through this voidable transfer form; NOT a forgery – P voluntarily signed form – but Petrie not authorized to write D D then sells interest to Alban on Oct 31 1968 Transfer form executed from D to Alban on Nov 7 1968 Breskvars apply for a caveat on Dec 13 1968 Alban applies for registration of title on January 8, 1969 B’s caveat is registered on March 6, 1969I: Given that P has been negligent, and Alban who is BFPV has not secured registration, who is entitled to EIFS?A: If Alban was successful, prevention of asserting nemo dat for P may give rise to claim for assurance fund BUT – P were clearly negligent which is an exemption in the act (23-2-i)

o Court says Breskvars were authors of their own misfortune – enabled this fraud to happeno Cannot make their ‘victim-hood’ superior to Alban - favoured in equity as he is BFPV, did nothing wrong

R: Who equity favours is generally dealt with by priority in time, but not where one party has prejudiced its claim by negligent conductSuggests that an application to register an EIFS takes precedence over an application to register a LP (or anything less than EIFS), even if second in time - Application for EIFS trumps application for lesser interest

Chapter 9: The Fee Simple

Historically, at common law, in order to create FS by inter vivos transfer, had to use specific words “to transferee and his/her heirs” – would be necessary to transfer FS “to transferee I transfer X in fee simple” – would only transfer a life estate

o his/her heirs – words of limitation – indicate quantum of interest being transferred o “to transferee” – words of purchase – indicate who is getting the interest

In the case of wills, courts would generally give effect to words like “in fee simple” (more flexible) in absence of words of limitation, would confer fee simple if it was clearly the testator’s intention creation of equitable interests was the same – courts look at intention

Legislation made rules more relaxed – you can use any words provided your intention is clear But because of change, now the words “his/her heirs” become unclear – words of purchase or limitation?

PLA s 19 – Words of Transfer(1) sufficient to use words “in fee simple” to transfer FS(2) fallback in case of no words of limitation or unclear intention is EIFS or the greatest interest transferor has

LTA s 186 – Implied Covenants (4) transfer of freehold estate for valuable consideration and in approved form transfers the estate whether or not it contains express words of transfer(5) if transfer does not contain express words of limitation – FS(6) if transfer contains express words of limitation – give effect

17

(7) if transfer contains express reservation or condition – give effect(8) cannot transfer greater estate than transferor is RO for

WESA s 41 – Gifts on death A gift in a will takes effect according to its terms, and subject to terms, gives recipient every legal/equitable

interest in the property the will-maker had legal capacity to give

Tottrup v Ottewell Estate [1969]F: Brother Frank granted to Fred the ‘balance and residue of all my estate, both real and personal… to hold unto him, his heirs, executors and administrators absolutely and forever’ (classic common law words of limitation); Fred had will that gave same interests to Frank; Fred died before Frank; P is only daughter of Fred P claims whole of residue – argues that ‘heirs’ = words of purchase D claims ‘heirs’ = words of limitation – residue should be divided amongst next of kin of FrankA: ‘His heirs’ are traditionally words of limitation - duty of a Court of construction: first construe will; if meaning is clear, surrounding circumstances cannot be looked at to change its meaning Here meaning of will is clear; “and his heirs” are unambiguously words of limitation because that is exactly what

they have traditionally beeno Just because there is now statute, doesn’t mean the old word’s meaning is necessarily changed - words of

limitation should NOT be used as words of purchaseR: Legislation does not get rid of old terms, just expands scope of possible language and emphasizes intention

When language is clear, surrounding circumstances will not be used to change the meaning of will

WESA s 46 – when gifts cannot take effectIf beneficiary of will was brother/sister/descendent of testator, and will cannot take effect for any reason, including if beneficiary dies before testator, will go to beneficiary’s next of kin

Problems of Interpretation – Repugnancy Re Walker [1925]F: Will purports to give EIFS to deceased widow; gives all property to wife, but has condition: should there be any property of his that his wife has when she dies, remainder should be distributed in X way to his heirs (“a gift over”) Husband’s heirs are arguing that wife left 38K undisposed of and it should go to them Wife’s heirs are arguing that it should go to them because its her propertyA: as long ago as 1498, the reign of Henry VII, a condition on a fee simple is not valid Purpose of EIFS is to give you total domination of the thing indefinitely

o Anything that qualifies that disposition would erode the EIFS; “a repugnancy to an EIFS” Word of purchase here is: wife, words of limitation are: EIFS Cases fall into 3 classes:

(1) gift to person first named prevails as EIFS and gift over fails as repugnant; (2) first named takes life-estate only, and so gift over prevails (MUST use clear words: “for life”) (3) (2) but holder of life estate has ability to encroach, and whatever is left goes to remainder

But, intention was to give wife everything absolutely, did not use life estate words of limitationR: Look to the language of the will to decide whether the testator intended to give an EIFS, life estate or (3)

Cannot put a condition on an EIFS – repugnancy Re Shamas [1967]F: Shamas and widow ran store - S’s will said: ‘All will belong to my wife until the last [child] comes to the age of 21, if my wife marries again she should have her share like the other children, and if not, she will keep the whole thing and see that every child gets his share when she dies’ Widow sold store but retained property (encroached), did not remarry and all children reached 21 Widow argues that either (a) she received an EIFS or (b) she received a LE with right to encroach

18

A: In construing wills, the entire document and the relevant surrounding circumstances are looked at to determine the interest intended to be granted In this case, the will as a whole expressed the intention that the estate vest in the children in equal shares

subject to the widow’s life interest o The widow’s life interest falls into the third category set out in Re Walker: she has the power to encroach

on the estate until her death (or remarriage) o Because widow would obviously have to encroach to support family, such encroachment is a basic

principle of trusts, even though not clearly stated in language of will, clearly implied through language R: When construing a will, must look at the entire document to determine intention and if its clear, the

words/form/language of the will are not importantNote: seems to be distinguishable from Tottrup/Walker because testator wrote will himself, as opposed to where a lawyer writes will and can be presumed to know proper form/language

Cielein v Tressider [1987]F: T was married to R; he had 4 kids from previous marriage and wife had 1; T used a standard form will but added some clauses himself; one of these clauses said R was to have all the assets, and “all the rest and residue of my estate I devise and bequeath to R” One asset was property on Saturna Island – will said if the land was sold, the proceeds would be divided equally

among the childrenA: Most important question is whether T had the clear intention to dispose of the property to R absolutely There are no signs (words of limitation) of an intention to only give R a life estate so the clause is an invalid restraint on an absolute gift of a fee simpleR: To determine whether T intended to give a LE or an EIFS, look to which words of limitation are clearer

If words of limitation are unclear – fallback is estate in fee simple

Words formerly creating fee tail Fee tail used to be created when an inter vivos transfer used words of limitation ‘heirs of his/her body’ But, PLA s 10 abolishes fee tails, turns them into EIFS

Informal words of limitation – “to A and her issue” or “to A and his seed” etc. Courts would give effect to informal words based on intention if technical words were not used For inter vivos: the ambiguous words usually understood as words of purchase (or just demand more clarity) In a will: Wild’s

Wild’s Case [1599]R: look at when the will was made, and if when that happened, A had children / issue / offspring, then the words are construed as words of purchase and all of them would share this estate But, if when will was made, A did not have any children, then construed as words of limitation creating fee tail

o fee tail is converted to fee simple in s 10 of PLA, which A would get on their owno Persists at common law today a bit – if there is NOTHING in will which resolves ambiguity, then use rule

Note: Use with Tottrup: presumption in Tottrup can be rebutted if there are children Only applies to wills; covers essentially any synonym of ‘heirs’, but not heirs because of traditional meaning FSChapter 10: The Life Estate

Current Summary commonly used, especially in family law – allow spouse to use for life and then passes onto children Most are actually combinations of realty and personalty as they appear in wills Must be clear intention of testator using words: “to A for life” or “to A for the life of B” (pur autre vie)

19

Historically at common law – a widow was entitled to a life estate in 1/3 of her deceased husband’s realty (dower) Widower was entitled to life estate in all of wife’s realty (curtesy) - Both abolished in BC in 1925

Former Estate Administration Act s 96 - gave to surviving spouse, in addition to any other rights on intestacy, all of household furnishings and a life estate in spousal home Problems: spouse’s life estate was not marketable and impossible to value; surviving spouse not always able to

afford to maintain home Under WESA s 21, surviving spouse continues to receive household furnishings, but abolished surviving spouse’s

beneficial life estate in spousal house o Provides an option whereby surviving spouse may opt to purchase spousal home from deceased’s estate

Ask Pavlich if you should include spousal protection stuff

rights of life tenant – exclusive possession, including disponendi (but if you transfer, transferee gets LE pur autre vie) if estate pur autre vie owner dies first in this scenario – goes to deceased estate until principal dies equitable life tenant – can benefit from property but not necessarily occupy it

obligations of the life tenant permissive waste: “fair wear and tear” – tenant not responsible unless conveyance says otherwise voluntary waste: waste that results from the actions of the tenant – permanent damage

o tenant is liable upon reversion for voluntary waste, but conveyance may exempt by making them “unimpeachable for waste”

o equitable waste: exemption to “unimpeachable for waste” does not cover unconscionable use of the right to commit waste (“to really fuck it up”) – see Lord Barnard

o ameliorating waste: voluntary waste to improve property (tenant not liable unless conveyance says so) taxes and insurance are ongoing expenses that must be met by life tenant and not easily subverted

Vane v Lord Barnard [1716]F: Father gave himself a life estate (LE) without impeachment of waste and gave the remainder to his son Father got mad at son for some reason and stripped the castle of the lead, iron, glass doors and boardsR: Exemption to “unimpeachable for waste” does not cover unconscionable use of right

Law and Equity Act s 11 – life estate “without impeachment of waste” does not confer a legal right to commit equitable waste, unless an intention to confer that right expressly appears by the instrument creating the estate

Mayo v Leitovski [1928]F: P owns EIFS in remainder of a farm, to which D has a life estate; D acquired EIFS when daughter and son in law purchased tax title to farm and transferred their interest to D, thereby defeating P’s remainder interest I: Is the defeating of P’s interest through sale of tax title made available because of D’s failure to pay tax void(able)?A: Owner of life estate cannot fail to pay taxes, and then take advantage of a tax sale to purchase EIFS and defeat interest of remainderperson in EIFS General rule: life tenant cannot impair the estate in remainder, and remainderman cannot affect life estate

o A life tenant is under an obligation to prevent forfeiture of the reversion as well as their own life interest by paying the property taxes

R: A life tenant owes a fiduciary duty to the remainderman, and this includes paying property taxes

Chapter 12: Future Interests

20

If an unqualified and immediate transfer of an interest is made to A, A is vested ‘in interest’ and ‘in possession’ If a transfer is made to B for life, remainder to A in FS: A is vested in interest, but not in possession; B is vested in

interest and possessionAn interest that is vested in interest: (a) may be vested absolutely, that is it can never be lost the holder of the estate; (b) it may be vested, subject to divesting (if condition is resolved, then the interest goes to someone else); (c) 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 possessionAn interest is contingent, i.e. 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 is 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; and (4) in case of a class gift, exact share of each member of class is ascertained

Conditions attached to a fee simple may be: Suspensive condition (eg. to A when he turns 21) – a ‘fee simple conditional’

o You have to meet the condition to get the property Resolutive condition – get a vested interest but lose it if circumstances identified by grantor are met

o eg. to A but if he marries X, it goes to B)o B would have future interest – right of entry; A has “fee simple defeasible upon a condition subsequent”

Determinable EIFS – Can build into limitation a requirement (different from condition) o eg. to A in fee simple until he marries X (“until” signifies determinable estate rather than DUCS)o until this thing happens; as long as this thing iso giver doesn’t have right of entry – but has possibility of reverter

Note: Generally, no real practical difference between last 2 as statutes have brought them closely together, but some major differences like trusts (where (3) can be used to protect trust from being claimed by beneficiary)

Common language identifiers (conditional – ‘if’)Resolutive: but if, provided that, subject to, on condition thatDeterminative: when, until, as long as, while, during, when

Brown v Moody [1936]F: will gives LE to son George, with remainder to be divided amongst granddaughter and 3 daughters equally; clause says that if any of them predecease George, that interest goes to deceased’s childrenA: Postponement of distribution to enable a prior LE to be enjoyed (to let the live with it) has never by itself been held to exclude vesting of capital This means daughters get vested interests upon death of testator, subject to divestiture if predecease George If they predecease son without leaving issue, the interest would pass to their heirs because their estate still has it Death is a certainty, so this interpretation makes the most sense – favour early vestingR: Case creates a presumption of early vesting of a remainder interest after a life estate; the existence of the

prior estate does not prevent the vesting of the remainder interestFuture interest is vested at death of testator

Note: Start off with document, preferring early vesting of interest, unless clear indication of contraryLaw likes freedom of property, but do not like to give too much control to dead people as it makes property unclear

Re Squire [1962]F: testator gives estate to two grandsons; says that trustee should hold estate until they reach age of 30, unless they go to university, in which case funds can be used to pay for it

21

A: Saunders v Vautier: if B meets two conditions, B can end the trust: (1) sui juris: of full legal capacity (19 years of age at least) (2) must show the property interest (the assets if you like) is fully vested in the beneficiary Wording in will suggests that preference for early vesting stands “Upon attaining an age” rather than “if he should attain an age,” which suggests no condition G gave B entire property, had education fund + right to encroach, suggests held that interest from time of deathR: If interested is vested, the rule in Saunders applies and B can end trust

If interest is contingent or defeasible or if any other person may, by possibility, be interested in trust, this principle does not apply

Re Carlson [1975]F: F had 3 kids: C, J, and P; Will stated: 1) to hold the residue of my estate in trust for the education and maintenance and advancement of C (2) when C turns 21, 90% of the then residue is to be divided equally between C (45%) and J (45%) (3) 10% of what remains at that time is to cover certain of P’s debts; J argues she can get $ now, was vested at deathA: Look first to intention: intention seemed clear to keep residue intact until C turned 21, as executor was to use residue and income for C’s education until that time – was his first and foremost concern Kids take contingent interest, except for C who takes vested interest until he turns 21, and then is dividedR: Where the intention is clear, the presumption of early vesting can be rebutted

Common law future interests: Reversion – grantor retains a future interest for possession of the property in future Retained by transferor who did not exhaust entire interest through transferRight of entry – transferee creates an interest in the transferor that is defeasible; so transferor retains contingent future interestPossibility of reverter – transferor creates an interest that is determinable in the hands of transferee so that transferor retains a fee interest (determined upon particular event)

LanguageCondition precedent: IfCondition subsequent: but if, provided that, subject to, on condition that Determinable: when, until, as long as, while, during, when

Remainder – interest on happening of contingency goes to a third person If a condition is added to remainder, it becomes a contingent remainder as distinct from a vested remainder

o Eg. A transfers to B for life and then to C if C marries D right of entry cannot go to a third party (but possibility of reverter can - so rule 3 is no longer applicable (statute

overruled)) Rules are based on 2 policy factors: seisin – concerned that there should be no gap in seisin (springing interest) Prematurely defeating prior estate of freehold by giving possession to third party in remainder category (shifting

interest)

Restrictive rules on creation of remainder1. Remainder must be supported by a prior estate of freehold created by same instrument as remainder (e.g. ‘A

transfers to B and his heirs if B reaches 21 years of age’ is void) NO GAP IN SEISIN – springing interests

2. Remainder must be limited so as to be capable of vesting, if it vests at all, at latest at moment of termination of prior estate of freehold (e.g. ‘A transfers to B for life, remainder to first child of B to reach 21’ is void if child of

22

B is not 21 when B dies [but will not be void ab initio] – if possible, law will presume that transferor does not intend for there to be gap in seisin)

IF the remainder person reaches the age before the death of the life tenant, then the remainder becomes vested (“wait and see” – estate of grantor gets reversion)

IF the person dies before the other person hits the age, the non-vested remained becomes void because courts can't deal with a gap

3. Remainder is void ab initio if it takes effect in possession by prematurely defeating the prior estate of freehold (e.g. "A transfers to my daughter for life, but if she marries C to my son and his heirs" is void)

this rule is eliminated by s 8(2) of Property Law Act (and does not apply to possibility of reverter)4. Remainder after a FS is void (because of s 8(2) of PLA you cannot have a determinable FS with a possibility of

reverter in remainder, but you can give a FS with a condition subsequent/right of entry ) Can now give a F/S upon a condition subsequent giving the right of entry to the third party

Property Law Act s 8 – Disposition of Interests and Rights(2) A right of entry affecting land may be made exercisable by any person and the persons claiming under the person

For all except rule 2 it made them void ab initio Rule 2 you can wait and see If you waited and it was fucked, natural destruction of the remainderDestructibility of Contingent Remainders: 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

Equitable Future Interests Remainder rules do not apply to them (trustee holds seisin throughout) Eg. “to A in trust for life of B, and one year after his death, remainder to C if he turns 21” is valid disposition Normally 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

Re Robson [1916]F: A testator devised land to the use of his daughter Helen for life and on her death “to the use of such of her children as shall attain the age of 21 years”; Testator dies; Helen dies; Two of her four children are 21I: do children of 21 years take interest to exclude the younger children?A: The executors of a will hold real estate as trustees for the person by law beneficially entitled to it Any interests created by will are therefore treated as equitable interests – Immune from CL remainder rules

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) A personal rep to whom land devolves holds it as a trustee for beneficiary; beneficiary has same power as a person beneficially entitled to personal property to require a transfer from the personal rep

LTA s 172 (a) the first owner of an estate of inheritance must be the registered owner (fee simple absolute, fee simple determinable, fee simple defeasible is registered as holder of EIFS)(b) all other interests are to be registered as charges in terms of priority (LE, reversion, remainder, possibility, right of entry)

23

Chapter 13: Conditional and Determinable Interests

Five bases upon which contingencies can be rendered void : 1. Remainder Rules (CL only)2. Restraint on alienation3. Uncertainty4. Public Policy (does not accord with societal standards of appropriateness) 5. Rule Against Perpetuities

UncertaintyTest for precedent – is it sufficiently certain to tell you whether the grantee satisfies or does not satisfy Looking at the individual that is grantee – individual ascertainability test (lower bar – court likes vesting) Eg. to A if he is tall – could look at average heights for men, if he is above average, he could meet testTest for subsequent – law doesn’t look at individual – need conceptual and semantic clarity in words used (Noble) Eg. to A but if he grows into tall man, to X – looks at words, tall is semantically unclear If it is divestiture, law is sterner, does NOT want to divest you because of ownership Requires tougher standard in terms of clarity (eg. if he exceeds height of 6 feet)

Noble v Alley [1951]F: Racial covenant that the land could not be alienated to any one of Jewish, Hebrew, Semitic, Black personsRand J: does not qualify as restrictive covenant because restriction must touch and concern the land – so need to see if it is a legitimate condition or if it is void for uncertainty Rule for subsequents: the condition must be such that the court can see from the beginning precisely and

distinctly upon the happening of what event it was that the preceding estate was to determine – fails this testo “What degree of race or blood would be permitted?”

Estey J: A restrictive covenant needs the same type of precise and distinct language as a condition

Response: Land Act s 11(3) In a disposition of Crown land, minister may impose terms/covenants/etc. they consider advisable, including that (a) applicant must personally occupy and reside on Crown land for a set period; (b) applicant must do work and spend money for permanent improvement of Crown land within required period

Re Allen [1953]F: disposition to eldest son of nephew who “shall be a member of the church, adherent to doctrines of that church”A: Would be conceptually unclear, but as a condition precedent, the individual ascertainability test can be met if someone clearly is a member and adherent to doctrines of church Not ambiguous if person is a priest or devout Christian, might not pass if person is casual member but never goes

o Meets lower test – may raise public policy arguments nowadays thougho Court suggests a “reasonable standard” in assessing if compliance with condition is possible

Tepper’s Will – ‘Jewish faith’ framed as a condition subsequent – court upheld clause stating that testator set standard in his life (evidence of surrounding circumstances was adduced) seems to contravene strict testRe Rattray – ‘no scholarship shall be given to student who is Communist/Socialist’ – condition precedent but held uncertain; seems to go against Re AllenRe Messenger (McColgan) – ‘until she is not residing therein personally’ – subsequent, court: “residing” uncertainRe Tuck’s Settlement Trusts [1978]F: Made a qualification – if there is any uncertainty, “let any dispute or doubt be decided by the Chief RabbiA: clause resolves uncertainty, it is not “ousting the jurisdiction of the court” Only question of uncertainty is whether adjudicator is described with certainty, which he isR: Can cure uncertainty by appointing a third party adjudicator

24

Note: in the context of a condition precedent (lower standard, may not work for higher, but may apply to both)

Restraints on AlienationBlackburn v McCallum [1903] Restraints on alienation of fee simple is repugnant to an essential characteristic of the estate (contradiction)Notes: today, objections to restraints are founded in economic public policy

o Frame as a limitation (determinable interest) to validly imposeo General restraint is okay if limited in time (eg. no disposal for 25 years)o Restraining to a particular class is generally okay if reasonable

Age-based were void under vintage CL, but may be allowed now if they secure collateral objective Marshall v Strata Plan – 55+ in strata lots – objective is retirement community, desirable for some

Public PolicyMacDonald v Brown Estate [1995]F: T directed that share of estate was to be held on trust until niece becomes widowed/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 w/o being widowed/divorced from present husband, then her share should go to grand-nephew.A: Provisions here are supportive and not coercive/punitive/intending to induce divorce.R: whether T’s purpose, aim, object or motive was pure inducement to divorce or whether it was protective (in

the event of divorce) each case being decided on its circumstances, nature of provision, extent to which it would naturally tend to induce divorce or separation, motives of settlor, etc.

Re Piper [1946]: clause inducing a child not to associate with a parent is invalid Re Neeld [1962]: clauses inducing a person to assume name of testator are valid in England Re 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

Canada Trust Co v Ontario (Human Rights Commission) [1990]F: Leonard died and created scholarship trust fund with restraint that excludes all who are not protestant Christians, white, British nationality, or owe allegiance to foreign authority For condition precedent test, actually can meet (even though would be hopeless as condition subsequent) But it contravenes public policy – can look to ancillary legislation that addresses similar issues, human rights

legislation in provinces, Charter, etc. are all against this kind of discrimination (can look to other pieces of associated legislation to help you determine what is against public policy)

In trust law, if you have charitable purpose trust, cy-pres doctrine allows court to produce an alternative charity in line with the testator’s wishes

Testator was a product of his time, was nationalistic but above all was very generous – wanted to help people go to college; so will continue scholarship but eliminate all the restrictions

R: 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”Discrimination to support historically disadvantaged groups is validated by public policy (eg. Indigenous)

Charter: S 15 – Equality before and under law and equal protection and benefit of law (2) Does not apply to affirmative action programs

S 32 – Charter applies to government of Canada Human Rights Code

25

s 8 – Cannot 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 (disabilities, etc.)s 9 – Cannot discriminate in allowing purchase of commercial/dwelling units; OR opportunity to acquire land/interest in land; OR regarding term/condition of purchase/acquisitions 10 – Cannot discriminate in right to lease space or in lease terms/conditions; does not apply if: space is to be shared with another person; relates to family statute/age: if unit is reserved for persons 55 years or older. or if rental unit is in a prescribed class of residential premises; relates to physical/mental disability: if rental unit is designed to accommodate persons w/ disabilities and conforms to prescribed standards

LTA s 222 – Covenant that, directly or indirectly, restricts sale, ownership, occupation or use of land on account of the sex, race, creed, colour, nationality, ancestry or place of origin of a person, however created, is void and of no effect (registrar, notices covenant, may cancel on own initiative)

Jarmen Rules – Consequences of InvalidityLand: If void condition precedent = whole transfer is void If void condition subsequent = transfer is absolute and the condition is removedPersonalty: If condition precedent is originally impossible or illegal (in sense of misbehavior or reprehensible conduct –

malum prohibitum), then transfer is absolute o Where performance of condition is sole motive of bequest, or its impossibility was unknown to T, or

condition has become impossible (by act of god) or condition is illegal because in sense of malum in se (inherently wicked), whole transfer is void

If condition subsequent – transfer is absolute

Chapter 14: The Rule Against Perpetuities

CL initially allowed land owners to create long series of future interests, extending into the future (“perpetuity”) The land was virtually inalienable and no person was in a position to transfer FS

o Courts responded with rule against perpetuities

The Old Rule Against PerpetuitiesDispositions beyond first unborn child were all void (Whitby v Mitchell – restricts significantly) It applies to both legal and equitable remainders in realty, but it did not apply to personalty Eg. void: A transfers X to B (who is alive) for life and then to B’s first (unborn) child for life and then to child’s child

Property Act s 6 (1) – Except as provided by the Act, the rule of law known as the modern rule against perpetuities continues to have full effect(2) - abolished rule in Whitby v Mitchell

The Modern Rule Against Perpetuities No interest is good unless it must vest, if at all, no later than 21 years after some life in being at the creation of

the interest dies (period = lives in being + 21 years) o Life in being: anybody in the world who is alive at the day the interest was created – can include a fetus

26

o Date of creation for inter-vivos = day the property is transferredo Date of creation for wills = date the person (testators) dies o Lives in being do not need to worry about 21 years – just descendants of a life in being (who was not alive

at date of creation)o Corporations and schools are not lives in being (s 10) – 80 years from disposition if no lives in being (s 7)o If a future interest is not good because it violates rule against perpetuities then it reverts back to grantor

BC passed reforming legislation in 1975 – Perpetuity Act Despite the reforming statute, one 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 (s 6) (iii) the Act is only applicable where a future interest infringes the rule – only if it infringes the rule will the leg

operate to potentially save the future interest from being void in whole or in part.

Steps: (1) Future interest that is contingent? (look to remainder rules, certainty, PP, etc.)(2) Does interest violate modern rule against perpetuities? If no – valid future interest (3) If interest might vest outside perpetuity period – void at CL (4) Apply remedial provisions in order set out in s 3 to see if interest can be saved

Perpetuity Act s 1 “in being” means living or conceived but unborn

“perpetuity period” the period in which an interest must vest“power of appointment” any discretionary power to transfer a beneficial interest without consideration

s 3 The remedial provisions of this Act must be applied in the following order: (a) s 14 (capacity to have kids), (b) s 9 (wait and see), (c) s 11 (age reduction), (d) s 12 (class splitting - ignore), (2) s 13 (general cy pres)

s 4 Rules not applicable to benefit trusts: do not apply to trusts of: (a) pensions, retirement allowances, annuities or sickness, death or other benefits (b) retirement savings/home ownership savings plan (c) property donated to a corporation under the First Peoples’ Heritage, Language and Culture Act; (d) property donated to a university; (e) any property donated to the corporation under the Hospital Act; (f) any property donated to the corporation under Health Research Foundation Act

s 5 this Act binds the government except in respect of dispositions of property by government

s 7 Eighty-year perpetuity period permittedan interest in property which either (a) expressly or (b) impliedly must vest, if at all, no later than 80 years after the creation does not violate the rule against perpetuities

Draftsman may select any fixed period of years, up to max of 80, in lieu of period determined by reference to lives in being

e.g. To A for life, remainder to his first child to marry, provided he marries within 60 years of my death. – Valid

s 8 No disposition is void only because there is a possibility of the interest vesting beyond the perpetuity period

s 9 Presumption of validity (‘wait and see’)

27

(1) Every contingent interest that is capable of vesting within or beyond perpetuity period is presumed to be valid until actual events establish that the interest is incapable of vesting within the perpetuity period, then unless validated by s 11, 12 or 13 becomes void(2) A disposition conferring a general power of appointment, which but for this section would have been void on the ground that it might become exercisable beyond the perpetuity period, is presumed to be valid until the time, if any, it becomes established by actual events that power cannot be exercised in perpetuity period

s 10 Determination of perpetuity period – ‘wait and see’ period(1) If s 9 applies to a disposition and the duration of the perpetuity period is not determined under ss 7, 21 or 22, the perpetuity period must be determined as follows:

(a) Look at the people under subsection (2), if any are lives in being (and ascertainable) at the commencement of the perpetuity period, the duration of the period is determined with reference to those lives and no others; and those described in subsections (2)(b) or (c) will be disregarded if the number of persons fitting the description is such as to make it impractical to ascertain the date of death of the survivor; (b) if there are no lives under para (a), the perpetuity period is 80 years.

(2) The persons referred to in subsection (1) are: (a) Grantor (not in a will);(b) Beneficiaries or potential beneficiaries;

(i) a person or potential member of a class (class disposition)(ii) a person who has satisfied some conditions and the remainder may be satisfied (individual disposition to a person taking only on certain conditions being satisfied)(iii) a member or potential member of the class (special power of appointment exercisable in favour of members of a class) (iv) if, in the case of a special power of appointment exercisable in favour of one person only, the object of the power is not ascertained at the commencement of the perpetuity period, a person as to whom all of the conditions are satisfied, or some of the conditions are satisfied and the remainder may in time be satisfied, and(v) in the case of a power of appointment, the person on whom the power is conferred;

(c) a person having a child or grandchild w/in para (b)(i) to (iv) or a person any of whose children or grandchildren, if subsequently born, would by his or her descent, fall w/in para (b)(I) to (iv);(d) a person who takes a prior interest in the property disposed of and a person on whose death a gift over takes effect;(e) if

(i) a disposition is made in favour of any spouse of a person who is in being and ascertainable at the commencement of the perpetuity period(ii) an interest is created by reference to an event occurring during the lifetime of the spouse of a person who is in being and ascertainable at the commencement of the perpetuity period or during the lifetime of the survivor of them, or(iii) an interest is created by reference to the death of the spouse of a person who is in being and ascertainable at the commencement of the perpetuity period or the death of the survivor of them,

the same spouse whether or not that spouse was in being or ascertainable at the commencement of the period (allows for the very young spouse scenario).

s 11 – Reduction of age

28

(1) If a disposition creates an interest in property by reference to the attainment by any person of a specified age exceeding 21 years, and actual events existing at the time the interest was created or at any subsequent time establish

(a) that the interest, but for this section, would be void as incapable of vesting w/in the perpetuity period, but(b) that it would not be void if the specified age had been 21 years,

The disposition must be construed as if, instead of referring to the age specified it had referred to the age nearest the age specified that would have prevented the interest from being void(2) One age reduction to embrace all potential beneficiaries must be made for the purposes of subsection (1).(3) If in the case of any disposition different ages exceeding 21 years are specified in relation to different persons,

(a) the reference in subsection (1)(b) to the specified age must be construed as a reference to all the specified ages, and(b) the subsection operates to reduce each such age so far as is necessary to save the disposition from being void for remoteness.

s 13 – General cy pres provision(1) If a disposition would be void solely on the grounds that it infringes the rule against perpetuities (apart from the provisions of this section), an interested person may apply to the court who may vary the disposition to give effect as far as possible to the general intention of the disposition within the rule against perpetuities (so long as the general intention of the disposition can be ascertained in accordance with normal principles of interpretation and the rules of evidence)(2) Subsection (1) doesn’t apply if the disposition has been subject of a valid compromise

s 14 – Presumption and evidence as to future parenthood(1) presumed that

(a) male 14 years or over can have children(b) female 12 – 55 can have children

(2) Despite (1), a living person may show evidence that they cannot have kids(5) For the purposes of this section, the possibility of adoption or legitimation are not considered

s 15 A person may apply to the court for opinion/advice of court as to validity with the rule against perpetuities

29