Anker - Common Law Property - 2007

COMMON LAW PROPERTY
Prepared by Andrew Carvajal

Instructor: Prof. Kirsten Anker
Fall 2007
Note: Most of this material is a reproduction of a summary from a previous year with a few additions here and
there. Regrettably, I am unaware of the name of the author of the previous summary so as to provide the due credit,
but to this person I am immensely thankful for the success in this class. Many thanks also to Runa D for providing
me with the summary in the first place
Table of Contents
CHAPTER ONE: PROPERTY AS RIGHTS, NOT THINGS.......................................................10
Introduction............................................................................................................................10
The Categorization of Property in the Common Law...............................................................10
The Categorization of Property in the Common Law...........................................................10
Real property......................................................................................................................11
Personal property...............................................................................................................11
Jeanne L. Schroeder Chix nix bundle-o-stix......................................................................11
Lecture Notes.........................................................................................................................11
C.B. Macpherson, The meaning of Property, Introduction to Property: Mainstream and
Critical Perspectives..............................................................................................................12
Thomas W. Merrill, Property and the Right to Exclude.....................................................14
Harrison v. Carswell (1975), 62 D.L.R. (3d) 68 (S.C.C.).....................................................15
Lecture Notes.........................................................................................................................17
CHAPTER TWO: WHICH RIGHTS IN WHICH THINGS?.......................................................18
Introduction............................................................................................................................18
Theories of Property..................................................................................................................18
Theories of Property..............................................................................................................18
International News Services v. Associated Press, 248 U.S. 215 (1918)................................20
Noted on other Cases.............................................................................................................22
Victoria Park Racing and Recreation Grounds Ltd. v. Taylor and Others (1937), 58 C.L.R.
...............................................................................................................................................22
Kevin Anderson - Climate changes on carbon trading.........................................................24
Moore v. Regents of the University of California et al., 51 Cal.3d 120 (S.C. Cal., 1990).....24
Diamond v. Chakrabarty (1980) 447 U.S. 303, 100 S.Ct. 2204............................................28
Subjects and Objects of Property Law.......................................................................................29
Patricia J. Williams, Alchemical Notes: Reconstructing Ideals from Deconstructed Rights
...............................................................................................................................................29
Dred Scott v. John F.A. Sandford (1856), 60 U.S. 393..........................................................30
Henry Clay, Speech on abolitionist petitions in the United States Senate.............................31
CHAPTER THREE: POSSESSION AND TITLE AT COMMON LAW.....................................31
What is Possession and Why Does it Confer Rights?...............................................................31
Pierson v. Post, Caines Reports 175 (N.Y. Supreme Court, 1805)........................................31
The Tubantia, [1924] All ER 615 (Pr. & Ad. Div.)................................................................33
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Finders.......................................................................................................................................33
Keron v. Cashman et al., 33 A. 1055, Court of Chancery of New Jersey, 1896....................33
Bird v. Fort Frances, [1949] 2 D.L.R. 791 (Ont. H.C.).........................................................34
Parker v. British Airways Board, [1982] 1 QB 1004 (C.A.)..................................................35
Lecture Notes Summary of possession cases.....................................................................37
Adverse Possession....................................................................................................................38
Introductory Note...................................................................................................................38
Lecture Notes.........................................................................................................................40
T. W. Merrill, Property Rules, Liability Rules, and Adverse Possession...........................41
Adverse Possession: The Quality of Possession........................................................................41
Re St. Clair Beach Estates Ltd. v. McDonald et al. (1974), 50 D.L.R. (3d) 650 (Ont. Div...42
D. Mendes Da Costa and R. Balfour, Property Law: Cases, Text and Materials..................43
Lundrigans Ltd. v. Prosper (1981), 132 D.L.R. (3d) 727......................................................44
Adverse Possession and the Inconsistent Use Test: Judicial Repeal.........................................45
Masidon Investments v. Ham (1984), 45 O.R. (2d) 563 (C.A.).............................................46
Notes......................................................................................................................................48
Notes from other cases (from lecture notes)..........................................................................49
Teis v Ancaster (Town) (1997) 152 DLR (4th) 304...............................................................49
Notes......................................................................................................................................50
Quick Quiz.............................................................................................................................52
CHAPTER FOUR: THE RIGHT TO EXCLUDE.........................................................................52
Quasi-Public Space....................................................................................................................53
Cadillac Fairview Corp. Ltd. v. R.W.D.S.U. (1989), 71 O.R. (2d) 206 (C.A.)......................53
The Right to Free Speech..........................................................................................................54
Marsh v. State of Alabama, 326 U.S. 501 (1946)..................................................................54
Notes......................................................................................................................................56
Lecture notes on C.C.C. v. Canada........................................................................................56
Kevin Gray, Susan Francis Gray, Civil Rights, Civil Wrongs and Quasi-Public Space....57
Rawlins/Anderson..................................................................................................................57
London Borough of Southwark v. Williams and Another, London Borough of Southwark v. 58
Notes......................................................................................................................................59
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The Right to Participate.............................................................................................................60

Local 1330, United Steel Workers of America v. United States Steel Corporation (1980). . .60
J.W. Singer, The Reliance Interest in Property (1988).......................................................61
CHAPTER FIVE: TENURE AND ESTATES...............................................................................63
Introduction to Tenure and Estates............................................................................................63
K. Gray, Elements of Land Law............................................................................................63
nemo dat quod non habet...................................................................................................63
Types of Estates.........................................................................................................................64
R. Scane, Notes on Life Estates and Estates in Fee Tail....................................................64
The Creation of Estates: Presumptions and Words of Limitation..........................................65
Lecture Notes.........................................................................................................................65
Present and Future Interests.......................................................................................................66
Introductory Notes.................................................................................................................67
Reversion...........................................................................................................................67
Remainder..........................................................................................................................67
Notes......................................................................................................................................67
Introduction to Conditional Estates...........................................................................................68
Conditions Precedent.........................................................................................................68
Conditions Subsequent......................................................................................................68
Defeasible..........................................................................................................................68
Determinable......................................................................................................................69
Megarry and Wade, The Law of Real Property.....................................................................69
Lecture Notes.........................................................................................................................69
Defeasible v. determinable interests..................................................................................71
Remainder rules of the common law.................................................................................72
Summary............................................................................................................................72
The rule against perpetuities..............................................................................................75
Re McColgan, [1969] 2 O:R. 152 (H.C.J.)............................................................................75
Notes......................................................................................................................................76
Conditions and Uncertainty.......................................................................................................76
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Sifton v. Sifton, [1938] 3 All E.R. 435 (P.C. - Ont. )..............................................................76

Notes......................................................................................................................................77
Clayton v. Ramsden, [1943] A.C. 320 (H.L.).........................................................................77
Notes......................................................................................................................................78
Conditions and Public Policy.....................................................................................................79
Re Noble and Wolf, [1949] 4 D.L.R. 375 (Ont. C.A.)...........................................................79
Legal Updates after Re Noble and Wolf.................................................................................80
Re Canada Trust Co. and Ontario Human Rights Commission (1990), 69 D.L.R. (4th) 321
...............................................................................................................................................80
Notes......................................................................................................................................81
CHAPTER SIX: EQUITABLE INTERESTS...............................................................................82
Trusts.........................................................................................................................................82
Lecture Notes.........................................................................................................................83
Common law and equity....................................................................................................83
Inwards v. Baker [1965] 2 QB 29 (CA).................................................................................85
John Bulun Bulun v. R&T Textiles (1998) 157 ALR 193 (Federal Court).............................86
Wifes Equity and Womens Property Rights............................................................................87
Gissing v Gissing...............................................................................................................87
Murdoch v Murdoch...........................................................................................................88
Pettkus v Becker.................................................................................................................88
Sorochan v Sorochan.........................................................................................................88
Lecture Notes.........................................................................................................................88
Peter v Beblow [1993] 1 SCR 980.........................................................................................89
Priorities.....................................................................................................................................91
Northern Counties of England Fire Insurance Co v Whipp (1884) 26 Ch.D.482.................92
Pilcher v Rawlins [1872] LR 7 Ch App 259..........................................................................93
Chippewas of Sarnia Band v Canada (AG) (2000) 41 RPR (3d) 1.......................................94
CHAPTER SEVEN: PROOF AND REGISTRATION.................................................................95
Title, Proof and Registration......................................................................................................95
Land Titles Act (RSO 1990)...................................................................................................96
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T. G. Youdan, The Length of a Title Search in Ontario.....................................................96

Alain Pottage, The Measure of Land (1994).......................................................................96
Marcia Neave, Indefeasibility of Title in the Canadian Context (1976)............................97
Lecture Notes.........................................................................................................................98
Different types of indefeasibility.....................................................................................100
United Trust Co. v. Dominion Stores Ltd. Supreme Court of Canada 1976 CarswellOnt 383
.............................................................................................................................................101
Holt Renfrew & Co, v, Henry Singer Ltd. [1982] 4 W.W.R. 481, 1982 CarswellAlta.........102
Notes....................................................................................................................................103
CHAPTER EIGHT: SERVITUDES (EASEMENTS AND COVENANTS)..............................103
Introductory Notes...............................................................................................................103
Characteristics of Easements...................................................................................................103
Re Ellenborough Park, [1956] 1 Ch. 131 (C.A.).................................................................103
Notes....................................................................................................................................105
Lecture Notes.......................................................................................................................106
Positive and Negative Easements............................................................................................106
Phipps v. Pears, [1965] 1 Q.B. 76 (C.A.)............................................................................107
Creation by Express or Implied Grant.....................................................................................107
Lecture Notes.......................................................................................................................109
Wong v. Beaumont Property Trust Ltd., [1965] 1 Q.B. 173 (C.A. ).....................................109
Sandom v. Webb, [1951] 1 Ch. 808 (C.A.)...........................................................................111
Barton v. Raine (1980), 114 D.L.R. (3d) 702 (Ont. C.A.)...................................................112
Creation by Presumed Grant....................................................................................................113
User as of Right.......................................................................................................................114
Garfinkel v. Kleinberg, [1955] 2 D.L.R. 844 (Ont. C.A.)....................................................114
Caldwell v. Elia, (2000) 129 O.A.C. 379.............................................................................115
The Scope of Easements..........................................................................................................115
Notes....................................................................................................................................116
Termination of Easements........................................................................................................116
Notes....................................................................................................................................116
Covenants.................................................................................................................................116
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Lecture Notes......................................................................................................................117
Easements vs. Covenants.................................................................................................117
Bruce Ziff, Restrictive Covenants: The Basic Ingredients in Real Property Law:
Conquering the Complexities..............................................................................................117
CHAPTER NINE: LEASEHOLD ESTATES..............................................................................118
Introduction..............................................................................................................................118
Lecture Notes.......................................................................................................................119
British American Oil Co. Ltd. and Depass (1959), 21 D.L.R. (2d) 110 (Ont. C.A.)...........119
Metro-Matic Services Ltd. v. Hulmann (1973), 48 D.L.R. (3d) 326 (Ont. C.A.)................120
Notes....................................................................................................................................122
The Independence of Covenants..............................................................................................122
Notes....................................................................................................................................122
From Property to Contract? The Law Relating to Abandonment............................................122
Lecture Notes.......................................................................................................................123
Goldhar v. Universal Sections and Mouldings Ltd. (1962), 36 D.L.R. (2d) 450 (Ont. C.A.)
.............................................................................................................................................123
Highway Properties Ltd. v. Kelly, Douglas & Co. Ltd. (1971), 17 D.L.R. (3d) 710 (S.C.C.)
.............................................................................................................................................125
Notes....................................................................................................................................127
Landlords Remedies and Duties Following Abandonment: Developments from Highway
Properties.................................................................................................................................127
Notes on an appeal...............................................................................................................129
On mitigation.......................................................................................................................129
Notes....................................................................................................................................131
CHAPTER TEN: PROPERTY, SOVEREIGNTY AND ABORIGINAL TITLE........................131
Delgamuukw et al. v. The Queen in Right of British Columbia et al. (1997), 153 D.L.R. 4th)
193 S.C.C.............................................................................................................................133
R. v. Marshall; R. v. Bernard, 2005 SCC 43........................................................................136
William F. Flanagan, Piercing the Veil of Real Property Law: Delgamuukw v. British
Columbia (1998)................................................................................................................138
CHAPTER ELEVEN: PROPERTY IN OTHER SETTINGS.....................................................138
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Degrees and Regulatory Licences...........................................................................................138

Lecture Notes.......................................................................................................................139
Caratun v. Caratun (1992), 10 O.R. (3d) 385 (Ont.C.A.)...................................................140
Woodworth v. Woodworth, 337 N.W.2d 332 (Mich. C.A., 1982)........................................142
Notes on Caratun v. Caratun...............................................................................................142
Lecture Notes.......................................................................................................................142
Re National Trust Co. and Bouckhuyt et al. (1987), 61 O.R. (2d) 640 (Ont.C.A.).............143
Canadian Imperial Bank of Commerce v. Hallahan (1990), 69 D.L.R. (4th) 449 (Ont. C.A.)
.............................................................................................................................................144
Re Foster (1992), 89 D.L.R. (4th) 555 (Ont. Gen. Div.).....................................................145
Criminal Law...........................................................................................................................146
Stewart v. The Queen (1988), 50 D.L.R. (4th) 1 (S.C.C.)....................................................146
Constitutional Law and Socio-Economic Rights as Property..................................................148
Introductory notes................................................................................................................149
Goldberg v. Kelly (1970) 397 U.S. 254, 90 S.Ct. 101.........................................................149
R. Lee, "Twenty-Five Years After Goldberg v. Kelly: Traveling From the Right Spot on..150
Gosselin v. Quebec (Attorney General) 2002 S.C.C. 84......................................................151
Notes....................................................................................................................................154
CHAPTER TWELVE: TAKINGS...............................................................................................154
The United States Constitution................................................................................................155
The Line Between Regulation and Taking...........................................................................155
Lecture Notes.......................................................................................................................155
Pennsylvania Coal Company v. Mahon et al., 260 U.S. 393 (1922)...................................155
Keystone Bituminous Coal Association et al. v. DeBenedictis (Pennsylvania Department 157
British and Canadian Constitutions.........................................................................................159
Manitoba Fisheries Ltd. v. Canada, [1979] 1 S.C.R. 101...................................................159
The Queen in Right of British Columbia v. Tener et al. (1985), 17 D.L.R. (4th) 1 (S.C.C.)
.............................................................................................................................................160
Re Haddock et al. and Attorney-General of Ontario (1990), 70 D.L.R. (4th) 644 (Ont. H.C.)
.............................................................................................................................................161
A and L Investments Ltd et al v. Ontario (1997), 152 D.L.R. (4th) 692 (Ont. C.A.)...........162
Notes....................................................................................................................................162
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CHAPTER THIRTEEN: MISAPPROPRIATION OF PERSONALITY....................................163

Lecture Notes.......................................................................................................................163
Krouse v. Chrysler Canada Ltd. et al. (1974) 1 O.R. (2d) 225 (C.A.)................................164
Gould Estate v. Stoddart Publishing Co. (1996), 30 O.R. (3d) 520 (Gen.Div.)..................165
White v. Samsung Electronics America, Inc., 989 F.2d 1512 (9th Cir., 1993).....................167
Aubry v. ditions Vice-Versa Inc., [1998] 1 S.C.R. 591......................................................168
Notes....................................................................................................................................169
CHAPTER FOURTEEN: THE ONLINE ENVIRONMENT.....................................................169
Intel Corporation v. Hamidi 30 Cal.4th 1342 (2003, Cal.S.C.)...........................................169
Ticketmaster, Corp. v. Tickets.com, Inc., 2000 WL 1887522 (C.D. Cal.)............................171
Notes....................................................................................................................................172
CHAPTER FIFTEEN: OWNING LIFE......................................................................................173
Davis v. Davis, 842 S.W.2d 588 (Penn., 1992)....................................................................173
Miles, Inc. v. Scripps Clinic and Research Foundation, 810 F.Supp. 1091 (S.D. Cal., 1993)
.............................................................................................................................................174
E. Richard Gold, Owning our Bodies: An Examination of Property Law and
Biotechnology (1995)........................................................................................................175
REVISION...................................................................................................................................177
Lecture Notes.......................................................................................................................177
POSSIBLE ESSAY TOPICS.......................................................................................................178
CHAPTER ONE: PROPERTY AS RIGHTS, NOT THINGS

Introduction
Some aspects of property rules
Property is a "set of rules". Property does not consist of the "things" or resources which
are the objects of property law, but in the rules which govern how those resources are to
be used
Property rules govern "relations among people"
Property rules govern "control, use and transfer".
Property rules concern "valued resources". But this is somewhat tautological as for the
most part a resource is not valued until property rules are applied to it
Property rules are not static nor absolute
Lecture Notes
The idea of thingness is an essential requirement for property
Property has a characteristic of exclusion
Could also be about regulating a legal relationship (rights and responsibilities) with
regards to a thing
o Three important elements of property as rights
Who? Who is going to get the rights?
What rights?
Over what things?
Where do we look for law in the Common Law?
Court decisions
o Based on pragmatism and the instant case
Property is a set of rules
Depends on the meanings attributed to words
o These depend on social practices and customs
Based on the reification of rights
o Ownership as distinct from possession
But possession gives rise to rights
Property entitlements are not absolute
The Categorization of Property in the Common Law

The Categorization of Property in the Common Law
Principal distinction is between real and personal property
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Real property (land)

Corporeal hereditaments- Estates system
o Freehold estates
o Leasehold estates
o Two estates that give you possession
Incorporeal hereditaments- Interests less than title (easements, covenants)
o Not an interest in the right itself
o Easements like a right of way
o Covenants: an undertaking with respect to land
E.g. limiting what you can do with land through contract or statute
Personal property (all other forms of property).
Choses in possession (tangibles)
Choses in action (intangibles)
o Intellectual property: copyright, patent, etc
o Shares
o Contractual rights
Aboriginal title seems to be in a category of its own
Very sui generis
Jeanne L. Schroeder Chix nix bundle-o-stix
The concept of realty as a specific plot of land occupied and exploited by a single owner is a
relatively modern development in Angloamerican culture
Historically, real property consisted of the system of estates
Numerous persons held different property rights with respect to a given piece of realty
Indeed, the traditional dichotomy between real and personal property may originally have
been in large part jurisdictional rather than substantive
o Real property rights referred not to property interests relating to land per se but to
those causes of action for specific relief that could be brought in the king's court
Although many of these medieval estates exist only as vestigial organs in late-20th century
America, other partial estates have taken their place
Lecture Notes
Dimensions of property in land
The two-dimensional plot of land
The third dimensional land
o Up to the sky and down to the core of the earth
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Fourth dimension: Time

o E.g. a lease
o Life estate: ownership of land while a person lives
o Fee simple
Fifth dimension: Equity
o Legal interest
o Equitable interest
o A second layer of estate and interests (in addition to legal interests)
Feudal tenure
Land, as part of a feudal society, was important for society survival
Lord/Vassals
o Vassals gave land to the Lord in exchange for protection
The person at the top (the Lord) was the ultimate owner of the land
The next person in the chain held the land for the Lord (tenure)
System of tenure
Sub-infudation: creating more links in the chain
The Tenant-in-Chief was in top, followed by Mesne Lords and then
by the Tenant in Demesne who actually held the land
Tenure would arise in the following examples
Free tenure: Knight service, serjeantry, frankalmoine, socage
o Wouldnt usually hold the land
Unfree tenure: copyhold (villeins/surfs under domain of the
manor)
o People who usually worked the land
While our system is nothing like this, we hold some of the elements of property devised
then
1290 Quia Emptores
o Eliminated this ability to sub-infudate
o In Feudal times there was no freedom of disposition of the land
o When you died, it would go to the next person in the chain
o Land was very symbolic, and was an important symbol of power
1540 Statute of Wills
o You could then give your land away when you die
1660 Statute of Tenures
In general terms, there is the understanding that British common law would be applicable to the
colonies unless there was a law stating otherwise
C.B. Macpherson, The meaning of Property, Introduction to Property: Mainstream and
Critical Perspectives
Property law, as a man-made institution is assumed to serve some purpose:
12
essential human need

meet the need of the class that set up the institution
In common usage:
- property = thing true meaning is right in or to things
- property is confined to private property also incorrect
Property a Right not a Thing
Without concept of property as right rather thing, physical possession would be sufficient to
create ownership.
Property is to have a right in the sense of an enforceable claim to some use or benefit of
something, whether it is a right to a share in some common resource or an individual right in
some particular things.
It is not force that establishes proprietary right. A proprietary right is protected by force. It
can only be enforced so long as property is viewed as a right- a necessary human right.
- Property is an enforceable claim and therefore a political relation between persons.
Common Property. Private Property. State Property
The State created proprietary rights and enforces them.
Common property: individual property rights for all people (natural persons) in a thing.
Guarantee that none shall be excluded. It is not the property of the state. Common
property is the most unadulterated kind of property because it is always a right of the
natural individual person, whereas private property may be a right of either a natural or
an artificial person, and state property is always a right of an artificial person
Private property: guarantee that one (or corporation / legal person) can exclude other.
State property: private property right held by the state (akin to a corporation, albeit one
to which the people have delegated power). It is not common property. It is a corporate
right to exclude. It is corporate property.
[se also J.W. Singer, The Reliance Interest in Property Chapter 4]
The misconception of Property as a Thing
17th century: property seen as right (limited rights over land, or right to a revenue- this was
logical since many different people could have rights in the land- feudal).
Capitalist economy meant more absolute rights over land, and things were exchangeable in
the market. It was simpler to think of property as being things. Virtually everything became
saleable
Today: property becoming right again as it becomes expectation of revenue (property of
shareholders). Property = right to an income.
Change is twofold:
1. Rise of the corporation as the dominant form of business enterpriseexpectation of
revenue.
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2. Increasing role of the government in society- the old idea of property as things becomes
increasingly unrealistic.
The Misconception of Property as Private Property
Modern property rights are absolute: although there are limits (nuisance, etc.)
- right to dispose of, alienate, use
- right not conditional on owners performance of a social function
However, concept of common property is present as the state reallocates property.
Environmentalism conception of air and water as common property that should be available
to all.
Lecture Notes
Two misconceptions about property
That property is a thing
o Property is tied up in a system of rights and obligations
o Rights are transferable and do not necessarily come along with the thing itself
o What actually generates the most wealth today is not necessarily a good
E.g. intellectual property, intellectual capital or workers
In feudal times most wealth was generated by land and during the
industrial revolution, it was goods, so the idea of property as a thing was
more appropriate
During the 20th century, property is more about the rights to revenue and
income
That property is private
o There is a distinction between exclusive and non-exclusive rights
o Property can also be public or commonly held
Though the factual basis of common property has disappeared with the
conversion to capitalism and privatisation
Thomas W. Merrill, Property and the Right to Exclude
The right to exclude is the sine qua non of property. It is a necessary and sufficient condition of
identifying the existence of property.
Right to exclude is the essence of property:
- without no property
- with it comes control over property
Points of Consensus
1. property is concerned with right, not things
2. concept of property includes rights over tangibles and intangibles
3. property mere possession (possession-fact, property-norm)
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4. property requires an institutional structure to enforce it (i.e. the state)

5. concept of property regroups: private, common and public property
Schools of Thought Regarding Right to Exclude
(a) Single-variable essentialism: right to exclude others = irreducible core of
property
(b) Multiple-variable essentialism: property is made up of rights of
possession (exclude)
use
disposition (transfer)
(c) Nominalism: property is a concept with no fixed meaning. Its elements depend
on the choices of the legal system and social convention. Bundle of rights.
3 Arguments in favour of essentialism:
1. The Logical Primacy of the Right to Exclude
One can deduce all the attributes of property from the right to exclude, but the latter does not
follow from any of the attributes of property.
- right to exclude right to determine the use of property
- right to exclude right to include others and exclude oneself, thereby operating the
transfer of property
2. The Historical Primacy of the Right to Exclude
Most basic proprietary right is usufruct, which is essentially the capacity to reserve for oneself
the use of property for a certain time by excluding others.
3. The Ubiquity of the Right to Exclude
Where there is property, there is a right to exclude. Even the virtual value that one keeps in ones
bank account is protected for ones own use.
Qualifications and Implications
Right to exclude absolute. Property right exists to the extent that one has the capacity to
exclude.
There is therefore great variety in the types of proprietary rights in existence.
Harrison v. Carswell (1975), 62 D.L.R. (3d) 68 (S.C.C.)
Facts
Ms. Carswell was picketing in front of her employers business in the context of a legal
strike
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The owners of the shopping mall where the business was located told her to leave its
property. They brought an action against her for trespass when she refused.
Dickson J.
Picketing constituting trespass, as it was at the malls discretion to allow people to be on its land.
As for creating a special right for picketers involved in a labour dispute: courts can be creative.
However, innovations must be inspired by consecrated principles, either by extending
their application or revaluating them according to their fundamental motivation.
Judges cannot change the law, simply because they do not like it. It is for the legislature to
seek to take into consideration all possible factors.
Laskin J. (dissenting)
Distinguishes Peters case, where picketers were found guilty of trespass, on the basis that it did
not deal with a labour dispute. Rejects suggestion that owner of shopping centre can exclude
people at his discretion. The extreme examples of what this would lead to are obvious.
Trespass connotes unjustified invasion of anothers possession. Significant element of the
protection of privacy. What is the owner of the mall trying to protect? There is no
challenge to his title and no challenge to his possession
The privilege is revocable only for misbehaviour or by reason of unlawful activity. Mrs.
Carswell is doing violence to neither.
Access by the public is the very reason for the existence of shopping centres. // public
markets.
Trespass is aimed at the protection of private dwellings. It does not apply to the
same degree in a location similar to a public space, especially if there is not threat to a
proprietary right. People are invited to a shopping centre.
o Trespass is old doctrine based on different social foundation.
Being involved in legal strike afforded certain privileges to Carswell (i.e. the social purpose of
her acts entailed a form of immunity).
Comments/class notes
1. Substance point: property is rights and not things
2. Process point: why do judges come to these different conclusions on a similar set of facts.
Dickson: principle of certainty
Laskin: new model- what is the rationale? Purposive approach
Laskin J (dissent) discusses how a shopping centre cannot be treated the same as a private
home as there is something about its nature that makes its public; which is what the
defendant claims
He also looks at the history of trespass which was created to protect people in a different
situation
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He distinguishes this case from a previous one and on top disagrees with the mechanical
approach to precedent
Dickson CJ
Disagrees with the approach to precedent and believes it is impossible to make
distinctions between these two cases, so precedent must be followed
He distinguishes between the policy of the shopping centre that no one is allowed to
distribute leaflets, and picketing
A crucial elements is the quasi-public nature of the mall
They are becoming bigger and bigger
How much power should the private land owner have?
You have something that looks like common property but isnt. The mall owner benefits from
having many of people around.
So, does property include the right to absolute possessions?

It depends on the context
We must qualify this possession
We must also take into consideration the role of the court and social and legal precedent
o Dickson seems to believe that the court shouldnt make policy-based decisions
Ankers Summary
Issue Should the Petty Trespasses Act apply to a picketing employee of a shopping
centre?
o Sub-issues Does the semi-public nature of the shopping centre qualify the
owners right to exclude? Are there other reasons to qualify the right to exclude?
Can Peters be distinguished?
Result Yes: appeal allowed.
Ratio No material difference with Peters. A general public right of entry does not
remove the right to exclude (following Peters). Property is a fundamental freedom if it
is to be curtailed or balanced with other rights, this requires policy considerations by
Parliament.
Dissent Trespass originally protected privacy not appropriate here. Peters answered
different question of law and not as a result of a legislatively recognized right to picket.
Illustrates The primacy of the right to exclude; role of courts v parliament; possibility
of the relativity or contextual nature of property rights in the dissent.
Lecture Notes
Vandevelde lawyers definitions of property
Instead of moving from the right to the thing (i.e. Macpherson) there has been a dephysicalization of property overt time from the thing to the right
It is really about protecting the value of business and results of business, not the thing
17
What are the problems of making everything property? - Calling everything property?
One problem that could arise is the constitutional protection of property (e.g. the US
constitution)
If where are to protect all rights as property, then it would be difficult to restrict the
infringement of someone elses property while allowing for others to exercise their rights
o We have thus moved away from an absolutist idea of property
CHAPTER TWO: WHICH RIGHTS IN WHICH THINGS?

Introduction
Chapter is about courts deciding whether to award property in certain things to certain
individuals.
The idea that property is a changing concept about how social interests may best be served.
The institution of property requires justification as serving:
A human purpose
A social purpose
Enforceability depends on property being seen as a human right. Therefore there must be a
public belief the property is right for it to be enforceable.
Theories of Property
Theories of Property
No theory provides an exact justification for the present state of property law. However, still
justify their decision by invoking various philosophies when:
someone claims a thing hitherto not recognised as property
there are question as to the limits of the property right over a thing
Principle justifications for property:
1) Labour: theory inspired by John Locke. Private property is the reward of labour. That
individuals have a natural right to their own labour. (INS, Victoria, Caratun)
2) Occupancy or Possession: first person to control a thing acquires proprietary rights over
it. Similar to the labour theory. This is a good example of a theory of property that
functions not as a general justification for private property, but as a justification for the
assignment of particular rights to particular persons.
18
3) Utility: inspired by Jeremy Bentham. All social organisation should be guided by

principle of utility. The goal of society is happiness, which comes from subsistence,
equality and, most importantly, security.
Guaranteeing private property = providing security necessary for subsistence. This is
necessary, in spite of the risk of inequality. We cannot arrive at the greatest good, except
by the sacrifice of some subordinate good.
It is a type of cost benefit analysis of deciding where property rights should be allocated
(INS, Stewart)
4) Law and Economics: there are two schools of thought.
Stress placed on market efficiency: market is most efficient system; therefore
property law must favour maximum exclusivity, uses and transferability. This is a
prescriptive theory.
Interest in describing, rather prescribing solution: courts must elaborate rules
according to how people are likely to react to them.
5) Freedom and Personality: freedom and moral development are enhanced by holding
property. According to Hegel, private property makes men into human beings.
6) Radical Theories: property is a source of power. Therefore, the law must consider the
public policy to follow. You can look at this power in terms of race, gender, class, etc.
Lecture Notes
Is property about force?
Is obtaining property and maintaining others away from it an act of force
Lockes theory of labour
Property is the product of ones labour
We are removing something from the state of nature to the state of society
Since we own our bodies, we should own the product of our labour
Occupancy or possession
Because possession is observable by others, this helps us establish a property claim
o It communicates to others that the property is ours and facilitates exchange and
property transactions
Utility
Associated with Benthams idea of utility maximization
Property is accorded to people depending on what would make them happy or the utility
they would derive from it
The capitalist system helps people obtain the amount of property that they want
This system also rewards industriousness and the allocation of property to those who will
extract the most utility from it
19
Law and economics

The market is the best way to organize and distribute goods and services
Property rights should favour market forces and allow them to work
The distribution of property should be based on the best interest of individuals, and law
should facilitate the market forces that make this happen
Freedom and personality
Property and things in the world are bound-up in our person
If objects and wealth are integral to us and how we are, then this would have an influence
on the decision we make about them
Radical property
Our institution of property has developed power relationships that are now in place
E.g. feminist theories
International News Services v. Associated Press, 248 U.S. 215 (1918)
Facts
AP has an agreement with members to share resources
o INS did three things that were are issue with AP
Bribed employees of member to provided with news
Had induced members of AP to provide news
Had copied news from public bulletin papers and reading news from the
East coast and published them in the West coast
o In other words, INS was free riding from the benefits of AP without being a
member
AP sued INS for pirating information that it had collected for its business partners
INS would read the information from bulletin boards put up by AP, or in the early
editions of newspapers associated with AP, and then sell it to its clients without
acknowledging the source. Thus, Western newspapers associated with INS were able to
publish the information at the same time as those linked to AP.
This happened because of different time zones and new availability of telegraph
technology
Issue
Can an individual claim some property in newspaper copy? Conversely, can someone be lawfully
restrained from appropriating news bulletins?
Pitney J.
The collocation of words in an article can be copyrighted. However, the actual information
behind it is publici juris, common property.
The value of the service is the promptness of transmission.
20
It is important to distinguish between the substance of the information and the

particular form in which the writer has communicated them. (the latter is protected
by copyright).
However, parties must conduct business so as to not unfairly injure each other. The
parties may have proprietary interests in information between themselves, though not towards
the public. Information thus becomes quasi-property.
By selling as its own information that it had not collected, INS was guilty of unfair competition
(misappropriation, rather than false representation). AP never intended to abandon the
information to competitors at the moment of publication.
Their effect is that publication by each member must be deemed not by any means an
abandonment of the news to the world for any and all purposes, but a publication for limited
purposes.
INS should be prevented from publishing material until it has lost its economic value. AP should
reap the economic benefit of its labour.
Pitney frames the issue as one of unfair competition. Although Pitney goes the furthest in
recognizing the right of property, he seems hesitant to wholeheartedly endorse this view,
preferring quasi-property.
Holmes J. (dissenting)
Neither the words, nor the information behind them, can be copyrighted. Propertys main
characteristic is that others can be excluded from it. In this case one can talk of unfair trade in
the shape of implied misstatement.
INS should be enjoined from publishing AP information for a few hours, or at least give credit
to AP for the information.
Property depends upon exclusion by law from interference, and a person is not excluded from
using any combination of words merely because someone has used it before.
Brandeis J. (dissenting)
Being able to exclude others is one of the main attributes of property. Information, once
voluntarily communicated, is free to be used by anyone. Certain exceptions exist, but these are
specified in copyright legislation, which does not mention news.
The information used by INS was obtained in a perfectly legal way something that is not
property. The main goal of INS was to inform its subscribers, rather than to maliciously
undermine APs business.
In spite of the apparent injustice of the situation, it is up to the legislature to sort out societys
priorities in this field. Courts are ill-equipped to make these decisions.
Lecture notes
The case was argued through the tort of unfair competition
The main question is whether AP has some property right that has been breached?
21
The court uses the terms of quasi-property right

o Since the value of the news is only while it is current, the tort of unfair
competition only protects this right for a limited time
o It founds INS guilty of misappropriation
Holmes J feels that basing property rights on value is problematic
The reason unjust enrichment was not argued in this case is because it didnt exist as a
tort then
o This case is in fact considered one of the first to deal with this issue
Categories of torts involved in property law at the time of INS v Associated Press
Land: trespass, nuisance
Goods: trespass, conversion, +
Intangibles: unfair competition, passing off, misrepresentation, trade secrets, breach of
trust
Ankers Summary
Issue Can AP restrain by injunction the piracy of news material from publicly
available sources?
o Sub-issues Is there property in news once published or is there otherwise unfair
competition by misrepresentation?
Result Yes: appeal rejected and injunction allowed.
Ratio Fresh news has value due to effort and expense, and may be considered as quasiproperty (limited in time and between parties) to maintain the incentive to produce.
Unfair competition is constituted by the misappropriation of this value.
Dissent Law, not value, makes property. Claim of misrepresentation will be available if
source not acknowledged (Holmes). No prior cases - extension of the law would require
complex policy decisions best left to congress (Brandeis).
Illustrates Debate over intangible value as the object of property; labour theory; and
policy considerations of property law.
Noted on other Cases
1) Pittsburgh Athletic Co. et al. v. KQY Broadcasting Co.: it was found to be a violation of
property rights for KQY to broadcast games from premises overlooking the stadium,
when the Pittsburgh Pirates had sold exclusive right to another station.
2) Canadian Admiral Corporation Ltd. v. Rediffusion Inc.: CBC broadcasts of Alouette
games were intercepted by a cable company. Taking of information = violation of
property because there existed a copyright.
3) J.A. Rahl: misappropriation doctrine should only apply where result would be destruction
of value created or of market for it.
22
4) In Boston Athletic Association v. Sullivan, Boston Athletic Association could not prevent
a TV station from covering marathon, although it had given rights to another station.
However, it could stop the sale of T-shirts with Boston Marathon written on them.
Victoria Park Racing and Recreation Grounds Ltd. v. Taylor and Others (1937), 58 C.L.R.
479 (H.C. Aust)
Facts
A broadcaster has built a very tall tower on Taylors property whence it reports on the races
taking place in Victoria Park as they are happening. Victoria Park wants the broadcasts stopped,
as they are causing less people to bother going to the race track and pay the admission fees.
A subsidiary issue is the fact that people are placing bets on the races outside the race track,
which is illegal, since they can follow the outcomes from any location.
Latham J.
A party may damage anothers property where the law permits it to do so. Therefore it must
be established that there is prohibition on the broadcasting, regardless of the damage being
caused to the plaintiff.
In this case of nuisance, no right of the plaintiff has been violated. If it wanted to prevent people
from looking at what happens on its property, it should have erected higher fences. The law will
not do this in a virtual way for the race track.
The law allows any man to describe what he has seen, as long as he is not making
defamatory statements.
Nuisance cannot be established and there is no such thing as a general right of privacy.
The organisation of entertainment does not give a person the right prevent those who see it
from describing it. A spectacle cannot be owned (therefore no quasi-property).
Rich J.
There is no set standard as to what constitutes nuisance. All surrounding circumstances must be
taken into consideration in each case.
An improper or non-natural use of ones property in such a way as to curtail a
neighbours legitimate enjoyment of his property is tortuous and hurtful. It constitutes
nuisance. Victoria Park is unable to enjoy the money-making capacity of its property.
There is no absolute right to do as one please with ones land. Overlooking ones neighbour is
one thing. However, setting up a broadcasting facility goes beyond the normal use of land. Each
owners right must be limited by the rights of the other.
Dixon J.
English law does not include a right to freedom from view. The plaintiffs case is not about the
enjoyment of ones land, but rather about the profitable conduct of ones business.
The protection of intangibles is confined to specific categories in English law.
23
It is not because a person has taken the trouble of gathering information that the results of his
efforts are protected by law (Dixon says that he is following Brandeis judgment).
Evatt J.
The law of nuisance is an extension of the idea of trespass. It is associated with those rights
of enjoyment which are attached to realty.
The broadcaster is not merely competing with the plaintiff; it is using for its purpose the
plaintiffs effort.
Categories of negligence are never closed. The law can expand.
Evatt says that he borrows from Pitney: the defendant is trying to reap where it has not sown.
Though there may not be a right of privacy, it does not follow that there is a right to spy.
Allowing the whole world to spy on ones neighbour should be considered a form of nuisance.
McTiernan J.: dismissed the appeal.
Lecture notes
Could the problem be framed as trespass?
o Is it really a case of interference with possession
What about nuisance? The interference of the enjoyment of ones property
o Part of the enjoyment of land is to make business of it
o The judges find, however, that the right of Victoria Park is not absolute and to
enforce it would infringe in Taylors rights to enjoyment of his property
Kevin Anderson - Climate changes on carbon trading
Until five or six years ago, every time environmental adviser James Cameron spoke in public
about creating a market to trade carbon credits to reverse climate change a protester would
disrupt his talk.
The protester said it amounted to paying for pollution. But now Europe has embraced
carbon trading as a way to meet the goals laid out in the Kyoto Protocol
Cameron told the Technology, Entertainment, Design (TED) conference how the market
could help solve the problem of global warming
In essence, this is what carbon trading does. It puts price tags on the release of greenhouse gases
so that they can be included in economic decisions
The American government under President George W Bush rejected the Kyoto Protocol, while
the EU embraced the market model.
Moore v. Regents of the University of California et al., 51 Cal.3d 120 (S.C. Cal., 1990)
24
Facts
Moore was treated at the UCLA Medical Center for hairy-cell leukemia. Dr. Golde, who treated
him, realised that his cells had certain characteristics that made them very valuable for scientific
research. Throughout treatment, he extracts numerous body components, including Moores
spleen, insisting that Moore must continue to see him personally over a period of several years.
Without informing Moore, Golde, with the assistance of UCLA, developed and patented a cell
line from Moores cells. It proved a profitable venture for him and the university. Nothing was
ever given to Moore, who claimed proprietary rights over the cell line. He did have a successful
claim on breach of doctors obligation to information
Panelli J.
The fact that Golde never informed Moore of his interest in his cells establishes a cause of action
for the latter. There was a breach of a fiduciary duty, as the doctor acted without having
obtained the patients informed consent.
1. An adult should be able to control his body by giving or refusing consent to medical
treatment.
2. To be valid, consent must be informed.
3. For consent to be informed, the physician must submit all material information.
Therefore:
A physician must disclose personal interests.
Failure to disclose gives rise to a cause of action for breach of fiduciary duty.
However, Moores claim of conversion is rejected
For there to be conversion, there must be interference with a right of ownership or possession.
Moore never expected to retain ownership of his cells, nor does the law (relevant statute) give
him such a right
Human biological materials are objects sui generis. Their ownership is a matter of
public policy.
Panelli discusses economic incentive as another reason for dismissing Moores claim.
The decisions was also in line with many California statutes eliminate most of a patient's right
regarding extracted body matter.
Also, the cell line that was patented is legally distinct from Moores cells, as naturally occurring
organisms cannot be patented.
A patients rights are protected at the level of the doctors fiduciary duty
The rules of conversion should not be extended:
so as to not discourage socially useful activities such as research with the threat of
constant litigation
25
so as to not limit the economic incentives for research

because the legislature is best equipped to decide whether an extension of the rules of
conversion is justified.
Arabian J. (concurring)
Plaintiff is asking the court to recognise a right to sell ones body parts for profit. This is an
unacceptable proposition.
He recommends non-action, to be used as Brandeis used it. The legislature is the proper
forum for a discussion.
Broussard J. (concurring and dissenting)
Invoking the rule that a person has no proprietary rights in their body parts is inappropriate in
this case. Indeed, the plaintiff did not properly consent to the procedures which deprived him of
his body parts.
Before a body part is removed, nobody would question its ownership.
Mosk J. (dissenting)
In practical terms, the cells that were used by Golde and UCLA were those taken from Moore.
The fact that they were patented as a cell line does not retroactively correct the unauthorised use
of Moores body parts.
Furthermore, as access to patented cell lines is not as free as the majority suggests, it is
inaccurate to say that giving Moore a proprietary interest in them would hinder science.
Nor would it be a handicap it researchers had to keep track of who used the cells, for they
already keep extensive records of such things.
People have property rights in their bodies:
Because of the respect for the human body. Research tends to forget this and treat it like a
commodity (you could argue this point the other way by saying that the commodifying
human body is disrespectful)
Because the law does not tolerate unjust enrichment.
Biologists should not be able to profit from the use of peoples body matter, when the
patients are excluded. It is fundamentally unjust.
Finally, the court is not competent to base its judgment on scientific data that it cannot
understand
Lecture notes
Facts
o A man Moore, with leukemia saw a doctor in UCLA who gave him some painful
procedures which eventually healed them
26
o He had given consent to all these procedures

o His spleen had particular cells which were medically interesting and the doctors
developed a cell line from it and developed a patent, which Moore later found
about
What kind of property are these cells?
Some of the legal arguments used were conversion and demurrer
o Demurrer refers to a situation when it is assumed that the facts can be proved and
the judges then decide the law around them
o Conversion is a tort that deals with the wrongful interference with ownership or
possession; it involves dealing with personal property in a manner repugnant to a
person's immediate right of possession.
An issue which was agreed upon was that fiduciary duty had been breached by the doctor
o The patient should have known the interests of the doctor, especially if they are
something other than the best interest of the patient
The issues of conversion
o Panelli
There is no precedent under which conversion has been used for this
purpose so under existing law
Moore didnt want to maintain possession over his cells so he
doesnt have a property claim to it
There are also California statutes severely limiting the ownership of
biological material once it has been removed
Moore is claiming ownership over something beyond his cells
The patent is a distinct thing different from Moores cells
o Should conversion be extended for policy reasons?
One issue is protection of the patient, but this has been covered under
informed consent
Another issues is the protection of future medical research
Conversion requires intention the doctor may not know about
the economic benefits derived from an extracted organ, these could
have appeared as another researchers had manipulated the cell
matter
o There would be a litigation lottery in trying to figure out
which cells and who they belonged to led to profitable
scientific discoveries
There are other avenues for compensating the patient
o Mosk
Just because there are statutes that dont regulate it doesnt mean that this
type of property doesnt exist
Regulation is not incompatible with property
Mosk addresses the argument that because there is a patent on the
cells this shows that it was legally distinct
27
He believes that the fact that there is patent now, does not
retroactively deny Moores contribution to the existence of this
thing
Regarding the policy outcomes Mosk feels that given modern recordkeeping we could know who materially contributed to scientific
discoveries
Also, there is an infringement of the dignity of the person to allow
someone else to exploit revenue from ones body
o But couldnt you say the same of the individual who si
trying to profit from his own body cells
Ankers summary
Issue Does Moore have an action in conversion to claim an interest in the profit
generated by the patent?
o Sub-issues Can Moore establish ownership over
(i) his cells
(ii) the subject matter of the patent (the cell line)?
Result No: appeal dismissed on the conversion claim.
Ratio There are no ownership rights in cells once removed from body because no
prior case and there is a presumption from other statutes is that any property rights
have been severely curtailed. There can also be no interest in a cell-line patent
because it is factually and legally distinct from cells.
o There are also policy considerations for not extending conversion (i.e.
protecting medical research)
Dissent Policy considerations (research) exceed scope of question. Traditional
conversion allows recovery of the value of the right to control use of body part prior
to removal (Broussard). Failure to compensate the patient for his contribution to
commercial value of patent amounts to unjust enrichment (Mosk).
Illustrates complex policy considerations in property; value; labour; common law
reasoning on new facts.
Diamond v. Chakrabarty (1980) 447 U.S. 303, 100 S.Ct. 2204
Facts
Chakrabarty developed a bacterium which can break down the components of crude oil and
could help clean up oil spills. He applied for a patent on the method of its fabrication, for an
inoculum which uses the bacteria and, finally, for the bacteria itself. The patent examiner rejected
the last application on the basis that living organisms cannot be patented. Chakrabarty wants this
decision reviewed in his favour.
Burger C.J.
The law on patents is aimed at encouraging research by giving discoverers certain privileges
over their inventions. Para.101 of the US Patents Act protects any process, machine,
manufacture or composition of matter.
28
As Chakrabartys invention is not:

- a law of nature
- a physical phenomena
- an abstract idea
It should be held patentable. It is the result of human effort.
The judge rebuts two of the patent bureaus arguments:
Composition of matter in the legislation living things, as proven by the fact
Congress felt the need to legislate specifically about plants
False. This legislation was based on a misunderstanding of the situation (belief all
plants were products of nature according to legislation + difficulty of providing written
descriptions). The fact that a product is living is legally irrelevant. It is whether it
occurs naturally that counts.
Micro-organisms cannot be patented until Congress expressly authorises this.
False. Congress speaks, the courts interpret. Congress intends legislation such as the
patent law to be interpreted in an expansive way as it in its nature to deal with
unprecedented situations that cannot be specifically planned for. Legislation should not
be confined to the particular applications contemplated by the legislators.
Moral arguments on the question of whether a patent should be granted for a living
organism are irrelevant in the courts. The legislature is better suited for such discussions. Not
granting a patent will not in itself solve the ethical problems of the case.
The court can interpret the Patents Act as encompassing Chakrabartys discovery. That is
all it should do.
Brennan J. (dissenting)
Brennan contests the patenting of the bacteria. Where there is no legislative direction, the
courts should stay out of Congress way.
It is the common understanding that living organisms cannot be patented. The legislation in
existence makes this clear. Indeed, when Congress legislated about the patenting of plants, it
was acting on the assumption that living things could not normally be patented. Bacteria
were excluded from this legislation.
Lecture notes
Patents usually involve inventions/processes and discoveries that do not exist
This bacteria is not naturally-existing, it was genetically modified so can it be patentable?
The question is whether Congress intended to include bacteria in the definition of a patent
There were Acts targeting plants produced through sexual and asexual reproduction
which excluded bacteria
How much credit can a human take for creating a living thing?
Subjects and Objects of Property Law

29
Patricia J. Williams, Alchemical Notes: Reconstructing Ideals from Deconstructed Rights

In looking at Pierson v. Post and a copy of her great-great-grandmother Sophie's sale, the author
came to the following conclusions:
Whether owned or unowned, rights over them never filtered down to them; rights to their
persons never vested in them
When owned, issues of physical, mental and emotional abuse or cruelty were assigned by
the law to the private tolerance, whimsy or insanity of an external master
When unowned--i.e., free, freed, or escaped--again their situation was uncontrollably
precarious, for as objects to be owned, they and the game of their conquest were seen
only as potential enhancements to some other self
o They were fair game from the perspective of those who had rights
Dred Scott v. John F.A. Sandford (1856), 60 U.S. 393

Facts
Plaintiff and his family were slaves brought by their master from the slavery practicing state of
Missouri to a territory north of the Mason-Dixon line (future Minnesota) where slavery had been
abolished by an act of Congress. Scott returned with his master to Missouri but when he was to
be sold, he went to court arguing that by living in Minnesota he and his family had become free
et were full-fledged citizens of the United States.
Taney C.J.
Nothing in the constitution with regards to civil and political rights was ever intended to
apply to slaves at the time that it was written. Therefore, it cannot be interpreted to do so at
a later date. To change this would require a constitutional amendment.
If Scott is not a citizen and has none of the rights granted to a citizen under the constitution,
he cannot even appeal to the courts.
But what of the possibility that he has been freed?
The legislation prohibiting slavery in certain states cannot be interpreted in such a way as to be
unconstitutional. The right to property is protected by the constitution and Congress is not
free to interfere with it.
That the legislation concerned slaves rather another type of property is irrelevant.
Philosophical and political ideas about the rights men cannot change the undoubted meaning of
the words of the constitution.
Lecture notes
The first thing that the court needs to decide is whether a slave has rights (are they
citizens) and thus a standing in court
o The court looks into the constitution and finds that they are considered to be part
of a human being
30
o There are also provision that state that if a slave moves from one State which
supports slavery to another one which doesnt he/she must be extradited
o If we look at statutes at the time, clearly citizens cannot be people other than those
belonging to the white race
Even if the words in the constitution were not clear, the acts of the framers
were
They were slavers themselves, and they are considered men of honour
o So the answer to the first is no, they are not citizens
The second issues was whether the slave had become free when he had moved to
Missouri
o Could it be possible to destroy the property rights of a slaver?
o No, because property rights are protected by the constitution
Why is slavery relevant to property?

Blurs the ontological distinction between property and things
Similar is the case of modification of body organs
o Makes it hard to draw the distinction between what is intrinsic to the body (the
person) and what is commodifiable as an object
When we speak of property we qualify it as something that has a monetary value and be
sold and bought in the market
Henry Clay, Speech on abolitionist petitions in the United States Senate
With them [abolitionists] the right of property is nothing
A third impediment to immediate abolition is to be found in the immense amount of
capital which is invested in slave property
The total value, then, by that estimate, of the slave property in the United States, is twelve
hundred millions of dollars. This property is diffused throughout all classes and
conditions of society. It is owned by widows and orphans, by the aged and infirm, as well
as the sound and vigorous. It is the subject of mortgages, deeds of trust, and family
settlements.
CHAPTER THREE: POSSESSION AND TITLE AT COMMON LAW

What is Possession and Why Does it Confer Rights?
Pierson v. Post, Caines Reports 175 (N.Y. Supreme Court, 1805)
Facts
The facts of the case take place on ownerless land. Post went fox hunting using impressive
means. Just as he was about to capture an animal, Pierson intervened, killing and carrying away
the fox. Post is suing Pierson, claiming a proprietary right in the carcass of the beast.
31
Issue
Is body seizure necessary in all cases to constitute possession? NO, but
Is there a proprietary right in the mere pursuit of an object? NO
Tompkins J. (majority)
The fox, as an animal ferae naturae can only be acquired by occupancy. The question is
what constitutes occupancy? While body seizure may not always be necessary, authorities
have said that there must at least be an unequivocal intention of appropriating the animal.
(eg- wounding the animal or bringing the animal within the pursuers certain control).
We are inclined to confine possession or occupancy within certain limits for the sake of
certainty, and preserving peace and order in society.
Therefore, Pierson, although his behaviour may be uncourteous, is not liable in damages.
According to the authorities, pursuit of an animal gives no proprietary right over it. Bringing
an animal under a certain degree of control should be sufficient to constitute possession.
Livingston J. (dissenting)
The case should have been resolved according to the customary practice of sportsmen. As a
matter of public policy, the courts should reward the effort of the person who goes to the trouble
of hunting pests such as foxes.
Provided the pursuer be within reach or have a reasonable prospect of taking it, property
in animal may be acquired without bodily touch or manucaption.
Therefore, the fox should belong to the hunter, not to the chance occupant.
Comments/Class notes:
Had Post established possession by merely pursuing the fox? NO

A wild animal can only be possessed by mortal wounding or trapping- there is no requirement to
actually hold the fox but you must have above elements.
There would be many conflicts if you could possess something that was running away from you.
If there are other people that are also chasing the fox.
Did the court have any grasp of the social reality in this case (Farmer v. Hunter)
Economics argument: it is inefficient to go around hunting foxes- they are annoying and
bothersome.
Ankers summary
Issue: what does it take to establish a possessory claim over a wild animal?
Ratio: for a hunter to establish possession they must mortally wound and continue to give
chase to an animal
o Possession requires physical control and the intention to possess
The Tubantia, [1924] All ER 615 (Pr. & Ad. Div.)
Facts
32
The Tubantia, a Dutch vessel, was sunk in the North Sea during the First World War. Hoping to
derive an economic benefit from salvaging its cargo, the plaintiffs mounted an expedition to the
wreck. They want to considerable length to be control the vessel but, because of the rough nature
of the sea, were only able to conduct very limited diving activities. They do, however, assert
possessory rights over the wreck.
The defendants, also interested in the Tubantia, arrived at the scene and did there best to make
the plaintiffs situation untenable. However, without this pressure they would have been unable to
dislodge the plaintiffs. The argument is over whether the plaintiffs have sufficient rights over the
Tubantia to exclude the defendants. They deny the possessory rights of the defendants.
Sir Henry Duke
What a person takes for himself and controls, to the extent possible, is in his possession.
Omnia ut dominium gessesse.
The plaintiffs were in effective control of the wreck, to the extent that this was possible. There
clearly was an animus possidendi, through use, occupation and exclusion. Physical control
applied to the res as a whole was not possible. The plaintiffs did with the wreck what a purchaser
could prudently have done.
The acts of the defendants were done with the intention of hampering the plaintiffs and
depriving them of any advantage they had gained by their work upon and possession of
the wreck.
Consequently, by interfering with the plaintiffs possession, the defendant was trespassing.
As to the remedy, Duke is mindful that a possessory right is limited and it should not be
misconstrued as anything more than that. An injunction is possible.
Ankers summary
Issue is occupation sufficient to sustain action of trespass or was the action of the other
inference?
o Sub-issues: what acts constitute possession or manifest intention to possess
Ratio possession is the power to exclude people, relative to the use that is possible
o Also what constitutes
Finders
Keron v. Cashman et al., 33 A. 1055, Court of Chancery of New Jersey, 1896
Facts
Crawford found a sock while walking in a public place with other boys. Cashman somehow
obtained it and used it as a plaything until it burst open and was found to be full of money. When
it was established that the rightful owner could not be found, Crawford claimed all the money for
himself as the finder. The other boys demanded an equitable partition of the cash.
33
Issue
Does a possessory right begin from the moment an object is found or from the moment the finder
discovers what the object really is?
Emery V.C.
Possession requires not only physical control, but also intent to possess, an appropriate
state of mind. Crawford demonstrated no such intent. Until the money was found, the sock was
treated as a plaything by the boys and considered to have no interest in owning or possessing.
The money itself was found by all the boys in common.
The money was legally found while in the common possession of all the defendants.
Ankers summary
Issue: when an object has been passed amongst many who is considered the owner of
something found in this object?
o Sub-issue: who has the right to a thing which was only found to be valuable after
being possessed by many
Ratio: intention with respect to the object claimed is required in order to be a legal finder
Bird v. Fort Frances, [1949] 2 D.L.R. 791 (Ont. H.C.)
Facts
The plaintiff, a boy, while playing a game, crawled under a building on private property and
there found a can containing a large sum of money, most of which he handed over to his mother.
The police learnt about this and took away the money (which mother gave up voluntarily) while
it sought out the real owner. It was turned over to the town treasurer. Eventually, the boy claimed
the money back as its finder.
Issue
1. Is the plaintiff the true finder or does the owner of the land on which the money was
found have an interest in it?
2. What are the rights of the plaintiff as the finder of the money?
3. How far is the right of the plaintiff to recover the money against the defendant?
4. Did the plaintiffs possession of the money subsist when it was handed over to the
Constable?
McCruer C.J.H.C.
1. The plaintiff was not a true finder within the meaning of the term used by jurists
1. The money that was found was not found in a public place. It had been carefully
and deliberately put there with the intention of hiding it. Therefore, the plaintiff was
a wrongful taker
2. Pollock on possession: A taker upon a loss and finding may, like any other possessor,
maintain trespass and theft and trover or detinue against a stranger.
34
2. Therefore, where A enters upon the land of B and takes possession of and removes
chattels to which he asserts no legal rights, and A is wrongfully dispossessed of those
chattels, he may bring an action to recover the same.
4- In order to sue for the recovery of goods, the finder or wrongful taker must actually have
taken possession, but when possession is once acquired it is not necessary, in order to
retain it, that the effective control which must be used to gain possession originally
should continue to be actively exercised.
Because the true owner could not be located, the money should have been returned to the
finder.
Mere possession is a valid source of rights, even though they are less extensive than those of the
rightful owner (the only person who can claim the object from the possessor).
Possession is a source of rights, independently from the way it has been obtained.
The boy was a trespasser, taking money that was clearly not lost, since it had been hidden
with great care. He is therefore not a true finder. He nonetheless had proprietary rights over the
money that exceeded those of the municipality as a subsequent possessor.
The fact that possession has been interrupted, even if wrongfully obtained, does not
eliminate any proprietary rights that have been acquired.
Lecture notes
Ankers summary
Issue: Can the finder of a chattel on premises owned by another claim it when
dispossessed?
Ratio: The finder of a chattel on the land of another (who makes no claim) may bring an
action against the later possessors save the rightful owners
Parker v. British Airways Board, [1982] 1 QB 1004 (C.A.)
Facts
Parker was a waiting for his flight in the lounge in Heathrow, when he found a gold bracelet on
the ground. He handed over to BA personnel, requesting that it be given to him if the rightful
owner could not be identified. Instead contacting Parker, BA sold the bracelet. He is suing them
for its value.
Issue
Does Parker have a right to the bracelet or does the right belong to BA by virtue of the fact that
the bracelet was found in its lounge?
Does the common law occupier of land have such rights over all lost chattels which are on that
land, whether or not the occupier knows of their existence?
Donaldson L.J.
35
In order for BA to succeed, they must rightly claim on the basis that they had rights in
relation to the bracelet immediately before the plaintiff found it and that these rights are
superior to the plaintiffs.
Plaintiff can claim on basis of status as finder. BA is invoking its rights over the land where the
object was found.
So as to not reward trespasser, the law gives the owner of the land a better proprietary
interest than the trespassers.
However, Parker was legitimately on BA property
Other situations that favour the owner of the land are:
- if the chattel is underground
- if the chattel is attached to the realty
- if he has manifested an intention to appropriate all object on his property. The
manifestation required may vary, depending on the situation (public v. private
location). Compare a lost object in a bank with a lost object in a shopping mall.
Otherwise, the general rule applies that the finder, through possession, obtains a
proprietary interest in the object.
Note: the acts required to take possession of an object may be undertaken through an
agent.
BA undertook insufficient measures to claim proprietary rights over the objects found in the
lounge which, although private property, was of a public nature.
Rights and obligations of the finder:
1. finder of chattel has no rights unless it has been abandoned or lost AND he takes it into
his care and control
2. the finder of chattel has limited rights if he is trespassing or has dishonest intent.
3. while a legitimate finder does not have absolute right of property, he has the right to keep
chattel against all but the true owner.
4. a finder working as servant or agent is acting on behalf of employer for sake of chattel.
5. person finding chattel has obligation to take all reasonable measures to acquaint true
owner with whereabouts.
Rights and liabilities of an occupier:
1. An occupier of land has rights superior to those of a finder over chattels in or attached to
that land (same for occupier of building), whether in either case the occupier is aware of
the presence of the chattel.
2. An occupier of building has rights superior to those of finder over chattels upon or in but
not attached to building only if, before the chattel is found, he has manifested an intention
to exercise control over the building and things which are upon or in it.
3. Same as 5 above
36
Conclusion: because BA did not manifest any intention to exercise control over the lounge and
all things which might be in it, they have no right to retain the bracelet.
Lecture notes
Ankers summary
Issue: Who has a better claim over lost property, the finder or the occupier of the
premises where the property was found?
o Issues in the argument
Plaintiff claims to have gained rights when he found the bracelet and
respondent claims to have had rights before
He was not a trespasser and found the bracelet in full honesty
The lounge administration did not have a manifest intent on the property
Ratio: when a person finds lost property in someone elses premises and the true owner
cannot be found, the finder has a right to the property unless the occupier of the land had
expressed an intent of ownership over lost property in their land
Lecture Notes Summary of possession cases
First possession of a thing unowned

o Property in wild animals acquired by occupancy
Occupancy = capture or mortally wounding
Occupancy = that which manifests the intention to appropriate to
individual use = element of control
o One of the rationales for this rule is certainty bright line rules to minimize
disputes
First possession of a thing abandoned or lost
o Legal possession requires factual possession and conscious intention to possess
(Keron)
o Acts constituting possession are relative to physical nature of the thing
What a prudent owner would have done (questions of fact) (Tubantia)
o Finder becomes a bailee for the real owner (Parker)
Bailee comes to the French bail, like a lessee for the owner
The finder in turn has some duties
E.g. try to find the true owner
Finders v occupiers of premises
o If object attached to land, it is part of realty
o If unaware of presence, owner cannot be bailee
E.g. Kowal v Ellis hidden pump
o Occupier has possession if manifests intention to exert control of objects on
premises
E.g. Hibbert v McKiernan golf balls found in a golf course
37
A reason for distinguishing, however, and to be careful in applying

the precedent of this case, is that it was a case for criminal
prosecution of theft
o Occupiers trump trespassing finders
So one ought not to benefit from wrongdoing
o Trespassing finders trump later wrongful takers
As to avoid free-for-all
Important: title is relative
o Possessory title gives rights superior to all others except:
The true owner
Those with extant prior possessory rights
Those who claim later possession by lawful means (Buckley v Gross)
Adverse Possession
Introductory Note
Common law maintains fiction that real property lies in the Crown
Individuals have title to land.
Historically, possession was a very significant part of the law of title.
Possession (seisin = fact not right) provided:
- method of acquiring land
- method of proving title against other claimants.
Title to land at common law is relative. It cannot be absolute because the Crown owns all land. A
court will only decide who of two disputants has the better title, independently of the rights of
others.
It is still possible to acquire title to land at common law through long possession
aboriginal title
adverse possession.
Continued de facto enjoyment of land is presumed to provide a good root for a title. Title may
be acquired through long possession, according to the law of adverse possession.
Adverse possession: enjoyment of land by a squatter for a certain period (10 years in Ontario) in
a certain way, depriving owner of his title. Certain criteria must be satisfied for the clock to start
ticking.
Several possessors (squatters) may pass their right down from one to the other, granted that there
are no gaps in possession
Adverse possession will nonetheless be considered to start with the first one of them
38
The last possessor will gain title per Bowen C.J. in Mulcahy v. Curramore Ply.
Ltd.
Conversely, if a squatter abandons his rights, the owner regains full rights.
o
Whatever the extent of a squatters rights, they are better than those of any but the true owner
(until the statutory time limit has been reached).
Limitations Act (ON):
4) No action to recover land or rent, but within ten years after the time at which the right to make
such entry or distress, or to bring such action, first accrued
5) (1) Where the person claiming such land or rent, or some person through whom that person
claims, has, in respect of the estate or interest claimed, been in possession or in receipt of the
profits of the land, or in receipt of the rent, and has, while entitled thereto, been dispossessed, or
has discontinued such possession or receipt, the right to make an entry or distress or bring an
action to recover the land or rent shall be deemed to have first accrued at the time of the
dispossession or discontinuance of possession or at the last time at which any such profits or rent
were so received.
5) (9) Where the person claiming such land or rent, or the person through whom that person
claims, has become entitled by reason of any forfeiture or breach of condition, such right shall be
deemed to have first accrued when the forfeiture was incurred or the condition broken.
13) Where any acknowledgement in writing of the title of the person entitled to any land or rent
has been given to him or to his agent, signed by the person in possession or in receipt of the
profits of the land, or in the receipt of the rent, such possession or receipt of or by the person by
whom the acknowledgment was given shall be deemed, according to the meaning of this Act, to
have been the possession or receipt of or by the person to whom or to whose agent the
acknowledgment was given at the time of giving it, and the right of the lastmentioned person, or
of any person claiming through him, to make an entry or distress or bring an action to recover the
land or rent, shall be deemed to have first accrued at and not before the time at which the
acknowledgment, or the last of the acknowledgments, if more than one, was given.
15) At the determination of the period limited by this Act to any person for making an entry or
distress or bringing any action the right and title of such person to the land or rent, for the
recovery whereof such entry distress or action, respectively, might have been made or brought
within such period, is extinguished.
16) Nothing in sections 1 to 15 applies to any waste or vacant land of the Crown whether
surveyed or not, nor to lands included in any road allowance heretofore or hereafter surveyed and
laid out or to any lands reserved or set apart or laid out as a public highway where the freehold in
any such road allowance or highway is vested in the Crown or in a municipal corporation,
commission or other public body, but nothing in this section shall be deemed to affect or
prejudice any right, title or interest acquired by any person before the 13th day of June, 1922.
39
36) If at the time at which the right of a person to make an entry or distress, or to bring an action
to recover any land or rent, first accrues, as herein mentioned, such person is under the disability
of minority, mental deficiency, mental incompetency or unsoundness of mind, such person, or the
person claiming through him or her, even if the period of ten years or five years, as the case may
be, hereinbefore limited has expired, may make an entry or distress, or bring an action, to recover
the land or rent at any time within five years next after the time at which the person to whom the
right first accrued ceased to be under any such disability, or died, whichever of those two events
first happened.
Lecture Notes
Possessory title to land - Adverse possession
Ancient common law doctrine
Pragmatic avoids disputes where evidence no longer available
Since 1933 in England and today this area is regulated by Statutes of Limitations
Adverse possession can be seen as appealing, in terms of giving someone who possesses
rights over land without having a title
o It is also seen as appalling, as it can allow one to lose ones land involuntarily
It is important for practical reasons: efficiency and reasons of proof,
o As well as encouraging land to be used
o Also, they idea that possession is a message to the public, that one is a legitimate
owner of the land one possesses
Real Property Limitations Act (1990) Ontario
S.4. No person shall make an entry or distress, or bring an action to recover any land or
rent, but within ten years next after the time at which the right to make such entry or
distress, or to bring such action, first accrued to some person through whom the person
making or bringing it claims, or if the right did not accrue to any person through whom
that person claims, then within ten years next after the time at which the right to make
such entry or distress, or to bring such action, first accrued to the person making or
bringing it.
o Entry and distress are types of damages
Entry is taking possession over the land
Distress is taking out items from the property
o I.e. no action for recovery of land available after 10 years from when right to
bring action arose
S.5 (1) Right to bring action deemed to have started at moment true owner was
dispossessed
15) On expiry of the limitation period, true owners title is extinguished
o Otherwise the true owner would have a useless titles and the possessor would not
be able to dispose of the land
16) Limitation period does not apply to Crown land
o This is why Aboriginal people cannot just simply claim title to the land they are
occupying
40
T. W. Merrill, Property Rules, Liability Rules, and Adverse Possession

Justifications for Adverse possession:
1. The rule contained in the statute of limitations is aimed at avoiding the difficulty of proving facts that
have become too remote in the past. Disputes are quickly disposed of by the statute.
2. Common-sensical: It helps minimize the costs of litigation and trial. It addresses fairness
issues when evidence, over time, has been lost.
3. It is suggested that this choice is based upon a social policy of favouring active owners.
Pb: this would ignore the constructive role of owners who keep land for other purposes than
their own use. It also runs counter to the principle that a property owner can do whatever he
wants with his property.
The fact is that little is required of an owner to reaffirm his rights. The law is merely penalising
owners not present enough to assert their ownership (thereby making it impossible for the
land to even be bought). It is encouraging market transactions.
4. The law is preserving the peace (accepting that the possessor may have developed strong and
personalised ties to the property). This hinges on the reliance interests of the possessor.
The law may be seen to protect the reliance of the possessor, who has invested in the land,
thus avoiding overcompensation of the owner. Quasi rent for the TO.
Pb: what about the reliance of the title owner? The fact is that their rights may be outdone by
those of third parties, who require some kind of outward indication of title. They cannot be
expected to check all written records.
And doesnt this undermine the security of property rights.
5. The interests of third parties. The appearance of title.
Conclusion: adverse possession is a generally good thing.
Adverse Possession: The Quality of Possession

Introductory Note
Generally, to make out the defence of adverse possession the squatter must show not only that he
or she has been in continuous possession of the land for the requisite period of time, but that that
possession had been "actual and exclusive" possession in the manner of an ordinary owner, as
well as open and notorious.
In Re St Clair Beach the court finds that the defence cannot succeed because the McDonalds did
not have exclusive possession.
41
One final point of introduction is necessary here. It was stated above that adverse possession
doctrine serves as a defence, specifically as a defence to an action by a title owner to recover
land occupied by a squatter.
However, in Re St Clair Beach the claim for possessory title is made affirmatively
In fact, there are many cases in which an affirmative claim is brought by a squatter, and
even though there is very little direct authority on the point it is reasonable to say that
there is no procedural difficulty in doing so
This is done through the registry system
Registry systems in CL Canada (2)
1. Registry system which permits registration of all documents pertaining to land BUT does
not require registration or guarantee title. By registering, owner protects against
unregistered documents BUT not against unregistered claims such as title acquired by
adverse possession. (Sth ON, Maritimes, parts of MN)
2. Torrens system: When title to a particular piece of land is first recorded all outstanding
interest in it are investigated and a certificate of title is issued. Insurance fund for errors.
In the Torrens, there is no need to search because one merely has an official certificate.
(BC, AB, Sask, parts of MN and Nth ON)
St Clair Beach Estates Limited applied for "first registration" under the Land Titles Act. The
McDonalds objected, arguing that as a result of their long possession they, and not St Clair
Beach Estates Limited, owned the disputed parcel.
Re St. Clair Beach Estates Ltd. v. McDonald et al. (1974), 50 D.L.R. (3d) 650 (Ont. Div.
Ct.)
Facts
Appellants (McDonalds) own a house, but the sceptic tank is located on neighbours largely
unused (but also difficult to use) piece of agricultural property. They built structures and use this
land for 13 years (normal and domestic use) while the owners only came from time to time for
cherry picking and were aware of the acts of the appellants. The respondent purchased the land
and decided to develop it.
The appellants acknowledged the neighbours ownership by trying to purchase the land from
them several times.
Pennel J.
To succeed in asserting their titles, the appellants must show (as per Pflug and Pflug v Collins)
actual possession for the statutory period of the land that they claim
that such possession with the intention to exclude the owners
discontinuance of possession by the owners and all others for statutory period.
If they fail in ANY one of these respects, their claim must be dismissed.
42
The owner of a farm cannot be said to be out of possession of land merely because he does not
perform positive acts of possession all the time. I.e. the possession was not continuous.
Under the circumstances, cherry picking was enough
One cannot speak of concurrent possession. Only one or the other.
The requirement of animus possidendi means that the possessor must intend to exclude the
owner if he is to claim the latters title. This was not the case with the appellants, who let the
respondents onto the land and who several times offered to buy the land. Intention important.
Comments/Class notes:
What did the MacDonalds have to show?
o Test from Pflug and Pflug v Collins:
Actual possession
Intention to exclude
Discontinuance of possession by true owner
True owner continued to possess possession is singular and exclusive
o The MacDonalds possession did not exclude the possession of the true owner
No intention to exclude offers to purchase
They must assert some positive act of control over the land. There is a mental element to
possession. This is judge made law. Why would courts require this element in
possession?
Minimal use of property by true owner is not a sufficient ground of claim for adverse
possession
D. Mendes Da Costa and R. Balfour, Property Law: Cases, Text and Materials
The precise nature of conduct required to establish adverse possession varies with the
circumstances. Here is a list of recent acts which have been held to be sufficient to constitute
adverse possession:
Maintaining fences, growing vegetable crops, and intentionally grazing horses: see
Strickland v. Murray (1977)
Constructing and operating a lumber camp, putting trailers on the premises, digging a
well, and hauling a quantity of fill: see Hughes and Hughes v. Speight, Speight, and
O'Dell (1979)
Making regular use of land for the parking of cars: see Brown v. Phillips (1963)
Building and using a small shack where the use included a base for fishing by seine and
where the shack was vacant during the winter: see Re Taylor and Willigar (1979)
Seasonal farming where the farming activities involved the fertilization and preparation
of soil; planting, weeding, nurturing and harvesting of crops; and the cutting of hay: see
Neary's Estate v. Neary (1981)
Regular planting of crops on part of the land, use as pasture, erection of a fence, and the
cutting of logs or pulp: see Pugh v. Calhoun (1980)
43
Farming and lumbering or cutting; activity which went beyond mere isolated acts of
trespass and which constituted the types of acts that would normally and suitably be
performed by a lumberman-farmer: see The Queen v. Smith (1980) and Lester D.
Collicutt Ltd. v. Dorey (1980)
Bilding a house, clearing land, and erecting a substantial barn, conducting farming
activities and, in relation to a wooded area, cutting wood for firewood and fences, where
the woodcutting was not a seasonal activity but continued throughout the year and where
the land occupied was fenced: see Neary's Estate v. Neary.
Fencing land with the intention of obtaining title, and using the land for pasturing cattle
and for cutting wood: see Re Chaytor (1980)
Establishing and operating a military base used for infantry and vehicle training: see Port
Franks Properties Ltd. v. The Queen (1979)
In the case of an Indian band, fishing; farming; cutting pulpwood, firewood, and
Christmas trees; berry picking; use of the land for religious and burial purposes: see
Afton Band of Indians v. Attorney General of Nova Scotia (1978)
Likewise, in recent cases, the following acts have been held to be insufficient to constitute
adverse possession:
The seasonal use of land, including maintaining a fence, cutting hay, and pasturing cattle:
see Hillegass v. Hawco (1977) and Strickland v. Murray (1977)
Occasional acts of wood cutting on wild lands and payment of rates and taxes: see Re
Tri-Development Ltd. (1978)
Isolated acts of cutting timber on woodland: see H. A. Sempk Ltd. v. Minister of Natural
Resources (1976) and Re Hunter (1979)
The cutting of wood from time to time, even during successive years, where the conduct
constituted acts of intermittent trespass: see Becker v. Cleland's Estate (1981)
Casual or periodic cutting of a lawn and minor clearing of undergrowth: see Clarke v.
Olscamp and Hughes (1979)
The registration of a deed, the intermittent dumping of rubbish, children playing on the
land, and the occasional gathering of apples and berries at unspecified times: see Griffin
v. Poirier (1980)
Sporadic use of land for duck hunting and the pasturing of cattle: see Attersley v. Blakely
(1970) and Re MacEachern and Macisaac (1977)
Use as a driveway, where the title holder had also used the driveway: see Brewer v.
Larkin and Larkin (1977) and Pitre and Pitre v. Robinson (1978)
Lundrigans Ltd. v. Prosper (1981), 132 D.L.R. (3d) 727
Facts
Bowater sold land to Lundrigans. The latter discovered that the defendants had built a log cabin
on the land and had been using it for some 25 yrs. Intentionally or not, the cabin was built in
such a way as to be invisible, even from the sky.
Issue
44
Is the adverse possession open, exclusive, notorious and uninterrupted? NO

Gushue J.
The possession, to bar the owners title, must be actual, constant and visible, to the exclusion
of the true owner.
The owner must have the opportunity to react.
Here, the cabin was well hidden.
The burden lays on the possessor.
Conclusion: While the occupation may well have been exclusive and uninterrupted, it was not
open and notorious.
Notes
The judgment in Lundrigans states that not only did the trial judge hold that the squatters
had the right quality of possession, he also gave them title to "a considerably larger parcel
of land" than just the cabin. This was incorrect, an adverse possessor will normally gain
title only to the land occupied, not to other land covered by the real owner's title
However, if a person enters land under a defective title, and adversely possesses only part
of the land for the requisite period, he or she will be considered to have been in
constructive possession of the whole. This is called the doctrine of colour of title
o See Wood v. Leblanc
Comments/Class notes
CA dismissed claim for AP on the basis that the possession was not open and notorious
o Actual possession requires open, exclusive, notorious and uninterrupted
possession
o True owner must have opportunity to have knowledge
o Cabin well hidden not open or notorious for the owner to had noticed
BUT he wasnt deliberately trying to hide his possession- what more could he have done?
The whole point of the statute of limitations is to give ample time to the TO to discover
the AP
Adverse Possession and the Inconsistent Use Test: Judicial Repeal

Introductory Note
Recent cases seem to limit the application of adverse possession
The traditional position can be summarized simply as follows: exclusive possession as an
ordinary owner would possess for the statutory period of time is adverse to the title
holder
The new requirement is that the squatters use of the land be inconsistent with that
of the title holders
45
Masidon Investments v. Ham (1984), 45 O.R. (2d) 563 (C.A.)

Facts
Appellant became tenant of land and built an airstrip on it. The owner divided the land, one of
which went to the respondent (plaintiff) who intended to sell it for development. The respondent
was unaware of the appellants presence. As for the latter, he simply waited to be forced off the
land and, as time passed, formed the intention to claim it under the Limitations Act (he had
fashioned a design to acquire possessory title to the land in dispute). The moment the
respondent became aware of his presence (they were unaware for a long period of time), it tried
to exclude him.
Issue
1. Is the use made of the land by the appellant, trespasser, inconsistent with the use of the
respondents, the legal owners?
2. Did the appellant have the required animus possidendi, the intention to exclude the
respondents from possession?
Blair J.A.
1. There are three conditions to applying the Limitations Act. The claimant of a title must show
(as per Pflug and Pflug v Collins):
a. actual possession (open, notorious, constant, continuous, peaceful and exclusive
of the right of the true owner)
b. the intention to exclude the owner from possession
c. the actual exclusion of the owner
For the claimant to show that he effectively excluded the owner, his use of the land has to
have been inconsistent with that intended by the owner.
Hence the adversity in adverse possession.
In this case, the owner makes no active use of the land at all, so his user can best be described
not in terms of things actually done on the land but rather in terms of the purpose for which he
holds it. Ie what would the TO, if he had been in use of the land, have done with it?
Wilson in Keefer v. Arillotta: The animus possidendi which a person claiming a possessory title
must have is an intention to exclude the owner from such uses as the owner wants to make of his
property
The animus possidendi required is relative to the use that the owner wants to make of his
land.
Furthermore, the inconsistency must be with the use being made of the land while the adverse
possession was running, rather than some future intended use.
46
The effect of adverse possession is proportional to the effect that it has on an owners intentions
(trespass will necessarily mean more for a private house owner than a developer.
Such limitations on the effects of adverse possession are justified, as this was never intended to
be a means to normally acquire title.
In this case, the appellant did not even evidence the intention to exclude the owner until quite
late in the ten year period. He has not demonstrated acts of user which are inconsistent with the
use of the respondents.
2.
Appellants possession did not effectively exclude that of the respondents.
* Two issues are intertwined: effectively excluding the TO and the intention to exclude the
owner- the finding that the appellant did not in fact exclude the respondents from possession
makes it unnecessary to consider whether he had the intention of doing so and extremely difficult
to prove that he did.
Comments/Class Notes:
Why did the CA decide against Ham: AP use was inconsistent with the use intended by
TO
o BUT what use did the owner want for the land?- nothing. Piper: Does the TO
really even have a claim to land if has no intended use for land?
What are the arguments in favour of the landowner?
o He is free to do nothing with the property- this does not necessarily constitute
dispossession. You could argue that the AP actions and the TO non-actions
combined, equal AP.
Why did the court reject?
o 1) Nothing was done to make the airport permanent and
o 2) nothing was ever done to exclude the TO
The big question in these cases: how can you exclude or make notorious if you dont
even know where the TO is.
Ankers comments
Leigh v Jack (U.K); Keefer v Arillotta: adverse possession requires use of land
inconsistent with TOs intended use during period of claimants occupation
o Intended use could include wanting to carry out development in the land in the
future
More limited use = greater protection
Animus possidendi intention to exclude TO was under express design to acquire
possessory title
Policy consideration: no reward for deliberate trespass who is intentionally trying to
manipulate the system
The court sees that it is not adverse possession, because Hams use of the land was
not adverse to the possession of the true owner
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Notes
Keil v. 762098 Ontario Inc et al (1992)
One party bought a lot of residential land and applied for a severance of part of it, for
development purposes. In litigation over this severance it turned out that a neighbour was
using part of the lot as a driveway, and had done so for over 20 years before the title
owner bought the land
The Court of Appeal agreed with the title holder's argument that recent cases, especially
Masidon Investments, had made it necessary "to demonstrate that use of the land by the
occupant in possession is inconsistent with the form of use and enjoyment that the titled
owner intended to make of it"
The court summarized the title owner's argument thus: "the intended use was ... retention
of the land in its present form until eventual development as a separate residential parcel.
This use ... is not interfered with by the laying of gravel and the passage of vehicles"
BUT the court also stressed that the owner's intention must relate to the time during
which the limitation period was running. In this case the title owner had no intention
when the period was running, because it did not own the land then. It was the prior
owner's intention that mattered, and no evidence had been led on that
Georgco Diversified Inc. v. Lakeburn Land Capital Corp
Plaintiff Georgco owned five contiguous plots of land on Hayden Street in Toronto, a
street parallel to and south of Bloor Street East. The defendant Lakeburn owned land
immediately to the north, on Bloor. Since 1953 the plaintiff and its predecessors in title
had effectively occupied a strip 81 feet long and between two and a half and four and a
half feet wide which according to registered surveys belonged to the defendant and its
predecessors in title
Counsel for the defendant conceded that "the disputed lands have for a period of more
than ten years been occupied by the plaintiffs and incorporated as part of the backyards of
the plaintiffs' houses, have been landscaped as part of such backyards, and appear to have
been boarded by fences"
The trial judge held that the plaintiffs had had actual possession. Counsel for the
defendant relied on Masidon Investments, arguing that "in order to establish that the
claimant to adverse possession has effectively excluded the true owner from possession,
the use by the claimant must be inconsistent with the intended use of the property by the
true owner" and that "if the true owner had no intended use of the disputed land, the
claimant cannot satisfy the test of effective exclusion".
o Ground J. accepted that Masidon Investments was the case to be followed, and
said this about the owner's intended use: "The evidence before this court would
seem to indicate that, if [the defendant] ... had any intention at all with respect to
the disputed lands, its intention as to use, at the highest, would be that no one
should make use of the lands".
Notes from other cases (from lecture notes)
48
Bare minimum should be to impose limitation on others to possess the land in a way that
inconsistent with the intention of the TO
The clock continues to run even after title changes, so that a possessor would not have to
institute two separate claims against two owners
Teis v Ancaster (Town) (1997) 152 DLR (4th) 304

Facts
The Teis couple (the plaintiffs) occupied municipal land. Both they and the municipality believed
it to be their land for a long time and the plaintiffs were treated as responsible for the parcel in
dispute. Eventually the defendant city claimed the land.
Issues
1. Did the Teises have actual possession of the disputed land? YES.
2. Does a person claiming possessory title HAVE to show inconsistent use when both the
claimant and the paper title holder mistakenly believe ?
Laskin J.A.
Inconsistent use: that a claimants use of the land is inconsistent with the TOs intended use.
Review:
To claim possessory title, possessor must establish:
a. actual possession for the statutory period
b. that the possession was with the intention of excluding from possession the owner. (it is
admitted that this requirement presents some difficulties)
c. discontinuance of possession for the statutory period by the owners (ie effectively
excluding the TO from possession).
a. Actual Possession (for a ten year period)
Possession must be open, notorious, peaceful, adverse, exclusive, actual and continuous so
that:
1. the claimant has used the land as an owner would
2. the owner has a chance to react to the adverse possessors presence (statutory period
begins to run)
Adversity means that the claimant is in possession without the permission of the owner.
Acknowledgement of the rights of the true owner means that there is no adverse possession.
The nature of the acts required to establish adverse possession vary depending on the type of
property.
In this case, Teis satisfied requirement of adverse possession.
b. Inconsistent Use
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A possessory title can be acquired only if one deprives the owner of the intended use of his
property. Another way of putting it: a possessory title cannot be acquired against owner by
depriving him of uses of his property that he never intended or desired to make of it.
Problem: this could unduly limit the validity of claims in cases of mutual mistake (possessor
cannot exclude owner from land when he thinks that he is the valid owner).
If the law of inconsistent use were applied in cases of mutual mistake, it would protect deliberate
squatters but punish innocent trespassers. It must protect good faith reliance on boundary errors.
The only adversity required in a situation of mutual error simply means being in possession
without authorization. I.e no requirement of inconsistent use. (This clears up Aubin problem)
* Second, in cases of mutual mistake, even requiring the claimant to show an intention to
exclude the owner from possession is problematic. Look to Masidon for answer:
If the claimant thought he was the owner, the court may reasonably infer that he intended
to exclude others from his land, even the title holder. This is an inference, not a
presumption.
Side Note: in the absence of legislation, the court does not give any weight to the fact the land
claimed is municipal property intended for public use.
Comments/Class Notes:
Both Teis and town believed land was theirs. City respected Teis use of the land.
Possession for over ten years. City argues that Teis did not have actual possession of
land and 2) that their use of land was not inconsistent with the owners use of land.
This case is counterpoint to Masidon. What does the court decide?
o Should an AP claim succeed against publicly held land? Utility: preserving and
maintaining public land (by AP) is in the interest of the greater good.
Does the inconsistent use test apply to cases of mutual mistake?
Is it about intention to possess (Keefer), adversity or discontinuance of the TOs
possession (Masidon)?
Adversity = being in possession without the authorization of the TO
Inconsistent use should benefit the TO rather than a trespasser in good faith
Notes
The House of Lords in J A Pye (Oxford) Ltd and Others v Graham and Another (2002) reviewed
somewhat the theoretical bases of adverse possession
Facts
o The Grahams occupied farmland for over 15 years without the permission of the
registered owners Pye, and in 1997 Michael Graham registered cautions (which
would prohibit any dealing with the land until the interest declared had either
been recognised or found not to exist) at the Land Registry against Pye's title on
50
the grounds that he had obtained "squatter's title" by adverse possession. Pye
sought to clear its title
Lord Browne-Wilkinson, criticised the confusion and illogic of the law of adverse
possession
o The root of the problem is caused by the concept of "non-adverse possession".
This was a concept engrafted by the common law and equity onto the limitation
statute
o The question is simply whether the defendant squatter has dispossessed the paper
owner by going into ordinary possession of the land for the requisite period
without the consent of the owner
There will be a "dispossession" of the paper owner in any case where
(there being no discontinuance of possession by the paper owner) a
squatter assumes possession in the ordinary sense of the word. Except in
the case of joint possessors, possession is single and exclusive. Therefore
if the squatter is in possession the paper owner cannot be.
o Browne-Wilkinson then concluded that the ordinary meaning of possession was
to be found in the classic definition factual possession (that is, a sufficient
degree of physical custody and control) combined with the animus possidendi
(the intention to exercise that custody and control for ones benefit)
Possessory Title and Appurtenant Rights

The successful adverse possessor acquires only the land itself and not any rights
appurtenant to it
The leading case is Wilkes v. Greenway (1890)
o Greenway had acquired land previously belonging to Wilkes by adverse
possession, but needed to use a private road belonging to Wilkes in order to reach
that land. He argued that he had also acquired an easement of necessity consisting
of a right of way via the road
o The Court rejected Greenway's argument, noting that "there is nothing in the
Statute of Limitations to create ways of necessity. The statute does not expressly
convey any title to the possessor. Its provisions are negative only. We cannot
impart into such negative provisions doctrines of implication [of easements of
necessity]"
Adverse Possession and Systems of Recording Title
There are two systems of recording title to land in common law Canada
It is not difficult to see that adverse possession is incompatible with the policy of a Land
Titles system
As Williams, Limitation of Actions in Canada, explains:
o The Torrens system of registration of land has the aim of ensuring that reliance on
the register will be well-founded. It enables reliance on the legal formality of
registration
o Therefore, whereas the institution of acquisition of title by adverse possession
encourages reliance on the state of facts relating to the land, the system of
registration of title encourages reliance upon a legal construction
51
The result is that all land titles statutes, except that of Alberta, declare the Land Titles
system to be paramount to the Limitations Act
Quick Quiz
Can the creation of value give rise to property rights?

o Yes, if you work the land you may claim property rights
Why are so many cases in a property course about trespass or conversion?
o Because this is a violation of ones right to property
News piracy seems patently unfair. Why did the dissent in INS refuse to grant a remedy?
o News is not property
What is a licence in the context of real property?
o A right to make use of someone elses property for a fee to the real owner
o What prevents you from being charged from trespass
Is possession a question of fact?
o Being in control of property
o Something that can be proved by evidence
What rights does possessory title give?
o Occupy
What does the Limitation Act have to do with adverse possession?
o It establish for how long an action can be brought against someone who carries
out adverse possession
o Adverse possession has morphed into the limitations act
Is adverse possession redundant in Canada?
o Registrations systems have made proof of ownership based on things other than
registration redundant
o Claims against the Crown cannot be carried out
o It only is at issues in the case of mistakes
Why doesnt the inconsistency test apply to cases of mutual mistake about ownership?
o Adverse possession has to be inconsistent to the use of the real owner, so if there
is a mistake with regards to this, it cannot be established this way
Explain how property rights can be related to ones intention with respect to an object.
o Exclusion, intention to be an owner is important when establishing adverse
possession
o Property ownership is often about showing your intention to make use of the land
CHAPTER FOUR: THE RIGHT TO EXCLUDE

Introductory Note
Justice Brandeis in dissent in International News Services v. Associated Press
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An essential element of individual property is the legal right to exclude others from
enjoying it. If the property is private, the right of exclusion may be absolute; if the
property is affected with a public interest, the right of exclusion is qualified.
Also look at Harrison v. Carswell
Quasi-Public Space
Cadillac Fairview Corp. Ltd. v. R.W.D.S.U. (1989), 71 O.R. (2d) 206 (C.A.)
Facts
The union of Eatons workers tried to reach employees by waiting for them at the entrances for
personnel of the Eatons Center in Toronto. Theses entranceways were private property of the
center, owned by the appellant, but the union had no other means to reach its Eatons employees.
The entrances in question were not used by the public at all. It invokes the Labour Relations Act,
while the appellant bases its argument in the Trespass to Property Act. The appeal is from a
decision of a labour relations board that was in favour of the union.
Robins J.A.
For the unions rights to be meaningful, it must have access to the employees. The workplace is
the obvious forum for such access. Organizing activity on the streets is impracticable. The case is
one of a conflict of rights (those of the union and the property owner) which the court must
reconcile.
Notions of absolutism (such as an absolute right to exclude people from ones property)
have no place in a case where one is dealing with issues such a good labour relations. In
other words, just because the appellant is the owner of the property doesnt mean it can
completely ignore the Labour Relations Act
The appellant had no valid commercial reason for excluding the union (which did not
interfere with sales); therefore its property rights must yield. There is no commercial interest
that required protection.
Peters and Harrison (see above) did not concern direct conflicts between statutory rights and
property rights as administered by a labour relations board. There were dealt with under the
common law and are therefore not applicable to the case at bar.
Comments/class notes:
CA agrees that CF is guilty of unfair labour practice. Rights of parties must be evaluated
in light of the labour legislation, not to the exclusion of it.
This issue fall under a law established by statute which provides the right to organize
o S.3. right to own an union
o S. 64 prohibits employers from interfering with the formation and administration
of a union
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o The union argue that the only way for it to organize was to stand at the place
where it was
The case in an appeal against an administrative boards decision
o The case is not just a matter of criminal law prosecution of trespass, given that
there is now a statutory protected right to organize
o The legislature should have considered that this right will infringe on the property
rights of others and the right to exclude others from ones property
In Harrison v. Carswell, picketing was not presented as a statutory right
that needed to be protected at the expense of trespass in someone elses
property, but it what just argued through the limitation to exclude people
from a mall according to the common law
The court decides that the union is allowed to enter this property to distribute information
with regards to the union
What are the similarities between Harrision and CF?
o Balance between property rights and other rights not examined as much in
Harrison
The Right to Free Speech

Marsh v. State of Alabama, 326 U.S. 501 (1946)
Facts
Appellant tried to hand out religious tracts on the streets of a company owned town (a town just
like any other except that it is entirely owned and operated by a company). She was criminally
charged for refusing to leave the companys property. She appealed on the basis of freedom of
religion and speech. There is no question that if the land was owned by the municipality, she
would have freedom to distribute literature.
Issue
Can the people who live in or come to the town be denied freedom of press and religion simply
because a single company has legal title to the entire town?
Justice Black
There is no doubt that a municipality would not have been able to prevent plaintiff from
expressing herself (1st and 14th amendment to the Constitution).
No complete prohibition of the dissemination of ideas can be allowed.
Ownership absolute dominion in all cases. When balancing the rights of property owners and
people wanting to enjoy basic freedoms (those guaranteed by the constitution), the latter occupy
a preferred position (and can certainly not be criminally prosecuted).
The owner has no right to deprive those people it authorizes to live on its property from
access to information.
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Justice Reed (dissenting)

Nobody ever said that property rights were absolute; however, the court goes too far in allowing
people the right to religious practice on private property.
The appellant could have stuck to public areas. The fact that an owner lets his property be used
for most purposes as if it were a public space does not mean that he allows people to all the
activities that they can do in public.
Even if state must allow information to circulate, it cannot commandeer private property to do
so. A trespasser is no less a trespasser for invoking free speech.
Comments/class notes
A privately owned town in Alabama had a business district were a Jehovah witness was
distributing religious information and thus charged with trespass
Two constitutional issues that were at stake
o First Amendment: Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press
o Fourteenth Amendment: No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States; nor shall any
State deprive any person of life, liberty, or property, without due process of law;
nor deny to any person within its jurisdiction the equal protection of the laws.
The CA rejected the argument that her constitutional protection of religion was violated
by stating that the place she was exercising it was private property
Arguments at the Supreme court
o If this was in fact a real municipality, this person would have the right to give out
the pamphlets
Why would it be different given that this is a private town?
Why should these persons rights vary depending on who owns this public
space?
o The opposing argument is that this town works like private property so she has no
right to exercise her rights as protected by the constitution there
But
People live in this town, so that it operates like others
o The town operates like a public space in many aspects
Even in your home you cannot force guests to do everything you
want
If we allow this, what are the consequences that this could have in
the future
o The court recognizes that it is trying to balance individuals private property
rights and constitutional rights and decides to give religion and freedom of
speech a greater weight as it lies at the centre of the fundamental fabric of this
society
Black J: the more you open up your property to the public, the less you can justify
infringing on individual rights to be on that land
55
It is better to correlate a municipality with the corporate town than is a private home
owner
Notes
The United States Supreme Courts decision in Marsh has been construed narrowly
In Amalgamated Food Employees Union, Local 590 v. Logan Valley Plaza, the Supreme
Court held that a shopping mall was the functional equivalent of the privately owned
business block in Marsh, and that peaceful picketing targeting a single store and carried
on in the privately owned parking lot adjacent to the mall was protected by the First
Amendment
Only four years later, however, in Lloyd Corp. v. Tanner the Court rejected the argument
that a shopping mall was the equivalent of a company town:
o Few would argue that a free-standing store, with abutting parking space for
customers, assumes significant public attributes merely because the public is
invited to shop there
o Nor is its large size alone the controlling factor
In Committee for the Commonwealth of Canada v. Canada (1991) the Supreme Court of Canada
dealt with the issue of whether the federal government could bar people from distributing
political propaganda and soliciting membership at an airport
As this was an action against government regulation the case turned on the freedom of
expression guarantee in the Charter of Rights
The Court held that the Charter protects the right to expressive activity in public airports,
but the judges did not agree, however, on much else, and six separate opinions were
given
L'Heureux-Dub J. held that there was a prima facie right to expression on all
government property, and that any limitations must be justified under section 1 of the
Charter
Lamer C. J. C. found that while government property was not like private property, and
was presumptively a place where an individual had a right to express opinions, he or she
could do so only if the form of the expression was compatible with the function of the
place and did not interfere with the ordinary workings of the airport and the interests of
the airport authorities and passengers
McLachlin J. focused both on the nature of the expression and on the forum. Some
government property was traditionally "private", some traditionally "public"
Lecture notes on C.C.C. v. Canada
Facts
o This community of individuals were prohibited from distributing religious
pamphlets at the Dorval airport (which is government property)
o In analyzing whether the right to freedom of expression should be protected we
need to look at a few issues
Criteria for public arena
o Traditional openness of that kind of property for expressive activity.
56
o Is the public ordinarily admitted as of right?

o Compatibility of propertys purpose with expressive activities.
o Impact of availability of property for expression on achievement of 2 (b)s
purposes
o The symbolic significance of the property for the message being communicated.
o Availability of other arenas in the vicinity
Situations of property rights v. the Charter
Union leafleters in shopping centre arrested for trespass (R v Layton (1986))
o Applying trespass law here could be argue to be inconsistent with the Charter
Hari Krishna pamphleteers on the metro
o The openness of the space itself to the public is an issues
o In the metro itself, accessibility is not open to anyone, while not everyone would
have the option to escape the pamphleteers as they would in another place
Dont Let Houses Rot: Squat campaigners on university grounds
o Are university grounds private?
They are to some extent
The facts from Harrison v. Carswell
Panhandlers on the streets of Toronto moved on under Ontarios Safe Streets Act (R v
Banks (2001))
o Streets are private property
Kevin Gray, Susan Francis Gray, Civil Rights, Civil Wrongs and Quasi-Public Space
The UK Rawlins/Anderson Case
1. Factual Background
A mall, occupying a large part of the city centre and representing the focal point of city social
life, had agreed to allow public access. 100 000 visitors per week. Some youths were charged,
falsely it seems, with inappropriate behaviour and were privately banned in perpetuity from the
mall.
CIN Properties Ltd. argued that as a landowner it could exclude whoever it wished under the
law of trespass.
2. Curial History
The first judge held that, on the basis of equity, a mall, as a public place, could not freely revoke
peoples license to use it.
The court of Appeal refused to accept such a limitation to owners right to exclude.
3. Wider Impact
The defendants were thus excluded from the citys centre and main source of employment.
57
This underlines difficulty of reconciling leisure culture with demands for security and civil
liberty. An increasing number of public places are privately owned.
The complexity of the situation means that it is nonsensical to rigidly preserve the
distinction between public and private domains.
4. Quasi-public character of shopping mall
The shopping mall has a public dimension. It presents most of the characteristics of these areas
traditionally viewed as public and open to all.
The purpose may be commercial, but the use is all-embracing.
5. Public Interest in Private Property
Private property is never truly private; it is rarely, if ever, truly absolute.
Property claims should stop where they start to infringe basic human freedoms: a critical
balance must be maintained.
The more an owner opens his property to the public for his advantage, the more he should be
prepared to accept limits to his rights.
Property serves human value: it should not override them.
Class notes
The litigation turned ultimately on the question whether, in English law, a landowner
(freeholder or leaseholder) is entitled in all circumstances to exclude strangers from entry
upon his land and, by invoking the law of trespass and nuisance, obtain declaratory and
injunctive relief in support of his exclusory preferences
London Borough of Southwark v. Williams and Another, London Borough of Southwark v.
Anderson and Another, [1971] 2 All ER 175
Facts
Some old building had been set aside to be restored or demolished so that council housing could
be constructed. However, the process was going slowly and a significant waiting-list of people
seeking accommodation had built up. A group of desperate squatters took the initiative of
occupying the unused houses, after repairing them on their own. They attempted to justify their
presence on the basis of the defence of necessity. The Council argues that they should wait
their turn in line.
Lord Denning MR
The defence of necessity states that in the case of a great or imminent danger, in order to
preserve life, the law can permit an encroachment on private property.
58
This doctrine must be limited to the most extreme cases, so as to avoid abuses and ensure the
safety of private property. In the case of the squatters, one can only hope that charity will
eventually help them. We sympathise, but
Megaw L.J.
It would be unjust that people on the waiting list should be bypassed.
The problem here is really a matter of policy. Instead of taking justice into their hands, the
squatters must use the political process of a democratic society to complain about their fate. This
is the only tool with which society provides them.
Class notes
A case brought against two squatting families
The plaintiff asked for a summary judgment stating that there was no legitimate defence
The defendants argue as a possible defence that there is necessity for them to live
somewhere, the government is not doing enough, and there was no other choice
In what kind of circumstances does the state of necessity justify breaking the law?
o A state of emergency is an example
o Necessity arise when there are three conditions
An imminent danger
Non-legal alternative
There needs to be proportionality between the act and the necessity
Lord Denning J decides that the situation of the squatters does not justify the entry into
these houses
o There are people in the government list trying to obtain a house given by the
government who have chosen not to squat, so allowing these people to do so
would be to override the people who are on these lists and have chosen not to
break the law
Notes
Monsanto v. Tilly and Others (2000)
Facts
o In July, 1998, members of GenetiX Snowball, a group formed in England to
protest genetically modified plants and crops, took part in a direct action
campaign by uprooting plants from a field leased by Monsanto plc, a plant
biotechnology company
o The object of the action was not to destroy the crops (only a symbolic number of
plants were uprooted), but to generate publicity and provide an opportunity for the
group to widely disseminate its views on the perceived dangers of GM foods
o Monsanto sued the participating members of the organization for trespass. In their
defence, the members argued that their actions were necessary to protect third
parties and their property and/or were in the public interest
The Court acknowledged the defence of necessity as justification for what otherwise
would amount to acts of trespass, but declined to apply the defence in these
circumstances
59
The Court cited London Borough, noting that the defence has been defined to
circumstances where the danger is immediate and obvious and a reasonable
person would conclude that there was no alternative to the act of trespass
The Right to Participate

Local 1330, United Steel Workers of America v. United States Steel Corporation (1980)
631 F.2d 1264
Facts
Two steel mills are being closed down in Youngstown, because they have ceased to be profitable
or technologically relevant. The mills had been operating in the town for almost a hundred years,
and the towns entire economy and well-being was drawn from this steel industry.
The union is asking that the courts order the company to keep the two plants in operation or,
alternatively, require the company to sell the two plants to the union.
For its part, the company argues that there are no legal or equitable remedies for the plaintiffs.
The company refuses to sell the plants to the union because such a purchase would be subsidized
by government loans and would arguably result in unfair competition.
Edwards C.J.
This court would have to recognize a new property right for this action to pass
There is no K or enforceable promise that was entered into by the company and there is
clear evidence that the plants were unprofitable.
This case is undoubtedly important precedent establishing power on the part of state
legislatures to regulate private property in the public interest. It cannot, however, properly
be cited for holding that federal courts have such legislative power in their own hands.
There is an absence of any authority upon which to base a decision in favour of the
townspeople. The power to act resides with the legislature.
Comments/class notes:
District court: moral obligation, no legal one
What would Singer say about this use of authority by the judge? Property law can expand
in the same way that contract or tort law has, to take into account the weaknesses of
certain parties, or to include reliance interests in property law
Should common law property reach into the realm of public law?
Singer: can we conceive of property in terms of a series of relationships?
Is granting the union members property rights the only way, or the best way to conceive
of their contribution to the plant?
Ankers comments
Prior to the closure of the plant the workers had negotiated with the company to increase
productivity but, nonetheless, the managers closed the plant in the end
The workers are seeking two thing
60
o An injunction to stop the managers from closing the plant

o Rights over the plant so that the union can keep running it
There is a contract argument that the company had agreed to keep the plant running if the
workers had make it work more comfortable
The question of whether the owners have the right to do whatever they want with the
property is dependent on a few ideas
o Identifying the owner is difficult in corporations
o Identifying the owner and then deciding how owes duty to each other is going
about it the wrong way
Usually identifying the owner is the solution to the problem
Singer: 3 domains in society State, market and the family
The market is an area of autonomy, whereby people can decide to do what
they want with their property and businesses depending on profitability
He argues that the government is often involved in the regulation of the
market, so that it is not logical to dissociate the two
There is also the issues of contractual and extra-contractual obligations
and the legality of reliance
The law imposes obligations in relations between individuals of
mutual dependence
J.W. Singer, The Reliance Interest in Property (1988)

There was nothing inevitable about the result in the US Steel. It was the result of a particular
vision of social relationships. The approach of the court could have been radically different if it
had adopted a social relations approach to the question, rather than following the
presuppositions of the market.
The initial theory of the lawsuit was that the local managers had explicitly promised the workers
that the plants would not be closed as long as they were profitable and that the workers had relied
on those promises to their detriment by foregoing other opportunities.
The Court of Appeals expressed the issue as a choice between the unions right to purchase the
plant and the companys freedom to control it.
The Free Market Model:
At the core of market assumptions are four features:
(1) A preference for a consolidated form of property, which are legal rules that seed to
concentrate in a single legal entity, usually an individual person, the relevant rights,
privileges, and powers for possessing, using, and transferring assets.
(2) A presumption in favour of the free use of property. Limits to freedom of action are
narrowly defined and exceptional. Autonomy and self-reliance.
(3) Individual freedom of disposition as the basic mechanism for allocation.
(4) People are free to make arrangements regarding access to property. Freedom of K without
regulation.
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Around these elements are altruistic rule which allow for certain exceptions. Torts and
contracts have acknowledged these limits to individual freedom for a long time (torts- strict
liability, and K-unconscionability, reliance, good faith). Property, however, remains locked
within the free market model based on the fundamental policy of promoting free alienability of
property. It is time to change this by introducing the principle of reliance into property.
The confusing search for the owner:
It is incorrect and misleading to pretend that we can treat ownership as an individually
held right in the common law. Each title holders rights are limited by the rights of other
title holders.
The image of the corporation as the fee simple owner of its property is outdated.
Note: Before saying the company can blow up the mill, shouldnt we try to justify from
how it obtained such a right and what limits may be attached to it?
Who owns the corporation? Shareholders. Yet they are not real owners of the plant. The
fact is that nobody holds a proper fee simple in this case.
Property and K rights are not self-defining. The government is fundamentally implicated
in the most minute details of every market transaction.
There is therefore no such thing as a private sphere removed from state regulation.
Protection of the reliance interest:
Group rights of access:
Custom that after long years of use, the public had acquired an easement to use for
recreational purposes on beaches that were previously in private hands. It would work the
same way as the rules of adverse possession and prescriptive easements.
Public trust doctrine: the state retains ownership and ultimate control over specific
natural resources, including land, that are so valuable that the legislature is deprived by
state constitution of alienating those interests.
Public rights of access to private property:
Where non-owners have a right of access to property based on need or on some other
important public policy. Eg, a right of reasonable access to certain businesses that serve
the public.
Proposals for the reliance interest in property:
Owners cannot unconditionally revoke access to land where rights of access have been
granted.
When people create relations of mutual dependence involving joint efforts, and the
relationship ends, property rights must be redistributed among the parties to protect
interests of vulnerable persons.
Courts can be creative about finding justified rights of access for the public to private land.
Most relevant in the US Steel, was the right of the townspeople as a vulnerable party to rely
on the company. The court should enforce this reliance as it would any other promise.
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CHAPTER FIVE: TENURE AND ESTATES

Introduction to Tenure and Estates
K. Gray, Elements of Land Law
The Doctrine of Tenure
After Norman invasion in 1066, King considered owner of all land.
He gave out landholdings in return for services. No absolute ownership, except for the
Crown: landholders regarded as tenants. Land was never granted by an actual transfer.
Methods of landholding (tenures) were differentiated according to service required.
free tenure: part of feudal pyramid
unfree tenure: lowly tenants, akin to slaves
Tenures in chivalry (provision of armed men), spiritual tenure (frankalmoign) and tenures
in socage (agricultural service) were eventually changed to money payments.
Through subinfeudation, knew rungs could be added to social ladder. This system became
extremely cumbersome. This was eventually prohibited by the Statute Quia Emptores (1290),
whereby only the Crown could grant new tenures- ie no subtransfer of tenure. The existing
network of tenures could only contract with the passage of time. Every conveyance of land
henceforth had the effect of substituting the grantee in the tenurial position formerly occupied by
his grantor.
By the Tenure Abolition Act 1660, most forms of tenure became free and common socage.
Thus the doctrine of tenure is essentially obsolete. Tenure of land for an estate in fee simple is
now tantamount to absolute ownership of the land.
The Doctrine of Estates
While tenure indicated the conditions of holding, the doctrine of estates defined its
duration.
Between the tenant and land is an abstract entity called the estate in land.
An estate is an abstract entity called the estate in land and to interpose it between the tenant and
the land.
A tenant does not enjoy land, but rather a conceptual estate. It is a substitute form of
property in land. Ie not ownership in land, but ownership in estate.
There is a temporal slice to the bundle of rights
One cannot grant a greater estate than that which one possesses (nemo dat quod non habet).
This doctrine of estates survives to the present day.
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This is interesting to compare to the continental emphasis on full ownership in the abstract sense.
Types of Estates
The Freehold Estates
There are three freehold estates in the common law. They are distinguished through the notion of
time.
Fee simple: this is the amplest estate. It is a time in the land without end, tantamount to
absolute ownership. Owners can change, but the estate stays. It can be transferred inter
vivos or of devolution on death. Each new owner steps into the shoes of his predecessor
as a tenant in chief of the Crown
Fee tail
Life Estate
R. Scane, Notes on Life Estates and Estates in Fee Tail
Life Estate
A life estate is measures by the lifetime of a person. The interest of tenant cannot be handed
down to his heirs (like a fee simple or fee tail)
Two classes of life estates: conventional (by intention or presumed intention of grantor)
and by implication of law (no longer exists in Ontario anymore)
The estate can be measures according to the life of the holder: life estate pur sa vie. Cannot be
transferred upon death of holder.
It can also be measured according to the life of another person: life estate pur autre vie. [to
Joan for the life of Susan]
This could be the case if a holder pur sa vie transfers his estate to someone else. The holder
pur sa vie cannot give a greater title than he possesses (nemo dat quod non habet).
Should a person with a right pur autre vie die, the land does not go to his heirs, unless
specified in the estate. [to Joan for the life of Susan- if Susan dies first, no problem, but if Joan
dies before Susan, there is unexpired time.] This presents a problem because life estates cannot
be transferred through inheritance. To get around this problem, introduced the concept of
occupancy.
General occupant: to first person who enters upon the land.
Special occupant: if the life estate goes to Joan and her heirs for the life of Susan- heir gets to
occupy land until Susans death.
Estate in Fee Tail
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This type of estate has been forbidden in Ontario since 1956, according to the Conveyancing and
Law of Property Act. It came from the Stature De Donis Conditionalibus (1285).
It is an estate which descends by inheritance only to a person in the direct line of issue from the
original grantee in fee tail. The formula to be used is that the estate is transferred to X and the
heirs of his body (with possible variations: male or female from such or such a spouse etc).
If the line of inheritors ended, the land went to the holder of the reversion. In theory, the line
could last forever.
The Creation of Estates: Presumptions and Words of Limitation
The common law originally required a conveyancing formula for the transfer of a fee simple
inter vivos: to A and his heirs. Anything else might be construed as a life estate.
The strict common law rule on conveyancing has long been altered by statute. The
Conveyancing and Law of Property Act, R.S.O. 1990, c. C-34, s. 5 states:
5 (1) In a conveyance, it is not necessary, in the limitation of an estate in fee simple, to
use the word "heirs".
(2) For the purpose of such limitation, it is sufficient in a conveyance to use the words "in
fee simple" or any other words sufficiently indicating the limitation intended.
(3) Where no words of limitation are used, the conveyance passes all the estate,
right, title, interest, claim and demand that the conveying parties have in, to, or on the
property conveyed, or expressed or intended so to be, or that they have power to convey
in, to, or on the same.
(4) Subsection (3) applies only if and as far as a contrary intention does not appear from
the conveyance, and has effect subject to the terms of the conveyance and to the
provisions therein contained.
(5) This section applies only to conveyances made after the 1st day of July, 1886.
A similar provision to the one cited above is now to be found in the Succession Law Reform
Act, R.S.O. 1990, c. S-26, s. 26, which states:
26. Except where a contrary intention appears by the will, where real property is devised
to a person without words of limitation, the devise passes the fee simple or the whole of
any other estate or interest that the testator had power to dispose of by will in the real
property
Lecture Notes
The distinction between personal and real property goes to the distinction between right in rim
and right in personam
The action you can follow depends on this
Feudal land lawTenure = Free and common socage (freehold)
If you own land in the common law, this is the kind of tenureship that you have
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1100 AD tenurial rights must pass to heir

o Since most families had heirs, the estate could have an infinite duration
Estates
Fee simple
o An owner of land in common law is the owner of a fee simple estate in land
o A estate in land that goes on in time
o Not limited to the class of people of whom it eventually it could go on to
o The most extensive estate possible
Fee tail (1285 De Donis Conditionalibus)
o This estate would be limited in terms of whom it would go eventually after the
death of the estate holder
o It could be sold, but it would have to follow the original trajectory of who would
have inherited it
Life estate
o If you limit the interest over a estate for the duration of someones life
Leasehold estate (chattel real)
o If you limit the interest over the estate over a period of years
o E.g. a lease of 10 years
What happens with the time that is left over in the tenurial relationship?
o Who will be in ownership, who will be paying taxes
o This is called the remainder interest
Creating and transferring real property in Common law
Transfer of estate in possession by livery of seisin
o This later became transfer by deed signed, sealed and delivered (s.3 C&LP Act)
o The deed before used to be an act, not a piece of paper like it is today
Writing required except for leases for 3 years or less (Statute of Frauds)
Inter vivos: by contract (sale, lease, mortgage) or gift
On death: by will or intestacy (when someone dies without will)
o Formerly escheat: if the estate had no heirs, it would revert to the next link on the
chain and if not the Crown
o Nowadays if someone dies and there is no heir it does not revert back to the
Crown but the next in kin
Estate could not only be divided over time, but they could also be divided between the rights of
individuals at the same point in time
You could have a person holding a fee simple and a leasehold estate concurrently
Present and Future Interests

Introductory Notes
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The common law allows for conditional estates, interests that only arise after the occurrence of a
certain event. What happens to the rest of the fee simple absolute in any given piece of realty?
The law recognises two future interests in land: a reversion and a remainder.
Reversion: interest retained by the grantor. It need not be specified, as it occurs by operation of
the law. Example: in to A for life the grantor, assuming that he holds fee simple absolute, has
not disposed of his or her full interest
A reversion arises by operation of law from the failure by the grantor to alienate the entire
interest.
Remainder: interest created in a third party which follows the granting of an estate less than a fee
simple absolute. Example: to A for life, then to B, B has a remainder in fee simple but no right to
possess the land until A dies. Note that in this example the grantor has no reversion- he has given
away the full fee simple.
Through the doctrine of estates, the common law managed to divide the disposition of land in
time.
Thus several people can be simultaneously entitled to a slice in the entitlement to the same
land. All these rights have a present existence. This highlights the time-related aspect of the
notion of estate
Because of the concept of successive estates, rules were developed to retain the current owner
from prejudicing the value of the land in the hands of any successor. Thus comes into play the
notion of waste. There are different types of waste:
For instance, there is no legal remedy for failure to ameliorate waste, which merely has
the effect of improving the land and enhancing its value [permissive waste] (unless terms
of grant specify) Permissive waste comprises defaults of maintenance and repair leading
to dilapidation.
A tenant can be held liable for permissive waste (if so specified by the terms of the grant),
or voluntary waste (unless exempted by the terms of his grant).
Voluntary waste is more serious waste, which includes the positive diminution of the
value of the land.
Notes
Stuartburn (Municipality) v. Kiansky (2001)
The court was asked to decide whether David Kiansky was eligible to continue to hold
Municipal office according to the requirement that elected officials must be an owner,
tenant or occupier of land in the Municipality. Kiansky had sold his home and moved
from the district but was entitled to other land that was subject to a prior life estate in
favour of his grandmother. At all material times Kiansky was recorded in the Manitoba
land titles office as registered owner in remainder expectant upon the decease of Mary
Kiansky.
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The nature of Kiansky's remainder interest is of a right to a freehold interest in fee

simple. This can also be described as a right to a freehold estate in fee simple.
Most importantly, the remainder interest is a present right. It co-exists with the life estate
even though enjoyment and possession of the real property is postponed until termination
of the life interest
As a result, Kiansky was declared eligible to hold office even though he was not living in
the municipality or in present possession of property.
Introduction to Conditional Estates

Introductory Notes
Conditions Precedent
These are conditions that must be fulfilled by the grantee before he can receive the estate and
have any rights of enjoyment.
If the condition is not satisfied, the interest is extinguished.
Until the condition is satisfied, the grantees interest is contingent.
When the condition is satisfied, then the interest becomes a vested interest.
If the condition is satisfied before the time of the grant, the grantees estate becomes
vested in interest.
The common law usually favours interpretations of grants that lead to early vesting. This is the
rule in the case of an ambiguous will or grant.
Conditions Subsequent
These operate to defeat an estate that is already vested. Example: to C in fee simple, unless
becomes a lawyer, then to D in fee simple. If C acquired the land in 1960 with the condition
attached, the estate was vested at that time but was liable to be divested if C became a lawyer.
These conditions of defeasance are personal; if C died in possession and never became a lawyer,
his heirs will inherit a fee simple absolute.
1. Fee simple defeasible on condition subsequent: The defeasible estate is premised on
the notion that the grantor has given away a full estate, with a provision for later
termination via a condition.
Right in reversion:
The grantor has a right of re-entry when the condition is not respected. He is free to
end the grantees estate if he chooses. Thus the estate is not automatically terminated.
2. Determinable fee: this is less than a full estate in fee simple ab initio. The condition is
considered part and parcel of the fee simple, not a separate condition that may end it.
Right in reversion:
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If the prohibited event occurs, the estate is automatically terminated. The grantor has a
possibility of reverter.
The rules imposed must not be:
- uncertain
- contrary to public policy
In the case of invalidity: ie when the holder of conditional estate breaks the condition.
a determinable fee simple: if condition is completely invalid, the estate is entirely void
and reverts to the grantor
a fee simple defeasible on condition subsequent: only the condition is struck down and
the grantee may keep the estate free of condition
Megarry and Wade, The Law of Real Property
It is different to determine the difference between the two.
Determinable fee simple: determining event sets the limit of the estate first granted.
Terms used: while, during, as long as, until.
Fee simple defeasible on condition subsequent: independent clause which operates to defeat a fee
simple.
Terms used: provided that, on condition that, but if, if it happen that.
Lecture Notes
Conditional estate
A estate that will be transferred to someone if one event were to happen
E.g. marry someones daughter
Estates diving in time
Freehold/fee simple: requires words of purchase (to A) but not words of limitation
(and his heirs) (s.5 C&LP Act)
Limited freehold interests
o Life estates words of limitation and presumed intention
o Determinable fee terminates on supervening event
Leasehold estate fixed term
Contingent estates subject to condition precedent or condition subsequent (defeasible)
Differences between estates and future interests
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Vested v. contingent interests

Whoever has the current right to live in the house has a vested possession
Someone who still has no right of possession but will in the future, has a vested interest
o Not actual right in possession, but does possess a right
o Even though this individual does not have possession yet, she has an interest on
the estate which she can dispose of and if she dies it is heritable
Contingent interest
One that is dependent on something happening
o E.g. X staying in Canada
o This cannot be taken as an existing vested interest, but there is some interest
o Once this person fulfils the condition she will gain possession (condition
precedent)
Condition subsequent is when a condition is not met once you have granted the property
and thus the original owner can exercise a right of re-entry
o This means that the possessors (or grantees) right is defeasible
When the grant is certain but it might be undone
Determinable interest
Something less than a grant of a full fee simple
It being granted has already been pre-determined at a period in time
o The estate is already limited from the outset
o The condition is built into the grant
E.g. a grant to someone until ...
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Reversion
o Once a life estate or leasehold estate is over, reversion occurs
Vested remainder
Possibility of reverter
Right of entry for condition broken
Three types of conditional estates

A defeasible estate
o Subject to a condition subsequent
A contingent estate subject to a condition precedent
Determinable estate
o Also subject to condition subsequent but considered different because the
condition is built into the grant and terminates the grant
Defeasible v. determinable interests
Defeasible
Full estate
Right of re-entry
If the condition is unclear or

against public policy (i.e. deemed
invalid or void) the estate is kept
by the grantee
Determinable
Less than full estate
Possibility of reverter if the condition is
not met
If the condition is unclear or against
public policy (i.e. deemed invalid or
void) the estate is kept by the grantor
o The grant is considered void if
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o The condition is removed
the condition is invalid

o If the grantor wants the
condition to be absolutely met,
this is what would be chosen
The outcome is contingent on remainder rules of the common law

No remainders after freehold
o The contingent remainder can only come back to the original grantor
No springing freeholds
o A hold that springs into existence when there is a gap between the grantor is no
longer in possession of the land (e.g. he dies) and the condition precedent has not
been met
o The grant will then be void
Timely vesting wait and see
o We wait and see if there is a gap in the granting of the land and then determine
what to do
No shifting freeholds
o You cannot have a conditional estate and the right to re-entry to someone else
o Applies in particular to life estates
o E.g. granting A a life estate and B a contingent estate but As estate is conditional
and thus if the condition is not met it is given to B
NOTE that remainder rules dont apply to wills
Summary
There is a vertical relationship between the Crown and the person holding tenure
o Two main kinds of tenure: freehold and leasehold tenure
There is also a horizontal relationship of estate depending on how land is cut out over
time
o Fee simple: infinite in duration
o Life estate: temporal duration fixed to the life of the person
o Fee tail: a cut down version of the fee simple that would have to go back to the
heirs
Abolished now
o Leasehold estate
Remainder interest: the time that is left in tenurial holding
Conditions
o Not only can you determine the length of time that you will grant land but you
can include conditions
o Condition precedent: a condition that needs to take place before the land is passed
on
Also known as a contingent future interest
o Condition subsequent
Two subsets
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Defeasible fee simple

o If the condition is void, we just take the condition away and
award the fee simple
o Possibility of a right to re-entry
Determinable estate
o If the condition is void, the grant is taken away and given
back to the original grantor
o Possibility of reverter
Words of limitation
Words of limitation: how long the estate is granted for
o Words of purchase, on the other hand, tell you who the land is being granted to
Eg. to A and his heirs, to B for life for her use, to C for a term of 10 years
s.5 Conveyancing and Law of Real Property Act RSO 1990
o If no words of limitation used, the largest interest possible is conveyed, unless
contrary intention appears
o A presumption of fee simple
o Before, a life estate was presumed
s.26 Succession Law Reform Act RSO 1990
o Devise passes fee simple (or largest estate possible) unless contrary intention
appears)
Conditions have to fulfil test of validity
Uncertainty
Not contrary to public policy
o E.g. restrictions of alienation
Exercises: A holds a fee simple title and passes it on...
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o Executed deed states: I give my land to B.

Since 1896, a fee simple is presumed
o Executed deed states: to B for life, then to her daughters equally, and thereinafter
to the female heirs of the eldest daughter
Life estate to B
Life estate to daughters of B
While the daughters are alive they have a vested interest
This is also a fee simple in remainder
As per the new statute (1956) the fee tail is eliminated and replaced for a
fee simple
So the heirs of the daughters will get a fee simple
o Will states: to B for life, and on the expiry of Bs life, to C for life.
B has a life estate
C has a life estate in remainder
A has a reversion in fee simple once C dies
o Will states: I give my land to B for the life of C, then to D for life, then to E.
B has a contingent interest
D has a life estate in remainder
E has a fee simple in remainder
If B died before C there is a gap in time
The estate would go to their heirs of B if they were mentioned in
the will
Otherwise, as per CML rules it would go the first in possession
o Will states: to my son for life, then to his widow for life, then the remainder to
their surviving children
Life estate for the son
Then life estate for the widow
The childrens part is contingent on there being children
Legal contingent remainder rules
Two main principles: avoid gaps and distant vesting
Applies only to conveyances (inter vivos) not wills
Valid in CML Canada except for Manitoba
1. No remainder after fee simple
2. No springing interests (no gaps)
o You cannot have a grant that only starts at some point in the future
o Often happens with grants to children, where the grantor would want them
turn 21 before they obtain the property
3. Timely vesting (wait and see)
o Waiting and seeing what happens before it is decided what will happen to
the property
o NB s.35 C&LP Act prevents artificial destruction of contingent
remainders where prior estate is forfeited, surrendered or merged
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o If the destruction of the first interest come from forfeiture, surrender (e.g.
a person is broke), the contingent remainders are not destroyed
4. No shifting freeholds only original grantor (or heirs) can benefit from condition
broken
o If you have a defeasible or determinable estate no other person can benefit
from the cancellation of the conditions other than the original grantor of
her heirs
o Examples
To A for life, but if A goes bankrupt, then to B immediately in fee
simple (not acceptable)
To A for life or until she goes bankrupt, and if she goes bankrupt,
the remainder to B in fee simple (acceptable)
The rule against perpetuities
Applies only to non-vested/contingent interests (Charitable trusts exempt)
E.g.
o Entitled person/s not yet ascertained
o Entitled person/s not yet born
o Subject to condition precedent
Prevents distant vesting
Rule: to be valid, an interest must vest within a certain period
o Common law: within 21 years of the death of a living person referred to in the
instrument (deed or will)
o Various statutes: 80 years from execution of instrument
Re McColgan, [1969] 2 O:R. 152 (H.C.J.)
Facts
Kovalchik great friend of McColgan. His will states: hold my property as a home for Kovalchik
until her death or until she is not residing therein personally, whichever shall first occur, and
thereafter hold property as a home for Leftdahl.
Issue
1. What estate or interest, if any (as opposed to mere licence) passed to the said
Kowalchik under the provision of the will?
2. If it is an estate as opposed to an interest, does the will create a determinable life
estate or a life estate subject to a condition subsequent?
Keith J.
1.
The testament must be interpreted according to the expressed intentions of the

testator.
The will talks of the property to be held as a home. It therefore goes further than
creating a simple license to use the premises. It is a life estate.
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To distinguish between a determinable life estate and a life estate defeasible subject to a
condition subsequent, we must determine whether the condition is external to the grant.
In this case the terms until she is not residing therein are considered an external limitation.
Therefore we are dealing a life estate defeasible subject to a condition subsequentthe gift takes
effect as if the condition had not been imposed.
How does the court come to this conclusion? The life estate expresses the intention that the
estate created was to endure until she died. The SUBSEQUENT words are external to the
limitation which create an interest upon condition.
The words of the condition mark the event which, if it takes place, will defeat an estate, as
opposed to a pre-existent limitation on a right.
Helpful definition from case: The essential distinction appears to be that the determining event
in a determinable fee itself sets the limit for the estate first granted. A condition subsequent, on
the other hand is an independent clause added to a complete fee simple which operates so as to
defeat the clause
Class Notes
The estate left to the widower was intended to be a life estate
Is there an external condition imposed on the grant?
o She is given the right to the property until her death or until she stops residing
there
o The fee seems determinable because of the worde until, yet the judge decides
that it is not
A problem is what does residing mean?
If it is unclear, then the faith of the estate depends on whether it is a
determinable or defeasible interest
Notes
Christensen v Martini Estate
The court stressed that the overriding principle of construction was the intention of the
testator
Conditions and Uncertainty

Introductory Notes
Broadly speaking one can delineate two reasons why courts will strike down conditions the
condition is either uncertain, or it is contrary to public policy
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Sifton v. Sifton, [1938] 3 All E.R. 435 (P.C. - Ont. )

Facts
Miss Sifton is entitles to a certain sum of money from her father, only so long as she
shall continue to reside in Canada.
She was able to study in Europe; however, she would now like to travel again and wishes
to know under what conditions she may do so. She and the trustees are seeking an
interpretation of the clause from the courts.
Lord Romer
If an estate is to be defeated by a condition, that condition must be such that a court can
identify from the very beginning exactly what the required event may be.
The word reside is far too vague for there to be any interpretation, except possibly one
based upon the specific facts of the case.
He must have intended that, though Canada was to be her home in general, yet she was to be at
liberty to leave Canada for some purposes and for some periods of time. Unfortunately, he
omitted to define either the purposes or the periods.
Conclusion: void for uncertainty.
If the clause is a condition subsequent, it can be of no validity, for no judge could have clearly
identified the event that would make the grant cease.
[The court further found that the condition was defeasible, not determinable. Therefore the
condition could be struck down, yet the grant could remain.]
Notes
Kostar v. Shattock (1981)
The court considered the characterisation and validity of the following condition: To pay
and transfer the remainder of my residuary estate to Oilme Kostar of Venevere Side
Jaoskond, Poltsamaa Rajoon Estonia N.S.V. if and when she shall attain the age of
twenty-one years provided that upon the attainment of such age she shall then be resident
in one of the countries of the British Commonwealth of Nations
On November 13, 1975, the date of Oilme Kostars twenty-first birthday, she was
residing in Estonia. It is not disputed that Estonia had never been a member of the British
Commonwealth of nations
The trial judge characterized clause (e) as a valid, sufficiently certain, condition
precedent
On appeal, Crockett J rejected the characterisation of the clause as a condition precedent
o The law favours early vesting and that, in cases of doubt, a condition should
therefore be treated as subsequent
This rule is to be followed unless the testator or testatrix clearly indicates
that a clause should be treated as a condition precedent
o On the issue of the whether the clause is sufficiently certain, the CA find it was
so
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Clayton v. Ramsden, [1943] A.C. 320 (H.L.)

Facts
A Jewish man had left his daughter a significant sum of money, however he stated that: if may
said daughter () shall at any time () contract a marriage with a person who is not of Jewish
parentage and of the Jewish faith then her interest would cease and determine.
The daughter married a gentile and sought to have the condition struck down.
Lord Russell of Killowen
For a condition of defeasance to be valid, it should be framed to that the person affected
knows with certainty upon what event their interests depend.
The words of Jewish parentage lead to the ridiculous situation of evaluating what such a
requirement means in terms of proportions of Jewish blood.
This uncertainty voids the conditions subsequent, with the result that there is no defeasance.
Does Jewish refer to race or religion?
Lord Romer
The qualification of a permissible husband as too uncertain, even if one can conclude that by the
term Jewish parentage there is a reference to race, rather than religion.
Even if it is certain that the daughter has breached the clause, it is nonetheless voided and of
no effect.
Notes
Re Tucks Settlement Trusts; Public Trustee v. Tuck (1978)
When, in 1910, Alfred Tuck was made a baronet (an hereditary title), he established a
trust fund for future baronets in his line if and when and so long as he shall be of the
Jewish faith and married to an approved wife.
An approved wife was defined in detail: a woman of Jewish blood by one or both of
her parents, who has been brought up in and continues to worship according to the Jewish
faith and in case this would be unclear, the decision of the Chief Rabbi in London of shall
be conclusive."
This case arose after a subsequent baronet married a non-Jewish woman as his second
wife, and sought to have the conditions declared void for uncertainty
All parties to the case agreed the conditions placed on the baronet were conditions
precedent, which if invalid would void the estate
Counsel for the baronet argued that the condition failed either for conceptual uncertainty
(not sufficiently clear) or evidentiary uncertainty (unable to be applied due to the
uncertainty of the facts)
Lord Denning dismissed these arguments on the basis that they frustrated the clear
intentions of the settlor (Alfred Tuck). If there was any uncertainty, it was cured by the
Chief Rabbis clause
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Re Down (1968)
The testator's will provided in part: When my said son, Harold Russell Down, arrives at
the age of thirty years, providing he stays on the farm, then I give, devise and bequeath
all of my estate both real and personal of every nature and kind whatsoever and wherever
situate unto my said sons Stanley Linton Down and Harold Russell Down to be divided
between them equally share and share alike
Harold Down, 26 years old and not farming, applied for construction of the will in order
to ascertain his rights to his father's estate. The trial judge held that the will created a
condition precedent not void for uncertainty
Harold Down appealed, arguing that he had a contingent interest which would vest when
he reached 30, attached to which was a condition subsequent which was void for
uncertainty
Blathwayt v. Lord Cawley and Others (1975)
The court considered the validity of a condition which prohibited future heirs of the
testator (maker of a will) from inheriting, or divested the estate once inherited, if any of
them should "Be or become a Roman Catholic".
Conditions and Public Policy

Introductory Notes
The issue of concern here is the relationship between private property, public policy, and what
we now call unacceptable discrimination. As you will have gathered from Clayton v. Ramsden,
"discrimination" has not traditionally been a reason for voiding conditions
Re Noble and Wolf, [1949] 4 D.L.R. 375 (Ont. C.A.)
Facts
Noble owns some land in a development that she wishes to sell to Wolf, a Jew. When she bought
the land, it was specified that it could not be sold to certain categories of people, including Jews.
The plaintiffs are trying to have the clause voided as being contrary to public policy.
Issues
1. Is the said clause in the restrictive covenant in question illegal, void and
unenforceable, being contrary to public policy?
2. Is the clause void and unenforceable for uncertainty
Robertson C.J.O.
There is nothing criminal about a group of private residents deciding to exclude a
certain category of people from living in their community by establishing conditions
of sale.
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The purpose of the clause is obviously to assure that the residents are of a class who will
get along well together.
It is not up to the law to meddle in their choice and force tolerance upon them.
Henderson J.A.
There is no matter of public policy involved. What is at issue here is the sanctity of
the contract passed amongst the residents. That contract must be preserved.
This court should not lend itself to enable a breach of contract. The security of K is a
matter of public policy which we should strive to maintain.
Hope J.A.
It is only if the association of landowners were unreasonably affecting the public
generally could their rule be voided. For the moment, they have the right to create rules
for themselves.
Hogg J.A.
There are two limits to the use of public policy:
1. Arguments based on this principle are irrelevant when they relate to a rule of the common
law that is already clearly settled.
2. Public policy is not some ideal standard to which the law ought to conform.
The doctrine should only be invoked in clear cases in which the harm to the public is
substantially incontestable.
It does not depend simply upon ones view of justice, morality and convenience.
The obligations set out in the UN Charter do not seem to have been made a part of the law
of this country or of this province by any legislature
In this case, the harm to the public is not substantial enough to justify the intervention of the
courts.
Class notes
There is covenant attached to the land
The judge does not allow for the person to change the conditions
She had voluntarily accepted the condition
This is a contractual problem
Are the public policy considerations to consider the condition void?
o Alienation is restricted but only for a period of time
Are there issues of uncertainty?
o Not really
Legal Updates after Re Noble and Wolf
Following the Court of Appeal's decision in Re Noble and Wolf the Ontario legislature amended
the Conveyancing and Law of Property Act by adding the following section [now s:22]
(22) "Every covenant made after the 24th day of March, 1950, that but for this section
would be annexed to and run with land and that restricts the sale, ownership, occupation
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or use of land because of the race, creed, colour, nationality, ancestry or place or origin of
any person is void and of no effect. "
Re Canada Trust Co. and Ontario Human Rights Commission (1990), 69 D.L.R. (4th) 321
(Ont. C.A.)
Facts
A scholarship fund has been established in the 1930s which limited eligible applicants on the
basis of openly racist principles (WASP) An argument was put forwards that, in spite of being a
will, it could be reformed on the basis of public policy.
Issues
Is the trust void in whole or in part either for 1) uncertainty or because 2) it violates public
policy?
Decision
1) NO 2) YES
Tarnopolsky J.A.
Special rules apply in the case of charitable trusts. Most importantly, they must be beneficial and
not harmful to the public.
All tests are met in this case.
1)
The definition of the class of beneficiaries is a condition

precedent. A CP will not be void for uncertainty if it is possible to say with certainty that
any proposed beneficiary is or is not from a certain class. Conclusion: CP sufficiently
certain.
2)
Public policy: public policy is reflected in legislation in
every jurisdiction of the country. This charitable trust is clearly void for public policy
reasons.
There are some that are worried that all charitable trusts that restrict the class of
beneficiaries would also be found void if this one were. In judges view, trusts will have
to be evaluated on a case per case basis, should their validity be challenged. This is not a
blanket restriction.
This case involves a balancing act
As to the alleged far-reaching effects of this decision, it would not involve private or
family trusts. But charitable trusts have historically received special protection, like tax
breaks. These protections cannot extend to such a trust.
Robins J.A
Although the doctrine of public interest must be used carefully, it is nonetheless clear in this case
that the continuation of a trust espousing openly discriminatory notions that is describes in detail
is negative. It is couched in terms so at odds with todays social values.
Class Notes
81
There was a condition precedent

Since the condition placed was based on race was deemed contrary to public policy, and
this was a charitable trust, the money went back to the grantor
Notes
A variety of Canadian cases have dealt with the issue of conditional estates and public policy
See pages 257-260 of CP #2
CHAPTER SIX: EQUITABLE INTERESTS

Trusts
Introductory Notes
A practice developed of transferring the property to a trusted person (the feoffee to uses), who
would not use the land themselves, but would hold it for the benefit of another (cestui que use)
Consequently, equitable doctrines such as part performance or unconscionable conduct may in
some situations lead a court to uphold even an unwritten trust concerning land.
What about third parties in the development of equitable trusts?
If they have paid a reasonable amount for the land, then it would be inequitable or unfair
to deprive them of the benefit of that land. On the other hand, if they know about the use
then they are knowingly assisting in the breach of the use, and are not acting in good
faith. In equity, this is known as the doctrine of notice.
Express Trust
Express trusts for personal property can be created orally or by conduct
Resulting Trust
Resulting trusts are recognized in situations where there is not an express trust, but the
intentions of the settlor can be presumed.
Constructive Trusts
This last manner of recognizing trusts arises when there is no intention to create a trust,
but fairness or conscionability would not allow the holder of the legal title to benefit from
the situation
Equitable Remedies
The recognition of an equitable property right depends on the availability of an equitable
remedy a defined solution to the problem
Equitable remedies include the following:
Constructive trust to redress unjust enrichment
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Prohibitory injunction prevents a person from doing something (eg selling trust
property)
Mandatory injunction requires a person to do something (eg performing the conditions
of a trust)
Specific performance - requires a person to fulfill their contractual obligations after there
has been a breach of contract
Restitution requires personal property to be returned to the owner, also used to redress
unjust enrichment
Declaratory judgment asks the court to declare the rights of the parties without an
enforcement order
The fusion of law and equity

Although initially administered by different courts, the two systems were combined in
procedural reforms in the nineteenth century
Lecture Notes
Two views of justice (as per Aristotle)
A set of rigid rules and some that are flexible and can be adjusted to the situation
In CML England this was developed through two different institutions
o The Courts of Law and the Courts of Equity
Common law and equity
Early courts after conquest (1066) Seignorial and Customary Courts (local)
Centralisation of justice through Curia Regis (Kings council) writ system (writ =
command)
Growth of specialised branches from 13th C
o Exchequer: treasury issues
o Common Pleas: where any common person could bring an issue
o Kings Bench: issues that will relate to the kingdom, e.g. criminal law
o All these courts created were part of the common law courts
Residue of justice petitions to the King in Council (
o Privy Council: final court of appeal and the one that dealt with cases coming from
the colonies
o Courts of Equity ~14th C, headed by the Chancellor
Bracton ~ 1258
o Equity requires in equal causes an even-handed justice and a true equality in all
things.
Lord Ellesmere - Earl of Oxfords Case 1615
o The cause why there is a Chancery is, for that mens actions are so diverse and
infinite, that it is impossible to make any general law which may aptly meet with
every act, and not fail in some circumstances.
Equitys Court High Court of the Chancery
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Early chancellors were ecclesiastics - administered natural justice in name of King

Proceedings emphasised personal nature of remedy and moral duty of respondents.
Chancellors from 16th C were lawyers administered justice according to principles of
equity.
Not strictly bound by precedent or rules, but nonetheless influenced by common law
method.
Common law and equity fused by Judicature Act 1873 if conflict, equity prevails
Equitable maxims
1. Equity will not suffer a wrong without a remedy
2. Equity follows the law
3. Where there is equal equity, the law shall prevail
4. Where the equities are equal, the first in time prevails
5. Who seeks equity must do equity
6. Who comes to equity must come with clean hands.
7. Delay defeats equities
8. Equity is equality
9. Equity looks to the intent rather than the form.
10. Equity treats as done that which ought to be done
11. Equity imputes an intention to fulfill an obligation
12. Equity acts in personam
o Acts against the person herself
Equitable remedies
Initially had no power to accord damages, but instead awarded specific performance and
injunction
It was allowed to award damages after the Chancery Amendment Act 1858
Available to enforce equitable right, and legal right if damages inadequate
Equitable property
Dissatisfaction with feudal property law:
o Payment of dues on succession by heir
o No wills until 1540
o Escheat if tenant died without heir
o Conveyancing laws rigid
o Women lost right to property on marriage
Use separation of legal title and beneficial use of land
Binding on legal title holder because it would be unconscionable to deny conditions of
the use
Binding on third parties if conscious of the breach of trust
Trusts
Initially the wording to create the trust would be something that would given the fee
simple to a person and the use to others
o To F and his heirs to the use of C (trustee) and her heirs.
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Statute of Uses 1535 converted Cs interest into lawful seisin, estate and possession.
o This way the uses would be taxed as they are passed on to heirs
o In a case like To F and his heirs to the use of X and his heirs to the use of C and
her heirs.
X would get the fee simple and the second use is void
E.g. Tyrrels Case use upon use is void
After Tenures Abolition Act 1660, use upon use enforced in equity
To F and his heirs to the use of T in trust for B.
Unto and to the use of T and his heirs in trust for B
o This would be the wording you would see as a result of the Statute of Uses
Creation of trusts
Express trust where intention evidenced
o In writing
o By language or conduct
Resulting (implied) trust where intention presumed
o Where whole interest not dealt with expressly
o Unless gift clearly intended
Constructive trust imposed by court as a remedy for
o Whenever the court would deem that it would be unconscionable for the person
who holds the title to deny the use to another, the court would create a trust
o Three types
Unjust enrichment
Unconscionable conduct
Estoppel
Family property and resulting or constructive trusts
Since trusts were created in commercial settings, could they be transferred to family
settings
Inwards v. Baker [1965] 2 QB 29 (CA)
Facts: Mr. Baker told son to build a bungalow for himself on his (the fathers land), which the
son did. He built it with his own labour with the help of one or two men, and he got the
materials. He bore a good deal of the expense himself, but his father helped him with it, and he
paid his father back some of it. Roughly he spent himself the sum of 150 out of a total of 300
expended. When it was finished, he went into the bungalow; and he has lived there ever since
from 1931 down to date. In 1951 the father died. His will appointed as executrix Miss Inwards,
who had been living with him for many years as his wife and by whom he had two children.
Miss Inwards appointed her two children as trustees of the will with her. But in the year 1963
they took proceedings to get Jack Baker out. The trustees say that at the most Jack Baker had a
licence to be in the bungalow but that it had been revoked and he had no right to stay.
Issues: What is the nature of Jack Bakers interest, if any?
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Held: the son had an estoppel licence to remain in a bungalow on land which was owned by his
father, for the remainder of his life, having expended money on the property in reliance upon his
father's representation that he would be able to live there.
Reasoning: If the owner of land requests another, or indeed allows another, to expend money on
the land under an expectation created or encouraged by the landlord that he will be able to
remain there, that raises an equity in the licensee such as to entitle him to stay. He has a licence
coupled with an equity.
Class Notes
A father had an understanding with his son with regards to some property and he had
built in it
Once the father died, the step-mother and siblings inherited the land and wanted the son
out
Some legal considerations: implied common intention at time of acquisition
o The father had given him access to the land (an implied licence)
o There was an invitation to spend money on the land with the understanding that
the son could stay
There is an equitable basis to the sons claim, estoppels based on the reliance created
by the licence to access the land
o Equity would have allowed him to enforce this right against his father if he had
denied him of access to the property, so it seems reasonable to maintain this
o This right may not be enforceable against a third party (if the house had been sold
by the father) but it is enforceable against the step-mother
o The equity remedy recognized is used to carry out the original intention of the
parties
John Bulun Bulun v. R&T Textiles (1998) 157 ALR 193 (Federal Court)
Facts
Defendant sold fabric with applicants artwork printed on it.
Artwork has tremendous meaning for aboriginal community of Bulun Bulun.
The aboriginal peoples did not cease to observe their sui generis system of rights and obligations
upon the acquisition of sovereignty of Australia by the Crown. The question however is whether
those aboriginal laws can create binding obligations on persons outside the relevant aboriginal
community, either through recognition of those laws by the common law, or by their capacity to
found equitable rights in rem.
Do the circumstances in which the work was created give rise to equitable interests in the
Ganalbingu people?
Argued by Milpurrurru (leader of the community) that Bulun Bulun only held copyright
in artistic work as a fiduciary and/or on trust for the people. Contended that these rights
arise because Milpurrurru and the people he represents have the power under customary
86
law to regulate and control the production and reproduction of the corpus of the ritual
knowledge. This makes Bulun a trustee for the artwork, either pursuant to an express
trust, or a constructive trust in favour of the Ganalbingu people.
Was there an express trust?
Existence of express trust depends on the intention of the creator. Not the case here. No
usual or customary practice whereby artworks are held in trust for the Ganalbingu people.
Did Bulun hold the copyright as a fiduciary?
Said to arise out of the nature of ownership of artistic works among Ganalbingu people.
Critical feature of fiduciary relationships is that fiduciary undertakes or agrees to act for or on
behalf of or in the interests of another person in the exercise of a power or discretion which will
affect the interests of that other person in a legal or practical sense.
Evidence shows that artist is entitled to consider his own interests, for example by selling the
artwork, but is not permitted to shed the overriding obligation to act to preserve the integrity of
the culture where action for that purpose is required.
Nature of the relationship was a fiduciary one, which gives rise to fiduciary obligations. Bulun,
however, has taken appropriate action to enforce the copyright, and has therefore fulfilled
these obligations and there is no need to grant any additional remedy in favour of the
Ganalbingu people
Class notes
A man found a painting done by an aboriginal man and used it to make textiles with it
o There was obviously a breach of copyright
There was an argument that a group of aboriginals had been injured by the infringement
of this copyright
o There is a link in the painters culture between the artwork and the right of land
o He claims that the interests of his people in his painting and their ownership over
what his painted had also been breached
Translated into Western law terms he claims that a trust invested upon him was
breached in the copyright infringement
The court finds that there is no equitable award to be granted given that the artist
had already acted like a proper trustee and received compensation for the copyright
that had been breached
o If he hadnt act as an appropriate trustee then the community may have a
claim to compensation in equity
Wifes Equity and Womens Property Rights

Introductory Notes
Married women, as a result, were not permitted to administer property, transfer property, enter
into contracts, sue, or get sued
87
Thus equity was used to protect women from the harsh common law rules
The 17th and 18th centuries saw a softening of the doctrine of coverture through the use
equitable instruments such as family trusts or settlements
Statutes, known as married womens property acts, relieved some of the legal
incapacity bestowed upon women by the doctrine of coverture
In the UK case of Gissing v Gissing [1971] AC 886, Mrs. Gissing claimed a beneficial interest in
the marital home after her divorce. The couple had been married for 16 years, and Mrs. Gissing
had paid a substantial sum towards furniture and the laying of a lawn, but the house had been
conveyed into the name of Mr Gissing alone, and Mrs Gissing had made no direct contributions
towards its purchase
Lord Diplock held that where a trust is not in writing, it can only be created by a
transaction between the trustee and the cestui que trust in connection with the acquisition
by the trustee of a legal estate in land
o The interests of the parties were thus to be determined on the basis of their actual
or inferred intentions at the time of acquisition of the property
o In the absence of express agreement, only conduct relevant to the acquisition of
the property will generally be relevant
o However, subsequent conduct may be evidence of intention at the time of
acquisition
Reform in Canada was significantly influenced by the Supreme Court decision of Murdoch v
Murdoch (1975)
Irene Murdoch left her husband after 25 years of marriage and considerable physical
labour in running the familys Albertan farm. At trial she claimed financial support and a
half-interest in her husbands several properties as an equal partner with her husband
Martland J became famous for his comment that her work during 25 years of marriage
was merely work done by any ranch wife. In reaction to the decision, public opinion
and law reformers alike agreed that there was a need for legislative reform to promote the
recognition of the contribution of womens work to the accumulation of marital property.
The common law provinces in Canada proceeded to enact statutes such as Ontarios
Family Law Act RSO 1990, which provided that the value of all property held by spouses
be shared on the breakdown of the marriage
In Pettkus v Becker (1980) a common law couple had run a bee-keeping farm together. Beckers
salary went to household expenses, and her spouses income to paying off business debts. The
court held that her indirect contribution contributed towards the purchase of property as it freed
up Pettkus income for investment.
In Sorochan v Sorochan (1986) the parties had been in a common law relationship for over 42
years, operated a farm together and had 6 kids. The mother worked on the farm, part of which
was held outright by her spouse, while he went out working as traveling salesman. In 1971 the
mother requested a transfer of part of the farm in her name but was refused
Although there was a missing causal connection between the labour of the woman and
the acquisition of property because it was already acquired Dickson CJ found that
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the woman had contributed to the maintenance and thus the value of the titled cohabitees
property
Lecture Notes
Gissing v Gissing (UK)
The spouses had bought furniture and other items together which they had in the home
where they lived
The question before the judge was whether the wife had made a financial contribution to
the property
What is the intention between married people when they shared the property?
Because the intention of the parties didnt seem to share private interest, no constructive
trust was awarded
But whenever the trustee has so behaved himself in a way that it would be inequitable to
the other party, there could be an argument for detriment based on reliance and thus
estoppel
Housework eventually became recognized as real work in Canada and does contribute to the
wealth of the family
This was accomplishes in reaction to the case of Murdoch v. Murdoch
Pettkus v Becker
Indirect contributions to acquisition nexus
o Even though her salary was not a direct contribution to the purchases, but it did
free his salary to make the acquisitions, there was sufficient connection between
her contributions and the acquisition of property to impose a constructive trust
and thus award her some use over the property
Dickson J: 3 elements for constructive trust to remedy unjust enrichment.
Sorochan v Sorochan
Again an issues of contribution to maintenance and value of the property by the wifes
work
Here the land had been acquired before the marriage and before the contributions of the
wife
The judge decides that it doesnt have to be a contribution to the original purchase or the
acquisition, but a sufficient contribution to the maintenance of the house
Peter v Beblow [1993] 1 SCR 980
Is provision of domestic services during 12 years of cohabitation in a common law relationship
sufficient to establish the proprietary link which is required before the remedy of constructive
trust can be applied to redress UJE of one of the partners in a relationship?
Woman cooked, cleaned, took care of children (from other spouses though). Hell, crazy woman
even chopped wood and shoveled snowthen they separated.
89
Respondent had paid housekeeper before appellant moved in with her. Respondent had asked
her to move in with him because he needed help to take care of his 2 kids.
Respondent became alcoholic and lots of abusestory involves houseboats, trailerparks, and all
sorts of white trash details.
3 things needed for UJE:
- enrichment
- corresponding deprivation
- absence of a juristic reason for the enrichment
All three are present in this case.
Trial judge held that the appellant was under no obligation to perform the work and
assist in the home without some reasonable expectation of receiving something in return
other than the drunken physical abuse which she received at the hands of the
Respondent. This is enough to end argument that services were performed because of
obligation.
no logical reason to distinguish domestic services from other contributions. Notion
that household and childcare services are not worthy of recognition by the court fails to
recognize fact that these services are of great value not only to the family, but to the other
spouse.
Remedy: Monetary judgment or constructive trust?
For a constructive trust to arise, the plaintiff must establish a direct link to the property
which is the subject of the trust by reason of the plaintiffs contribution.
Where a monetary award is sufficient, there is no need for a constructive trust. Where a
monetary award is insufficient in a family situation, this is usually related to the fact that the
claimants efforts have given him or her a special link to the property. The special link to the
property is what creates the constructive trust.
Class Notes
A man who already had children started a relationship with Beblow and came to live with
her while she was taking care of his children and performed housekeeping and
housework duties
o There was evidence that before living with Beblow, he had to pay for
housekeeping
o Because of the money freed from housekeeping, he was able to pay the mortgage
on his house
The court discusses the elements of constructive trust as a remedy to unjust enrichment:
1. Enrichment
2. Corresponding deprivation
o There is an argument that free labour is not a detriment if you are doing it
out of love
o The court rejects this argument that work provided out of love denies the
detriment to the party
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3. Absence of juristic reason or obligation (= unjust) for the enrichment

o The test for this is flexible and may vary from case to case
o It is usually based on what were the legitimate expectations of the parties?
Also important is the need for a remedy that goes beyond simple financial compensation,
but recognizes the contribution of the individual in relation to the property at stake
Alternative remedy = quantum meruit (compensation)
o Are monetary damages inadequate?
o Is award likely to be paid?
o Is there a direct link between the contribution and the property itself?
Beblow is awarded a full interest on the house instead of compensation
Assessing contributions
Property interest is proportional to contribution
Value received
o Monetary value of services
o Was there expectation of compensation
Value survived
o What portion of the property is attributable to the contribution?
o Was there expectation of share in wealth generated by partnership
Priorities
Introductory Notes
A fee simple must be conveyed in writing
This can happen through gift, sale and mortgage
These are all forms of legal interests in land
o Equitable interests are created as a remedy
Forms of remedies
A sale can produce a contract and equitable fee simple
A trust can produce a beneficial
A mortgage can produce equity of redemption
Lease can produce a contract through an informal lease
Legal A v Legal B
Common sense might tell us that the first in time ought to get priority
Prior to the advent of registration systems, the answer was still the first in time. In the
common law way of thinking about titles, this is because in both cases, at the time of the
conveyance to B, there is no title to convey, and nemo dat quod non habet you cant
give what you dont have.
Earlier Legal A v Later Equitable B
91
Considering that equity looks to the conscience of the parties, are there any circumstances
in which Bs interest would take precedence over As?
If A has done something that has enabled the later equitable interest to be created and for
the equitable interest holder to be ignorant of the earlier interest, then they are partly to
blame
Thus although generally the first in time has priority, the legal interest may be
postponed to the equitable interest if A has engaged in what is called postponing
conduct (see Northern Counties Fire Insurance v Whipp)
Equitable A v Equitable B
Equity too has a first in time principle, but it is not nemo dat but rather the maxim qui
prior est tempore potior est jure the first in time has the strongest claim
Earlier Equitable A v Later Legal B
The first in time rule might be thought to apply here too, but the later legal claim of B is
also strong
On the other hand if they have actual or constructive notice of As interest, then their
conscience should bind them to respect that interest. These principles have thus given rise
to the doctrine that a later legal interest will take precedence over an earlier equitable
interest if held by a bona fide purchaser for value without notice.
Effect of Registration on Priorities
Deeds Registration
The fact that the register was public was also important in light of priority rules any
prospective purchaser would automatically have notice. If they hadnt actually checked
the register, even though a prudent person would have, then they are held to have
constructive notice
That is, the race to register cannot be deliberately used to defeat another interest
This version is the most common variety of deed registration system in Canada.
Torrens System
The title registration system purports to override the mess of priorities, because the
indefeasibility principle dictates the infallibility of titles on the face of the register
Northern Counties of England Fire Insurance Co v Whipp (1884) 26 Ch.D.482

Facts: Crabtree, manager of the insurance company enters into a mortgage w/ insurance company
(legal mortgage). As manager, Crabtree has duplicate key to the safe where the deeds of the
company are kept. He gave the deeds to Mrs Whipp who gave him a loan for the mortgage of his
properties not knowing of the previous legal mortgage. She now has an equitable mortgage?
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Issue: Whether a company which had a legal mortgage had lost its priority to a subsequent
equitable mortgage which had been created because the companys manager (who was on a frolic
of his own) had a duplicate key to the safe where the title deeds were kept? The Court of Appeal
therefore had to decide whether the companys carelessness should be equated to equitable fraud.
Held: No
Reasoning: Normally legal mortgage would take priority because it is first in time and stronger
claim but here there might be fraud. But court holds no fraud:
Company gets priority unless there was some postponing conduct -->
misrepresentation/fraud on the part of the first party
Can you really call it fraud if it was not deliberate?
Company wasn't gaining from the situation - insufficient fraudulent action
So Company gets priority
Class notes
Crabtree enters a mortgage with a company
o This transfers his fee simple subject to his equitable right of redemption
There is a second mortgage given to Whipp
o She gets an equitable mortgage
o She didnt know there was already a mortgage on the property
The company should have priority in its interest unless there is fraudulent conduct in
postponing the mortgage
There was no proof of fraud, the company was not benefiting from the situation, so it was
deemed to have priority over the interest
Pilcher v Rawlins [1872] LR 7 Ch App 259
Facts: Pilcher trustee for J. Pilcher loans money to Rawlins on the security of a mortgage. So
Rawlins mortgagor and Pilcher mortgagee. Pilcher (mortgagee) has legal title over house subject
to equity of redemption (what you have when you mortgage something, what you have to give to
a second mortgage) of Rawlins, Rawlins (mortgagor) has legal title on money. Rawlins enters
second mortgage Stockwell and Lamb (R has only equity of redemption to give and so S/L only
has equitable mortgage). Pilcher reconveyed fee simple back to Rawlins w/o receiving money.
Turns Stockwell and Lamb mortgage into ordinary legal mortgage (fee simple w/ equity of
redemption) holding it on trust for someone else
Issue: Seems that Pilcher breached his fiduciary duty. Competition between beneficiaries
early equitable and of J later legal interest. Who get priority?
Held: Later legal interest has priority
Reasoning: Mortgagees had paid consideration and had no knowledge of the equitable interest.
General rule prevails: Later legal interest prevails if bona fide purchaser for value without notice
93
Class notes
There are three trustees holding money for a beneficiary
o Pilcher is one of the beneficiaries
This money is used to give security for a mortgage from Rawlins
o Pilcher is the mortgagee and Rawlins is the mortgagor
o Pilcher now has a legal fee simple subject to the equity of redemption, and he is
holding this on trust in name of the beneficiary
Rawlins, who now only holds the equity of redemption, tries to give a second mortgage
to Stockwell and Lamb
o Nevertheless, Pilcher fraudulently gives back the fee simple to Rawlins days
before he takes the second mortgage, but without receiving any money in return
o The mortgage given to Stockwell and Lamb is thus legal
Once the beneficiary finds out
o He might have an action of breach of trust against Pilcher
Since Stockwell and Lamb had no knowledge of the fraudulent actions between
Pilcher and Rawlins, their interest should take priority
Chippewas of Sarnia Band v Canada (AG) (2000) 41 RPR (3d) 1
Facts: Motion by the Chippewas for a declaration that a Crown patent of land was void, and that
they continued to enjoy aboriginal rights to the land. In 1827, the Chippewas surrendered lands
under treaty to the Crown. Pursuant to the treaty, the Crown guaranteed the Chippewas and their
descendants the ownership and exclusive use of the Upper St. Clair Reserve. In 1839, Cameron
bought the Reserve from the Chippewas. The Chippewas did not formally surrender the land. In
1840, the purported purchase was approved by order in council, and the land was conveyed to
Cameron by Crown patent in 1853. Cameron sold all of the land by 1861. A portion of the
Reserve was now occupied by over 2000 owners, including families, businesses, churches, and
individuals, who had bought their properties without notice of any potential defect in title to the
land. In 1995, the Chippewas brought an action against the owners for the return of the lands and
against the Crown for damages for breach of fiduciary duty. The Chippewas argued that, in 1839,
they held the land under Indian title, and that they never surrendered the land. They claimed that
the purported 1839 sale to Cameron, the 1840 orders in council approving the sale, and the 1853
Crown patent to Cameron were void from the beginning, of no force or effect, and that they still
owned the lands because their aboriginal and treaty rights were never extinguished. The Crown
argued that the 1839 Cameron sale and the 1853 patent were valid, and that the Chippewas' claim
thus raised no serious issue to be tried. The owners argued that they were good faith purchasers
who bought their land for value and in good faith without any notice of the Chippewas' claim
until 1995. They claimed that the Chippewas claim was barred and raised no serious issue to be
tried.
Held: Owners' motion allowed; Chippewas' motion allowed in part; Crown's motion dismissed.
Under the common law, the private sale of unsurrendered Indian land was prohibited. Thus, the
original sale and the Crown patent were void ab initio. While the Chippewas' aboriginal and
treaty rights enjoyed constitutional status and priority, they did not exist in a vacuum. These
rights had to be balanced with the rights of the owners, who were good faith purchasers. The
94
aboriginal rights to the property were subject to a 60-year equitable limitation period,
which began in 1861 and expired in 1921 . However, these rights crystallized into an adequate
alternative remedy in damages against the Crown for any wrongful dispossession or any
deficiency or improvidence in payment. In order to achieve justice, The Chippewas required no
additional remedy against the present owners. It would have been unconscionable, and would
have brought the administration of justice into disrepute, if the action against the present owners
were to proceed. However, the Chippewas' action for damages against the Crown was to
continue.
Notes: Early equitable v. Later legal later legal prevails because bona-fide purchasers of
value w/o notice
Laches: Delay in asserting a right gives rise to the equitable doctrines of laches and
acquiescence. Mere delay is insufficient to trigger laches. Rather, the doctrine considers whether
the delay of the plaintiff constitutes acquiescence or results in circumstances that make the
prosecution of the action unreasonable. Ultimately, laches must be resolved as a matter of justice
as between the parties, as in the case with any equitable doctrine.
Class notes
Aboriginal title, although being a property right, cannot be surrendered to anyone but to
the Crown
In 1839 there was negotiation with Cameron
In 1853, the Crown gave the patent of the land to Cameron who sold it to someone else
o Nevertheless, the land was never properly surrendered to the Crown
The Band wants a declaratory relief
o For the court to declare what their rights are
o Also for compensation for trespass (against some of the occupiers of the land)
and breach of fiduciary duty (against the Crown)
In terms of priorities
o The Band argues that the Crown had nothing to give to Cameron, so the principle
of Nemo Dat Quod non Habet applies
They never lost legal title
There seems to be no need for an equitable remedy as the Band owns a
legal title
But the doctrine of laches does not allow for an equitable claim to
be made so late in time
o However, there is a legal maxim that if you are seeking equitable remedies,
you should behave equitably yourself (Laches)
One of these aspects is not to wait too long to ask for equitable remedies,
as you are giving the impression that there is nothing wrong with the
current state of affairs
CHAPTER SEVEN: PROOF AND REGISTRATION

95
Title, Proof and Registration

Introductory Notes
The registration of deeds or registry system (such as exists in the UK and parts of Canada)
helped make the search process easier by providing a public register of deeds and other
instruments (documents by which rights are created or transferred) affecting the land
Nonetheless, fraud and mistakes can still happen despite the need for writing and title
searches, and deeds registration does not cure a defective instrument, such as one in
which the vendor didnt have the legal title to sell
The title registration, land titles or Torrens system changed all this
To make the transfer of land easier, less expensive and more efficient, in this system the
certificate of title (that is, the proof of transfer of title), once registered, is guaranteed by
the government
What is on the register becomes the truth of entitlement to land, and there is no need to
look beyond it to the real history of land transfer
o This is known as indefeasibility of title: as if on each registration the government
issues a new clean title which is said to draw a curtain on all past dealings. The
register is taken to be a complete listing of all interests existing in that particular
plot of land
o For an earlier, unregistered claim that has been defeated by registration of a
certificate of title bearing no mention of it, or a previously registered owner
wrongly ousted by a new registration, there is (in theory) a state sponsored
insurance fund
o Naturally, there are some exceptions. If the person who is currently the registered
owner has achieved registration by fraud, then the original owner will be
reinstated on the register
The current Ontario system evolved from British law rather from the Torrens system
In this system parties can apply for a certificate of title under the Land Titles Act. The
principle behind the registry is the same, it should reflect all the rights an obligations a
piece of property is subject to
Prospective purchasers and mortgagees are only required to examine the registry, instead
of undertaking a more exhaustive title search
Unlike in the Torrens system the state does not guarantee that the title is free from any
defects
Priorities are determined according to the register
Innocent parties who suffer as a result as of fraud can apply to the government for
compensation.
Land Titles Act (RSO 1990)
See pp. 317-320 of CP #2
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T. G. Youdan, The Length of a Title Search in Ontario

See pp. 321-322 of CP #2
Alain Pottage, The Measure of Land (1994)
Two things that you needed to prove with regards to land title
Devolution
o Related to the chain of title
o If there is a fraudulent transfer in the chain, the possessor of the land may not hold
a legitimate title
Identity
o How do we prove what is it that people are obtaining when passing title?
Medieval England
How was title proved in this period of time?
o Many people were illiterate
o You would rely on the accounts of locals and memory
o There was little certainty in the identity
What Pottage argue is that out ideas of certainty are based on the
measurements available at the time
Before, property wasnt discovered in anything other than in words
Deed 1448
Measurement of land had to do with the physical activity of land
o The stock you can fit, how long it would take to ride from a place to another
When you bought property you would inherit a stack of paper showing all the transaction
that had taken place in the past
Later on, we moved towards a cadastral map
Based on the idea that measurement is inherent to land
Meters or units of measurement are an objective measurement which means the same
everywhere
This eased the transfer from feudalism to capitalism
o A strip of land would no longer be understood based on the memories of people,
but you could see it on a map
o It depersonalized land, a strip of land somewhere would be equivalent to a strip
elsewhere
Boundaries became very precise and it would be easily understood who would belong
where
What is on the cadastral paper is now what counts
97
Today we believe we can understand a place by looking at a map despite not belonging to
that community
We have we moved away from contractual transfer sin land to bureaucratic registration?
Marcia Neave, Indefeasibility of Title in the Canadian Context (1976)
On deferred indefeasibility
In Gibbs v Messer, Mrs Messer, the registered proprietor of land under the Torrens
system, left Victoria, Australia, leaving the duplicate certificate of title to her land and a
power of attorney in favour of her husband, in the possession of her solicitor Cresswell.
Cresswell forged a transfer of the land to a non-existent person Hugh Cameron and had
the transfer registered
Later he approached the McIntyres for a loan on the security of a first mortgage over the
land, representing that he was acting for his client Cameron. He forged the signature of
the non-existent Cameron to the mortgage and attested the purported signature. The
McIntyres registered the mortgage. On discovery of the fraud Mrs Messer sued for
cancellation of the entry in favour of Hugh Cameron and for the issue of a new certificate
of title free from the McIntyre's mortgage
The McIntyres cannot bring themselves within the protection of the statute, because the
mortgage which they put upon the register is a nullity
o On this view the reason for the McIntyres' defeat was the failure of the legislation
to validate a document which was void at common law
In conclusion, I believe that the provisions of the Ontario Land Titles Act relating to
indefeasibility, rectification of the register, and compensation from the Assurance Fund are an
unfortunate hotch-potch of ill-matching sections drawn from widely different sources
Even if section 91 achieves a kind of 'theoretical' immediate or deferred indefeasibility,
the width of the power of rectification deprives the notion of much, if not all, of its value
Not only does the act fail clearly to create any kind of indefeasibility of title, its
provisions relating to compensation from the Assurance Fund possess a number of
defects
While section 64(10) appears to provide compensation for the forgery victim, or the
innocent taker of a void instrument, its effect will be emasculated if an Ontario court
follows the English decision in Attorney General v Odell [in which it was held that the
victim of forgery could not claim compensation because their loss was not caused by the
rectification of the register, but rather by his or her receipt of a forged document;
Lecture Notes
Two main risks in buying property and things to be worried about
Nemo dat principle
o Because of the chain of title it was difficult to establish this
o So, to establish that there is a consistent chain of title
98
There is title, but there may be other equitable interests

o You should try and undertake all reasonable inquiries to see if there are other
existing interest in the property you are to buy
These risks go along with the capitalist system, in that people should inform themselves
before making transactions
o The transactions are made safer through deed and title registration
Easier to examine the chain of title
Registration can also help people give notice to potential registrants, and
buying property after checking the registration system may secure what is
needed by reasonable notice
Three principles behind registration

Notice principle
o You register your interest and there is notice
Race system
o Whoever registers first, takes priority of other non-registered interests
Race/notice system
o You only get the priority of the race to register if you have done so after taking
notice
A second solution is to do away with the idea of notice (and nemo dat) and just make the
registrar as the guarantee of title to land\
This is known as the Torrens system Land-titles registration system
The principle that the person registered holds title, is that of indefeasibility
o This has three components
Myriad: the idea that the registration system is the myriad of all interests
on land
Curtain principle: the idea that a curtain is drawn on what happened in the
past
Insurance principle: people who lose out by the system get compensation
This way we get rid to nemo dat and priorities are based on the order of registration
Most Western provinces adopted a modern Torrens system
Parts of Ontario have a title registration system but the system has not gotten rid of nemo
dat
An example is the Ontario Land Title Act
o There is absolute title, but there are some exceptions
o Mortgages are no a charge on the land
Before they would be a transfer of a fee simple subject to a right to
redemption
o Issues that will invalidate a contract are also considered as exceptions for the
rights that accompany registration
Gibbs v. Messner
99
This deals with how much Ontario is based on the Torrens system and overrides the
common law rules of interest
Mrs. Messner left duplicate Certificate of Title with solicitor
The solicitor forged transfer from Messner to fictitious person, Hugh Cameron and then
registered the title
There was then a forged mortgage from Cameron to the McIntyres and registered
2 theories of what may happen:
o Registration protects those dealing with the RP on faith of register (based on
statutory provision)
o Registration cant cure a void deed
Both deeds dealt with a fictitious agent
The court decides that this case will not deal solely with transfer to fictional characters,
but the same would apply if the title had been transferred to the solicitor himself
o As per the first theory: registration would stand
Deferred indefeasibility a void deed can become the root of valid title
Frazer v. Walker
FF forged husband AFs signature on mortgage to R
On default, R transferred to W, who then registered
o So the first transaction was a fraudulent but not the second
Theories W succeeds under both 1. and 2.
Privy Council adopted theory of immediate indefeasibility even R succeeds. Immunity
of RP has very limited exceptions in New Zealand legislation: actual fraud, claims in
personam, mistake by registrar
The principle of immediate defeasibility has not been the approach taken in Canada so far, but
commentators argue that it may be the direction in which we are heading
Different types of indefeasibility
Immediate indefeasibility
o As soon as you register, you get absolute title and cannot be undone, unless you
fit into some of the exceptions
Deferred indefeasibility
o Generally the approach taken in Canada
o Based on two principles
That registration wont cure a void transaction
That transactions are carried out based on the faith of the registrar
Exceptions to defeasibility
o If the person registering is fraudulent this would be an exception to indefeasibility
o In personam exception
S.45(3)
o Volunteers
S.90
100
Indefeasibility overrides nemo dat

You can register a caution or caveat in Ontario
o Doesnt guarantee the interest but freezes the register and would bring attention to
anyone else trying to register further transaction on the property
Examples
1.
A is a registered title holder and his lawyer forges a mortgage to B
o The lawyer then runs away with the money
As interest will prevail under deferred indefeasibility
o B cannot rely on the faith of the register as he didnt deal with the person in the
register
o The transfer from the lawyer to B is void, so B has not access to assurances
o B will just simple have a personal claim against the lawyer
2.
A (registered title holder) has a mortgage to B
C comes along and forges a transfer to herself (she becomes the registered title holder)
o She further forges a discharge of the mortgage to B, and takes out a new mortgage
to D
As fee simple will remain
o However, since D was acting in faith of the register, his mortgage will stand but A
has access to the assurance given by the registrar
o A will still have a contractual obligation to B
United Trust Co. v. Dominion Stores Ltd. Supreme Court of Canada 1976 CarswellOnt 383
Facts: Dominion had been tenants since 1935 of land governed by the Ontario Land Titles Act
under a written lease and various renewals thereof. The last renewal which was to have
terminated on November 30, 1970 contained an option in favour of Dominion to renew until
November 30, 1975 subject to a rental increase and the usual clause as to increase to cover real
estate taxes. Dominion gave due notice of the exercise of the option but entered negotiations for
a longer term of leasing. The negotiations continued until 1972, when on April 20, the landlords
solicitors advised that their clients were prepared to enter into an option agreement for the period
from December 1, 1975 to June 30, 1982 and suggested that Dominions solicitor draft the
required documentation. The draft option agreement was submitted shortly thereafter by
Dominions solicitor. United had however been negotiating with the landlords for the purchase of
the premises and on May 17, 1972 the landlords agreed to sell to United who had actual notice of
the lease and the agreement between Dominion and the landlords. On May 25, 1972 the
landlords solicitors replied to Dominions letter of April 28 that the landlords had no intention
of executing the documents which you have forwarded as the said documents do not meet with
the approval of the writer or our clients in their form and substance. On June 22, 1972, the day
after closing the purchase, United placed a new door with new lock on the premises and
excluded Dominion therefrom notwithstanding that Dominion had paid rent up to and including
June 30, 1972. An application by Dominion for an order granting relief from forfeiture and
101
reinstatement in the premises was granted and the subsequent appeal was dismissed by the Court
of Appeal.
Held (Laskin C.J. dissenting): The appeal should be dismissed.
Per Spence J.: The doctrine of actual notice as to all contractual relations and particularly
the law of real property has been firmly based in law since the beginning of equity. Such a
cardinal principle of property law cannot be considered abrogated unless the legislative
enactment is in the clearest and most unequivocal of terms. The Land Titles Act, R.S.O. 1970, c.
234, as amended by 1972 (Ont.), cc. 1, 132 and 1973 (Ont.), c. 39 contains no such provision.
Section 85(5) did not affect the law as stated in Re Jung and Montgomery, [1955] 5 D.L.R. 287,
as first, the subsection did not purport to repeal generally the law in Re Jung and was therefore
not enacted simply for the purpose of such repeal and second, the subsection deals with
instruments registered in respect of or affecting the same estate or interest in the same parcel of
registered land.
However, in Ontario, only a few years after the enactment of The Land Titles Act, the Courts
have expressed a disinclination to imply such an extinction of the doctrine of actual notice
There is no doubt that such doctrine as to all contractual relations and particularly the law
of real property has been firmly based in our law since the beginning of equity
It was the view of those Courts, and it is my view, that such a cardinal principle of
property law cannot be considered to have been abrogated unless the legislative
enactment is in the clearest and most unequivocal of terms
Such a provision, as I have said, does appear in all the other statutes
Per Laskin C.J. dissenting: Several provisions of The Land Titles Act make the register the sole
mirror of title and curtain off any unregistered interests regardless of notice. The scheme and
language of the Act are adequate to show the irrelevancy of actual notice. If fairness from a
common law stand point was the dominant consideration, irrespective of legislative policy and of
the circumstances which brought title registration systems into being the matter would be
different but here the concern was not with common law but rather with a complete break from it
through a choice of legislative policy reflected in some Canadian Provinces and elsewhere by the
adoption of the Torrens system and in Ontario and England by the adoption of a related system of
title registration. Section 85(5) cannot be construed to exclude the effect of notice where the
notice is of a claim to the same interest as that purchased by another for value on the face of the
register but not to exclude it where the notice is of a claim to a subordinate interest. Sections
78(1), (2), 79(1), 91 and 94 of the Act make it clear that notice of an unregistered interest cannot
qualify the registered title of a transferee for value from the registered owner.
Class notes
Unregistered lease to DS, UT had notice
G&G transferred a fee simple to UT and then registered it
UT changed locks and excluded DS
Spence J: Cases hold no express provision making actual notice ineffective. Amendment
not sufficiently explicit
102
Laskin J (dissent): Doctrine of notice is incompatible with purpose of registration system.

Onus on lessee to register
o This is because the Torrens system has not been fully implemented in Ontario
Holt Renfrew & Co, v, Henry Singer Ltd. [1982] 4 W.W.R. 481, 1982 CarswellAlta
HR had registered lease, entered new lease but did not caveat
Solicitor for HS knew of uncaveated lease, made offer to purchase which was accepted
The learned trial judge rejected the allegation that the offer was cleverly drafted to lull Dickson
no inducement
Solicitor for HS immed filed caveat, then HR filed
HR argued fraud court said no fraud, knowledge alone not enough
Decided on collateral point, HS caveat not properly filed, had to be clear that filed on behalf of
principal and was not
HR could have protected itself by registering the caveat earlier since it was well informed of the
intention of the landlord to sell
Class notes
Lease from Thompson & Dynesto HR 1957-1973, which had been caveated
New lease 1973-1990, not caveated
Negotiations to sell property to HS (via Pekarsky). Final offer clearly stated subject only
to what appears on register.
Pekarsky filed caveat to protect contract for sale
HR filed caveat to protect lease
Pekarsky filed transfer
Since notice is not an issue in this system, has the lawyer Pekarsky committed fraud so as
to justify the exception to registration?
McDermid JA (dissent): Knowledge is not fraud; it requires representation + reliance +
misleading
Notes
See pp. 321-322 of CP #2
CHAPTER EIGHT: SERVITUDES (EASEMENTS AND COVENANTS)

Introductory Notes
Easement = type of incorporeal hereditament or servitude natural right (not part of fee
simple- it must be created as part of the relationship between two landowners.)
It is the right of one owner to go on the land of another and make some kind of limited use
of it.
103
If an easement is of validly content and has been validly created, it will run with the land (be part
of the title) and be available to each successor owner, independently of his identity. This is what
makes an easement a property right.
Presumably the servient tenement will extract some price out it, but it matters not to the law that
a price is given, only that the agreement has been made.
Characteristics of Easements
Re Ellenborough Park, [1956] 1 Ch. 131 (C.A.)
Facts
In 1855, two tenants who owned land that was unbuilt on (park) sold, for building purposes, the
plots surrounding the park. The conveyances of plots granted to each purchaser right to the full
enjoyment at all times hereafter in common with the other persons to whom such easements may
be granted of the pleasure of the ground, provided they kept the park well-maintained. A
hundred years later, when the owners of the park tried to exclude the residents of the housing, the
latter argued that an easement had been created in their favour. (None of the park owners or
house owners are the original owners).
Issues
1. Do to owners of houses abutting or adjacent to the park have any right known to
law to use and enjoy the park? YES. It is an easement.
2. Does mere enjoyment of a park accommodate and serve a dominant tenement?
YES
3. Is arrangement in question capable of forming the subject-matter of a grant? YES
Evershed M.R.
Dr. Cheshire identified the four characteristics of an easement:
(1) there must be a dominant and a servient tenement
(2) an easement must accommodate the dominant tenement
(3) dominant and servient owners must be different persons
(4) a right over land cannot amount to an easement unless it is capable of forming the
subject-matter of a grant:
a) whether the right purported is too vague,
b) whether such a right would amount would amount to joint occupation or would
substantially deprive the owner of legal possession,
c) whether the right is of mere recreation
104
The first and third conditions are easily met. The problem hinges on the second and fourth
conditions.
General considerations:
It is clear that the deed intended to confer a right that was to be annexed to the premises
sold, rather than given as a privilege personal to their purchaser.
The fact that some of the properties do not directly abut the park is irrelevant.
What does full enjoyment mean? The use contemplated and granted was the use of the
park as a garden, not a right to trample, cut, or pluck flowers, etc. The use of the word
full does not import some wider meaning.
2nd condition:
The appellant contends that it is not an easement because it did not subserve some use
which was to be made of that property.
The fact that the park enhanced the value of the property is not sufficient to
constitute an easement.
The situation in Ellenborough Park is no different from a regular garden. The requirement
of the connection with the dominant tenement is thus satisfied.
4th condition:
a) Whether right purported is too vague: the right to use the garden is well defined
and commonly understood.
b) Inconsistent with ownership: We see nothing repugnant to a mans proprietorship of a
piece of land that he should decide to make it and maintain it as an ornamental garden
c) Does recreation, not utility and benefit qualify: in this case, the right is not one of mere
recreation and amusement- no doubt a garden is a pleasure- but it is not a right having no
quality of utility or benefit (eg, taking children out to park, domestic purposes)
Class notes
There is a group of houses surrounding a park
If we know that easements have existed in the common law for some time, what is the
problem here?
One of the most common kinds of easements was the right of way
o In contrast to this we have the idea from Roman law (jus spatiandi)
The right to go on someone elses ground without a special purpose
Like the right that people would have over a park to walk around
How is it decided if the right here was an easement or not?
o An easement has to be attached to land
There has to be a dominant and servient land
The benefit of the use of the servient land, also has to be attached to the
use of the use of the dominant land
The park is the servient land
o What about the dominant land: what there an obvious connection between the use
of this land and the dominant land?
105
o Would access to a park (like access to a road) be accommodated as dominant

tenement?
There is something that is usually associated with the use of a house
The use of a garden may include this
It enhances the value of the property
The court makes reference to Hill v. Tupper
o This case dealt with the access that was given to people to use a canal which was
later sold to someone else who would not allow the previous people to use it
o The right to use the land as a monopoly for business was what took primacy here
An easement must accommodate the dominant land
A right does not amount to an easement unless capable of forming the subject-matter of a
grant.
Notes
Re Lonegren et al and Rueben et al (1988)
Concerned the requirement that the dominant and servient tenement be owned by
different persons. At the time of the creation of the easement one tenement was owned by
Mr and Mrs Reuben as joint tenants, the other by Mr Reuben and another person as
tenants in common
Successors-in-title to the servient tenement argued, unsuccessfully, that this was
tantamount to there not being different owners of the two tenements. The trial judge had
held that ownership was sufficiently separate, and the Court of Appeal agreed, although
without reasons
In Anglo-Canadian law the first two parts of the Ellenborough Park test prevail so that an
easement cannot exist independently of a benefited piece of land
In the US, the common law developed to recognise what are known as easements in
gross easements over land that are independent of surrounding land titles
o Easements in gross have also been created by statute in some other common law
jurisdiction
Lecture Notes
Criteria of easements
1. Dominant & servient tenement (rather than a personal right)
2. Must accommodate dominant tenement
o Sufficient connection between right enjoyed and land
3. Must be different owners
4. Right must be capable of forming subject matter of grant
o Not too wide or vague
o Not amounting to joint occupation
o Not mere rights of recreation with no utility or benefit to land
106
Some distinctions
Positive/negative easements
o Positive easement The right to do something in someone elses property
o Negative easement: the right to stop someone from doing something on her land
Grant/reservation
o If A gives access to his property to B after selling him property, this would be
granting an easement
o If A sells the property to B but maintains an easement to herself, she would be
reserving an easement
Positive and Negative Easements

Introductory Notes
Easements can be divided between negative and positive easements:
Positive easement: the right to do something on someone elses land.
Negative easement: the right to prevent the owner of the servient tenement from doing something
with his land. Several types of negative easements have been recognised, some of which are
natural, others that must be acquired.
right to light
right to air by a defined corridor
right to lateral support for buildings (not a natural right attached to a fee simple
right to continue to receive the flow of water from an artificial stream
Phipps v. Pears involves a claim for a negative easement - an easement of protection from the
weather.
Phipps v. Pears, [1965] 1 Q.B. 76 (C.A.)
Facts
Two houses stood side by side. One was demolished upon a request from the municipality. Its
disappearance left on of the walls of the surviving house, which used to be protected, open to
damage by the elements. When such damage was caused, the owner of the house claimed that he
benefited from an easement of protection from the weather as analogous to the right of
support.
Issue
Is there an easement of protection from the weather? NO.
Lord Denning M.R.
107
It is recognised that a person whose house depends upon anothers for structural support
is entitled to have substitute support provided if the neighbouring house is pulled down.
This situation is different.
New negative easement must be approached with caution, as they limit an owners rights
over his own land.
Preventing people from demolishing their homes on the basis of easements would block
improvements.
Other examples given: right to a prospect of view, or right to wind coming through an
undefined channel. These are NOT protected because they would unduly restrict the
owners enjoyment of his own land. These rights can be given effect however, through
covenants
Creation by Express or Implied Grant

Introductory Notes
Express Grants and Reservation
The common law claims that all easements are the result of a grant, that is to say that they
are created by one person granting an interest in land to another.
- Express grants: If the seller parts with the landlocked part and gives the buyer an
easement, he or she grants both an estate and an easement.
- Express reservations: If the seller wants to keep the landlocked part and to sell off the
part that fronts the road, and in doing so makes an agreement that he or she can have
access to the road over the buyers land, he has reserved the easement in the grant. The
seller has kept something back. This easement is still created in grant.
If the words of a grant are unclear, they will be construed in favour of the grantee. Thus it is
easier to argue for the existence of an express grant than for a reservation.
Implied Grants and Reservations
To maintain the fiction that easements result from grants in cases where a transaction is silent:
- implied easements are called easements obtained by implied grant
- prescriptive easements are called easements obtained by presumed grant
In Wheeldon v. Borrows (UK Court of Appeal, 1879; Thesiger L.J) - modern law on easements, it
was stated that:
1. On a grant by the owner of a tenement of part of that tenement as it is then used and
enjoyed, there will pass to the grantee all those continuous and apparent easements which
are necessary to the reasonable enjoyment of the property granted and which have been
and are at the time of the grant used by the owners of the entirety for the benefit of the
part granted.
2. If a grantor wishes to reserve any right, it is his duty to do so expressly in the grant. There
are certain exceptions, such as necessity.
108
These rules are based on the maxim: the grantor shall not derogate from his grant.
You can imply easements, you cannot similarly imply reservations. As a general rule, no
implication can be made of a reservation of an easement to the grantor.
Exceptions to the General Rules
1. Ways of necessity: exception to the prohibition on implied reservations.
An owner must have a way to access his property. This is treated as implicit in the intentions
of the parties, rather than as the result of public policy.
A statutory easement of necessity is provided for by s.2 and 3 of the Ontario Road Access Act
1990.
2. Mutual easements: this deals with the case where it seems to () be consistent with
reason and common sense that () reciprocal easements should be implied. (Pyer v. Carter,
UK 1857). Eg, mutual support of house or drain flowing back and forth between two properties.
3. Situations in which it is necessary to imply the reservation of an easement in order to permit
grantor to fulfill his obligations to a grantee in a simultaneous sale of two pieces of land. Ie
grantor cannot derogate from grant.
4. The common intention of the parties, with reference to the manner or purpose in and for
which the land granted or retained is to be used.
Lecture Notes
Creation of easements
Express easement (a state easement)
o Legal by deed
o Equitable by contract or estoppel
Implied in a grant (legal)
o Rule in Wheeldon v Burrows
Applies to grants only
If A passed on land to B, all easements that would have been continuous
and apparent to A would be implied to have been passed to B
This only applies to pre-existent easements then
All the easements that are necessary to the reasonable enjoyment of the
property
This basically means whether there is a necessary connection
between the easement and the land
o Necessity (New Brunswick by statute)
When there is no other way to usefully use the land
E.g. ease of access, right of way
109
Tends to be interpreted very restrictively

E.g. Road Access Act in Ontario
o To give effect to common intention of parties
See Wong v. Beaumont Property Trust Ltd, Sandom v. Webb and Barton v.
Raine
o Mutual easements
o Simultaneous grants
Prescription
o If an easement has been used as of right for a certain period, it can arise through
the statute of limitation
o The period is 20 years, nonetheless
o If the person has used the easement without permission and without secrecy, but
through no use of force, she acquires the easement
Wong v. Beaumont Property Trust Ltd., [1965] 1 Q.B. 173 (C.A. )

Facts
The plaintiff purchased a lease which was originally signed for the purposes of operating a
restaurant in cellar of the building owned by the defendant. However, municipal regulations
required improved ventilation be installed for the restaurant to be legal. The defendant refused to
allow the restaurateur to build a duct along the back wall of the building. The plaintiff argued
that he was entitled to build the duct as a result of an easement included in the lease. Originally,
the lease had been signed before any ventilation system had been installed.
Issue
Would an implied grant be necessary here to give effect to the common intention of the parties to
a grant of real property, with reference to the manner or purposes in and for which the land
granted is to be used? YES.
Lord Denning M.R
The law will readily imply an easement necessary to give effect to the intentions of the
parties. Furthermore, it will imply an easement in a case of necessity.
Though at the time the lease was concluded nobody had thought about the need for a
duct, it was clear that sufficient ventilation was necessary for the restaurant to operate.
Thus an easement was created.
As long as a person does not substantially increase the burden on the servient tenement, he
may expand the use of an easement.
Salmon L.J.
The easement must be implied on the basis of necessity. No restaurant (the lease imposing this
activity) could operate in the cellar without an expanded ventilation system.
Class notes
110
A person leases some space to a bank and a restaurant

The restaurant requires an easement through the bank pass a ventilation system and the
owners said no
The fact that the restaurant is leasing the land does not preclude it from this right
Was there an easement?
o There was no express easement
o Was there an implied easement?
Rule in Wheeldon v Burrows
Between the owners and the restaurant owners, this would in fact
have been an implied grant, so it satisfies this part of the rule
There wasnt a pre-existent easement, however, as the rule would
require, so the rule cannot be applied
o This would require a new easement
The purpose of the grant was to run a restaurant, we need to imply all the
easements that came with that grant
Sandom v. Webb, [1951] 1 Ch. 808 (C.A.)

Facts
The owner of a building leased the first and second story to a hairdressing business. He kept the
ground floor for his own. Some ads were on the outside of first floor at the time the lease was
concluded. The lessee claimed that he was entitled to payment for the presence of the ads even
though he had not complained of their presence for over a decade. The owner argued that he had
reserved an easement, so as to keep the signs up. The trial judge decided in favour of an implied
reservation.
Issue
Can the court as a matter of law imply in favour of the landlord a reservation during the term of
twenty-one years granted by the lease of advertising on the outer walls? NO
Jenkins L.J.
A grantor may not, as a general rule, claim an easement over part of the grant unless it is
explicitly reserved out of the grant.
One exception to this rule is when the court seeks to give effect to the intentions of the parties,
with reference to the manner or purposes in and for which the land granted or some land
retained by the grantor is to be used. It must be definite and particular. Intention cannot be
inferred from the use being made of the property.
If the landlord intended to reserve any such rights over the demised premises it was his duty to:
1. reserve them expressly in lease
2. having failed to do so, the onus is on him to establish the facts to prove that his case is an
exception to the rule.
3. the mere fact that the tenant knew that landlord was using walls for ads does not suffice
to absolve the landlord.
111
For an inference to be made, the facts must be consistent with no other explanation than that the
purported easement was indeed intended by the parties.
Class notes
There was a hairdresser that leased the second floor of a building, which for long had
been displaying the ads of the owner of the bottom floor (who owns the building)
In assessing whether there was an easement
o It wasnt express
o What about implied?
Wheeldon v Burrows could not apply as it would be a reserved easement
Necessity wouldnt be an issue
Implied intention of the parties
Would it have been obvious to the hairdresser that the ads would
be part of the use of the property by the owner in the first floor?
There was no implied easement then
Barton v. Raine (1980), 114 D.L.R. (3d) 702 (Ont. C.A.)
Facts
During the period relevant to the case, a father owned two adjacent houses, one of which he
allowed his first son to use, keeping the other for himself. They had a shared driveway; however,
in order to get into his garage, the father had to pass over land belonging to the other lot.
Eventually, the father sold to his first son the house that the latter had been living in. Use of the
driveway continued as before. After many years, when the first son had sold his house and the
fathers second son had inherited his house, a dispute arose between the second son and the new
neighbour. As a result, the neighbour built a fence along the property line, blocking the sons
access to his garage.
The son claimed that when his father had sold the second house, he had reserved an implied
easement giving him access to the garage through the driveway.
Issue
Can the court imply a grant or reservation? YES
Thorson J.A.
Remember general rule- if the grantor intends to reserve any right over the tenement
granted, it is his duty to reserve it expressly in the grant.
This is not a case of necessity, despite the importance of vehicular travel in modern
society. It was a mere inconvenience.
The case law since Wheeldon v. Burrows has softened the rigour of the general rule and
enlarged the scope of the exceptions to the rule.
112
There can be an implied reservation where a grantee can be shown, by necessary

inference from some physical characteristic of the property, to have recognised a
reservation.
The use of the driveway as a common passageway was an accepted reality. Everyone
knew it- it would have been obvious to the most casual observer.
The only reasonable inference is that each of the parties had a common intention that the
father would have continued use of the driveway after the conveyance to the son.
The existence of affirmative evidence is not an absolute requirement. The passage of
time that often passes in cases like these makes the likelihood of any such affirmative
evidence difficult.
Class notes
Father owns both blocks in both sides of the driveway
He then places his son and daughter in law in one of the blocks (which they later buy)
and passes on the other block which he had retained to his other son once he dies
Later in time, the first son sells his block to a third party
Barton is claiming access to the driveway to an easement
There is no express easement
o The easement is reserved, so Wheeldon v Burrows could not apply
o Necessity is not an issue because a new garage could have been constructed
o Implied intention
Should the rule in Sandom v. Webb apply
Should the rule be relaxed because it is a family situation and not a
commercial one?
The original grantor is now dead so it is difficult to establish the
original intention in court
Can you impute intention based on use?
o This may create legal chaos
The judge somehow brings up the idea of notice in that the garage
had been used in the past by the other block and allowed
The court in the end imposed an implied easement
o
Open grant between family members allows the grant to be implied
Creation by Presumed Grant

Introductory Notes
An easement can be created through a presumed grant, that is by prescription. It is a fiction
of creation by grant.
This is not the same as adverse possession despite the fact that the Limitations Act and the notion
of long use are common to both
Presumed grant applies only to non-possessory rights
113
It requires less than possessory title

In Ontario, prescription is dealt with by the Limitations Act (see sections 31, 32, 33 and 35).
1) Section 31 establishes two periods for the creation of an easement:
User for a full 20 years beginning after 1189 (date at which records begin) can be
defeated by whatever defence available under the common law.
After 40 years of adverse use, the easement becomes absolute and indefeasible, if the
claimant has a fee simple (in other words, a tenant cannot prescribe against his landlord).
The claim can be defeated by showing that user was: forcible, secret or allowed by
permission
2) Section 31 can only be invoked if the period of user immediately precedes the
bringing of an action. Twenty of forty years of user do not by themselves constitute
prescription.
3) The period must be without interruption. This does not mean mere nonuser by the
person claiming the easement. The claimant must not be obstructed from enjoying used.
4) Interruption has only taken place us user has been prevented for a full year. A year
less a days interruption does not stop prescription.
User as of Right
Introductory Notes
For prescription to operate, not only must the right be exercised for a sufficient amount of time,
but it must also have the right nature and quality.
1) The use must continuous (defined according to the circumstances).
2) The claimant has to have exercised user as of right. That is, he must have behaved in
such a way as to show that he believed that he had a right.
User as of right is based on three rules: nec clam (no secrecy), nec vi (no violence), nec
precario (no permission).
-
No violence: the claimant cannot brush aside protest by the owner. Removing an obstacle
to his user once may reinforce his claim by showing that he feels he is entitled to the
right. Removing it twice becomes force.
No secrecy: the easement must be used openly so that the servient tenement owner knows
about it and acquiesces. Notorious.
Note: if the owner had no means of informing himself of the user, he cannot be held
responsible for not doing so
114
Garfinkel v. Kleinberg, [1955] 2 D.L.R. 844 (Ont. C.A.)

Facts
The chimney of one of two adjoining houses stood within the area of the other home and was
used by the plaintiff continuously since 1912. This was known and accepted by several different
owners. After a dispute with the defendant, who owns the second house, the plaintiff argues that
over the years he acquired an easement entitling to use the chimney, through prescription.
Issue
Are the conditions satisfied for a finding of presumed grant? YES.
F.G. MacKay J.A.
For prescription to operate there must neither force, nor secrecy, nor permission.
Thus, prescription is based upon consent or acquiescence by the servient owner.
Actual ignorance is not always sufficient to escape prescription. An owner has a duty to
know certain things. If he neglects to make reasonable enquiries, knowledge may be
imputed to him.
Difference between acquiescence and permission of the owner:
Consent to the user by the owner, unqualified as to time, will not be a bar to prescription. It was
at common law but is not so under the Prescriptions Act. The effect of permission for the
enjoyment having been given by the owner of the servient tenement has been considered in many
cases. However, permission asked and granted, periodic payments, acknowledgment by the
dominant owner that his user is not as of right, at any time during the 20 year period will
prevent his acquiring a prescriptive right.
In this case, the owner could have easily found out about the chimney earlier on. By not doing
so, he allowed sufficient time to pass for there to be prescription.
Class notes
As long as the permission comes before the 20 years (the prescriptive period), this
does not deny the possibility of claiming prescription
The second issues at hand was that of constructive knowledge
o Secretive use of the other persons land for a period of 20 years does not allow
one to claim an easement by prescription
o In this case, the use of the chimney was not deemed to have been secretive
Caldwell v. Elia, (2000) 129 O.A.C. 379
Facts
When a piece of land was divided, one part that was landlocked was granted an easement to
create a path making it accessible. However, for over 20 years, the owner used an alternate
115
gravel road that went over the respondents property. After the latter tried to block access through
his land, Caldwell claimed he had acquired an easement allowing him to use the gravel road.
Issue
Can a presumed grant be granted here? YES.
Austin J.A.
The use of the road satisfies the requirements of an easement. Notably, it does
accommodate Caldwells land (condition 2 of an easement from Ellenborough) think of
the accommodate argument from Ellenborough (a park can serve some utility).
Remember, an advantage which renders the property more valuable is not sufficient for
an easement. But in this case, the use by Caldwell of the gravel road across the Walsh
property is at least a reasonably necessary for the better enjoyment of the land. There is
the necessary connection between the two tenements (even more than in Ellenborough).
** Caldwell is not arguing easement by way of necessity. The trial judge made an error in
this respect. Caldwell is claiming a prescriptive right, which needs NO element of
necessity.
The Scope of Easements

Notes
An easement granted for one purpose cannot be used for another
An increase of the burden imposed on the servient tenement must not exceed the intention of
the parties at the time the easement was created.
Ex:
One cannot use an individual right of passage in a commercial manner involving a great
increase of traffic, if an easement was initially granted to benefit simple property owner.
One can extend a right of passage attached to ones land if the property gets subdivided.
However, the right cannot be extended to someone on an adjoining but separate lot.
Termination of Easements
Notes
An easement may be extinguished in several ways:
1) By a statutory provision (only British Columbia has such legislation).
2) By operation of law if:
it loses its purpose
it is abused
it has a time limit
the two tenements belong to the same person
116
3) By release, express or implied. Stoppage must amount to an abandonment of the

easement. The fact that a person simply ceases to use it not enough. Thus, the burden on
the servient tenement is high
Covenants
Introductory Notes
A covenant is, as it sounds, a promise or an undertaking
We have seen two examples
The land titles in both Re Noble and Wolf and Re Ellenborough Park contained restrictive
covenants by which the original parties to the transaction had promised not to do
something
Covenants can be used to restrict the uses to which land can be put, the height of trees or
buildings and so on
The question for a real property lawyer is how is it that these promises made between the
original parties, and between whom there is privity of contract, can be passed on in order
to bind the current owners of the land who are third parties. This is known as covenants
running with the land and there are several technical rules that determine when and how
covenants may run.
Lecture Notes
Easements vs. Covenants
Easement
Covenant
Right of way, storage, drainage
Promise not to block access, use
Right to defined channel of air, light
Promise not to obstruct air, light
Right to support for building
Promise not to remove support
Right that use of land be restricted
Promise to restrict use of land
Right to a view
Promise to restrict height of buildings, trees
The top three easements are commonly recognized easements, the bottom two are not
Covenants running with the land
Benefit of the covenant runs in law and in equity if it is annexed must touch and
concern benefited land and be intended to run with the land
Burden
o Runs in equity if it is
(1) a restrictive covenant
(2) intended to run
(3) for benefit of land retained and
(4) enforceable in equity
117
It is important that it runs in equity, because it is then subject to priority

rules
Like there being notice, etc
o General rule that does not run in law. Exception where is attached as condition to
easement or other benefit
Bruce Ziff, Restrictive Covenants: The Basic Ingredients in Real Property Law:
Conquering the Complexities
See pp. 418-422 of CP #2
Amberwood Investments Lt. v Durham Condominium Corp No. 123 (2002) 211 D.L.R.
(4th) 1 (C.A.)
Class notes
For the condition to an easement to work there needs to be a fee attached to the land
If you are to enjoy the benefits of a deed, you should accept the burdens that come with it
One of the issues discussed is that of notice
o An easement is much more evident and noticeable to third parties rather than
covenants
This problem is reduced because of registration
Another issue relates to the idea that a covenant usually involves a benefit accompanied
by a burden
CHAPTER NINE: LEASEHOLD ESTATES

Introduction
Introductory Notes
The landlord-tenant relationship, or leasehold tenancy, is conceived as an estate in land.
It is a property relationship, not contractual, even though it is created by contract, express or
implied (like a relationship between buyer and seller of a house).
The tenant has a right of exclusive possession, even against the landlord, who only has the
reversion at the end of the term of lease.
Lease = a demise, demised premises.
A lease must have a determined duration.
Note: The common law has been superseded by statutory reform in the case of residential
tenancies, though its common law rules still largely apply to commercial leases.
Leases and Licenses
118
The alternative to a lease is a license. A license is simply permission to use land for some
purpose, which can be revoked at any time (however, sometimes equity will enforce a
contractual licence when consideration has been paid)
Ex: superintendents contract may provide accommodation as a license linked to employment,
therefore dependent upon the latters continuation. If it is a lease, then the superintendent is
entitled to the protection afforded a lessee (Tenant Protection Act in Ontario).
If an agreements duration is uncertain, then it is a license. Beyond this:
some cases state that if there is exclusive possession for a fixed duration the agreement is
necessarily a lease (even if the K mentions licence 100 times)
another, more recent approach suggests that it is the intention of the parties that matter
One complicating factor is that both licences and leases invariably contain a variety of ancillary
terms, relating to matter beyond the simple question of the right to occupy the land.
Ancillary terms are called:
- covenants, in the case of a lease
- contractual terms in the case of a license
Lecture Notes
Considered an estate in land
If you dont have a written lease, but you have been paying rent and you are in possession, the
contract law of part-performance may kick in
Limited by a fixed period
Terms of years
Periodic tenancy
o It is renewed every time the lease comes to an end
Tenancy at will
o Can be terminated at any point by the parties
o E.g. if the lease ends in 5 years, each party may decide not to continue with it
A lease grants exclusive possession
Otherwise it would be a licence
Leases are subject to conditions
E.g. rent
If the conditions are not met, this gives the landlord a right of re-entry
Additional covenants are independent
You can have a legal lease if you had a verbal agreement and you are in possession
This may also give rise to a right of re-entry by the landlord
119
Something interesting about leases is that they are an ongoing contractual relationship which can
be altered over time
What elements are considered by the court to establish that a lease has been granted?
It may appear from the actions of the parties and the rights that have been granted to each
other that there is no lease
The court should look at the rights being granted by the agreement
Then look at the intention of the parties when the
British American Oil Co. Ltd. and Depass (1959), 21 D.L.R. (2d) 110 (Ont. C.A.)
Facts
BA Oil placed the applicant in possession of a service station that it owned. The parties signed a
lease that could be determined by means of adequate notice. It also included provisions obliging
the lessee to use certain products supplied by BA.
BA tried to end the lease, pursuant to the terms on termination and tried to kick the tenant out.
The latter argued that he has a license rather than a lease and that, therefore, procedures under the
Landlord and Tenant Act could not be used to evict him. Furthermore, he argues that the limits
on his possession in the contract went too far as to constitute the possession of a lessee.
Schroeder J.A.
For there to be a lease, there must be:
a reversion in the landlord
the creation of an estate in the tenant
a transfer of possession and control of the premises to the tenant
A licensee receives no estate, but a mere permission to occupy land for some purpose.
From Glenwood Lumber: if the effect of the instrument is to give to the holder an exclusive right
of occupation of the land, though subject to certain reservations or to a restriction of the purposes
for which it may be used, it is in law a demise of the land itself.
In this case, the restrictions on the lessees possession were not of a nature to prevent
possession.
To determine whether there is a lease, the intention of the parties must be ascertained.
As they chose to use the vocabulary of a lease, it seems clear that this is what they wished to
create. The restrictions placed on the grant were not extraordinary given the circumstances.
Furthermore, the acts to be performed required exclusive possession. Thus there was a lease, not
a license.
Class notes
120
The parties established what they call a service operation lease

They use language of the lease, such as rent, and add covenants and demise
o There is also a habendum clause; one which state what is being given
The operator (the tenant) is trying to show that it is a licence in order to avoid an
expedited judgement for the landlord to obtain a right of re-entry
o Some of the arguments used are the conditions imposed by the landlord, which
fall outside the scope of regular leases
o This in turn affects their free use and enjoyment of the property
The judge finds that there is a lease and not a licence, nonetheless
o The fact that there are conditions doesnt preclude the fact that there is exclusive
possession over the property
o The conditions are not so extreme so as to contradict the nature of the lease and
do not take away the physical control of the premises
o The judge also talks about the issue of intention
Metro-Matic Services Ltd. v. Hulmann (1973), 48 D.L.R. (3d) 326 (Ont. C.A.)
Facts
Appellant had formed a contract with the owner of an apartment building to lease a location
where it would be able to operate the only coin operated laundry service in the building. The
appellants access to its space was partially subject to the control of the lessor and its activities
were limited to laundering.
Eventually, the lessor sold the building to the respondent, who tried to get rid of the appellant
and have a new company open business in the building. The respondent claimed that the
appellant only had a license, as suggested by the limitations on his possession
The trial judge found that the agreement was no more than a concession agreement (licence) to
provide laundry services.
Brooke J.A.
Relying on BA Oil, whereby in landlord tenant relationship, the tenant must have exclusive
possession of the demised premises.
To determine what legal regime to apply, the judge looks at:
- whether there is exclusive possession by the lessee
- the intentions of the parties
The choice to use the word lease or demise is significant. In this particular contract, there
were numerous words typically used in leases. The fact that there are limitations as to the use of
the demise does not make its possession less exclusive. The intention of the parties is clear
No part of the leased property is actually relinquished to the landlord.
Many of the covenants in the contract were unnecessary, although prudently obtained
Lecture notes
121
The landlord allows a Laundromat in the basement of a building

The agreement is to provide laundry machines for the exclusive use of the people in the
block
The people who run the laundromat are given free access to the property, but they are
limited to use this space for a specific purpose
o Is it a lease then?
The judge decides that there is a lease rather than a licence
o The important factor in the decision rests on the issue of intention
The language of the lease shows that there was an intention to set up a
lease
If there is a clear intention of a lease within the language, then there needs
to be some other factors that contradicts this intention
While there are some restrictions placed on the property, this is no
different from other leases (see Residential Tenancies) so this does
not contradict the lease that was intended by the parties
While the trial judge found that there was only a licence since there was no exclusive
possession by MM (the landlord had too much exclusive control, the CA finds that
restricted access does NOT undermine demise
o MM does have exclusive possession since it retains fundamental control over the
premises. Similar to renting a place which is restricted to a dwelling space
Notes
To read on more cases regarding the lease/licence test go to pp. 446-447 of CP # 2
The Independence of Covenants

Notes
Covenants: terms in the lease, in addition to the actual grant, by which parties undertake further
duties.
Covenants are independent: a failure to perform does not give rise to a right to
terminate the lease (a lessor cannot re-enter for mere breach of covenant).
One exception would be if the lease explicitly specified that is was conditional on the
performance of a particular covenant.
Before possession, one is still handling business dealings, thus the law of contracts is
applicable.
After possession, an interest in land is at stake and the law of estates applies. Nonetheless,
property rules tend to dominate at any stage of a lease.
Note: this perspective may be evolving.
122
From Property to Contract? The Law Relating to Abandonment

Introductory Notes
A leasehold relationship can be ended by surrender: the yielding of the estate to a person
with a higher estate. It is not unilateral.
Abandonment: unilateral quitting of the premises. It can become surrender with the
landlords approval.
In contract law, the landlord would have the duty to mitigate damages in the case of
abandonment and could claim damage for breach.
Under the law of estates, the situation is different. The tenant remains liable for the whole
term, in spite of abandonment. The landlord need not mitigate damages, though he must
avoid retaking possession of the property, or he will be implicitly approving the
abandonment.
Lecture Notes
Termination and remedies
Property
Expiry of term/notice
Frustration
If there is some situation which
frustrates the use of the property, the
lease is deemed void
Surrender (mutual)
As for the tenant, abandoning the
premise or not paying rent
Implied acceptance from the landlord
can take place if the landlord changes
the lock or retakes possession of the
property
Breach of condition right of re-entry or
distress for rent (holding the property of the
tenant)
Breach of covenant damages
Contract
Execution
Once the contract is completed
Frustration
If there is a particular clause that states
the contract will terminate because of
XYZ
By agreement
Rescission (mistake, fraud, misrepresentation)

reliance damages
Repudiation (anticipatory or actual breach of
condition) actual or consequential damages
Arise to put the party in the place it
would be if the contract had taken place
123
Goldhar v. Universal Sections and Mouldings Ltd. (1962), 36 D.L.R. (2d) 450 (Ont. C.A.)
Facts
The plaintiff Goldhar was the lessee of industrial premises. On a sublease, the plaintiff demised
to the defendant Mouldings part of these premises for 833$. Then, the defendant placed
subletting ad for another tenant at 1000$ a month, as it was building a new building for its
business and needed to fill the space. No sublease was secured even though the rent was reduced
as time went on. Then, a letter was sent to the plaintiff saying it had breached covenants in the
lease and that Mouldings was therefore vacating the premises.
Plaintiff says, he didnt break covenants. If you want to sublet, then go ahead. But the lease is in
full force.
Defendant returns keys and vacates. Plaintiff puts ad for lessee. Plaintiff then permits relative to
utilize some of the premises. Still unable to find lessee, the plaintiff enters into lease with relative
for payment of 500$ month. He then writes to defendant demanding difference between 833 and
500.
The trial judge found that there had been an unequivocal repudiation of the contract by the
defendant and that the plaintiff was entitled to sue for damages for breach.
Issues
1. Once a lease has been entered into, can the law of breach of contract apply or must the
law of property apply?
2. Was the lease surrendered by implication of the law when the plaintiff allowed relative to
occupy part of the premises?
McGillivray J.A.
In leases, covenants are assumed to be independent. For the lease to end
there must be surrender and acceptance of surrender.
Valid surrender may take place by operation of the law: if the partys behaviour is
inconsistent with the continuation of the lease.
When parties to a lease participate in a course of action inconsistent with the
continued existence of the lease, they are estopped from denying that a surrender
has occurred.
*Estoppel by operation of law, as distinct from the acts of the parties, may in
some circumstances arise independently of their intention and will occur when
there has been acceptance of a new interest by the lessee or by acceptance of
possession by the landlord
In other words, this may take place if the landlord:
1. resumes control over the premises (directly or indirectly) through unequivocal
acts: we are therefore looking to the intention of the landlord
2. has made a new lease to a third party before the expiry of the term: intention is less
important than the facts. Here there is implied surrender- it takes place
independently, in spite of intention.
124
3. There is an exception: if the landlord can be held to have concluded the new lease on
behalf of the original lessee, then he has not ended the original lease. Something
like: listen, youre still bound- the best I can do is try to find someone to sublease for
you.
The court notes that there has been some criticism for decisions which disregards completely all
questions of intention. Questions of fairness to the landlord, who was hard done by. Huge
anomaly between contract law and property law BUT
In this case, no notice that the owner was acting for the lessor was given. However, during the
time before the conclusion of a new lease, the occupying business had a simple license; therefore
the lessor had not retaken possession of the premises. Therefore, rent could be claimed for this
period, but this period only.
Class notes
The landlord asks the tenants to move out, as they violated the conditions of the lease
The tenants refute this but, nevertheless, repudiate the lease, by surrendering the keys to
the landlord
Was there an acceptance of this surrender, so that the lease was terminated?
o Is there an acceptance of repudiation at any point?
At some point, the landlord allows someone else, MLP, to occupy the premises
o This does not end the lease, as the agreement is that they would leave the
premises at any point if the landlord found someone else
o So this is not contrary to the lease, but is instead a licence to MLP
Later on, but before the expiry of the lease with the tenants, the landlord draws a new
lease with MLR
o This would indeed mark the end of the previous lease and be considered the
acceptance of repudiation by the landlord
The landlord had wto options
o Do nothing and claim rent as it falls due or damages for failure to perform
o Terminate lease and sue for rent accrued or damages to date
There is an alternative option to repudiating the old lease when drawing a new lease,
however, which is what this case stands for
o The landlord can give notice to the tenant informing them that someone will be
taking possession of the premises but that they are still being held to the
obligations of that lease which still stands
I.e. give notice of intention to re-let on tenants behalf, claim shortfall
The lease will continue the existence of the lease and the landlord will be
practically subletting the place in their name
o This invokes a contract principle but within the framework of property
If the landlord exceeds agency of the tenant, then the outcome becomes option 2:
terminate lease and sue for rent accrued or damages to date
Court of Appeal: overturns the trial decision. Says that landlord cant get difference
between old rent and new rent. He can only recover for the time between the repudiation
125
and the reletting of the apartment. The landlord lost the right to damages because the apt.
was deemed to be surrendered.
The problem with lease law: it does not encourage the landlord to find another tenant- its
costly for tenant and possibly for the landlord
Highway Properties Ltd. v. Kelly, Douglas & Co. Ltd. (1971), 17 D.L.R. (3d) 710 (S.C.C.)
Facts
A supermarket had leased space in a mall. When the mall did not prosper the market left, in spite
of the terms of its lease. Other tenants left as a result of the supermarket failure and the mall
became a ghost town. Defendant supermarket tells landlord it is repudiating the lease.
The appellant landlord responds by saying that it would take possession of the premises and
attempt to lease these upon the same terms and conditions as set out in the original lease. It also
said it would hold the lessee responsible for all the losses suffered as a result of the breach.
Landlord does finally manage to sublet property by subdividing the space.
Landlord claims damages not only for loss suffered to the date of the rescission but also, and
mainly, for prospective loss resulting from the respondents failure to carry on a supermarket
business in the shopping centre for the full term of the lease.
Issue
Does a landlord have a right to claim damages for breach of a lease notwithstanding the fact that
he retakes possession of the property- ie surrender? YES-Goldhar overruled but notice must be
given?
(Remember, under property law, leases and covenants cease to exist with surrender.
Laskin J.
The estate element has resisted displacement as the pivotal factor under the common
law, at least in this country, even though contrcatual terms may overwhelm the leasehold
estate
There must be recognition of the social and economic aspects of urban living conditions
and commercial practice.
The law has changed in US and UK
This court would see no hesitation in applying the doctrine of anticipatory breach to a
contract for the sale of land, so it is equally important, says Laskin, to consider its
application to a contractual lease.
A landlord has three courses if the tenant surrenders the lease:
1. he can do nothing and simply insist upon performance and sue when the term comes up
2. he can terminate the lease and sue for damages until the date of termination
3. he can re-let the property on the tenants behalf, as long as he advises the tenant.
126
The appellant suggests a fourth which is accepted.

4. he might be able to terminate the lease but give notice that he would claim damages for
benefits lost for the unexpired term.
The rule of surrender is said to rise above any intention of the party whose act results in
surrender. I do not think it would apply to a case where both parties evidenced their
intention in the lease itself to recognize a right of action for prospective loss upon a
repudiation of the lease, although it be followed by termination of the estate.
It must not follow that an election to terminate the estate as a result of the repudiation of a
lease should inevitably mean an end to all covenants therein to the point of denying
prospective remedial relief in damages.
Although it is correct to say that repudiation by the tenant gives the landlord at that time
a choice between holding the tenant to the lease or terminating it, yet at the same time a
right of action for damages then arises; and the election to insist on the lease or to refuse
further performance goes simply to the measure and range of damages. Election here:
does this mean notice- unclear from judgment. See notes.
A lease is as much a contract as a conveyance. Therefore the remedies available under

contracts should be made available to a lessor who wishes to sue for the repudiation of
covenants (Goldhar was rejected in this sense, but if notice is given).
Class notes
Timeline of the facts
o 1960 tenants in possession
o 1962 vacated
o June 1963 last rent was paid
o Nov 1963 notice of termination
o 1965 new lease
The claim is not just for the rent but also for the promise to maintain business
o What claims arise from this?
The court finds in favour of the landlord
It seems like the case argues that there is an option to elect to terminate, with notice
that damages will be claimed on the basis of prospective loss for the whole rent
Does this case impose a duty to mitigate?
In the end, there seem to be 4 options available in these cases
1. Do nothing and claim rent as it falls due or damages for failure to perform
2. Terminate lease and sue for rent accrued or damages to date
3. Give notice of intention to re-let on tenants behalf, claim shortfall
4. Elect to terminate, with notice that damages will be claimed on the basis of prospective
loss for the whole term (Highway Properties)
Notes
127
Parts of the judgment of the Supreme Court in Highway Properties appear to support a broad
application of contract doctrines to leases
Yet the actual change in the law which resulted from the case was a small one, and the
court certainly did not explicitly state that leaseholds generally should be governed by
contract law
In a number of cases since then other courts have appeared to move other aspects of
landlord-tenant law to a more contractual basis
o See pp. 465-66 of CP #2
Landlords Remedies and Duties Following Abandonment: Developments

from Highway Properties
Introductory Notes
This section deals further with the issue of abandonment by the tenant. Highway Properties left
unclear a couple of important issues
One of those was whether a duty to mitigate should be imposed on the landlord;
mitigation is discussed below, in the Postal Promotions and Windmill Place cases
The other issue is "notice"
o In Highway Properties Laskin J. re-stated the argument presented by counsel for
Highway Properties as being that a "fourth option" for the landlord should be
added, that the landlord "might elect to terminate the lease but with notice to the
defaulting tenant that damages would be claimed on a footing of present recovery
of damages for losing the benefit of the lease over its unexpired term"
o Yet in his conclusion to the judgment there is no mention of "notice".
But beyond that one could say that Laskin J. was imposing no particular "notice". And one also
might say that a contractual approach mandates election, but no special notice
However, many decisions since Highway Properties have required specific notice of an
intention to claim prospective damages.
North Bay is generally considered to be the leading case on this notice
North Bay T.V. and Audio Ltd. v. Nova Electronics Ltd. et al. (1983), 4 D.L.R. (4th) 88
(Ont. H.C.)
Facts
The plaintiff North Bay rented space to the defendant company. The latters business did not go
well and it stopped making rent payments. It knew that the lessor was going to close down its
shop, and tried to run away with the inventory. The lessor found out about this and stopped this
process by changing the locks on the doors and putting a sign on the door that read Store closed
by Landlord. The lessee considered this move to have terminated the lease. The lessor made a
claim for the money still owed to him. North Bay also sold some of the goods which had not
been removed from the store. Nova argued that damages could not be claimed because they had
not been given notice.
128
Issue
Does notice have to be given contemporaneously to the termination of the lease? NO
Rutherford J.
It is apparent that in changing the locks, the plaintiff terminated the lease.
There were four remedies, established by Highway.
Judge Laskins fourth category could apply in this case. Notice that a tenant will be
held liable for damages need not be contemporaneous with the taking of possession
by the landlord (in this case it was only present in the statement of claim).
Retaking possession does not preclude a claim for prospective damages by the landlord.
The point of compensation is then to place the plaintiff in the situation that he would have
been in had the contract been performed.
Class notes
North Bay: Takes Highway one step further
There was no notice given to tenant that landlord intended to hold them liable, but the
Court finds that notice has been given
o How? By filing a statement of claim, the landlord was giving notice (although
not contemporaneously)
Effectively, the notice requirement was abrogated
o Basically, now the landlord can mitigate damages without losing the right to
recover damages.
Notes on an appeal
A motion for appeal of North Bay was dismissed and the CA affirmed the ruling, saying the
notice given by the commencement of proceedings was sufficient to found the claim for
damages in this case.
North Bay therefore clearly stands for the proposition that the notice need not be given at
the same time as termination
But in other respects both trial and appeal judgments are unclear
o Is notice in the statement of claim always sufficient? If so, that would effectively
eliminate the need for special notice
o Or does the phrase "in this case" in the Court of Appeal's endorsement refer to the
fact that the statement of claim was issued less than two months after
abandonment? If this is so then the notice must be given in a timely fashion, even
if not contemporaneously.
Subsequent cases support both interpretations. What should be the answer?
On mitigation
Mitigation
129
That the plaintiff cannot recover for loss which he could have avoided but has failed, through
unreasonable action or inaction, to avoid.
From Highway Properties: The present case law states that the landlord is not under a duty of
mitigation, but mitigation is in fact involved where there is a re-letting on the tenants account.
It seems that Laskin was not imposing a duty to mitigate, since the first option was still
available to the landlord, that is, keeping the lease alive and running up damages
Not imposing a duty to mitigate, to balance the benefits given to a landlord who may now
sue for the whole benefit of the lease, seems inconsistent with the new contractual
treatment of a lease
Postal Promotions is the leading case in this area, although case law is inconsistent
Toronto Housing Co. Ltd. et al. v. Postal Promotions Ltd. (Ontario High Court, 1981 Court
of Appeal, 1982)
Facts
A tenant was obtained to replace one that wished to surrender the lease (he was not allowed to
sub-lease). The new lessee paid more than the old one. The original tenant claimed that surplus
received by the landlord should be deducted from the amount owed for the time when no new
tenant had been found, since the sub-tenant was found on the tenants behalf. The sub-tenant had
signed a new lease.
The landlord argues that because he is not filing a claim for future rent, no mitigation is required.
Issues
Was the fresh lease for the landlords or the tenants behalf?
Should the increased value of a subsequent lease be considered in mitigation of the damages on
termination of the original lease?
Montgomery J. (High Court)
The facts establish that the new tenant was leasing directly from the landlord so the lease
was on the landlords behalf.
The landlords claim that no mitigation is required would stand if Highway was the
last word on the issue. But Windmill changed that, 6 years later. It dealt squarely
with the issue of whether rentals received from a subsequent term were in mitigation of
damages. It established that the subsequent transaction, if to be taken into account, must
be one arising out of the consequences of the breach.
Therefore, the rent that the lessor receives can be held to mitigate the damages he
can claim for the breach of covenant by a lessee.
Court of Appeal
The question here is not whether there is a duty to mitigate (landlord DID mitigate)
130
Damages include the present value of unpaid future rent for the unexpired period of
the lease and should be decreased by the actual rental value for the same period,
whether or not there was a duty to mitigate
Thus the appeal was dismissed
The decision by a landlord to mitigate his losses does not limit his choice of remedies. The point
is to ensure that the lessor is put in the situation where he would have been had there not
been a breach
It is unimportant to distinguish between rent accrued and prospective rent
Class notes
Postal promotions wanted to pull out of the lease and they wanted the landlord to consent,
which he didnt
After a period of 9 months he was able to get a new tenant with significantly higher rent
o So he would be able to mitigate his loss, but he still was claiming for lost rent
before the new tenant moved in
The tenant argues that since the landlord mitigated his loss, this should cover his claim
for lost rent not only after the new tenant started but before
Tenant repudiates lease. Had tried to sublet but landlord had refused
o Normally, under lease law, the landlord can do nothing and claim damages on the
basis that the relationship between them is ongoing. But this case decided
differently.
o Landlord argue to be following Highway Properties to the letter- what else would
we have done?
The Court of Appeal said that Highway Properties brought in the full range of remedies
available under contract law
o This contradicts the SCC who applies property law principles
o The court is saying that the approaches adopted in Highway Properties are
actually only useful for determining when the estate is terminated- it does NOT
speak to the damages potentially owed by the tenant
It appears that the plaintiff has duty to mitigate, and when it does this should cover the
damages
Notes
What exactly does Postal Promotions decide? Some subsequent cases have stated that it found a
duty to mitigate; is that correct?
See p.479 of CP #2 for further development on this
Windmill Place v. Apeco of Canada Ltd. (1976), 72 D.L.R. (3d) 539 (N.S.S.C. A.D.)
Facts
131
The lessee repudiated its agreement to lease industrial space, before it was to come into force.
The landlord did its best to try to re-lease the space in extremely difficult market conditions.
McKeigan C.J.N.S.
A plaintiff in a contracts case (as this one is) cannot recover for losses he could have avoided but
failed to unreasonably.
If the space to rent is immediately rented, damages are the amount by which the rent in the
broken agreement exceeds the new rent
However, when the space is part of a vacant complex, re-leasing a small unit does not
compensate for an economic loss
The lessee should be able to predict that under difficult market condition, the landlord cannot
completely mitigate his loss. The defaulting party must contemplate that the damages will
vary according to the market.
CHAPTER TEN: PROPERTY, SOVEREIGNTY AND ABORIGINAL TITLE

Introductory Notes
In Australia, the links between property and sovereignty became clearly articulated when, for the
first time, the common law recognised rights to land held by Indigenous peoples (Aboriginal
peoples from the mainland and Torres Strait Islanders) under their own laws and customs
One interesting aspect of Australian native title jurisprudence is that the rights are seen to
come from the traditional laws and customs of Indigenous peoples. Thus claimants have
to prove that they have a contemporary normative system that supports their rights
The Canadian decisions on Aboriginal rights to the use of land in Canada contain a more implicit
discussion of the links between property and sovereignty
Consider also to what degree the necessities and impossibilities of translation
between systems of property are a feature of the decisions
These decisions also require a consideration of the entrenchment of aboriginal rights in
section 35 of the Constitution
Lecture Notes
To what extent does the concept of aboriginal property play a role in the development of our
conception of aboriginal title?
The case of Australia is interesting as in the case law there is only one case where the aboriginal
claim lost
Torres Strait Islanders
132
The doctrine they came up with was to recognize traditional right (not derived from
common law principles), but if any inconsistent rights had been granted to the settlers,
this would have extinguished the title
Endorsed non-discrimination but respected the sovereignty of the State
An account of the origins of Aboriginal Title

1455 Papal bull
Law of Nations
o Discovery: if you are the first person to enter a place then you have rights over it
o Conquest: gaining rights by vanquishing a competing army over a territory
o Cession: acceding territories through treaties
1725-1779 Peace and Friendship Treaties
1763 Royal Proclamation surrender treaties
o Unless we purchase First Nations land or it is surrendered, we ought to leave it
alone
o Their land can only be alienated to the European Crowns
o Seen as the origin of Aboriginal title
1823-1832 US Marshall decisions
1888 St Catherines Milling
o Dispute between the Crown and a settlers title
o This case states that aboriginal rights come from the Royal Proclamation
1973 Calder v British Columbia
o Aboriginal title pre-existed the Royal Proclamation
This is established by prior occupation
1982 Charter Aboriginal rights litigation
Gisdaywa & Delgamuukw: Opening statement to the Court
Much of the evidence you will hear about [our] laws can be understood in terms
familiar to lawyers trained in common and civil law rules which:
o Deal with the delineation and recording of boundaries, the right to exclusive
possession and the right to grant subsidiary interests
o Deal with access to land by children and spouses
o Deal with trespass and the right to protect land from trespassers
o Regulate the succession of property and its alienability
What are some of the conceptions inherent in our system of property?
Individual ownership v. collective ownership
We measure property through quantifiable means, limits and boundaries
Most cases prior to this dealt with the prohibition of Aboriginals to exercise their rights without
the proper government licenses
This led them to establish what rights were protected by their title
133
Some of the issues we have to think about in dealing with this topic, is what is the impact of the
courts statements of what property interests are on the way people deal with property in their
lives
Delgamuukw et al. v. The Queen in Right of British Columbia et al. (1997), 153 D.L.R. 4th)
193 S.C.C.
Facts
The Gitksan and Wet'suwet'en people claimed "ownership and jurisdiction" of traditional
lands covering 58 000 square kilometres
The trial judge did not accept the plaintiffs' evidence, based largely on oral history, of
their attachment to the land
o He dismissed their claims for ownership and jurisdiction, as well as claims for
aboriginal rights
o He did, however, grant a declaration that the plaintiffs were entitled, as a result of
the crown's fiduciary duty, to use unoccupied or vacant land subject to the general
law of the province
The appeal was dismissed by a majority of the Court of Appeal.
Issues
What is the content of aboriginal title, how is it protected by s. 35, and what is required for its
proof?
Decision (Lamer):
Aboriginal rights are truly sui generis, by according due weight to the perspective of
aboriginal peoples. However, this accommodation must be done in a way which does not
strain the Canadian legal structure.
Continuity very important for the definition of aboriginal rights. It is very difficult
to establish the evidentiary basis for continuity, so adaptations must be made. Oral
history, for example, is relevant to the claim.
What is the content of aboriginal title:
Appellants argue it is tantamount to fee simple.
The respondents argue that either title is no more than a bundle of rights to engage in
aboriginal activities and that the constitution only recognizes those individual rights,
not the bundle itself (because it has no independent content) OR that title encompasses at
most the right to exclusive use and occupation of land in order to engage in those
activities which are aboriginal rights themselves.
Title lies somewhere in between.
Definition of aboriginal title:
A right in land (ie- more than just a right to engage in specific activities which may be
themselves aboriginal rights)
It confers the right to use the land for a variety of activities, which need not all be aspects
of practices, customs and traditions of aboriginal peoples.
134
The range of uses is subject to the limitation that they must not be irreconcilable with the
nature of the attachment to the land which forms the basis of the particular groups
aboriginal title.
Lands held pursuant to aboriginal title cannot be alienated, except to the Crown. Ie
inalienable to third parties.
Aboriginal title is held communally- it cannot be held by individual persons.
Content of title:
The right to exclusive use and occupation of the land which is not qualified by reference
to traditional and customary uses of those lands. It is, however, subject to the inherent
limit that the land cannot be used in a manner that is irreconcilable with the nature of the
attachment to the land. This makes abo title a sui generis interest that is distinct from
normal proprietary interests, most notably fee simple.
Proof of aboriginal title:
3 criteria:
i) the land must have been occupied prior to sovereignty:
Occupation of the land. Ie- land of central significance to their distinctive culture.
Land must be integral to the distinctive culture of the claimants
ii) If present occupation is relied on as proof of occupation pre-sovereignty, there must be a
continuity between present and pre-sovereigntty occupation:
Time for identification of title is the time at which the Crown asserted sovereignty over
the land. Therefore, to establish title, must be continuity of occupation from this point.
Proof of pre-sovereignty occupation may be hard to do, so present occupation may
support it. Ie continuity is not an unbroken chain
iii) At sovereignty, occupation must have been exclusive:
Common law exclusivity should be applied with caution in abo context. Eg, it can be
established even if it is demonstrated that other aboriginal groups were present.
Therefore, exclusivity means the intention and capacity to retain exclusive control.
What ability to infringe on s. 35?
1. Legitimate government objectives- the pursuit of economic and regional fairness
2. Is the infringement consistent with the special fiduciary relationship between Crown and
aboriginals peoples? Accommodation, consideration, respect, consultation, compensation
if need be.
o Duty to negotiate
Post s.35 of the 1982 Constitutional Act, aboriginal title cannot be extinguished through
legislation
Class notes
How is aboriginal property seen by aboriginal peoples?
o Cyclical view of property- temporal considerations are viewed differently. Time is
integral to the notion of estates.
135
o Does not belong only to those living but to ancestors and future generations
-continuity
o Ownership is communal as opposed to individual ownership
No alienation rights and everyone has the right to use it. This is nuanced
by many exceptions- clan structure. Is this a notion imposed on aboriginal
property by SCC which ignores reality?
o Land is not only for humans- it is for animals, plants, religious figures, etc.
o Land ownership only exists for as long as aboriginals maintain some sort of
connection with it.
o Stewardship rationale as opposed to a full ownership rationale. In fee simple, the
owner can do whatever he wants with the land
o In common law property, there is a superstructure of rules which are set up but
which allow property owners a fair bit of leeway in terms of what to do with
them.
o Procedural obsession in common law- aboriginal conceptions or property are
more substantive.
o The idea of stewardship limits the exploitative value of the land.
o Greatest good for the greatest number?
Ankers comments
The trial judge finds that there could be no aboriginal title
Aboriginal title comes from reconciling different perspectives on what occupation and
title can be
o How it should be proved: considering both the common law and claimants own
perspective
Aboriginal title is sui generis and communal
o It can only be surrendered to the Crown
Some of the background behind this is the idea to prevent abuse of
aboriginals by third parties and to respect the principles established by the
Law of Nations
Can aboriginal right be extinguished?
o Post s.35 of the 1982 Constitutional Act, aboriginal title cannot be extinguished
through legislation
It can be extinguished only if there is a legitimate purpose and if the
Crown fulfil its fiduciary obligation to the Aboriginal community
There is a duty to negotiate
The case was sent back to pre-trial as much of the evidence that should have been
admitted was rejected by the trial judge
o There was never a second trial, since a settlement was met
R. v. Marshall; R. v. Bernard, 2005 SCC 43
Facts
136
Aboriginals logged on Crown Nova Scotia land and were charged with criminal offences. They
claimed that they held aboriginal title to the land. The area of land they claim title to is basically
the entire province.
Issues
Did the appellants maintain effective control over the land, enough to constitute aboriginal title?
NO
Decision (McLachlin):
The Crown can impinge on aboriginal title only if it can establish that it is justified in
pursuance of a compelling and substantial legislative objective for the good of larger
society (Van de Peet)
The courts task is in translating aboriginal practices to modern rights, which
should not be done in a narrow or formalistic way. It is a process or reconciliation
One of these rights is aboriginal title to land. It is established by aboriginal practices that
indicate possession similar to that associated with title at common law.
From Delgamuukw: the common law recognizes that exclusivity does not preclude
consensual arrangements that recognize shared title to the same parcel of land.
From Delgamuukw: to establish title, documents must prove exclusive presovereignty occupation of the land by their forbears.
Occupation means physical occupation.
Exclusive- with intention and capacity to retain exclusive control.
To say that title flows from occasional entry and use is inconsistent with the
approach to aboriginal title taken by this court.
Evidence of acts of exclusion is not required to establish aboriginal title. All that is
required is demonstration of effective control of the land by the group, from which a
reasonable inference can be drawn that it could have excluded others had it chosen to do
so.
Can nomadic and semi-nomadic peoples ever claim title to aboriginal land? In each case,
the question is whether a degree of physical occupation or use equivalent to common law
title has been made out.
Class notes
What aspect of possession caused particular problems? The continual and certain aspects
of possession were not really proven.
The land surface that was being claimed was essentially all of NS and NB.
What standard did the court apply? Effective control (ie you could have exercised
exclusive control if you had wanted to- they might have shared the land, but it was open
to them to exclude others.)
Nomadic peoples- can they ever have aboriginal title? There is no blanket prohibition, but
you have to look at the particular circumstances
Has the court struck a balance?
o It is difficult to do in this case given that aboriginal property conceptions are
thought to exclude the idea of the right to exclude.
137
Ankers comments
Two people were arrested for logging without a licence and they tried to establish that
they had title to do so
What needs to proved to make a successful claim for aboriginal title
o Physical occupation of the land
o Continuity in the use of this right
o Exclusive occupation of the land by one same band
One of the problems is that they didnt have much evidence to prove occupancy
o Does there need to be evidence to prove occupation of every inch covered by the
land being claimed
o Another challenge is that it seemed that occupation wasnt exclusive, as other
settlers were welcomed
To some extent the use of the land did not constitute enough so as to
justify occupation
The intent to occupy the land is not consistent with a semi-nomadic use of
the land
Is it fair, however, to impose this common law standard to
Aboriginals
McLachlin finds this reasoning circular
o It starts from the assumption that it is unfair to not grant
aboriginal title to the community, because a rejection of
their claim is through the use of common law doctrine
Some of the issues we have to think about in dealing with this topic, is what is the impact of the
courts statements of what property interests are on the way people deal with property in their
lives
William F. Flanagan, Piercing the Veil of Real Property Law: Delgamuukw v. British
Columbia (1998)
The court in this case created an entirely novel interest in land in Canadian law.
Metaphor borrowed from corporate law- piercing the veil: when a court encounters a
legal doctrine that leads to an undesirable result, the court will pierce the veil of the
unwelcome legal doctrine, setting aside a doctrine that would otherwise apply.
Author asks whether aboriginal title is SO unique an interest that common law property
principles cannot apply. He says no.
Traditional common law principles consistently applied would arguably have provided
the claimants with a considerably broader interest in aboriginal lands.
The decision establishes very broad judicial power to control and restrict the use of
aboriginal lands.
This power also has the effect of restricting the modern use and development of
aboriginals, and will correspondingly reduce their commercial value.
138
There was an enlargement of the notion of aboriginal title in Lamers recognition of non
restrictive uses of aboriginal land. Ie not limited to traditional practices, etc.
There was a limiting of aboriginal title in the inherent limit factor. These limitations are
closer to the concept of voluntary waste and not equitable waste.
Lamers idea of taking pre-existing systems of aboriginal law into account is a formidable
task- the systems vary greatly across the country and courts have little knowledge of
these systems to begin with.
Conclusion: the only persuasive reason to treat aboriginal title as sui generis is the
finding that its sources include pre-existing systems of aboriginal law. But there are
concepts from common law property that could equally be applied: restrictions on
alienation, presumptive title arising out of possession
The only real option for aboriginals who want to develop their land is to surrender it to
the Crown and convert the land into non-aboriginal lands
CHAPTER ELEVEN: PROPERTY IN OTHER SETTINGS

Degrees and Regulatory Licences
Introductory Notes
The following set of cases consider whether degrees and regulatory licences (including
production quotas) constitute property under a range of statutory provisions concerning
Family law in Caratun v Caratun and Woodworth v Woodworth
Security over personal property in Boukhuyt, Hallahan and Re Foster
The Ontario Family Law Act R.S.O. 1990 provides as follows
4. "property" means any interest, present or future, vested or contingent, in real or personal
property and includes,
(a) property over which a spouse has, alone or in conjunction with another person, a
power of appointment exercisable in favour of himself or herself,
(b) property disposed of by a spouse but over which the spouse has, alone or in
conjunction with another person, a power to revoke the disposition or a power to
consume or dispose of the property, and
(c) in the case of a spouse's rights under a pension plan that have vested, the spouse's
interest in the plan including contributions made by other persons; ("bien")
5. (1) When a divorce is granted or a marriage is declared a nullity, or when the spouses are
separated and there is no reasonable prospect that they will resume cohabitation, the
spouse whose net family property is the lesser of the two net family properties is entitled
to one-half the difference between them.
Personal Property Security Act RSO 1990
139
s.1 personal property means chattel paper, documents of title, goods, instruments, intangibles,
money and investment property, and includes fixtures but does not include building materials
that have been affixed to real property.
Fraudulent Conveyances Act RSO 1980
3. Every conveyance of real property or personal property made with intent to defeat, hinder,
delay or defraud creditors is void as against such persons and their assigns
Assignments and Preferences Act RSO 1980
4. (1) Every .. assignment of goods, chattels or effects, or of bills, bonds, notes or securities,
or of shares, dividends, premiums or bonus in any bank, company or corporation, or of any other
property, real or personal, made by a person when insolvent or unable to pay the person's debts in
full or when the person knows that he, she or it is on the eve of insolvency, with intent to defeat,
hinder, delay or prejudice creditors, or any one or more of them, is void as against the creditor or
creditors.
Lecture Notes
The nature of property revisited
How to determine whether a right is a property right?
Exclusivity
Whether it can be transferred or alienated
Opposable against 3rd parties
What constitutes property under marital property legislation?
Two main principles
o Equal distribution of assets in two
S.5 Family Law Act, Ont
This only applies to assets, which are split 50/50
o S.33 can order support and determine its amount
Discretionary awards
Some of the principles behind this
o Treat marriage as a partnership
o Try to provide solvency for both parties
Caratun v. Caratun (1992), 10 O.R. (3d) 385 (Ont.C.A.)
Facts
140
The wife made great personal sacrifices (leaving job, immigrating, hard work) to get her husband
out of Romania and help him get licensed as a dentist in Canada. Two days after he was noticed
of his license to practice dentistry, he asked for a divorce. The trial judge found that he married
and had a child with her because it would be easier to immigrate to Canada and become licenced.
The wife claimed that she was entitled to receive part of the income generated by the license that
she had helped her husband earn.
Issue
Does a professional licence constitute wealth in the matrimonial context? NO.
McKinlay J.A.
There is no question that there is extreme unfairness in the situation, but
The Family Law Act, which requires an equal division of wealth, defines property as:
any interest, present or future, vested or contingent, in real or personal property.
This definition does not extend property beyond the traditional common law
understanding.
The only real right conferred on the holder of the licence is a right to work in a
particular profession.
Characterization of a licence:
A license, the right to work in a particular profession, is not property:
1. It is not a transferable right.
A license is different from a professional practice, which can be transferred.
Rights in personam must be transferable to be property.
2. It requires personal efforts by the holder in order to have any value.
The Family Law Act cannot refer to activities to be performed in the future. The
partnership of the spouses ends with the marriage. Placing a value on future labours of
either spouse for purposes of the equalization payment would frustrate those policy
objectives.
3. The only difference between a license and any other right to work is its exclusivity.
Whats the difference between a professional licence and the ability and right of any
person to work is in the exclusive nature of a professional licence. Should the law
consider attainments such as university degrees, trade apprenticeships, etc. as property for
the purposes of determining the equalization payment under the Family Law Act?
Valuation of a licence:
A court cannot adequately evaluate a license, since its value depends on future effort. It would be
unfairly speculative in the matrimonial context.
Note: the court used the support provisions of the Divorce Act to award the wife a lump sum of
30 000$.
Class notes
Arguments for and against defining a dental licence as a property right:
For:
141
Right to revenue should be defined as a property right.

Transferability should not be the only criteria for defining property.
Against:
The husband is the one that laboured for the degree- its not just the money that is put into
degree.
Its not transferable- its about personal effort.
This case highlights the relational nature of property rights.
The courts will be very wary of establishing new property rights- once you establish a
property right, it is very hard to take it away
Ankers comments
Two days after Mr. Caratun obtained his dental licence, he announced his spouse that he
would filing a divorce
Mrs. Caratun is claiming an interest in the dentistry licence
The argument is that both spouses have worked hard for the granting of this licence
Can a dentistry licence be considered property?
The trial judge takes a purposive approach to property, starting by looking at the end that
this property will grant to its holder
CA deemed that property is a bundle of rights
o Does a licence fall under this bundle?
o It is non-transferable, it cannot be split with the wife
An exclusive right to work is thus not considered property
Woodworth v. Woodworth, 337 N.W.2d 332 (Mich. C.A., 1982)
Facts
The wife worked while her husband studied law. She claims that she is entitled to part of the
value of his law degree.
Issue
Can a law degree be considered marital property subject to distribution? YES
Burns J.
Both parties planned their family life around the effort to attain plaintiffs degree. It was
the result of mutual sacrifice.
Fairness dictates that the spouse be compensated.
Regardless of whether a degree is property, the court must seek an equitable solution.
The wife is entitled to the fruits of her labour, just as she would be to part of a house that
she had helped to buy.
Class notes
142
The effects of defining a law degree as property is taking away incentive for investing in
your family
The court only gave her half of the price of the law degree itself- not future earnings
gained as a result of obtaining the degree
This US Case heard by the CA of Michigan goes the opposite way of Caratun v. Caratun
Notes on Caratun v. Caratun

Despite its conclusion on whether the licence was property, the court in Caratun employed the
support provisions of the federal Divorce Act to award Mrs Caratun a lump sum payment of
$30,000
This decision was refused leave to appeal by the Supreme Court of Canada
Most Canadian decisions, and commentators, have come to the same conclusion as
the Ontario Court of Appeal on this issue.
Lecture Notes
Ways to treat degrees/licences
As property
As reimbursements
o Actual financial contribution (present and future)
o Lost opportunity
Reliance
Quid pro quo (if you contributed to someones degree, this person should contribute to
yours)
Re National Trust Co. and Bouckhuyt et al. (1987), 61 O.R. (2d) 640 (Ont.C.A.)
Facts
A couple bought a farm with a license to produce tobacco, within limits set by the Tobacco
Board. They eventually sold the land and the mortgage set a condition that the license (which had
been sold with the property, as required by the legislation at the time) could not be transferred
without their permission.
The purchaser took a chattel mortgage with the bank. When things went badly, the bank
attempted to seize the tobacco license (which could, by virtue of new regulations, be separated
from the land), alleging it to be personal intangible property within the meaning of the Personal
Property Security Act (PPSA). The original owner denied that is was property and argued that it
was therefore incapable of being seized.
This action is filed against the bank, who knew about the covenant and the contravention of the
Tobacco Board Policy.
The trial judge found that the licence was personal property.
Issue
143
Can a regulatory licence granting a production quota be considered intangible personal property?
NO.
Cory J.A.
The determination of the licences usefulness and transmissibility was totally vested
in the administrative body. Control by the Tobacco Board is absolute and complete.
Tobacco cannot even be produced without a licence.
It is true that the licence may be leased and, in a rather peculiar form, it may be
transferred and pledged, but this is accomplished by the board first cancelling the
licence and then re-issuing it to the purchaser.
A dispensation or licence properly passes no interest, but only makes an action lawful
which without it had been lawful.
The licence is a privilege, not property.
The bank could not receive more than the purchaser possessed which was a limited
contractual right to use the license under certain conditions.
Class notes
Not property or security interest under PPSA
o Arguments for:
o The fact that it was mortgaged indicated that it was viewed as a transferable
property right.
Against:
o Like a licence, gives you the right to do many things, but no right to exclude.
o Tons of discretion for the board in granting and taking away licences (as opposed
to taxi licence where discretion is very limited)
o Privilege, not right
o You cant transfer more then you own.
Ankers comments
The only way to produce the tobacco was to apply for a quota to produce it
A farm has a basic production quota
o National Trusts is a mortgagee of the farm
o The question is whether the quota is transferable
Is registration of a production quota property?
o Could it be included as intangible personal property under the Personal Property
Security Act
The CA decides that the quota is more on the nature of a privilege rather than a right
o The purpose of the act was to give the government the possibility to decide who it
would give a quota to and who it wouldnt
o It is not sufficient for something to be valuable to be considered property, it is
defined by law (this comes from Holmes J dissent in Int'l News Service v.
Associated Press
Canadian Imperial Bank of Commerce v. Hallahan (1990), 69 D.L.R. (4th) 449 (Ont. C.A.)
144
Facts
The Hallahans had secured their debts to the bank on the basis of their milk quota and the
proceeds it gave them, authorised under the Milk Act. When unable to pay the bank, they sold
the business to a relative, yet still benefited from its use as employees.
The bank brought a case to recuperate the proceeds from the permit, using the Fraudulent
Conveyances Act. The defendants argued that the license was not property that could be seized
under the definition of the PPSA.
Issue
Was Bouchkhuyt correctly decided? YES, subject to reservations.
Court Ruling
The evidence clearly points towards a fraudulent conveyance, but the court was unwilling
to overturn Bouckhuyt and call the license property. It criticised the decision for not facing
commercial reality in its classification of property.
If the reasoning in Bouchkhuyt as to what constitutes personal property had been more
narrowly focused, it might have permitted a finding that the transfer of quota from
Hallahan to relative was in law a fraudulent preference within the meaning of the two
statutes for the protection of creditors
Lecture notes
Hallahan takes a mortgage on the proceeds of a milk quota
o A mortgage on the income that they are going to get on the quota
o The question is not whether this is a valid mortgage
Meanwhile, Hallahan transfers this quota to his sister
o The question is whether the transfer is considered a fraudulent transfer of
property, since the bank had a mortgage on the income that would result from it
o In a way, the outcome seems unfair as Hallahan was able to overcome the
mortgage with the transfer
Thus the court considers revisiting the definition of property in Re
National Trust Co. and Bouckhuyt et al. within a commercial setting
On the one hand, the present case can distinguished from Re
National Trust Co in that the mortgage is not on the quota but on
the income derived from it
Nevertheless, the court felt bound to follow precedent and establish that
the quota was not property
Re Foster (1992), 89 D.L.R. (4th) 555 (Ont. Gen. Div.)
Facts
Foster held a taxi cab license. Such a licence is not transferable for the first three years, except by
petition to city council. Just 11 days before the licence would have become transferable, he
declared bankruptcy. He borrowed money on it from 4 people. Now his creditors want to seize
145
the license. However, to do so, they must demonstrate that the license is property for the purpose
of the PPSA.
The license was delivered by an administrative body which could only revoke it under certain
specific circumstances, subject to appeal. Furthermore, the license could be transferred,
notably to the holders heirs. There is a prima facie entitlement to renewal which means
that the license is almost certain to be a long-lasting right. The boards discretion is not
unfettered.
Lane J.
The court had to decide between considering the license:
- a vested right, and therefore property
- a simple privilege, dependent upon the discretion of a regulatory body
The characteristics of the license (transferability, duration, etc) where not those of a
transitory and ephemeral privilege like in Bouchkhuyt.
The law is in accordance with commercial reality. The license, as a right, possesses
the characteristics of property. It has value and it may be traded.
The regulatory framework is a decisive factor.
Here, there is a prima facie right of renewal protected by a right to a hearing and a
stated list of criteria.
Comments
But the 3 years had not expired- does this matter?
What is the relationship between transferability and being able to claim a security
interest? Are they related? Does the former guarantee the latter?
Class notes
Taxicab licence- security interests taken on the licence
Court found that it was a property right- not as much discretion exercised as with tobacco
quotas. Granting of licences was done as a matter of right, subject to only five conditions,
which are easily filled.
o Commercial reality- there is a market for these licences
There is a lot of judicial discretion in deciding these cases
Ankers comments
Foster had taken 4 security agreements on his Taxi licence
o Which creditor was to take precedence?
An issues here is how to reconcile the commercial reality behind the transfer of licences
and the degree of regulation the government wishes to have on granting licences to
individuals
In this case there is a different legislative context
o Under the legislation, a Taxi licence can be considered property for securities
under the Personal Property Security Act
It could be left through a will, for instance
The court thus decided that the licence was in fact intangible property as per the PPSA
146
Criminal Law
Stewart v. The Queen (1988), 50 D.L.R. (4th) 1 (S.C.C.)
Facts
A union was trying to organize employees of a hotel
The union could not get the info because the hotel treated it as confidential
Stewart was a consultant hired to get the employee information of the hotel
He tried to convince a security guard to copy a list of the employees, without actually
taking anything away from the employer
The guard revealed the scheme and Stewart was charged under the Criminal Code for
theft
Stewart argued that he had not taken anything, or intended to take anything, and could
not be criminally charged
Issue
1. Can confidential information be considered property and fall under the Criminal Code
definition of theft when no tangible physical object is taken? NO.
2. Is confidential information or a nature such that it can be taken or converted? NOextremely rare.
Lamer J.
Issue 1
According to s. 283 of CC, in order to be convicted of theft, a person needs to take or
convert anything animate or inanimate with the necessary intent.
The question is whether intangibles other than choses in action (in this case confidential
information) qualify as anything for the Criminal Code, s.283 (1).
According to Lamer, S.283 (1) limits anything:
1. to things that can be subject to a proprietary right
2. to property capable of being
a. taken therefore tangibles are excluded
b. converted and may be intangible
c. taken or converted in a way that deprives the owner of his proprietary
interest
It appears that the protection afforded to confidential information in most civil cases
arises more from an obligation of good faith or a fiduciary relationship than from a
proprietary interest.
The fact that information may be property under civil law does not make it so for the
purposes of criminal law.
Criminal law punishes wrongs against society, not balance the interests of parties
involved, like in civil law. It therefore involved special issues of public policy. It is far
from certain whether the taking of information should be criminalised. It should not be
done lightly.
147
Treating confidential information as property for the purposes of the law of theft would
create a host of practical problems: for ex, is it based on a subjective or objective
evaluation of confidentiality? Would it apply to any information with potential
commercial value?
To the extent that confidential information should be protected, it should be granted by
legislative enactment and not through the judicial extension of the concept of property.
Issue 2
If one appropriates confidential information without taking a physical object, for
example, by memorizing or copying the information or by intercepting a private
conversation, the alleged owner is not deprived of the use of possession thereof.
One cannot be deprived of confidentiality because one cannot own confidentiality.
Furthermore, pure intangibles can only be converted, not taken. However, information cannot be
converted, since the owner is not deprived of its use.
Class notes
This case is used around the world for talking about whether you can have property in
information as it involves confidential information.
Copyright can protect confidential information, but it also protects the distribution of that
information. So it both protects confidential information and encourages dissemination of
that information. Trademarks have the same function, as do patents
The value of confidential information lies in its confidentiality
Confidential information often held between two parties
The social value of confidential information is harder to establish when it is being kept
totally confidential and is not about to be disseminated
The court relied on a case called Oxford v. Moss. In that case, the accused was a student
and he had stolen an exam paper. The student did not have the intention to steal the paper;
he intended to put it back. The question: was taking the confidential information theft?
The court said no. There was no theft because he did not take the paper. The court stuck
to a rigid notion of what property was
What was allegedly stolen was the information. The SCC concluded that for the
purposes of the criminal law in Canada, confidential information is not property. It
is property for the purposes of the civil law
o The civil/private law has a tort called breach of confidentiality
o Why the different treatment in the criminal and the civil/private law?
o The court also comes up with a law and economics justification: the state should
encourage commercial need to protect information in a limited way (through civil
law)
o The court looks at the purposes of the civil and the criminal law.
In the end, Lamer says this is a case for legislation, not for the courts.
Ankers comments
Can information on its own be subject to property rights
148
Stewart was hired by an union to obtain a list of employers of a hotel, since the hotel
would not provide it to union
If he had gotten hold of this list what kind of actions could have been taken against him?
o A tort action on breach of trust
Perhaps also under breach of copyright, if the list is taken to fit within this
context
None of this avenues were available in case, nonetheless
o The only option left, as per the criminal code, was counselling someone else to
commit a crime (s.294)
The crime would be theft under s.283
Theft relates to depriving the owner of a thing
The question is then whether information can be a thing
o No paper was stolen, just photocopied
o This information was not copyrighted and Stewart did not
have an obligation to the hotel so as to amount to a breach
of trust
Can information be a thing?
o Is it problematic that information is intangible?
There are others intangibles which are recognized as property
o Can information be damaged so that it is not returned in a condition in which it
was when it was taken
Constitutional Law and Socio-Economic Rights as Property

Introductory notes
Property has traditionally been conceived as providing freedom from government interference
But it has long been recognised that this negative liberty, the concept of freedom from,
is not the only kind of liberty
There is also such a thing as positive liberty, the freedom to live a full life, which may
require the state to provide the means to do so
o A political theory that stresses "freedom to" might alter current conceptions of the
relation between property and the state
As discussed earlier, however, the London Borough of Southwark case demonstrates this is not a
concept that finds any support in the common law
The rights of those who already own property are paramount
In Canada, there have been suggestions that section 7 of the Charter can provide at least
some degree of protection for minimal rights, although these appear principally in the
academic literature, not in judicial decisions
Goldberg v. Kelly (1970) 397 U.S. 254, 90 S.Ct. 101
149
Facts
The respondents welfare payments had been cut off buy a regulatory body. This was done
without a prior hearing of the respondents case, who sued. She argued that they could not be
arbitrarily taken away from her without the opportunity for an evidentiary hearing, on the basis
of the 14th Amendment.
The state government responded that welfare payments were a privilege, rather than a right.
Brennan J.
In the case of welfare, only an evidentiary hearing provides adequate due process.
The constitutional challenge cannot be answered by an argument that public
assistance benefits are a privilege and not a right.
Required procedures of due process must be determined in light of the precise nature of
the government function involved.
From Hannah v. Larche: It may be realistic today to regard welfare entitlements as more
like property than a gratuity. Society today is built around entitlement (licences,
permits, franchises)- the state is a huge provider of wealth, in many different areas.
The recipient is placed in desperate financial straits during the appeal process, if
payments stop
Pre-termination of payment hearings serve the interests of the Nation public
assistance is more than charity, it promotes the founding principle of the state
o These considerations outweigh the governments interest in fiscal restraint.
Black J. (dissenting)
The court is meddling with the legislative branchs jurisdiction.
The government needs to be flexible in its administration of the welfare state. The court
is paralysing and forcing it to make payments to people who in certain cases will not be
entitled to them.
The court cannot declare a promise to be property simply because it finds a situation
unconscionable.
Class notes:
Kelly was disabled and without any warning, the state cut off his benefits. The question at
issue here is: is a person entitled to a hearing before the state terminates benefits? This is
a due process question
This case was argued under the due process clause of the 14th amendment. Does due
process require this hearing?
o In order for due process to work, there must be a property right at stake.
Does due process (having the pre-determination hearing) secure the property rights? Will
process make these entitlements stronger?
Ankers comments
Class-action suit by US welfare recipients whose benefits had been cut-off
The law made it that one could only appeal this once the benefits were terminated
The question was brought under the 14th amendment of the US constitution
150
No state shall make or enforce any law which shall abridge the privileges or immunities
of citizens of the United States; nor shall any state deprive any person of life, liberty,
or property, without due process of law; nor deny to any person within its jurisdiction
the equal protection of the laws.
Has there been deprivation of life, liberty or property, and has it been done against the
due process of law
Some of the issues the court needs to look into is the balancing of private interests and
those of the government (such as monetary needs and the security of the nation)
The court discusses a variety of issues
o One of them is the constitutional role given to courts
o The other is the characterization of welfare as property
R. Lee, "Twenty-Five Years After Goldberg v. Kelly: Traveling From the Right Spot on
the Wrong Road to the Wrong Place (1994)
Prior to Golberg, benefit payments from government were not subject to due process
protection. Any government advantage was viewed as charity.
The perception evolved with the theories of Charles A. Reich:
1. The government is spreading wealth, displacing traditional notions of private property.
There was a growing dependence upon social spending, rather than savings. Citizens
have property interests in the distribution of public largesse.
2. By replacing private property with its largesse, government was undermining individual
independence (within the realm of his private property, an individual can do what he
likes).
3. Traditional zones of private property were increasingly dominated by corporations.
To compensate for this situation, new areas of liberty had to be created around government
institutions. Through due process, the individual could force government to leave him free within
his new zones of property. Arbitrary removal of new forms of property could not be allowed in
the name of individuality.
Gosselin v. Quebec (Attorney General) 2002 S.C.C. 84
Facts
In 1984 the Quebec government created a new social assistance scheme
Section 29(a) of the Regulation respecting social aid set the base amount of welfare
payable to persons under 30 at roughly one third of the amount payable to those 30 and
over
In 1989 this scheme was replaced by legislation that no longer made this age-based
distinction
151
The appellant, a welfare recipient, brought a class action challenging the 1984 social
assistance scheme on behalf of all welfare recipients under 30 subject to the differential
regime from 1985 to 1989
o The appellant argued that the 1984 social assistance regime violated ss. 7 and
15(1) of the Canadian Charter and s. 45 of the Quebec Charter
o She requested that the government of Quebec reimburse all affected welfare
recipients for the difference between what they actually received and what they
would have received had they been 30 years of age or over ($389 million dollars,
plus interest)
Ms. Gosselin's claim failed on all three grounds in all courts
McLachlin CJC
The Court decided
o 1) by 5 to 4 that there was no violation of section 15
Section 7
The primary reason for McLachlin's finding that there was no violation was because
Gosselin was unable to discharge her burden of proof
o [Ms. Gosselin had] not demonstrated that the government treated her as less
worthy than older welfare recipients simply because it conditioned increased
welfare payments on her participation in programs designed specifically to
integrate her into the workforce and to promote her long-term self sufficiency
In examination of section 7, McLachlin also found that there was not enough evidence
here either
o The question therefore is not whether section 7 has ever been or will ever be
recognized as creating positive rights. Rather, the question is whether the present
circumstances warrant a novel application of section 7 as the basis for a positive
state obligation to guarantee adequate living standards
o I conclude that they do not. ... I do not believe that there is sufficient evidence in
this case to support the proposed interpretation of section 7. I leave open the
possibility that a positive obligation to sustain life, liberty, or security of the
person may be made out in special circumstances. However, this is not such a
case. The impugned program contained compensatory workfare provisions, and
the evidence of actual hardship is wanting. The frail platform provided by the
facts of this case cannot support the weight of a positive state obligation of citizen
support."
Section 15 [not in excerpt]
In applying the analytical framework for section 15 from Law v. Canada McLachlin
identified the government purpose was to promote long-term autonomy among youth
The government was attempting to create an incentive for young people to participate in
employment programs
152
McLachlin rejected the claim that the purpose "did not correspond to the actual needs and
circumstances of the individuals" and that it effectively stereotyped youth. Rather it was
"an affirmation of their potential". The majority found that youth do not suffer from any
pre-existing disadvantage nor were they more susceptible to negative preconceptions
There there was not enough evidence of harmful effects of the law. Rather the claimants
were merely representative of some individuals who had "fallen through the cracks".
Furthermore, the majority found there was no evidence to show that those who wanted to
participate in the employment programs were refused participation. Thus there could be
no finding of discrimination through adverse effects.
Section 45 of the Quebec Charter

Section 45 of the Quebec Charter provides that every person in need has a right to
"measures of financial assistance and to social measures provided for by law, susceptible
of ensuring such person an acceptable standard of living".
Ms. Gosselin argues that s. 45 creates a right to an acceptable standard of living and that
Quebec's social assistance scheme breached that right...
There can be no doubt that s. 45 purports to create a right, but does it include an adequate
standard of living?
The court adopts a more limitative interpretation of this section whereby s. 45
requires the government to provide social assistance measures, but it places the
adequacy of the particular measures adopted beyond the reach of judicial review
o Attention to the other provisions of Chapter IV of the Quebec Charter, entitled
o "Economic and Social Rights", helps to put s. 45 in context, and sheds
considerable light on the interpretive issue. Some of the provisions in Chapter IV
deal with rights as between individuals, and do not directly implicate the state at
all
o Most of the provisions creating positive rights contain limiting language sharply
curtailing the scope of the right, and often in accordance with the law
o In all these cases, the rights provided are limited in such a way as to put the
specific legislative measures or framework adopted by the legislature beyond the
reach of judicial review
Moreover, the right is not to measures that ensure an adequate standard of living, but to
measures that are susceptible of ensuring an adequate standard of living. In my view, the
choice of the term "susceptible" underscores the idea that the measures adopted must be
oriented toward the goal of ensuring an adequate standard of living, but are not required
to achieve success
Class notes
Are property rights protected under the Canadian constitution?
o Aboriginal title is protected under s.35
o Property had been explicitly included in the Bill of Rights, but it can be presumed
to have been left out of the Charter
She brought claims under ss.7 and 15 of the Constitution and s.45 of the Quebec Charter
153
o 45. Every person in need has a right, for himself and his family, to measures of
financial assistance and to social measures provided for by law, susceptible of
ensuring such person an acceptable standard of living.
McLachlin CJC
o Rejects the claim in all three counts
o One argument is that this law discriminates against people of a particular age
group, thus violating s.15 of the Charter
This argument did not succeed, however, because...
o As per s.7 of the Charter, the argument was that the law violated peoples life,
liberty, security
The court emphasises that s.7 is not just limited to the administration of
justice, but can be expanded to protect economic rights linked to the
security of the person
There is also the question of whether s.7 offers positive or negative
freedom, i.e. does it solely protect ones security from being taken away or
does it enable us to bring suits on the claim that this right must be
guaranteed by the government
o As for s.45 of the Quebec Charter
Indeed, s. 45 features two layers of equivocation. Rather than speaking of
a right to an adequate standard of living, s. 45 refers to a right to measures.
Moreover, the right is not to measures that ensure an adequate standard of
living, but to measures that are susceptible of ensuring an adequate
standard of living
The choice of the term "susceptible" underscores the idea that the
measures adopted must be oriented toward the goal of ensuring an
adequate standard of living, but are not required to achieve success. In
other words, s. 45 requires only that the government be able to point to
measures of the appropriate kind, without having to defend the wisdom of
its enactments.
Arbor J disagrees with the majority and would have allowed the appeal
o He states that one cannot distinguish from corporate and basic economic rights
o In terms of the positive/negative obligation, he believes that the court can enforce
positive rights
Notes
Justice Arbour, in dissent, held that s. 7 imposes not only negative rights of non-interference but
also positive obligations on the state to act
She concluded that the Charter imposed other positive obligations (e.g. the rights to vote
(s. 3), to trial within a reasonable time (s. 11(b)), to be presumed innocent (s. 11(d)), to
trial by jury in certain cases (s. 11(f)), to an interpreter in penal proceedings (s. 14), and
minority language education rights (s. 23))
She also argues that the language and caselaw of s. 7 also supports the existence of
positive rights.
154
Justice Arbour also addressed the concern that that courts cannot enforce positive rights of an
individual to the basic means of basic subsistence without being drawn outside their proper
judicial role and into the realm of deciding complex matters of social policy better left to
legislatures.
She said instead: It does not follow, however, that courts are precluded from entertaining
a claim such as the present one. While it may be true that courts are ill-equipped to decide
policy matters concerning resource allocation -- questions of how much the state should
spend, and in what manner -- this does not support the conclusion that justiciability is a
threshold issue barring the consideration of the substantive claim in this case
CHAPTER TWELVE: TAKINGS

Introductory Notes
The western liberal tradition places great emphasis on the freedom of the individual, notably
through the institution of private property.
This is an element of the struggle between negative and positive concepts of freedom:
freedom from v. freedom to.
The enhancement of individual liberty is therefore often cited as a justification for private
property in general
More particularly, it also serves as an argument for putting into private hands as many as
possible of the strands in the bundle of rights that property represents
But no society places the whole bundle in individual hands, for all recognise that to one
degree or another individual property rights must give way to society's collective goals
o A good example of this is taxation
There is another area where public goals and private rights, or perhaps the private rights
of the few and the private rights of the many, collide - takings
The United States Constitution

The Line Between Regulation and Taking
The US constitution contains a specific protection for property:
- 5th Amendment (federal protection): no person shall be deprived of life, liberty or
property, without due process of law (The state may take private property away from the
private owner provided it is in the public interest and provided fair compensation is paid.)
The first question is: Is there a taking? If this is not the case, then no compensation needs to be
paid.
What constitutes a taking?
155
o Some argue that all regulation constitutes a taking. The other extreme is to say that
anything short of acquisition of land is not a taking. The courts usually seek a position
somewhere between these extremes.
Police power, under US law, is the power of the state to regulate private conduct in the public
interests of public health, welfare and safety.
Lecture Notes
There is a role of public policy in taking
In the US the line between taking and regulation is that between exercising police power and
eminent domain
A taking may make the individual losing the property entitled to compensation
Traditional limitations on property rights
Nuisance
Reciprocal advantages
o When the individual gains from losing the land
o Public policy informs these two limitations
Pennsylvania Coal Company v. Mahon et al., 260 U.S. 393 (1922)
Facts
Pennsylvania enacted legislation blocking coal mining likely to cause subsidence of the soil near
inhabited areas not belonging to mines. The respondents had purchased the surface of land while
the subsoil remained under the ownership of a coal company. In a contract signed with the coal
company, the respondents had waived their rights to any claim against the company for damages
resulting from the extraction of coal. When the risk of damages became clearer, they sought to
invoke the statute in their favour.
The company challenged the statute constitutionality as causing an unlawful taking of its
property and a destruction of previously admitted property and contract rights.
Justice Holmes
The greatest weight is given to the judgment of the legislature, but it is always open to
interested parties to contend that the legislature has gone beyond its constitutional power.
Some values are enjoyed under implied limitation (rights can be subordinate to the
police power). However, these limitations are themselves limited. A consideration in
determining this limit is the extent of diminution.
The public interest cannot be invoked to justify interference in private affairs. Ie a
source of damage to a house is not a public nuisance even if similar damage is inflicted
on others in different places.
156
The public interest at stake in this case is small. By accepting that a coal mine can cause
subsidence on its own land, the law admits that the act is for the private benefit of some
owners.
What the statute proposes to remove is important (the estate in land of the coal company).
Ownership of coal reserves is meaningless without the right to mine it. By preventing
mining, the state is effectively taking the property away. The statute cannot be legally applied
when a mining company owns a right.
Property may be regulated. However, when regulation goes too far it becomes a taking. It is
a question of degree and one may not generalise.
Even the public interest cannot justify an uncompensated taking. The mining companies
cannot be made to bare a loss for everyone else. By acquiring only a surface right, the
respondents were acting at their own risk.
Justice Brandeis (dissenting)
A person may not use his land in such a way as to cause a nuisance. The right to property
is not absolute.
Harmful uses can be prohibited without compensation. Restrictions imposed to protect
public health, safety or morals are not takings.
In spite of such regulation, the property remains in the possession of its owner. The State
does not appropriate it or make use of it. The State merely prevents the owner from
making a use which interferes with paramount rights of the public.
It is not because in this case the legislation affects a private situation that it ceases to have
the required public purpose.
Restriction upon use does not become inappropriate as a means, merely because it
deprives the owner of the only use to which the property can then be profitably put.
When evaluating what the appellant is being deprived of (un-mined coal), we must look
compare its value to other elements (the value of the land, the value of the coal that can
be extracted without causing subsidence).
Where the police power is exercised to protect the public from detriment and danger,
there is no room for considering reciprocity.
Negative rights:
Constitutional amendment in US: must be for a public purpose and must be fairly compensated.
Class notes
Taking is the equivalent of expropriation in Canada
Is there any transfer of land in this case?
o NO, Penn Coal continues to possess the coal. It is only the right to use the land
that was taken
o While the legislation prohibited the use of the land, it did not itself take property
itself
Brandeis: The fact that the states use of the land confers a benefit to a private party
does not mean that the regulation is not for public purpose
157
The majoritys decision is problematic, because any legislative enactment will have
certain effects, benefits and disadvantages for individuals.
Keystone Bituminous Coal Association et al. v. DeBenedictis (Pennsylvania Department

of Environmental Resources et al.), 480 U.S. 470 (1987)
Facts
Pennsylvanias Subsidence Act prohibited mining likely to cause subsidence damage to certain
types of public locations. A certain amount of coal must be left behind for support purposes. The
Act replaced the Kohler Act that was in place for Pennsylvania Coal.
Several coal mining companies challenged the legislation, notably on the basis of the
Pennsylvania Coal Case. They pointed out that under Pennsylvania law, their legal interest in the
support estate was a separate property right which had been expropriated by the limitations on
mining causing subsidence, even if their rights over the surface and minerals were not take away.
Justice Stevens
Pennsylvania Coal is not an appropriate case for comparison
The public purpose:
This time, the state is clearly regulating a threat to common welfare. There is no
taking.
In Penn. Coal, the legislation was a private benefit statute. In this case, the legislation
allows no exception. It is made to prevent a nuisance to society as a whole (to protect
the environment, its economic future and its well being). Consistently with the notion
of reciprocity of advantage, public outweighs private interests in this case.
The Kohler Act is considerably different from the Subsidence Act.
Diminution of Value and Investment Backed Expectations:
The impugned legislation does not threaten profitable operation of mines.
It is not unusual for there to be limits on the profitable use of property. The business of
the companies is not rendered unprofitable by the legislation. There has been no
interference with investment-backed expectations.
The petitioners argue that the statute is unnecessary because the commonwealth
administers an insurance program that adequately reimburses surface owners for the cost
of repairing their property. This argument is misguided, however, because it assumes that
the statute is designed to protect private property interests.
As for the support estate, it can only be considered to have value insofar as it protects
or enhances the value of the other estates it is associated with (nobody owns the support
without either the surface or the mineral estate).
An important distinction must be made between a claim that the mere enactment of a
statute constitutes a taking and a claim that the particular impact of government action on
a specific piece of property requires the payment of just compensation.
The Coal in Place:
158
Petitioners claim loss of 27 million tons of coal. However, this coal does NOT constitute
a separate segment of property for takings law purposes. Many zoning ordinances place
limits on the property owners right to make profitable use of some segments of his
property.
The Support Estate:

Penn law is unique in that it views the support estate as distinct from the mineral estate
and the surface estate. Petitioners argue that because the support estate is viewed
separately, their entire right to its value is destroyed. However, in practical terms, the
support estate has value only insofar as it protects or enhances the value of the estate with
which it is associated.
Chief Justice Rehnquist (dissenting)
Would not so readily dismiss precedent established in Penn Coal.
The mere existence of a public purpose is insufficient to release government from its
obligation to provide compensation when necessary.
1. Nuisance regulation rests on a narrow purpose.
The Subsidence Act is more than nuisance legislation. It has an economic concern.
2. The nuisance exception to compensation can never be used to extinguish the value of a
parcel of property.
The plaintiffs have proven that they are being asked to give up on significant amounts
of coal.
It is not because governmental action comes short of physical invasion that it should not
be considered a taking.
Branding something as regulation does not excuse the limitation on property rights
The situation must be seen from the perspective of the property owners loss, rather
than the governments gain. In this case, the estate in the coal is essentially annulled.
The bundle of rights in this coal is sparse- it is limited to its mining. The regulation does
not limit one strand in the bundle, but instead destroys completely any interest in a
segment of property.
The court should have taken into consideration the fact that support estate was severable
in determining whether there had been a taking.
British and Canadian Constitutions

Introductory Notes
Neither Canada nor Britain as a constitutional entrenchment of property right (like in US).
In Canada, the Bill of Rights mentions them, but it is not a constitutional document.
However, seizing property with neither a public purpose nor compensation would be
politically illegitimate. Property rights are a part of the common law.
Also, many parts of the Charter do impinge upon property rights (ex: injunction against
unreasonable seizure).
159
Manitoba Fisheries Ltd. v. Canada, [1979] 1 S.C.R. 101

Facts
The plaintiff is suing the federal government for expropriation without compensation. The
former had been successfully operating a business whereby it purchased the catch of Manitoba
fishermen and exported it elsewhere in Canada and the world. A federal statute created a crown
corporation with a monopoly on the purchase and sale of such fish. As a result, the plaintiff went
out of business, even though no physical property was taken away from it. It received no
compensation.
Ritchie J.
The plaintiffs suppliers and customers, the network it had built over the years thanks to
its experience, its goodwill, constituted an asset. That asset was completely
extinguished and the customers were left with no choice but to do business with the
Crown Corporation.
Although intangible, goodwill is part of the property of a business, just like premises or
equipment.
Statutory interpretation: unless the words of the statute so demand, it should not be
construed so as to take away the property of a subject without compensation.
The plaintiff was deprived of property which was acquired by the Crown. This is
therefore an expropriation, as opposed to simple regulation affecting the enjoyment
of property. There must be a distinction made between the taking of property
(acquiring or taking over, thus signifying a transfer or passing of property from one to
another) and a mere prohibition on the use of property.
In this case, there was a taking.
Class notes
The effect of the monopoly was a transfer of the business from the party to the State
The loss needs to match the acquisition
The Queen in Right of British Columbia v. Tener et al. (1985), 17 D.L.R. (4th) 1 (S.C.C.)
Facts
The respondent had acquired a mining concession which had been delivered by the provincial
government in 1937. Shortly after that date, in 1939, began a process by which the area covered
by the right was included within a provincial park. Legislation protecting the park eventually led
to the prohibition of mining activities and exploration without a special permit, which was
denied.
The respondent claimed that the government had in effect taken its property away.
Estey J.
Expropriation occurs if the Crown acquires from the owner an interest in property.
We must ask:
160
What right did the respondents lose and what right was acquired by the
government?
When did the compulsory taking take place?
There is a presumption in favour of a right to compensation, unless a statute says the
opposite.
The Crown at minimum acquired a negative right not to compensate the respondents for
future mineral development by forestalling any such development.
- Mineral regulation constituted the grant. It applies to the valuation process.
- The Park Act applied to the taking.
The effect of zoning on property need not be compensated for, as zoning is not used to increase
property value. (Note: doubtful statement)
Here, the province was increasing the value of the park at the mining companys
expense. Therefore this is an expropriation. The denial of access to these lands occurred under
the Park Act and amounts to a recovery by the Crown of a part of the right granted to the
respondents in 1937.
There should be compensation for the value of the coal, less the possibility of the prohibition on
mining being lifted.
Class notes
First, it was established that a permit was required to mine in the area, and then mining
was prohibited altogether. Should compensation be granted given that the appellant can
no longer mine on the land?
Court says that the rights held by Tener are determined by the Mineral Act. But whether
or not there was actual expropriation is determined by virtue of the Parks Act.
Has there been expropriation? YES. It should be compensated
What is taken? Access to the minerals. The value of the minerals is taken. What is given?
The value is given to the Park (gov). There was an effective transfer of the value of the
minerals from Tenar to government
Determining whether there has been a taking depends on the way in which you phrase the
transfer. If you are talking about transfer of value or access to the minerals, it is easy to
qualify taking- if you describe a transfer of rights, it is difficult to establish that these
rights were actually taken because the right to mine was not taken over
Calculation of damages: total value of the mineral minus whatever value may be
attributed to the future possibility of the issuance of a removal permit
Ankers comments
The ability to exercise the right over the land was constrained
Two contradictory approaches to property in the judgment
o The denial of access to minerals account for a right to recovery
The value lost is added to the park
o The notice took value from the respondent added value to the park
To see a transfer from private party to the state, this needs to be matched by a right gained
by the community, otherwise it is not justified to expropriate a rightful owner
161
Contrast to Cadillac Fairview as was a case when the right to exclude was limited by legislation
Why would the owner in this case be compensated for this?
How can it be distinguished from The Queen in Right of British Columbia v. Tener et al.
Re Haddock et al. and Attorney-General of Ontario (1990), 70 D.L.R. (4th) 644 (Ont. H.C.)
Facts
The Haddock brothers purchased an apartment building, hoping to supplement their retirement
by such an investment. However, the Residential Rent Regulation Act 1986 imposed strict
control over rent increases, so as to combat inflation. This had the effect of impairing the
quality of their imminent retirement.
The Haddocks complained that the RRRA, by reducing their revenue, was contrary to ss.7 and
15(1) of the Charter.
Henry J.
To apply s.7:
(a) The act must infringe upon life liberty or security of person.
(b) The deprivation carried out must violate principles of fundamental justice.
The drafters of the Charter deliberately excluded property from the Charter. S.7 may
touch upon issues dealing with property. However, it will only do so as a protection of the
liberty and security of the person.
The Haddocks have not been deprived of their property, which might have been
problematic. Instead, they are still free to choose another way to make their money fructify.
S.7 does not support a claim based upon reduced income.
A and L Investments Ltd et al v. Ontario (1997), 152 D.L.R. (4th) 692 (Ont. C.A.)
Facts
A group of real estate owners sued the provincial government over the RRRA 1991. Not only did
it impose restriction on rent increases, it also retroactively annulled a certain rights to increase
rents that had been granted under previous legislation. Claims were brought on the basis that the
rent increases constituted property themselves, and has been taken by the state. S.15 of the
Charter was also invoked.
Goudge J.A.
For the presumption of compensation to apply, the legislation must create an expropriation of the
plaintiffs property by the state.
Although the orders allowing rent increases may have been taken away from the
plaintiff, they cannot be said to have been acquired by the Crown, nor transferred to the
tenants.
162
The impugned legislation is mere regulation. There is thus no presumed right to

compensation, lest the state be paralysed.
S.15 (equality rights) cannot be applied as the claimants cannot demonstrate a historic
disadvantage.
Class notes
What was taken? Entitlement to future rent increase
Why no obligation to compensate? There was no getting
o Back to Manitoba Fisheries- was there a getting? Was there really transfer of
goodwill? The court says yes, but we remember we are talking about a monopoly,
where clients only have one legitimate choice for business
Court: there is no transfer- rule of statutory interpretation- transfer must be to the state
rather than to citizens.
Notes
Home Orderly Services (1987)
Government decides to provide service that had been provided by plaintiff, thereby
effectively destroying business. Plaintiff relied on Manitoba fisheries decision
The court distinguished them, however, by saying that the government was merely
providing competing service, which had rendered private service completely unprofitable
but had not prevented it from operating
The Court of Appeal also denied plaintiff claim, but on relied more on the argument that
Home Orderly had always been substantially dependent on the state for its survival
(government reimbursed).
In Keystone Bingo Centre Inc. v. Manitoba Lotteries Foundation et al (1989)
The plaintiff operated a commercial bingo hall until regulations made by a licensing
commission effectively put it out of business. Compensation for redundant physical
assets was paid, but the court rejected a claim for loss of business
Following Home Orderly, above, the court stated that while compensation would be
ordered when government destroyed or damaged private enterprise, this was a case where
the enterprise only operated at the sufferance of the government which had the right to set
licensing terms
Harvard Investments v. Winnipeg (1994)
Designation of Fort Garry Hotel as historic site. Claim that this prevented investor from
using property (i.e. demolishing it)
Court found that hotel was doing poorly not because of designation, but because of poor
management. The designation was actually a benefit to the hotel
o Court held that there were two elements that had to be satisfied for there to be a
taking: 1) the acquisition of an asset by the authority involved and 2) the complete
extinguishment of an assets value to the owner.
163
Supply management:
What about milk quotas, which artificially raise prices of milk for consumers. Would
reducing quotas effectively rob farmers or property?
The casebook feels that there are no property rights here
CHAPTER THIRTEEN: MISAPPROPRIATION OF PERSONALITY

Lecture Notes
Personality as the object of property
E.g. Vela Lugosi has certain traits associated with his characterization of Dracula
Had the studio been enriched by using the right of personality of a famous person
Does he own the traits he brought to this character
Lugosi had the right to turn his personality into something of value
o Could this be inherited
o Majority
He had a personal right he could have converted it into a property right by
licensing his image, but he didnt do it
o Minority
The judgment that has taken most force
If he created something that is distinct, which is identified with him, then
this can be passed on
How far does the claim to your personality extend?
Something that dealt with this was the case of a famous water skier who was approached
by some amateur holiday camp to use a picture of him and he did not allow it
o They then used a sketch of his image and the posture he used water-skiing
o The judge ruled that the public would not be confused by the fact that he was
endorsing the camp, but nevertheless did allow some minor compensation for a
violation of a right to privacy since they constructed the sketch based on his
picture
An US case dealt with a publicity campaign that used Bette Midlers backup singer who
sounded like her and she brought this court
o Her voice is an attribute of her identity
o Imitation amounts to piracy
Krouse v. Chrysler Canada Ltd. et al. (1974) 1 O.R. (2d) 225 (C.A.)
Facts
For one of its promotional objects (a guide to CFL teams), Chrysler used a picture featuring
football players, among which the plaintiffs jersey was clearly visible. The latter, at the very
164
most a local celebrity, sued for an unauthorised use of his identity. Nothing in the picture
indicated that the plaintiff endorsed the product. Chrysler says that the photograph only
incidentally reproduces the respondents image and was selected for the sole reason that it is an
excellent illustration of the climactic action characteristic of a football game.
Issue
Is the appellants image used for commercial advantage? NO
Is the photograph an implied endorsement by him of products of the appellant Chrysler? NO
Estey J.A.
There must be a right a right that had been transgressed with resulting damage if there is to be a
case.
The tort of passing-off only applies when the public is misled as to the designer or
producer of a product. Like Nissly.
There have been allegations that there exists a tort for the appropriation of ones
personality.
The plaintiff seeks media attention. Under such circumstances, it would be
inappropriate to blame Chrysler, which is simply taking part in the promotion of football.
The plaintiff is not being used. Nothing linked him to the product. He simply appeared.
These players authorize and invite the communications media to photograph and write about
their exploits. In a general sense, their exposure is beneficial to their careers. Exposure would
appear to be the life-blood of professional sport
A right should not be recognised if it is going to favour the interests of a special class of people,
while causing impediments to society and commerce at large.
Class notes
Why wasnt it a case of passing off?
o We are not dealing with the same business here. Theres no mistaking Krouse for
a car salesman/promoter.
Court:
o There is a tort of misappropriation of personality but this is not a case which
would apply to it
o Chrylser didnt gain any commercial advantage by having Krouse in particular in
the photo
What are the property aspects?
o The labour you put into constructing your image.
Ankers comments
Photo of a player on a game (who could be identified by the number on his shirt) was
used for Chryslers advertising
Krause wants some compensation for this
The court looks into the perception of the public in making the decision
o The picture does not appear to be an endorsement to the person, but an image
about football
165
o If you are involved in a field like sport, it can be expected that you would be open
to exposure and some loss of privacy
There is no precedent in Canada to the right over personality, so the court looks into other
jurisdictions and how they have dealt with this
o US: dealt by statute
Gould Estate v. Stoddart Publishing Co. (1996), 30 O.R. (3d) 520 (Gen.Div.)
Facts
When Glenn Gould was young and unknown, he sought media exposure by having Carroll
interview him and take pictures for an article. After Goulds death, Carroll published the
remaining pictures and conversations in a book. The defendant estate sued, arguing that the use
of Goulds image was not authorised. They are arguing that the use of the photographs amounts
to the tort of appropriations of personality and that they own the copyright in the oral
conversations.
Gen. Div.: Lederman J.
It is undisputed that Carroll is the owner of the copyright in the photographs.
The tort of appropriation of personality is generally limited to endorsement-type
situation. The limit to individual personality rights is freedom of expression (the public
interest).
There is a distinction is between:
sales: commercial exploitation of personality- where the identity of celebrity is merely
being used in some fashion.
subject: personality as the subject of a work or enterprise (ex: biographies)
Court of Appeal: Finlayson J.A.
The case is not about misappropriation of personality, but about copyright. The logical
assumption, according to the legislation is that Carroll, as the photographer, holds the
copyright.
The onus is on Goulds Estate to prove that he, and not Carroll, retained the copyright.
The onus is not on Carroll, as the motions judge claimed, to prove that he had permission
to appropriate the right.
Note: it is clear that Carroll was not commissioned to take the pictures for Gould (this
would have given Gould the right to restrict the pictures uses).
As for the oral conversations, easygoing chats/interviews are not covered by copyrights.
Carroll held all rights after having done the transcription.
The subject of an interview or a picture has no proprietary interest in them, unless he impliedly
or explicitly concluded an agreement (ie K) with the photographer or interviewer. Looked at in
this light, the concept of appropriation of personality has no application.
Class notes
166
Differs from two previous cases, where the celebrities were actually being used to sell a
product. Here, Gould is the product
Restricts misappropriation of personality to endorsement type situations.
Public domain- to restrict access to these forms of media would harm public domain. This
is the principal argument of the court. The court is worried about the potential effects of
opening up rights of personality- you could take it very far. As well, if you are worried
about the potential ill effects of certain types of publicity, you have defamation laws, etc.
Then there is the whole question of whether personality rights can even be transferred to
heirs
The court of appeal makes this a copyright issue and does not deal with the public
domain issue
o The copyright issue seems to sidestep the substantive uses that could be made of
the photos. What are copyright laws- do you need to obtain permission for each
new use of the photos?
Ankers comments
A man wrote a biography of Glenn Gould given his interaction with him and used 70 of
the 400 photographs he took during an interview in 1956.
Goulds heirs claims that given how private he was, claimed proprietary rights over the
book
While Gould had consented to an original interview, had he consented to the larger
project of the autobiography
o Since he was a private person, the family claimed that a picture taken of him
during the interview would have not been consented by him for the purposes of
being used in his biography
Although it is primarily through Gould's own images and words, this book provides
insight to anyone interested in Gould, the man and his music. The author added his own
creativity in recounting his time spent with Gould and in making decisions about which
photographs and text to use and how they should be arranged to provide this glimpse into
Gould's solitary life. There is a public interest in knowing more about one of Canada's
musical geniuses. Because of this public interest, the book therefore falls into the
protected category and there cannot be said to be any right of personality in Gould which
has been unlawfully appropriated by the defendants.
White v. Samsung Electronics America, Inc., 989 F.2d 1512 (9th Cir., 1993)
Facts
Samsung produced an ad featuring a robot dressed with certain props reminding one of Vanna
White, most notably because of a set similar to that of the show she hosted, Wheel of Fortune.
White sued Samsung for infringing her right of publicity.
Issue
Is the right of publicity limited to a name or likeness? NO
167
Goodwin J.
The right of publicity can breached a number of ways, from the moment that the
plaintiffs identity has been appropriated, whether a celebritys name or likeness has been
used.
A celebritys identity can be valued in the promotion of products.
The right of publicity does not require that appropriations of identity be accomplished
through particular means to be actionable. It is not important HOW the defendant has
appropriated the plaintiffs identity, but WHETHER the defendant has done so.
Alarcon J. (dissenting)
The Eastwood test for the commercial appropriation of personality is that there must be:
(1) use of the plaintiffs identity
(2) appropriation of the plaintiffs name or likeness to his disadvantage
(3) lack of consent
(4) resulting injury
The majority is wrong to dismiss the requirement of the use of a plaintiffs likeness.
In all the other cases (Midler and Carson), there was a use of a distinctive aspect of the
plaintiffs identity that qualified as the use of their likeness.
The attributes of White that are here considered to refer to her identity are not specific to her
(long gown, blond hair). They belong to many game-show hostesses.
The ad did not depict White. It depicted a robot hosting Wheel of Fortune. The majority is
overextending Whites rights.
The dissent tries to make a distinction between Vanna the hostess and Vanna the person. It is
clear, though, that her right to publicity primarily extends to her status as the hostess, so his
argument is weak. He argues that the Wheel of Fortune set is not an attribute of Vanna Whites
identity- clearly it is, since her promotional efforts are focused on her status as the hostess of the
gameshow.
Suggestion for Rehearing (denied by majority): Kozinski J. et al. (dissenting)
Reducing too much private property can be bad medicine. Overprotecting IP is as
harmful as underprotecting it. Creativity is impossible without a rich public domain.
Nothing today, like nothing since we tamed fire, is genuinely new. Overprotection stifles
creativity.
The majority is making it an appropriation of a celebritys identity to simply evoke that
persons image in the publics mind. Its now a tort for advertisers to remind the public of
a celebrity.
Intellectual property rights must be balances with the interests of the public. The latter is
allowed to use something created by someone else, otherwise creativity is stifled.
By protecting White from pictures dressed like her posing on the Wheel of Fortune set,
the majority is giving her an exclusive right in what she does for a living. Why should she
have such absolute rights to control the conduct of others.
Intellectual property gives celebrities the right to their original expression but allows
others to build on the underlying ideas.
168
Class notes
Majority: it doesnt matter how her identity was appropriated- it just matters whether it in fact
was.
Is Vanna really recognizable without the wheel?
Aubry v. ditions Vice-Versa Inc., [1998] 1 S.C.R. 591

Facts
Pascale Aubry was photographed without her knowledge or permission and featured on the cover
of a magazine. She was ashamed and sued the magazine under the Quebec Charter for violation
of privacy. In the picture, she is sitting on the steps of a public building.
LHeureux-Dub and Bastarache JJ.
The right to privacy includes the right to ones image. Using the latter without a legitimate public
interest is an invasion of privacy.
This right is distinct form the right to ones honour and reputation, though they may overlap.
These rights may come into conflict with freedom of expression. There are cases where ones
expectation of privacy will be limited.
for a person in public life
when one is featured in a crowd in a public place
when a person is incidentally present in a picture
However, Aubry was the main focus of the picture, if it was in a public place. It would have been
possible to ask her permission. There was no public interest involved in the publication of this
picture.
The artists right to publish his or her work cannot include the right to infringe, without any
justification, a fundamental right of the subject whose image appears in the work.
Lecture notes
In what way is the right to control your image about privacy?
The claim was brought in relation to s.5 of the Quebec Charter of Rights and Freedoms
o S.5 Every person has a right to respect for his private life
Notes
In Joseph v. Daniels (1986) held that the plaintiff, an amateur body builder, could not recover for
wrongful misappropriation of personality arising from the alleged unauthorized use by the
defendant of the plaintiff's portrait in posters and greeting cards
The picture was of the defendant holding a gray kitten, but only showed the defendants
torso
The court held: By using the model's torso only, the defendant photographer deliberately
designed his composition to avoid any reference to the identity of the person providing
the background for the picture of the gray kitten. It is the juxtaposition of great strength
169
with the fragility and helplessness of a wee kitten together with the colour contrast that
gives the picture its artistic quality
o None of these representations or values could be identified with the plaintiff by a
viewer of the photograph
o Therefore, the defendant has not used in his photographic composition any
proprietary interest associated by the public with the plaintiff's individuality
CHAPTER FOURTEEN: THE ONLINE ENVIRONMENT

Intel Corporation v. Hamidi 30 Cal.4th 1342 (2003, Cal.S.C.)
Facts
Hamidi worked for Intel. He was permitted to send and receive emails through intranet as an
employee. He sent six e-mails over two years to all Intels employees, with information
criticising Intel. He did offer to and remove any recipient who wished to be removed from the
list. Intel demanded that he stop. When he refused, they put a team to work blocking him, but he
was still able to send messages. Intel then sued Hamidi for trespass to chattels claiming damage
to its interest in the physical condition, quality or value of the system.
Issues
Can an action for trespass to chattels succeed when there is no actual injury to the personal
property? (In this case there was no physical or functional disruption to the cies computers) NO.
Does trespass to chattels include interference with content of communication itself? NO.
Werdegar (Majority):
There must be some actual damage, nominal damage not sufficing.
Comparison with other cases, where disk space and processing power was decreased to
sizeable increase in mail sent. This qualifies as actual damage. In this case, the number of
emails, although in the hundreds of thousands, was not enough to threaten storage space.
Intel argues that its interest in employee productivity was threatened. Majority disagrees.
If workers were distracted, it was not from the frequency or quantity of the messages but
from the content of the messages. Content of messages not covered.
The property interest protected by the old action of trespass was that of possession.
Reading an email transmitted to equipment designed to receive it does not affect this
possessory interest.
Nor can Intel argue a proprietary interest in the employees time.
Court points out that the company permitted its employees to make use of this connection
for its own purposes, to a certain extent. @Compare with Harrison- you cant invite ppl
to the mall, and then exclude certain activities.
Court analogy to telephone or fax: you would not sue for trespass for an unwelcome
message received by telephone.
The consequence of recognizing trespass would be a significant reduction in the freedom
of electronic communication.
170
Brown (dissenting):
Takes up employee productivity argument, stating that Intel paid millions of dollars for
system and employees are being diverted from tasks.
Intel deserves an injunction even if its objections are based entirely on the emails content.
The majority has an antipathy towards property rights.
Mendelson case: man was permitted by neighbour to enter onto neighbours property,
provided he correctly closed the gates. He didnt and an injunction was granted. The
right to an injunction is not always defeated by the mere absence of substantial damage
Another example: pamphlets and flyers being dropped on doorstep.
Hamidi concedes Intels legal entitlement to block unwanted messages. Unfortunately, it
cannot prevent it.
Intel suffered injury: The Restatement recognizes a property interest in the subjective
utility of ones property.
Intel suffered economic loss from loss of productivity and manpower required to delete
messages (hypothetically)
Intels injury is properly related to the chattel: doesnt see majoritys distinction between
property and its content.
Arguably, not protecting the right will stop the flow of ideas. Ie people will be less
inclined to develop IP.
Mosk (dissent):
Majority fails to distinguish between public internet and private proprietary intranet.
According to Mosk, trespass is not limited to physical damage. It applies when a
proprietary computer system is being used contrary to its owners purposes and expressed
desires (similar to inconsistent use test in adverse possession)
Note: majority argues that other actions are available- defamation, interference with K, nuisance,
etc.
Lecture notes
Employee of Intel who was injured and was fired
He started a website campaign which included sending e-mails to other Intel employees
How is using someone elses e-mail srever to send unsolicited e-mail framed as a
property problem
o Trespass to chattels
o What would you be trespassing on?
o What kind of injury would the law of trespass protect and is this connected to the
use of property?
Majority decides to not grant an injunction
Ticketmaster, Corp. v. Tickets.com, Inc., 2000 WL 1887522 (C.D. Cal.)
Facts
171
T.Com provides its customers with information about cultural events that Ticketmaster has
exclusive licence to sell tickets for. Its website refers users to pages within TMs site where they
can get the bookings that they need. T.Com also extracts information from TMs site,
reformulates it and makes it available to its customers. It does not obtain this information in the
same way as a member of the public would, but instead with the use of spiders or webcrawlers.
There is no competition between the parties. TM nonetheless wants to block T.Coms use of
information from the TM site and the creation of links to within the site (TM makes money from
the advertising that users have to see if they go through the whole TM site).
This is a request for a preliminary injunction, before the issue goes to trial.
Hupp J.
The whole context of this case has changed since the eBay decision.
Purely factual information cannot be copyrighted, even if great time and care was used in
gathering the information. This all goes back to the fundamental concept of copyright law
that ideas and knowledge may not become property of any one person even when that
person has developed the idea of knowledge. What is protectable is the manner in which
the idea of knowledge is expressed.
However, lets go over some of TMs arguments in copyright and trespass, to see if they
will be decisive at trial.
1. Copyright
Fair use doctrine: It appears likely to the court that plaintiffs odds of prevailing on the fair use
doctrine are sufficiently low EVEN with the presumption of irreparable injury which goes with
copyright infringement.
2. Hot news exception.
As a basic exception to the rule that factual info is not protectable. Eg, when competing news
orgs are selling news to customers.
The exception is not made out here, even if the event is sold out within hours or minutes of the
tickets becoming available. There is no evidence that this occurs enough to be of significance,
3. Trespass
A basic element of trespass to chattels must be physical harm to the chattel or some obstruction
of its basic function.
Here the comparative use by T.com was small. Nor is there the worry of dozens or more parasites
joining the fray (like in eBay). Finally, there is no evidence of competition between the two
companies; TM may actually be deriving a benefit from t.com business.
Conclusion: injunction denied.
Class notes
There is no copyright violation (only manner of expression protected).
Hot news exception does not apply- were not about a business making money off of
another persons ideas.
Why different from eBay? In eBay there was the potential of enormous damages, whch
wasn`t the case here
172
Notes
1) Recall the following statement by the authors in Civil Rights, Civil Wrongs and QuasiPublic Space: It has been rightly said that the development of "mass private property"
has meant that "more and more public life now takes place on property which is privately
owned. Is there any public space in cyberspace? If the internet is privately owned, what
are the implications of a right to exclude in cyberspace?
2) Increasingly, companies are attempting to enforce a right to exclude in cyberspace by
bringing trespass claims against competitors who access and make use of information on
the companies web sites. This is an interesting legal development considering the fact
that the internet is a decentralized communications medium designed for open and
universal access. Can property exist in cyberspace communications?
3) Recall that the Supreme Court of Canada in Stewart rejected the argument confidential
information is property for the purposes of the criminal law, but noted that confidential
information might in time be protected as property for the purposes of civil disputes. In
other words, the result in Stewart does not preclude Canadian courts from recognizing
property rights in information assets, confidential or otherwise.
4) Should website content be protected by the law of trespass or misappropriation of
information? What asset is being protected in each case?
5) Canadian law does not recognize a doctrine of misappropriation of information. If online
information does not meet the threshold requirements for intellectual property protection
in the form of copyright, is it appropriate to accord common law property protection?
CHAPTER FIFTEEN: OWNING LIFE

Davis v. Davis, 842 S.W.2d 588 (Penn., 1992)
Facts
The parties are a divorced couple that are in dispute over the ownership of a number of fertilised
pre-embryonic cells, the product of in vitro fertilisation (IVF). While the father wants to have
them destroyed (he claims trauma as the child of another unsuccessful marriage), the mother
wants ownership so as to eventually make a donation of the cells to another couple.
Issues
Are pre-embryonic cells persons or property? NEITHER
Daughtrey J.
In Tennessee, without live birth, a foetus is not a person. Wombs are not entitled to the
same protection as persons.
173
However, as an embryo develops it is accorded more and more respect under the law and
cannot simply be an object of property. But, even after viability they are not given legal
status equivalent to that of a person already born.
On the one hand, if you look at embryos as people then there is an obligation to provide
an opportunity for implantation to occur.
On the other extreme, you can see embryos simply as any other human tissue.
A third view, to which the court holds, pre-embryos deserve respect greater than that
accorded to human tissue but not respect accorded to actual persons. Pre-embryos,
because they have the potential of life, are in a special category. It is not a true property
interest, however, they do have an interest in the nature of ownership, to the extent that
they have decisional making authority concerning disposition of the pre-embryos, within
the scope of policy set by law.
The interest of the parties in the outcome of the cells must determine custody. The court
determined that the fathers emotional interest was stronger in this case than the mothers (she is
not even seeking to use the cells herself).
Ordinarily the party refusing procreation should prevail.
Miles, Inc. v. Scripps Clinic and Research Foundation, 810 F.Supp. 1091 (S.D. Cal., 1993)
Facts
The parties jointly ran a lab. When the union dissolved, the defendant and certain researchers
from the lab continued a research project leading to the development of a cell-line.
The plaintiff is claiming that it holds a right to the commercialisation of the cell-line (the
patent belongs to a researcher) which has been converted.
Issue
Can a cell-line be susceptible to conversion? NO
Rhoades J.
For a conversion claim, there must proof of:
(1) plaintiffs right of possession over the property at the time of conversion
(2) defendants conversion being a wrongful act or dispossession of plaintiffs rights
(3) damages
Here, the claim of conversion is not based on the cell line itself, but on the right to
commercialize.
For the issue of conversion of an intangible property right, California courts have made a 3 part
test to determine whether a property right exists.
For there to be a property right:
- there must be an interest capable of precise definition (was met in this case)
- it must be capable of exclusive possession (yes, through patents, contracts)
174
the putative owner must have established a legitimate claim to exclusivity (not in this
case)
A cause of action for conversion is unnecessary since contract or patent law should cover
alleged violations in such cases. Plaintiff should have protected itself through K. Lack of
protection not a valid reason for expanding the law of conversion, especially given policy
considerations.
Policy consideration: if a cell line can be converted, scientists will then constantly run the risk of
being sued. It would have a chilling effect on research.
Differences with Moore:
In Moore you had raw cells that were developed into a cell line; here, the cell line is the
starting point.
No human donor is involved here like in Moore.
The chilling effect on research is not identical here because the parties are sophisticated
researchers capable of protecting themselves legally, not patients who may be unaware of
the economic uses of body parts.
Conclusion: the plaintiff does have a property right which is deserving of protection- but that
should not be found in an action for conversion.
E. Richard Gold, Owning our Bodies: An Examination of Property Law and
Biotechnology (1995)
Is property law the most appropriate way the allocate control over human biological materials?
Property law has difficulty dealing with non-market aspects of these materials.
By relying on the market, judicial decisions may fail to adequately balance the competing
needs of members of our society.
Property is best understood as the legal conclusion that a good is, in some way, valuable.
Given this understanding of the market, the courts confidently put aside any explicit
evaluation of worth, trusting the market to rank the ways in which the good is valued.
This allows judicial decision makers to claim to be impartial arbitrators (ie let the
legislature deal with this). The market theory of value also provides the courts with a
relatively straightforward method of allocating property rights. Courts can thus escape
explicit value decisions.
Chakrabarty: The court held that the non-economic effects of granting a patent right to him
would be minimal. Second, the court held that it was not competent to consider any but
economic factors inhering in genetically engineered organisms (high policy must be addressed
by Congress).
Moore:
Holding: that Moore was entitled to compensation if he could prove that Golde had breached his
fiduciary obligations to Moore (duty to inform)
175
The majority: sought to avoid litigation by denying the patient ownership over his organs.
It considered that it provided sufficient protection by extending the law of informed
consent. Majoritys concern in dealing with Moores conversion claim was the effect that
recognizing it would have on R&D (ie it would be impeded). On the other hand, because
trade is enhanced by R&D, property rights ought to be granted to such researchers and
pharmaceutical companies.
Property right would have gone further in protecting patient and would reduce the
likelihood that a physician would be influenced by his or her commercial interests
(because physician would have to bargain with patient for commercial rights).
Broussard J.: favoured the recognition of body parts economic value, for better or for
worse, by allowing patients a property interest in them, thus allowing the latter to claim
compensation. He argued that, for better or for worse, human biological materials ARE
market goods. He disagreed with the majoritys holding that a property right in these
tissues would impede R&D. For him the central question was not whether human
biological materials ought to be property but who should be permitted to hold such
property.
Mosk J.: argued for patients having a property right in their tissues, but not on the basis of
market considerations. His motivation was the preservation of human dignity. Human
body and tissues are valuable in ways beyond their market price. The majoritys decision
to reject Moores property right actually undermined the ethical and moral values
inhering in the human body.
Arabian J.: feared that non-market values such as human dignity could not be adequately
addressed by property law. The legislature must sort out this debate. Does not believe that
property discourse can encompass values beyond market values. Until property discourse
abandons this reliance on market, it will remain inhospitable to those arguing that
property rights ought to be allocated on some basis other than market values.
The market is unable to consider non-economic values or weigh them against economic ones.
Property law follows this example because it is based upon the market (ex: how can a property
law debate in the context of health care take into consideration such factors as enjoyment of life
and pain?). Maybe Moore would have donated his spleen to charity as a better valuation of his
organ?
Gold: Society must find ways of making decisions about these materials. Lack of
commensurability is not an excuse. If property law is not open to change, then we ought not to
discuss human biological materials within property discourse.
The language of the market encourages us to think that people are motivated essentially by
profit. For property law to evolve out of this will take a long time.
Proposals:
We should be cautious about protecting goods that previously were not considered
property, because we risk undermining important non-market values in the process.
176
*Instead of attempting to protect new goods through property law, the better strategy is to first
attempt to change the way we talk about those goods already subject to property rights. (eg, view
landlord-tenant issues in terms of personal development) Only once property law discourse
accepts non-market values can we then subject new goods to property analysis.
Lecture notes
The law seems to grant property rights when there is value at stake
Remember Moore v. Regents of UC
o Effects on research productivity
o Also Diamond v. Chakrabarty
One of the issues is measuring value based on market terms
o In Diamond v. Chakrabarty both judges agree that market value is primordial to
allocate property rights
o In Moore v. Regents of UC
Mosk argues that there are other issues such as the patients dignity
Arabian believes that deciding whether the cells should be treated as
property or not is not a matter of judicial resolution
The legislature if the appropriate debate form
REVISION
Lecture Notes
What is the language of property embedded in?
Ownership
Acquisition
Possession
Interests
Intention personal choice
Exclusions exchange
Security, pride, status
Obligation
Relation of things to self
Property as entitlements to do and use things
Most cases would thus deal with remedial actions
Deciding what property entails and it doesnt is carried out through the difficult cases
Another way to do so is to look at the different uses people give to property
o Their use of property may be determinative of the rights they have to it
There are also tests to determine rights over property
Possessors have prima facie rights
177
o The idea behind it is to give reward the person making use of the land
Possession encompasses both access to the property and intent
Adverse possession
Actual possession
Dispossession of the true owner
Intention to exclude
Tested through inconsistency test
o Use inconsistent with the intentions of the true owner
Aboriginal property aboriginal title
Constructed from common law and aboriginal principles
Sui generis
Generally speaking, we have seen a removal of property from the physical land to an abstract
domain of rights
We see this through registration
Different kinds of fees in estates
Trusts
Another way to look at property other than a bundle of rights, is to view property as
responsibility
A specific range of permitted uses of land
Reasons to restrict property use
Public policy
o Very strictly applied
o E.g. Canada Trust, Reno
Private covenants
POSSIBLE ESSAY TOPICS

Property as right to exclude
Harrison, Victoria Park, INS + Chapter 4
Ownership as not absolute
Chapter 4, CCC v. Canada
Chapter 12
Balancing property and other rights
178
Chapter 4, maybe Moore, Dred Scott, Rawlins/Anderson

Conditions of public policy: Re Noble and Canadian Trust
Chapter 11
Property and freedom

Negative v. Positive rights
Right to exclude
Marsh, CCC and see notes in Chapter 4, Local 1330
Goldberg (property as positive right) + doctrine text on it
Gosselin
Chapter 12
Property and Value
Moore, INS, Chapter 11
Mahon and the coal mine being meaningless without right to mine
Also Keystone
o Unlike British and Canadian Constitutions where it is not a constitutional issue
Property v. Constitution
Marsh, CCC and see notes in Chapter 4, Local 1330
Goldberg (property as positive right) + doctrine text on it
Gosselin
Chapter 12 takings in the US context
Re Haddock
Powerfull vs. powerless
Dred Scott, Rawlins/Anderson, London Borough, Local 1330, Re Noble and Canadian
Trust
Chapter 6 on trusts
179

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COMMON LAW PROPERTY

Prepared by Andrew Carvajal

The Right to Participate.............................................................................................................60

Sifton v. Sifton, [1938] 3 All E.R. 435 (P.C. - Ont. )..............................................................76

T. G. Youdan, The Length of a Title Search in Ontario.....................................................96

Degrees and Regulatory Licences...........................................................................................138

CHAPTER THIRTEEN: MISAPPROPRIATION OF PERSONALITY....................................163

CHAPTER ONE: PROPERTY AS RIGHTS, NOT THINGS

The Categorization of Property in the Common Law

Real property (land)

Fourth dimension: Time

essential human need

4. property requires an institutional structure to enforce it (i.e. the state)

So, does property include the right to absolute possessions?

CHAPTER TWO: WHICH RIGHTS IN WHICH THINGS?

3) Utility: inspired by Jeremy Bentham. All social organisation should be guided by

Law and economics

It is important to distinguish between the substance of the information and the

The court uses the terms of quasi-property right

so as to not limit the economic incentives for research

o He had given consent to all these procedures

As Chakrabartys invention is not:

Subjects and Objects of Property Law

Patricia J. Williams, Alchemical Notes: Reconstructing Ideals from Deconstructed Rights

Dred Scott v. John F.A. Sandford (1856), 60 U.S. 393

Why is slavery relevant to property?

CHAPTER THREE: POSSESSION AND TITLE AT COMMON LAW

Had Post established possession by merely pursuing the fox? NO

First possession of a thing unowned

A reason for distinguishing, however, and to be careful in applying

T. W. Merrill, Property Rules, Liability Rules, and Adverse Possession

Adverse Possession: The Quality of Possession

Is the adverse possession open, exclusive, notorious and uninterrupted? NO

Adverse Possession and the Inconsistent Use Test: Judicial Repeal

Masidon Investments v. Ham (1984), 45 O.R. (2d) 563 (C.A.)

Teis v Ancaster (Town) (1997) 152 DLR (4th) 304

Possessory Title and Appurtenant Rights

Can the creation of value give rise to property rights?

CHAPTER FOUR: THE RIGHT TO EXCLUDE

Also look at Harrison v. Carswell

The Right to Free Speech

Justice Reed (dissenting)

o Is the public ordinarily admitted as of right?

The Right to Participate

o An injunction to stop the managers from closing the plant

J.W. Singer, The Reliance Interest in Property (1988)

CHAPTER FIVE: TENURE AND ESTATES

1100 AD tenurial rights must pass to heir

Present and Future Interests

The nature of Kiansky's remainder interest is of a right to a freehold interest in fee

Introduction to Conditional Estates

Vested v. contingent interests

Three types of conditional estates

If the condition is unclear or

o The condition is removed

the condition is invalid

The outcome is contingent on remainder rules of the common law

Defeasible fee simple

o Executed deed states: I give my land to B.

The testament must be interpreted according to the expressed intentions of the

Conditions and Uncertainty

Sifton v. Sifton, [1938] 3 All E.R. 435 (P.C. - Ont. )

Clayton v. Ramsden, [1943] A.C. 320 (H.L.)

Conditions and Public Policy