Property (Mickelson)Dec 2008

Chapter I – The Legal Concept of Land..........................................................................................4A. Cujus est solum ejus est usque ad coelum et ad inferos........................................................4

1. Ad Coelum........................................................................................................................... 4(a) Common Law.................................................................................................................. 4

Kelsen v. Imperial Tobacco Co. [1957] 2 All E.R. 343 (QB)..........................................4Bernstein (Lord of Leigh) v. Skyviews [1977] 2 All E.R. 902 (QB).................................4Manitoba v. Air Canada [1980] 2 S.C.R. 303................................................................4

(b) Legislation...................................................................................................................... 4Land Title Act R.S.B.C. 1996, c. 250............................................................................4

2. Ad Inferos............................................................................................................................ 5B. Fixtures................................................................................................................................... 5

Re Davis [1954] O.W.N. 187 (Eng HC).........................................................................5La Salle Recreations Ltd. v. Canadian Camdex Investments Ltd. (1969) 4 D.L.R. (3d) 549 (BCCA)................................................................................................................... 5

C. Water...................................................................................................................................... 51. Riparian Rights.................................................................................................................... 5

Water Act...................................................................................................................... 5Water Protection Act.....................................................................................................5

(a) The Development of BC Law..........................................................................................5H.A. Maclean article: "Historic Development of Water Legislation in BC".....................5

(b) The Conjunction of CL and Statutes...............................................................................6Johnson v. Anderson [1937] 1 D.L.R. 762 (BCSC).......................................................6Schillinger v. H. Williamson Blacktop & Landscaping Ltd. (No. 2) [1977] 4 B.C.L.R. 394 (S.C.), aff'd (1979), 8 B.C.L.R. 163 (C.A.)..............................................................6Steadman v. Erickson Gold Mining Corp. [1989] 35 B.C.L.R. (2d) 130 (CA)................6

Chapter II – The General Principles of Land Law...........................................................................7A. Real and Personal Property....................................................................................................7B. Reasons for Studying the Law of Real Property.....................................................................7

1. Dispositions – property can be "disposed of" through..........................................................72. Use of Land......................................................................................................................... 7

(a) Common Law.................................................................................................................. 7(b) Private Arrangements.....................................................................................................7(c) Legislation....................................................................................................................... 7

C. Some Basic Principles of Land Law........................................................................................71. Tenure................................................................................................................................. 72. Corporeal and Incorporeal Interests in Land and the Doctrine of Estates............................8

(a) Corporeal Interests.........................................................................................................8(i) Fee Simple................................................................................................................... 8(ii) Fee Tail....................................................................................................................... 8(iii) Life Estate................................................................................................................... 9(iv) Estate Pur Autre Vie...................................................................................................9(v) Leasehold Estates.......................................................................................................9

(b) Incorporeal Interests.......................................................................................................93. Legal and Equitable Interests..............................................................................................9

(a) Origin of Equitable Interests............................................................................................9(b) Development of the Use.................................................................................................9(c) The Statute of Uses........................................................................................................9(d) Emergence of Modern Trust.........................................................................................10

4. Freedom of Alienation........................................................................................................10(a) Freedom of Disposition.................................................................................................10(b) Restraints on Alienation................................................................................................10

(i) Direct Restraints.........................................................................................................10(ii) Fee Tails.................................................................................................................... 11

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(iii) Future Interests.........................................................................................................11(iv) Strict Settlements.....................................................................................................11

(c) Mechanics of Transfer..................................................................................................11(i) Establishing Good Root of Title..................................................................................11(ii) Methods of Transfer..................................................................................................11(iii) Modern System.........................................................................................................11

Chapter IV – Acquisition of Interests in Land................................................................................12A. Crown Grant......................................................................................................................... 12B. Inter vivos Transfer...............................................................................................................12

1. The Contract...................................................................................................................... 122. The Transfer – Form..........................................................................................................12

(a) Writing and Sealing.......................................................................................................12(b) Registration – Prescribed Forms..................................................................................12(c) Standard Forms............................................................................................................13

3. The Transfer – When Is It Operative?................................................................................13Ross v. Ross...............................................................................................................13Zwicker v. Dorey.........................................................................................................14MacLeod v. Montgomery.............................................................................................14

4. Transfer to Volunteers....................................................................................................14Pecore v. Pecore 2007 SCC 17..................................................................................14

(a) Pre Statue of Uses........................................................................................................14(b) Statute of Uses.............................................................................................................14(c) The Trust....................................................................................................................... 14

C. Wills or Intestacy...................................................................................................................15Tataryn v. Tataryn Estate [1994] 2 S.C.R. 807...........................................................15

D. Proprietary Estoppel.............................................................................................................15Chapter IX – The Fee Simple.......................................................................................................16

A. Creation................................................................................................................................ 161. Common Law..................................................................................................................... 162. Statute............................................................................................................................... 16

Tottrup v. Ottewell Estate [1970] S.C.R. 318..............................................................163. Problems of Interpretation – Repugnancy.........................................................................16

Re Walker [1925] 56 O.L.R. 517 (CA).........................................................................17Re Shamas [1967] 63 D.L.R. (2d) 300 (CA)................................................................17Cielin v. Tressider [1987] 14 B.C.L.R. (2d) 267 (CA)..................................................17

B. Words Formerly Creating A Fee Tail.....................................................................................171. The Common Law.............................................................................................................17

(a) Technical Words of Limitation.......................................................................................17(b) Informal Words of Limitation.........................................................................................17(c) The Rule in Wild's Case................................................................................................17

Chapter X – The Life Estate..........................................................................................................18A. Creation................................................................................................................................ 18

1. By Act of the Parties..........................................................................................................182. By Statute.......................................................................................................................... 18

(a) Introduction...................................................................................................................18(b) Estate Administration Act..............................................................................................18(c) Land (Spouse Protection) Act.......................................................................................18

B. Rights of a Life Tenant..........................................................................................................181. Occupation, Use and Profits..............................................................................................182. Transfer Inter vivos............................................................................................................183. Devolution on Death..........................................................................................................19

C. Obligations Of A Life Tenant To Those Entitled In Reversion or Remainder........................191. Waste................................................................................................................................ 19

(a) Permissive Waste.........................................................................................................19(b) Voluntary Waste...........................................................................................................19(c) Equitable Waste............................................................................................................19

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2. Liability for Taxes, Insurance, etc......................................................................................20D. Statutory Powers.................................................................................................................. 20

Chapter XII – Future Interests.......................................................................................................21A. Nature of Future Interests.....................................................................................................21B. Vested and Contingent Interests...........................................................................................21

1. Vested Interests.................................................................................................................212. Contingent Interests...........................................................................................................21

Browne v. Moody [1936] 2 All E.R. 1695 (PC)............................................................22Re Squire [1962] 34 D.L.R. (2d) 481 (HC)..................................................................22Re Carlson [1975] 55 D.L.R. (3d) 616 (BCSC)...........................................................22

C. Types of Future Interests......................................................................................................221. Common Law Future Interests...........................................................................................22

(a) Reversions.................................................................................................................... 22(b) Rights of Entry and Possibilities of Reverter.................................................................23

(i) Rights of Entry............................................................................................................23(ii) Possibilities of Reverter.............................................................................................23(iii) Consequences of the Distinction..............................................................................23

Re McKellar [1972] 3 O.R. 16 (HC), aff'd, [1973] 3 O.R. 178n (CA)............................24(c) Remainders...................................................................................................................24

(i) Defined and Illustrated...............................................................................................24(ii) Creation – Restrictive Rules......................................................................................24(iii) Destructibility of Contingent Remainders..................................................................25

2. Legal Executory Interests..................................................................................................253. Equitable Future Interests..................................................................................................25

(a) The Governing Rules....................................................................................................25(b) Creation of Equitable Interests......................................................................................25

Re Robson [1916] 1 Ch. 116 (Ch.D)...........................................................................26D. Attributes of Future Interests................................................................................................26

1. Protection of the Land........................................................................................................262. Alienability of Future Interests............................................................................................26

E. Registration of Future Interests.............................................................................................26Chapter XIII – Conditional and Determinable Interests.................................................................27

A. Crown Grants........................................................................................................................ 27B. Uncertainty............................................................................................................................ 27

Noble v. Alley [1951] S.C.R. 64...................................................................................27C. Restraints on Alienation........................................................................................................27E. Human Rights Legislation.....................................................................................................28

Canada Trust Co. v. Ontario (HR Commission) [1990] 69 D.L.R. (4th) 321 (Ont. CA)28

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Chapter I – The Legal Concept of Land Real property/realty (land) vs. personal property/personalty (anything else) Fixtures (part of land) vs. chattels (personal property)

A. Cujus est solum ejus est usque ad coelum et ad inferos"To whomsoever the soil belongs, that person owns also to the sky and to the depths"

1. Ad Coelum

(a) Common Law No clear determination on whether airspace can be owned CL cases: airspace goes up endlessly (Kelsen v. Imperial Tobacco), airspace divided into

public and private zones that will vary according to nature of property and its use (Bernstein v. Skyviews), airspace cannot be owned (Manitoba v. Air Canada)

Trespass vs. nuisance definition

Kelsen v. Imperial Tobacco Co. [1957] 2 All E.R. 343 (QB)F P's landlord allowed D to display advertisements on top of building that protrudes by

several inches. P alleged trespass, sought injunctionI Is a low-hanging, protruding sign a trespass? What relief is appropriate?H Is a trespass, not a nuisance; mandatory injunction grantedR Maxim holds true. Test for damages in lieu of injunction:

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

Bernstein (Lord of Leigh) v. Skyviews [1977] 2 All E.R. 902 (QB)F D took aerial photograph of P's house and offered it to P for sale. P alleged trespass into

his airspace and invasion of privacyI Is movement of plane through airspace considered trespass?H Not trespassR Maxim limited. Rights to airspace extend to height for "ordinary use and enjoyment";

above that, it is public space

Manitoba v. Air Canada [1980] 2 S.C.R. 303F Manitoba wanted Air Canada to pay taxes on aircraft that landed in or flew over provinceI Can airspace be owned?H NoR Airspace cannot be owned, but limitations can be put on who can occupy it

(b) LegislationLand Title Act R.S.B.C. 1996, c. 250

s. 139 states that airspace constitutes land and lies in grant (can be transferred in written document)

Not contradictory to CL cases; for sake of creating "air space parcels" for apartments (see Strata Property Act S.B.C. 1998, c. 43)

Not determinative on whether airspace can be owned and if so, to what height

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2. Ad Inferos Subsurface rights subject to certain prerogative rights in the Crown, terms and

reservations in original Crown grant, and extensive statutory restrictions

B. Fixtures"Quicquid plantatur solo, solo cedit" – "whatever is affixed to the soil belongs to the soil"

Re Davis [1954] O.W.N. 187 (Eng HC)F Calculating widow's claim to husband's real property. Home included bowling alleys,

question of whether these were to be included in calculation of dower interestsI Are the bowling alleys chattels or fixtures?H Chattels, not to be part of realtyR Test from Haggert v. The Town of Brampton et al – object is overriding consideration

If object is to improve freehold, even if only slightly affixed, part of realty If object is for better enjoyment of chattel, then not part of realty

La Salle Recreations Ltd. v. Canadian Camdex Investments Ltd. (1969) 4 D.L.R. (3d) 549 (BCCA)F Hotel installed rental carpet, defaulted and was foreclosed. Carpet company sought

damages from new owner.I Was carpeting fixture or chattel?H Became fixturesR Test from Stack v. Eaton:

1. If not attached to land, not considered part of land unless intended to be2. If even slightly affixed, part of land unless intended to be chattel3. Consider prima facie character – object and degree of annexation which is patent for all to see (objective test)4. Intention of person material only so far as can be presumed from degree and object of annexation

C. Water

1. Riparian RightsWater Act

Water Protection Act

(a) The Development of BC LawH.A. Maclean article: "Historic Development of Water Legislation in BC"

Riparian rights Rights relating to the use of water; taken from English CL Incidental right for every owner of real property bordering a stream to have water flow to

him in natural state, quantity, level and quality Rights remain whether exercised or not Entitled to make certain uses of water; not exclusive right, but subject to similar rights of

other riparian owners o No material injury to fellow riparian ownerso Not for uses unconnected to riparian property

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o If supply exhausted through ordinary use, cannot complaino Domestic purposes onlyo Restrictions on irrigation – "amount adjudged reasonable" and returned with "no

diminution other than that caused by evaporation and absorption"o Cannot grant use to another

In BC, statutory scheme has eroded CL riparian rightso Right to use and flow vested in Crowno Domestic use of unrecorded water (= not regulated under licenses) permitted

(b) The Conjunction of CL and Statutes No consensus on relation between CL rights and statute Riparian rights exist even without license: Johnson v. Anderson Only a license grants riparian rights: Schillinger v. H Williamson Blacktop Riparian rights exist except where explicitly denied: Steadman v. Erickson Gold Mining

Johnson v. Anderson [1937] 1 D.L.R. 762 (BCSC)F D diverted stream from P's property. P had no water license, D had license that did not

authorize diversion. P sought damages, demolition of works, injunction. Under new legislation (1925 changes to Water Act), no one has basic right to flow. Old version grants general right for all to use unrecorded water for lawful public or private access

I What happens when there are two unlicensed water users?H P can continue to use the water, can protect this right against another unlicensed userR Act pre-empts riparian rights, but does not remove them

Schillinger v. H. Williamson Blacktop & Landscaping Ltd. (No. 2) [1977] 4 B.C.L.R. 394 (S.C.), aff'd (1979), 8 B.C.L.R. 163 (C.A.)F P diverted water for fish hatchery. D's company altered course of water flow. Resultant

silt caused P's fish to die.I Did P have right to divert water? Can P claim damages from D?H No right to divert, cannot claim damagesR No CL riparian rights exist except those which are granted by license

Steadman v. Erickson Gold Mining Corp. [1989] 35 B.C.L.R. (2d) 130 (CA)F P had ground water piped to his house. D built road, caused contamination. I Can P claim damages from D, despite not having a license?H Yes, P's water use has domestic characterR Riparian rights exist except where explicitly stated that they do not

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Chapter II – The General Principles of Land LawA. Real and Personal Property

CL divides property into land or real property ("realty") and personal property ("personalty")

Historical separation between differing nature of these two types led to different transactions and disputes

B. Reasons for Studying the Law of Real Property Property is a fundamental concept within law Property law has not changed significantly over history Property law is one of the only areas that falls completely within CL

1. Dispositions – property can be "disposed of" through Inter vivos – transaction between living persons

o by saleo by gift

On deatho by willo according to the rules of intestate succession

2. Use of Land Restrictions and limitations on land use fall into three rough categories

(a) Common Law From law of torts: nuisance, trespass, negligence

(b) Private Arrangements From law of contracts: protecting interests of residential neighbourhood, for instance (e.g.

restrictive covenants)

(c) Legislation Federal and provincial statutory restraints in connection with air space, environment,

particular uses (e.g. agriculture) Municipal regulations exist e.g. zoning

C. Some Basic Principles of Land Law

1. TenureHistorical background

William the Conqueror took land unto himself, parceled it out among followers, who then parcelled it out amongst tenants, sub-tenants, etc.

This process was called sub-infeudation

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King never parted with absolute ownership – this remains theoretical basis in land law today that Crown is an absolute owner and that an individual cannot own land; instead, he can only have an interest in land

NB: What implications does this have for the aboriginal title claims? Particularly in BC, aboriginal right over territory has never been ceded

Tenure Two types of tenure: freehold and copyhold. Will only focus on former Freehold tenure divided into four types: knight-service (soldiers), socage (agriculture),

seargentry (divided into grand seargentry, equivalent of knight service and petty seargentry, equivalent to socage) and frankalmoin (religious)

These tenures eventually united into single tenure, socage Statute of Quiz Emptores 1290 prevented further sub-infeduation and required interests

be transferred Tenures Abolition Act 1660 abolished all incidents connected with socage except:

o Forfeiture – right for Clown to claim land of person guilty of high treasono Escheat – right of lord to claim land of tenant who died without anyone to

succeed his interest (= modern intestacy) or who committed a felony "Although the doctrine of tenure embodies the rules for allocating land rights and

corresponding obligations, it does not describe their duration. That is the function of the doctrine of estates."

2. Corporeal and Incorporeal Interests in Land and the Doctrine of Estates

Corporeal interests entitle a person to possession of land Incorporeal interests entitle a person to some rights in respect to a piece of land (e.g.

right of way)

(a) Corporeal Interests Landowners do not own land, but merely a time in the land, or more technically, "an

estate in the land" Five different types of estates:

o Fee simple – potentially without endo Fee tail – as long as there are descendantso Life estate – interest for one's lifetimeo Estate pur autre vie – interest for life of anothero Estate for a fixed period of time

(i) Fee Simple

Grant for as long as person has heirs of any type Ability to dispose of this interest inter vivos given in 1290 Statute of Quia Emptores Ability to dispose of this interest by will given in 1540 Statue of Wills

Result: equivalent of absolute ownership and an estate potentially without end, requiring only that proper steps be taken (i.e. preparation of will)

(ii) Fee Tail

Restrictions on who can inherit (e.g. think of Jane Austen novels: "to A and his male heirs" father's property cannot pass to daughters, goes to a distant cousin)

Abolished throughout North America (BC in 1921)

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(iii) Life Estate

Interest in land for lifetime of holder of estate, ends with death of holder Traditionally used in marriages so that surviving spouse has life estate that is divided

upon his/her death Not so common nowadays, estate usually passed onto spouse automatically

(iv) Estate Pur Autre Vie

Variation of life estate; based not on lifetime of holder of estate but on someone else's lifetime

(v) Leasehold Estates

For a fixed period of time Originally regarded not as an interest in land but as a contract Attempt to protect interests of lessees (e.g. Kelsen – airspace part of land/lease)

(b) Incorporeal Interests Include: easemenets, convenants, profits à prendre, mortgages

3. Legal and Equitable Interests

(a) Origin of Equitable Interests Disappointed litigants might appeal directly to King to seek justice Petitions dealt with by the Chancellor Court of Chancery (aka Court of Equity) grew out of this

(b) Development of the Use Holder of legal title held interest not for his own benefit, but for benefit of another Process known as "feoffment" Modern version: trust Example: A transfers fee simple in Blackacre to B "to the use of C"

o A is feofforo B is feofee to useso C is cestui que use ("he to whose use" the land is held)

Allowed someone to dispose of property after death before that right was legally recognized

Could be used to provide women with an independent means of support

(c) The Statute of Uses Statute of Uses 1535 "executed" (eliminated) the use Converted equitable title of cestui que use into legal title, thereby removing feoffee

o In above example, the fee simple would go from A to C and B would be removed Statute did not apply where a person was seised to his own use

o i.e. if land was transferred "to B in fee simple to the use of B in fee simple", B had both legal and beneficial ownership

If there were two uses, Statute did not execute second

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o i.e. A in fee simple to X to the use of B to the use of C – legal title would move to B

(d) Emergence of Modern Trust A transfers fee simple in Blackacre "unto and to the use of B in trust for C"

o A is settloro B is trusteeo C is beneficiary (cestui que trust)

In trust, legal title always remains with trustee Trustee may transfer legal title to third party as long as benefits go to beneficiary

What about equity? Example: A is holding Blackacre in trust for B, but A sells it to C who doesn't know it's a

trusto CL maxim nemo dat quod non habet ("no one may give that which one does not

have") C would not get anythingo Equity protects innocent parties – "bona fide purchasers for value without notice".

Fee simple would go to C, but B can bring a claim against A

Ct will consider the equitable doctrine of notice:o Express or actual notice – what the transferee really knowso Implied notice – what the transferee’s agent knowso Constructive notice – what a transferee ought to have known if s/he had made

the type of inquiries that a reasonable person ought to have made

Types of trusts Express trust – A transfers property to B with instructions that property be used for C’s

benefit Resulting trust – A transfers property to B with no payment; B presumed to hold property

in trust for A Constructive trust – Court imposes trust to redress injustice A resulting trust is presumed any time there is a transfer without valuable consideration Equity assumes that nobody wants to give away their property without benefit to them

4. Freedom of AlienationFacilitating the transfer of property

Freedom of disposition – power of current holder of property to dispose of property Limitations on restraints on alienation – limit power of owner to impose restraints on the

freedom of alienation of a transferee Mechanisms of transfer – simple and straightforward transfer process

(a) Freedom of Disposition

(b) Restraints on Alienation Restraints fall along a continuum; the more far-reaching, the more difficult to hold up in Ct (ii), (iii), and (iv) are limited by the Ct or by legislation

(i) Direct Restraints

Clauses that prohibit disposition are void

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Exception: restraints on the assignment of a leasehold interest are valid Example: Residential Tenancy Act prevents subletting without landlord's consent

(ii) Fee Tails

(iii) Future Interests

(iv) Strict Settlements

(c) Mechanics of Transfer

(i) Establishing Good Root of Title

Search of all documents relating to the property, going back 60 years (statute of limitations)

Had to be repeated with each subsequent transfer

(ii) Methods of Transfer

Livery of seisin – public, physical delivery of property Statute of Uses moved legal title regardless of whether there had been livery of seisin

(iii) Modern System

Registration of documents Introduced in BC in 1861 All documents relevant to a parcel of land are on file

Title registration BC has quasi-Torrens system Torrens system protects purchaser

o "Mirror principle": register of title reflects accurately and completely all estates/interests that may affect the land

o "Curtain principle": registry is only source of information for a prospective purchaser; all estates/interests that do not appear on title are irrelevant

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Chapter IV – Acquisition of Interests in LandA. Crown Grant

Right to take up to 1/20 of property (unused land) for public works All subsurface rights: oil, gas, minerals Right of someone with a valid water license to come onto land and exercise rights under

that license Right to take certain materials (e.g. gravel, stone, timber) for use in public works

B. Inter vivos Transfer

1. The ContractGeneral rule: s. 59 of the Law and Equity Act(3) A contract respecting land or a disposition of land is not enforceable unless:(a) there is, in writing signed by the party to be charged or by that party's agent, both an indication that it has been made and a reasonable indication of the subject matter

Requirements known as the "three Ps" – property, price, parties There must be a valid contract [implicit] There must be writing that indicates the contract has been made and gives a reasonable

indication of the subject matter [s. 59(7): writing can be sufficient even though a term is left out or wrongly stated]

Contract must be signed by the party being sued or that party's agent

Predecessor of s. 59 was s. 1(1) of the Statute of Frauds Contract must be valid Writing can take any form and must be signed; it need not have come into existence to

satisfy the statute and it may come into existence after the contract has been entered into Two documents, if they expressly or impliedly refer to each other, may be combined to

satisfy the requirements of the section

Ct have tried to devise ways around the Statute of Frauds; incorporated into: s. 59(3)(b): extension of doctrine of part performance s. 59(3)(c): reliance s. 59(5): power of Ct to order restitution or compensation

2. The Transfer – Form

(a) Writing and SealingProperty Law Act

s. 15(1): Land may be transferred in freehold only by an instrument expressed to transfer the land, but it is not necessary to use the word grant or any other term of art

s. 16: Instrument need not be executed under seal

(b) Registration – Prescribed Forms General requirement in Property Law Act is that a transferor deliver to a transferee a

registrable transfer To determine what is registrable, look at Land Title Act

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Land Title Act (LTA) s. 39: instrument sufficient to pass or create an estate or interest in land is registrable

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

page

(c) Standard Forms Form A is required to transfer a freehold estate

o Includes: ID of applicant, ID of property, market value, consideration, transferor, freehold estate transfer (e.g. fee simple, w/ or w/o conditions), transferees, execution

Relatively simple form, but qualified by other documents that preserve legal underpinnings

LTA s. 186 says Form A is deemed to be made under Land Transfer Form Act includes all the language in Column 1 and has the effect of the language in Column 2

3. The Transfer – When Is It Operative? Normally dealt with under contract law; becomes significant for gifts Under CL: deed takes effect immediately after "signed, sealed, and delivered" (intention

given) Under Torrens system: physical act

According to Part 3 of LTA Unregistered instrument does not pass estate s. 20 (1) Except as against the person making it, an instrument purporting to transfer,

charge, deal with or affect land or an estate or interest in land does not operate to pass an estate or interest, either at law or in equity, in the land unless the instrument is registered in compliance with this Act

Means that an instrument dealing with land does not operate to pass an interest, either at law or in equity, unless registered in compliance with the Act

"Except as against the person making it" – only that as between transferor and transferee, registration is not necessary for interest to pass

Example: A (registered owner) B (doesn't register) … A then C (does register)o Under CL: B is protected by doctrine of nemo dato Under Torrens: C's interest prevailso B is vulnerable to a third party. May have claim against A, but no claim against C

So when does interest pass?

Ross v. RossF Grandmother went to lawyer's office to prepare a deed conveying property to grandson;

deed executed, witnessed, but not recorded. Grandson not made aware until deed discovered in grandmother's purse after her death

I Should the non-delivered deed be considered valid?H YesR Physical delivery and recording not required; execution ("signed, sealed and delivered")

is delivery, as long as all requirements for being valid are metTransfer of property complete and immediately operative, though grandson not awareCt will attempt to fulfil intention of grantor (based on circumstances, behaviour)

Zwicker v. Dorey

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F Father conveyed lands to stepson (D) with clause it was not to be registered until father's death. Father then conveyed additional land to D. Then, conveyed promised lands to self and wife as joint tenants. Father died, another wife (P) claimed husband said he would give her everything

I Who is land conveyed to?H Title passes to PR A document operative upon death is not a deed but a testamentary document

Ct look at intention at time of transfer

MacLeod v. MontgomeryF Grandmother (A) executed transfer to granddaughter (R) as gift, with life estate reserved.

Transfer document given to R and duplicate title promised, but never actually turned over. R brought action to compel A to hand over duplicate title. Appeal brought

I Does the execution of the transfer constitute a complete or incomplete gift?H Incomplete giftR To complete a gift effectively, the donor is obliged to do what can be done

Equity cannot force a volunteer to complete that which is incomplete

4. Transfer to Volunteers Presumption of resulting trust: A B

o A has transferred legal title but retained equitable title. B holds in trust for A Presumption of advancement: Husband Wife or Father Child

o A has transferred title absolutely In recent years, presumption of advancement has been applied to transfers from parents

to children

Pecore v. Pecore 2007 SCC 17F Father created joint account with adult daughter to avoid capital gain taxes of regular

transfer. Daughter understood it as gift; father told bank not a gift. Father's will did not mention accounts. Daughter's ex-husband brought action during matrimonial property proceedings of divorce. Trial judge found father intended gift; CA dismissed appeal.

I Should a presumption of resulting trust or of advancement be applied here?H Presumption of advancement; account was gift. Appeal dismissedR Presumption of advancement should be limited to situations with minor children

Rothstein J: affection not significant; resulting trust protects elderly parents from making gifts each time child's name is added

Abella J: parental affection is about relationship, does not end when child becomes adult

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

transferee to prevent a resulting trust No need to use specific language to state gift; can use supporting documents Does not change presumption of resulting trust, just eliminates need for specific language

(a) Pre Statue of Uses

(b) Statute of Uses

(c) The Trust

C. Wills or Intestacy

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Acquisition of interests in land by will Wills Act ss. 3 & 4 set out basic requirements for validity of will with regard to form Very strict requirements in BC

o Writing: will must be in writing to be valido Signature: signed by testator or by another in his presence and by his directiono Witnesses: at least 2 must be present at same time when testator makes or

acknowledges signatureo Signature of witnesses: at least 2 must sign in presence of testator

Acquisition of interests in land by intestacy Estate Administration Act part 10 – "Distribution of Intestate Estate" s. 83: if intestate dies leaving a spouse but no issue, estate goes to spouse s. 84: if intestate dies leaving issue, subject to the rights of the spouse, if any, the estate

must be distributed per stirpes (= based on lines of descent) among the issue s. 85: if intestate dies leaving a spouse and issue

o (3) if net value of the estate is not greater than $65,000, estate goes to spouseo (4) if net value of estate is greater than $65,000, spouse is entitled to $65,000o (5) after payment of $65,000, the residue of the estate goes as follows:

a spouse and one child, 1/2 goes to spouse a spouse and children, 1/3 goes to spouse

Acquisition of interests in land by will or by intestacy Title to property does not vest in those named in the will or entitled to take on intestacy Instead, title vests in the personal representatives: the executor(s) named in the will or

the administrator appointed by the Ct in the case of intestacy (or where the will fails to name an executor)

Personal representative has responsibility to gather in all assets of the deceased and pay debts and taxes before transferring the property to those entitled to it

Acquisition of interests in land under the Wills Variation Act s. 2: despite any law or statute to the contrary, if a testator dies leaving a will that does

not, in the Ct's opinion, make adequate provision for the proper maintenance and support of the testator's spouse or children, the Ct may, in its discretion, in an action by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the testator's estate for the spouse or children

Grants significant amount of judicial discretion

Tataryn v. Tataryn Estate [1994] 2 S.C.R. 807F Husband left wife a life estate and made her a beneficiary of trust with second son as

trustee. After wife's death, estate would pass to second son. Wife and first son brought action under Wills Variation Act. Trial judge granted wife life estate, $10,000 gift to each son immediately, division of estate after wife's death: 1/3 first son, 2/3 second son. CA dismissed appeal.

I How should "adequate, just, and equitable" be interpreted and applied to adult independent children?

H Trial judge's order reinstated.R Should not use needs-based test; rather, consider legal and moral obligations

D. Proprietary Estoppel

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Chapter IX – The Fee Simple

A. Creation

1. Common Law Words of purchase: describe individual(s) who take an interest Words of limitation: describe interest that person is taking – "limits" of interest At CL, default position is that transfer created life estate To rebut that presumption, one had to use the formulation: "To B and his/her heirs" Example: "To A for life, remainder to the heirs of A"

o Appear to be two separate gifts: a life estate to A, remainder to A's heirso The Rule in Shelley's Case states you have to read "remainder to the heirs of A"

as words of limitation, not words as purchase i.e. read it as "To A and his/her heirs"

Rationale for this: importance of freedom of alienation (cannot determine who heirs are until A's death; constrains how property can be dealt with during A's lifetime) and allows Crown to take a cut (if A had life estate, heirs could take interest after death w/o paying taxes)

Rule of law, not of construction, so not discretionary Rarely arises in practice, limited application in Canada Remainder must be limited to A's indefinite line of succession, rather than a particular

group of heirs

2. StatuteProperty Law Act

s. 19(1): reversed CL, made it unnecessary to use "and his heirs" wording in order to transfer an estate in fee simple

s. 19(2) makes subsection (1) redundant: if you do not use words of limitation in an inter vivos transfer, there is a presumption you transfer the fee simple or greatest estate you have to give

Land Title Act, s. 186(4) to (8) says same thing Wills Act, s. 24 has similar provision applicable to wills

Tottrup v. Ottewell Estate [1970] S.C.R. 318F Twin brothers drafted identical wills leaving small amount to church and remainder to

each other. One brother dies, other does not change will to account for new property. Deceased's daughter claims that as an heir, she is entitled to more than 1/8.

I Since words of limitation are no longer necessary, is their inclusion significant?H No, meaning of will is clear. Daughter entitled to no more than 1/8.R Words of limitation are not necessary but their inclusion does not alter character or effect.

3. Problems of Interpretation – Repugnancy Series of cases in which Ct are attempting to determine what testator/trix intended when

he/she used certain language Two possible outcomes:

o Gift to first person named prevails; gift over fails as repugnanto Gift over prevails; person first named takes life estate only

Re Walker [1925] 56 O.L.R. 517 (CA)

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F Husband gives estate to wife, states if any remains upon her death (gift over), will be disposed of in a specified way

I Should gift prevail (gift over fail) or gift over prevail (person takes only life estate)?H Gift to wife prevails; gift over is repugnant and voidR Ct endeavour to give effect to wishes of testator by ascertaining predominant

testamentary intention and giving effect to it, rejecting subordinate intention as repugnant to dominant intention

Re Shamas [1967] 63 D.L.R. (2d) 300 (CA)F Husband gives estate to wife until youngest child reaches age 21. If wife remarries, she

will take share like children; if not, she will keep estate and will be divided among children upon her death.

I Should gift prevail (gift over fail) or gift over prevail (person takes only life estate)?H Gift over prevails; wife given life estateR

Cielin v. Tressider [1987] 14 B.C.L.R. (2d) 267 (CA)F Deceased bequeathed property and assets to partner, but stated that on sale or disposal

of real estate, proceeds be divided equally between her son and his childrenI Should gift prevail (gift over fail) or gift over prevail (person takes only life estate)?H Gift prevails; gift over is repugnant and void

B. Words Formerly Creating A Fee Tail

1. The Common Law

(a) Technical Words of Limitation

(b) Informal Words of Limitation

(c) The Rule in Wild's Case

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Chapter X – The Life Estate

A. Creation

1. By Act of the Parties Because life estate was the original form of grant, unless words of limitation were used, a

transfer "to B" gave B a life estate This presumption has been reversed by statute, so that the creation of a life estate

requires express language: "to B for life"

2. By Statute

(a) Introduction CL doctrines to protect the interests of one spouse when other died have been abolished

and been replaced by limited statutory protections

(b) Estate Administration Act s. 96: when one spouse dies intestate, the other is automatically entitled to a life estate in

the matrimonial home Privileges spouse over children

(c) Land (Spouse Protection) Act Applies when one spouse is the registered owner of land on which a residence used by

the spouses is located Spouse not on title may file an entry against the property at the Land Title Office s. 4: on death of spouse who is the owner, a life estate in favour of non-owning spouse

automatically arises Applies beyond intestacy and works even if there is a will

B. Rights of a Life Tenant

1. Occupation, Use and Profits Life tenant is entitled to possess and use the property, and/or annual income arising from

the property (e.g. rental income, interest arising from investment of personal property) In contrast, an equitable life tenant can benefit from property but not necessarily occupy it

2. Transfer Inter vivos Holder of life estate can assign his/her full interest to a third party, but only to the extent

of that interest (e.g. A can assign her interest to C, but only for her lifetime. Then C would have estate pur autre vie)

A can assign less than full interest (e.g. granting lease to C)o Problem is that lease can only be for what A has to give (e.g. A grants 10 year

lease, dies before 10 years, tenant is out of luck) Trust and Settlement Variation Act allows for modifications in certain circumstances

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3. Devolution on Death Rights of life tenant over property end when person's life ends. No power to dispose of

property by will An estate pur autre vie can pass by will or on intestacy

C. Obligations Of A Life Tenant To Those Entitled In Reversion or Remainder

1. Waste Set of rules and principles to address what powers the life tenant has over the property

(a) Permissive Waste Definition: damage that results from a failure to maintain the property Basic rule: Life tenant is not responsible for upkeep unless expressly made so by

document creating his/her interest

(b) Voluntary Waste Definition: damage that results from the activities of thelife tenant Basic rule: life tenant is not entitled to commit voluntary waste. If he/she does, may be

required to pay damages to those entitled in reversion or remainder Voluntary waste is i) anything that causes permanent damage to the land or ii) anything

that changes nature of land in any way, whether for better or worse

Exceptions Doctrine or "ameliorating waste" (or "improving waste) recognizes that in certain

circumstances, change can be non-damaging and might even improve the value of the property

o In these circumstances, those entitled in remainder or revision would not be able to get damages and would be unlikely to get an injunction

o This protects changes like renovations

NB: "reversion" remains with grantor; "remainder" given to third party

(c) Equitable Waste Law and Equity Act, s. 11: statutory form of doctrine of equitable waste in BC Problems in relation to waste can be dealt with advance by person creating life estate by

making life tenant "unimpeachable for waste" – removing restrictions imposed by doctrine of voluntary waste

In theory, this would leave life tenant with a lot of leeway, but Ct have imposed some limitations

Basic principle is that equity will not allow individuals to make unfair use of their legal rights

Classic case: Vane v. Lord Barnard (1716): father gave life estate in castle to himself and remainder to son; had falling out with son and proceeded to strip the castle. Court of Chancery granted injunction to prevent further damage to castle and ordered repairs

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2. Liability for Taxes, Insurance, etc. Insurance: life tenant under no obligation to insure for the benefit for those entitled in

remainder/revision – who should probably insure separately Taxes: In Mayo v. Leitovski, Ct held that life tenant is obligated to pay the annual taxes at

least up to the annual value of property

D. Statutory Powers Law relating to life estate provides default set of rules and principles to balance interests

of life tenants and those entitled in remainder Now frequently set up as a trust; trustee is supposed to balance these rights Trust and Settlement Variation Act also provides for some flexibility

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Chapter XII – Future InterestsA. Nature of Future Interests

Future interest: possession will or may be obtained at a future time

B. Vested and Contingent Interests Whether interest is vested or contingent will depend on words used in document creating

it and may require construction by the Ct If ambiguity, Ct prefer constructions which leads to a conclusion that an interest is vested

1. Vested Interests Vested "in interest": estate given to A without any precondition to A taking the estate Vested "in possession": A immediately entitled to possession of property

If unqualified and immediate transfer to A: A is vested in interest and possession If transfer made to B for life, remainder to A in fee simple: A is vested in interest but not

vested in possession. B invested in both interest and possession

Types of vested interests vested absolutely

o to A in fee simpleo Sabrina can go to a sleepover, Karin hopes she will behave

vested absolutely but possession postponedo to X for life, remainder to A in fee simpleo Sabrina can go to the sleepover, but not until she turns 10

vested, but subject to divesting (i.e. subject to condition subsequent)o to A in fee simple, but if A goes to a Canadian law school that grants a J.D., then

back to meo Sabrina can go, but if their mother calls and says she is misbehaving, Sabrina

will must come home Q. isn't this repugnant? A. no, condition is attached from beginning Q. Why is it you cannot say "to my wife unless she remarries" and yet

can say this? A. Ct put limitations on what conditions are recognized vested but determinable (i.e. subject to determinable limitation)

o to A in fee simple until A goes to a Canadian law school that grants a J.D., then back to me

o Sabrina can go until she starts misbehaving, then she must come home Distinction between this and previous: "if" vs. "when" Not a matter of belief in whether person will do something; limitation in

this one is built in contingent (i.e. subject to condition precedent)

o to A in fee simple if A goes to a Canadian law school that grants an LL.B.o Sabrina can go if she can she she's learned to act responsibly

2. Contingent Interests Contingent (i.e. non-vested in interest): dependent on occurrence of some event (i.e.

contingency) which may or not occur Subject to a "condition precedent" which must be satisfied before it can become a vested

interest

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An interest is contingent until:o property is identifiedo identity of the grantee or devisee is establishedo right to the interest (as distinct from the right to possession) does not depend on

the occurrence of some event (i.e. no condition precedent)

Browne v. Moody [1936] 2 All E.R. 1695 (PC)F Testatrix left sum of money to son for life, to be divided amongst descendants on his

death. SCC said contingent interest, appeal to Privy CouncilI Are descendents' interest vested, and if so, is it liable to be divested?H Interests vested, subject to divesting if descendents predeceased testatrix's sonR Ct prefers early vesting, subject to divesting over contingent interests

Re Squire [1962] 34 D.L.R. (2d) 481 (HC)F Grandmother had trustees hold properties in trust until two grandsons reached age 30,

but trustees could grant 700/yr for school expenses if necessaryI Do grandsons have vested interest (can take out at age 21) or contingent interest (must

wait to age 30)?H Vested interestR Interest is vested unless condition precedent to vesting is expressed with reasonable

clearness

Re Carlson [1975] 55 D.L.R. (3d) 616 (BCSC)F Father's will left estate for younger son's use until age 21, then 45% to him, 45% to daughter, 10% to other sonI Are gifts to other two children vested at the death of father or are the gifts contingent

(when younger son reaches age 21)?H Gifts are contingent b/c amount cannot be knownR Ct look at principal intention of testator

Two other notable cases Phipps v. Ackers: To A if she reaches age 21, but if she does not reach that age, to B

o Seems to be a contingent interest, but treated as a vested interest subject to being divested if A does not reach age 21

o Ct viewed gift to A as primary goal Festing v. Allen – Ct rejected this approach in analogous situation

C. Types of Future InterestsFuture interests can be divided into two broad categories, legal and equitable interestsLegal interests can be further subdivided into common law and legal executory interests

1. Common Law Future InterestsAssume these can only arise in inter vivos transfers w/o the interposition of trustees

(a) Reversions Definition: the interest that remains with someone who has made a partial disposition of

the property Example: A to B for life

o B has vested life estate; A has reversion in fee simple Reversion is always vested

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(b) Rights of Entry and Possibilities of Reverter

(i) Rights of Entry

Definition: interest that arises when a transferor conveys an apparent absolute interest but adds a condition subsequent which will divest the interest of the transferee in favour of the transferor and his/her heirs

Example: A to B in fee simple, but if B marries C, then Blackacre is to be returned to A and her heirs

o B has vested interest (fee simple) subject to condition subsequento A has right of entry but not diversion b/c no guarantee that B will marry C

Right of entry is a contingent interest (i.e. A may or may not get Blackacre back)

(ii) Possibilities of Reverter

Definition: interest that arises when a transferor conveys a determinable fee simple by limiting the duration of the estate (using "words of limitation")

Example: A B in fee simple until B marries Co B has determinable fee simpleo A has possibility of reverter

Possibility of reverter is a contingent interest

(iii) Consequences of the Distinction

Similarities Both subject to application of Rule Against Perpetuities – Ct limit interests in future by

saying interest must vest within certain length of time Both can be registered Both subject to same 6 year limitation period

Differences Ct more willing to accept limitations through determinable interests than through

conditions subsequent (b/c if condition in determinable interest is invalid, the gift as a whole fails; if a condition subsequent is invalid, the gift takes effect w/o the condition)

At CL, both rights of entry and possibilities of reverter could only arise in favour of the grantor and his/her heirs

o By statute [s. 8(2) of PLA], rights of entry can now be made exercisable by any person

o No reference to possibility of reverter – this is still imited to grantor May be a difference with regard to ability to assign the interests

o s 8(1) PLA and s. 2 Wills Act provide that contingent, executory or other future interests can be disposed of.

o Then go on to mention rights of entry specifically, which raises the question of whether possibilities of reverter are not included.

o Note that in the Westsea Construction case (1995 B.C.S.C.) Boyle J. in obiter stated that possibilities of reverter are transferable.

Difference in the way in which the interest of the transferee terminateso With determinable interest, interest terminates automatically in the event of the

determining event occurringo With condition subsequent, estate does not terminate until a claim is actually

made, i.e. when right of entry actually exercised.o More significant in theory than in practice, given that same limitation period

applies to both.

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Re McKellar [1972] 3 O.R. 16 (HC), aff'd, [1973] 3 O.R. 178n (CA)

(c) Remainders

(i) Defined and Illustrated

Definition: future interest meeting two qualificationso Possession is postponed until some prior freehold estate expireso Remainder does not operate so as to prematurely terminate that prior estate

Example: A to B for life, then to C in fee simpleo B has life estateo C has remainder in fee simple

At CL, this was the only type of future interest that could be created in favour of a third party

Remainders can be vested or contingent

(ii) Creation – Restrictive Rules

At CL, creation of remainders was subject to 4 extremely stringent rules As a result of statutory modification in BC, these have been reduced to 2 ½ First two rules based on CL doctrine of seisin: prohibited "springing" interests Last two rules based on proposition that only the grantor could take advantage of a right

of entry or reverter: prohibited "shifting" interests

The rulesRule 1 – Remainder must be supported by prior estate of freehold, created by the same document. Still applies

To A for life, remainder to B in fee simpleo Valid b/c A's prior estate supports the remainder interest of B in fee simple.

To my first grandchild to obtain an LL.B.o CL response was that there was no prior supporting estate, automatically void.

Rule 2 - In order for a remainder to be valid at the outset, it must be at least possible that the holder of the remainder will be in a position to take possession at the termination of the prior estate. Still applies.

No problem if remainder is initially vested in interest.o To A for life, remainder to B in fee simpleo Valid; clearly B will be in a position to take possession on A’s death.

In the case of a contingent interest, there has to be a possibility that the condition precedent will be satisfied prior to termination of the prior estate.

o To A for life, remainder to my first grandchild to obtain an LL.Bo Valid; it is possible that a grandchild will have obtained a LL.B. degree prior to

A’s death There cannot be a gap.

o To A for life; 2 years after A’s death, to B in fee simpleo Void; there will inevitably be a gap between A’s life estate and B’s fee simple

Rule 3 – Attempt to create a remainder is void at the outset if the remainder operates to prematurely terminate prior estate. No longer applies.

Precludes giving a right of entry to a third party (recall that at common law, right of entry could operate only in favour of grantor)

o To A for life, but if she goes to law school, to B. Void.

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Under s. 8(2) of the PLA, can now make right of entry in favour of third parties, thus rule 3 no longer applies

Rule 4 – Remainder after a fee simple is void. Half no longer applies. Based on the idea that once you’ve given a fee simple away, it’s gone and you can’t

create an interest in favour of third parties.o To A in fee simple, but if she goes to law school, to Bo To A in fee simple until she goes to law school, then to Bo Both void at common la

Again, s. 8(2) provides that a right of entry can operate in favour of a third party. Half of Rule Four therefore no longer applies

o To A in fee simple, but if she goes to law school, to Bo Valid because of s. 8(2)

Half of Rule Four still applies: after a determinable fee simple cannot create a possibility of reverter in favour of a third party

(iii) Destructibility of Contingent Remainders

If a remainder is vested in interest, nth can affect it If a remainder is contingent, it can be destroyed if the prior supporting state comes to an

end and the contingency is not yet satisfied

Natural Termination Example: To A for life, remainder to B if B obtains a LL.B. A is 30; B is 15. Valid at the outset; certainly possible that B will obtain LL.B. before prior estate comes to

an end If A dies and B hasn’t obtained the degree, the remainder is destroyed and title goes

back to grantor

Premature or Artificial Termination Possible to manipulate things so as to deprive the remainder of its prior supporting estate

Avoiding destruction No way of preventing the artificial destruction of a contingent remainder in BC English legislation has dealt with the issue of natural termination of a prior supporting

estate, but there is nothing in BC to deal with this issue

2. Legal Executory Interests

3. Equitable Future Interests

(a) The Governing Rules Use of a trustee eliminated problems with regard to "springing" interests, since legal title

remained with the trustee With "shifting" interests, Courts of Equity gave grantors almost complete flexibility,

allowing them to circumvent CL restrictions

(b) Creation of Equitable Interests Can be created through a trust arrangement (inter vivos or in a wall) In the absence of a specific trust arrangement, Re Robson provides a strong argument

that any future interests in a will should be treated as equitable

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Re Robson [1916] 1 Ch. 116 (Ch.D)F Testator devised land to daughter Helen for life, remainder to children of Helen who

obtain age of 21. At Helen's death, of her 4 children, 2 were over 21 and 2 were underI Whether children who had reached age 21 took to the exclusion of those who had notH No, not entitled to land to exclusion of infantsR Title goes to personal representatives of deceased who act as trustees for beneficiaries

or those entitled to take on intestacy

NB: Similar provisions of the Estate Administration Act: ss. 77, 78, 79. Re Crow [1984] 12 D.L.R. (4th) 415 (Ont. HC) potentially problematic: treated interests in

a will in terms of the law relating to legal executory interests rather than equitable interests. Re Robson was not cited, and one might try to argue that the case was decided per incuriam

D. Attributes of Future Interests

1. Protection of the Land

2. Alienability of Future Interests

E. Registration of Future Interests

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Chapter XIII – Conditional and Determinable Interests

Types of qualifications that can be imposed Condition subsequent, which operates as a divesting provision Condition that sets the limits to the interests/causes the interest to determine (i.e.

determinable interest) Condition precedent, which must be satisfied before the interest can vest

Consequences of invalidity Condition subsequent: gift is absolute Condition attached to determinable interest invalid: gift fails Condition precedent invalid: gift fails

Influence on approach taken by courts to interpretation Conditions subsequent: courts far more willing to subject conditions to strict scrutiny,

because it will not destroy the gift Determinable interests: courts more flexible—presumably it is preferable to subject the

transferee to questionable conditions than to leave him or her without any interest at all Also, courts sometimes willing to read determinable interests as absolute interests

subject to a condition subsequent in order to save gifts that would otherwise be invalid Conditions precedent: courts have been quite lenient; valid “unless the terms of the

condition or qualification are such that it is impossible to give them any meaning at all, or such that they involve repugnancies or inconsistencies in the possible tests which they postulate.” [In Re Allen, 1953 decision of the English C.A.]

A. Crown Grants

B. Uncertainty Most cases involve qualifications of three types—the three Rs: race, religion, residence Often said to fail b/c of uncertainty

Noble v. Alley [1951] S.C.R. 64F Developer attempted to purchased land for private summer resort; each transfer included

restrictive covenant prohibiting transfer to any person of color. Purchaser sought court order declaring clause invalid. Ont. HC held clause not uncertain, did not constitute an invalid restraint on alienation, not void as being contrary to public policy. Judgement affirmed on appeal, then appealed to SCC.

I Can the clause be upheldH Fails b/c uncertainty of whether a proposed purchaser is/not within banR Test for conditions from Clavering v. Ellison [1859] (Engl HL): a condition "must be such

that the Ct can see from the beginning, precisely and distinctly upon the happening of what event it was that the preceding vested estate was to determine"

C. Restraints on AlienationRestraints on alienation

First approach: as a matter of principle, restraints on alienation ought to be invalid and Ct ought not to extend restrictions that have already been accepted

Second approach: as a matter of pragmatism – Ct should be asking "does this represent a substantial restriction on alienation"

Mickelson says Ct tend to favour #2 to avoid the moral judgments in #1

Restraints on marriage

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Ct have to balance the wishes of the transferor against the interests of the transferee, as well as public interest in maintaining family relationships, preserving personal autonomy, etc.

Absolute restraints are invalid; partial restraints may be acceptable Ct have been willing to inquire into motives of transferor

E. Human Rights LegislationPublic policy: direct application

Human rights legislation may apply directly BC Human Rights Code provides that one cannot discriminate (on a number of

enumerated grounds) in situations involving the acquisition of property interestso s. 9: acquisition generally; not clear whether applies to giftso s. 10: rental situation

Land Title Act s. 222: prohibits discriminatory covenants (e.g. would deal with Noble v. Alley)

Note that many covenants are still reflected on title; void, but aren't struck out until property changes hands

Public policy: general arguments When facts do not fall within provision of human rights legislation, to what extent can we

take human rights provisions into account in formulating general arguments regarding public policy?

Canada Trust Co. v. Ontario (HR Commission) [1990] 69 D.L.R. (4th) 321 (Ont. CA)F Trust established to provide "Leonard Scholarships" for white raceI Can a trust premised on notions of racism and discrimination be upheld?H NoR Charitable trusts contrary to public policy cannot be upheld

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