952 A PROPERTY LAW READER

Transcription

1 INDEX - A - ABANDONMENT chattels, of, easements, of, 778 ABORIGINAL PROPERTY RIGHTS Australian law of, 12-9 bona fide purchasers for value and, common law recognition of, rules for, communal nature of, 391, 399, 428, 431, 453, 457 conceptions of, 77-96, conditional transfers and, 539 constitutional protection for, 391-2, 396-7, 402-4, 405, 410, 411, 413, 414, 415, 417-8, 428, , 432-3, 435, 439, 441 content of, , copyright and, critique of law concerning, duty to accommodate and, 411, 412, 413, 415, 418, 430, 432-3, duty to consult and, 395, 413, 415, 418-9, 430, , 436, extinguishment of, 391, 395, 413-4, 417, fiduciary obligations and, 393, 399, 410, 412-3, 415, 417, 419, 428, 429, 430-3, 445, 520, 522-5, 888 finders law and, honour of the Crown and, 430, 433, 440, infringements of, , land registration and, 419, 451, legal traditions of, 75, Nisga a Final Agreement and, possession (or occupation) and, 397, 398, 399, 400, 402, 403, 404-9, 412, 414, 415, 417, 418, 419, 420-8, 431, 435, 437, 438, 439, 440 proof of, 403-9, reserves, and, 214, , 451, 454 Royal Proclamation, 1763, 391, 393-4, 398, 428, 435, 437, 453 site-specific claims of, 402-3, 409 sui generis nature of, 354, 395, 396, 397, 398-9, 400, 401, 417, 418, 429, 439, 519 waste and, 401 water boundaries and, ACCESS TO PUBLIC AND PRIVATE PROPERTY, , ACCESSION animals and, 243 nature of, principal chattel and, 239, 242 tests for, 242 ACCOUNTING AMONG CO-OWNERS (see also PARTITION AND SALE),

2 952 A PROPERTY LAW READER ACCRETION (see WATER) AD MEDIUM FILUM AQUAE RULE (see WATER) ADOPTION OF ENGLISH LAW (see RECEPTION OF ENGLISH LAW) ADVANCEMENT, PRESUMPTION OF (see also RESULTING TRUSTS; TRUSTS), 477, ADVERSE POSSESSION chattels and, colour of title, entry under, and, crown lands, on, 314 elements of, inconsistent use, test of, and, , purposes of, AGREEMENT FOR A LEASE, 615, 643 AIRSPACE, ALBERTA BILL OF RIGHTS (see also PROTECTION OF PROPERTY FROM STATE CONFISCATION), 139 ALBERTA PERSONAL PROPERTY BILL OF RIGHTS (see also PROTEC- TION OF PROPERTY FROM STATE CONFISCATION), 139 ALIENABILITY (see RESTRAINTS ON ALIENATION) ALLODIAL LAND, 97, 98 ALTERATION (see SPECIFICATIO) ANIMALS accession and, 243 animus revertendi and, 294, 295 possession of, wild, qualified property in, 14, 292 ANTICOMMONS, TRAGEDY OF THE, 40-1, 73, 279, 280 ASSURANCE FUND (see TORRENS TITLE) - B - BAILMENT bailee s obligations under, 672-3, 674 bailor s obligations under, constructive, 678 contributory negligence and, 674-5, 677 exculpatory clauses and, 673-4, fungibles, of, licences distinguished from, 661, 676 nature of, onus of proof and, 677 possession and, sub-bailment and,

3 INDEX 953 BAILMENT Continued types of, 670, BENEFIT AND BURDEN PRINCIPLE, 820, , 832-3, 834, 835 BODY PARTS, PROPERTY IN, BONA FIDE PURCHASER FOR VALUE WITHOUT NOTICE (see also FRAUD, PRIORITIES AND; NOTICE, PRIORITIES AND), 800, 878, 882-3, 891-2, 893, 897, 908, 910, 912, 934, 935 BONA VACANTIA, 359 BOOK DEBTS, ASSIGNMENT OF, 872 BOUNDARIES (see also ADVERSE POSSESSION; AIRSPACE; SUBSUR- FACE, OWNERSHIP OF) conventional line doctrine, and, 209, improvements, effect on, 213 land bounded by land, for, land bounded by water, for, legal descriptions of, Torrens title and, 939 BROWNE v. FLOWER, RULE IN, 630, 632, 636, 639 BROWNE v. MOODY, RULE IN (see also VESTING, PREFERENCE FOR), BUILDING SCHEMES (see COVENANTS) - C - CANADIAN BILL OF RIGHTS (see also PROTECTIONS AGAINST STATE CONFISCATION OF PROPERTY), , 143 CANADIAN CHARTER OF RIGHTS AND FREEDOMS (see also PROTEC- TIONS AGAINST STATE CONFISCATION OF PROPERTY) protection of property and, 75, 138-9, 140 public policy and, 551, 552 public property and, , 783, 784, CAPTURE, RULE OF (see ANIMALS; OCCUPANCY THEORY) CAUTION, MEANING OF, 939 CAVEAT EMPTOR, 878 CAVEATS, MEANING OF, 939 CAVES, OWNERSHIP OF, CESTUI QUE USE, MEANING OF (see also USES), 462 CESTUI QUE VIE, MEANING OF, 365 CHANCELLOR (see EQUITY) CHANCERY (see EQUITY)

4 954 A PROPERTY LAW READER CHARGE (see also MORTGAGES) floating, 872 nature of, 708, 855-6, 871 CHATTEL MORTGAGE, 872 CHATTELS, MEANING OF (see also CHOSES IN ACTION; CHOSES IN POSSESSION), 111 CHATTELS REAL, 112, 115, 605 CHOSES IN ACTION, 113, 721, 722 CHOSES IN POSSESSION, 113, 173, 336 CLOGS ON THE EQUITY OF REDEMPTION (see EQUITY OF RE- DEMPTION) COASE THEOREM (see also ECONOMIC ANALYSIS OF PROPERTY LAW), 186-8, 269 COLLECTIVE PROPERTY (see COMMON PROPERTY) COMEDY OF THE COMMONS, 121, 126 COMMINGLING (see CONFUSION OF FUNGIBLES) COMMON PROPERTY, MEANING OF (see also SHARED OWNERSHIP, ALTERNATIVE CONCEPTIONS OF; TRAGEDY OF THE COMMONS), 3, COMMUNAL PROPERTY (see COMMON PROPERTY) CONCURRENT OWNERSHIP (see CONDOMINIUMS; JOINT TENANCY; SHARED OWNERSHIP, ALTERNATIVE CONCEPTIONS OF; TENANCY IN COMMON) CONDITIONAL GRANTS, COVENANTS AND, 820, 826-7, CONDITIONAL SALES AGREEMENT, 872 CONDITIONS PRECEDENT, MEANING OF, 531 CONDITIONS SUBSEQUENT, MEANING OF, 535 CONDOMINIUMS, 180-1, CONFUSION OF FUNGIBLES, CONFUSION, TRADE-MARKS AND (see TRADE-MARKS) CONSERVATION EASEMENTS, CONSTITUTION, PROPERTY AND THE (see ABORIGINAL PROPERTY RIGHTS; CANADIAN CHARTER OF RIGHTS AND FREEDOMS; PRO- TECTIONS AGAINST STATE CONFISCATION OF PROPERTY) CONSTRUCTION, RULE OF, 364-5, 376 CONSTRUCTIVE BAILMENT (see BAILMENT) CONSTRUCTIVE DELIVERY, 341, 350

5 INDEX 955 CONSTRUCTIVE POSSESSION, 294, 300, 302, 314, 323, 423 CONSTRUCTIVE TRUSTS (see also TRUSTS; UNJUST ENRICHMENT) institutional, 487, licences and, 657, nature of, remedial, CONTINGENT INTERESTS, MEANING OF (see also PERPETUITIES, RULE AGAINST), 531 CONVENTIONAL LINE DOCTRINE, 209, CONVERSION, TORT OF, 14, 53, 54-69, 76, 112, 227, 228, 231, 273, 285, , 292, 314, 315, 666 CO-OWNERSHIP (see COMMON PROPERTY; CONDOMINIUMS; JOINT TENANCY; SHARED OWNERSHIP, ALTERNATIVE CONCEPTIONS OF; TENANCY IN COMMON) COPARCENARY, 695, 697 COPYHOLD TENURE, 100, COPYRIGHT Aboriginal rights and, nature of, 7, 111, news and, 7, 43, 44, 46, 50, 51 COVENANTS benefit and burden principle and, 820, , 832-3, 834, 835 benefits of, running of, at law, running of, in equity, building schemes and, 801-3, burdens of, running of, at law, running of, in equity, competition and, conditional grants, covenants and, 820, 826-7, conservation, and, 798, 800, modification of, nature of, positive, termination of, CROWN LAND (see PUBLIC PROPERTY) CUJUS EST SOLUM EJUS EST USQUE AD COELUM ET AD INFEROS (see also AIRSPACE; SUBSURFACE, OWNERSHIP OF), 175, 177, 182, 191, 193-4, 195 CURTESY, 389, 390 CYBERSPACE (see also TRESPASS),

6 956 A PROPERTY LAW READER - D - DE FACTO TAKINGS (see EXPROPRIATION; PROTECTION OF PROP- ERTY FROM STATE CONFISCATION) DE SOTO, HERNANDO, 36-7, DEDICATION, DOCTRINE OF, 760, 761-3, 766, 767 DEEDS REGISTRATION (see REGISTRATION OF TITLE) DEFEASIBLE INTERESTS (see CONDITIONS SUBSEQUENT, MEANING OF) DELIVERY, MEANING OF (see GIFTS) DETERMINABLE INTERESTS creation of, 535, effect of invalidity on, 540 DISTRESS FOR RENT leaseholds, for, 640 rentcharges, for, 836 DONATIO MORTIS CAUSA (see also GIFTS), 345, 346-7, 348, 351, 706 DOWER (see also HOMESTEAD LAWS) abolition of, 390 common law right to, statutory forms of, 359, 390 DUTIES, OWNERSHIP AS INVOLVING, E - EASEMENTS (see also PRESCRIPTION) abandonment of, 778 condominiums and, conservation, creation of, estoppel and, 759, 764-5, 767 location of, nature of, 751, necessity, easements of, 757, 764-9, 778 possession and, 753, scope of, 769 termination of, 778 Torrens title and, 940, Wheeldon v. Burrows, rule in, and, ECONOMIC ANALYSIS OF PROPERTY LAW (see also COASE THEO- REM; ECONOMIC EFFICIENCY, PROPERTY AND; TRANSACTION COSTS) animals and, 296 basic elements of, 30, 36-8 mortgages and, 873

7 INDEX 957 ECONOMIC EFFICIENCY, PROPERTY AND (see also COASE THEOREM; ECONOMIC ANALYSIS OF PROPERTY LAW), 186-9, ENTAIL (see FEE TAIL) EQUITABLE INTERESTS (see CONSTRUCTIVE TRUSTS; RESULTING TRUSTS; TRUSTS; USES) EQUITY (see also CONSTRUCTIVE TRUSTS; TRUSTS; UNJUST EN- RICHMENT; USES) conflict between law and, 469 Court of Chancery and, 461, fusion of law and, mortgages and, origins of, women, history of and, EQUITY OF REDEMPTION (see also MORTGAGES) clogs and fetters on, 850, nature of, 708, 850, 851-2, 856-9, 865, 866, 867, 868, 879 origins of, 112-3, 844, ESCHEAT, 100, 101, 105 ESTATES, DOCTRINE OF (see also FEE SIMPLE; FEE TAIL; FREEHOLD ESTATES; LIFE ESTATE) meaning of, 353, personal property and, ESTOPPEL conventional line doctrine and, 211 easements and, 759, 764-5, 767 licences and, EVICTION, 607 EXCLUSION, PROPERTY OWNER S RIGHT OF (see also ACCESS TO PUBLIC AND PRIVATE PROPERTY), 6-29 EXCLUSIVE POSSESSION (see LEASES; POSSESSION) EXCLUSION PROPERTY, EXCULPATORY CLAUSES (see BAILMENT) EXECUTORY INTERESTS, 575-6, 577, 578, 579, 581, 582, 583, 587, 592, 593, 599 EXPRESS TRUSTS (see TRUSTS) EXPROPRIATION (see also PROTECTION OF PROPERTY FROM STATE CONFISCATION), 137, 138, 140-1, 143-4, , 195, 410, 439, F - FAMILY PROPERTY, , 723-6

8 958 A PROPERTY LAW READER FEE SIMPLE language of creation for, nature of, 104-5, 109, 356, FEE TAIL decline of, 379 nature and functions of, 104, 356-7, FEOFEE TO USES, MEANING OF, 462 FEUDALISM, PROPERTY LAW AND, FIDUCIARY DUTY (see also ABORIGINAL PROPERTY RIGHTS), 54, 57, 59, 68, 69, , 338, 393, 399, 410, 412, 413, 415, 417, 419, 428, 429, 430-3, 445, 479, 487, 510, 512-4, 520, 522-5, 888 FINDERS Aboriginal artifacts and, employees as, 321, 326 general rules governing, historical resources, and, FIRST OCCUPANCY (see OCCUPANCY THEORY) FIXTURES agricultural, 227 chattels, distinguished from, security interests and, tenants, FLOATING CHARGE, 872 FORECLOSURE (see MORTGAGES) FRANKALMOIN, 99 FRAUD, PRIORITIES AND (see also BONA FIDE PURCHASER FOR VA- LUE WITHOUT NOTICE), 879, 880-1, 882, 892, 898, 899, 902, 903, 905, , 915, , 932, 934-6, 940, 949 FREE AND COMMON SOCAGE (see SOCAGE) FREE TENURES (see also FREEHOLD ESTATES), 99, 104 FREEDOM, PRIVATE PROPERTY, AND, 29, 30, 33-4 FREEHOLD ESTATES MEANING OF (see also ESTATES, DOCTRINE OF; FEE SIMPLE; FEE TAIL; LIFE ESTATE), 353, 356 FUSION OF LAW AND EQUITY (see EQUITY) FUTURE INTERESTS (see CONDITIONS SUBSEQUENT, MEANING OF; CONTINGENT INTERESTS, MEANING OF; DETERMINABLE INTER- ESTS; REMAINDER, MEANING OF; REVERSION, MEANING OF) - G - GENERAL PUBLIC LICENSE (GPL), 692, 735,

9 INDEX 959 GIFTS (see also DONATIO MORTIS CAUSA) bargains contrasted with, basic requirements for, between family members, constructive delivery and, 341, 350 delivery requirement for, , Strong v. Bird, rule in, and, 349 symbolic delivery and, 348, 350 GOOD-FAITH PURCHASER (see BONA FIDE PURCHASER FOR VALUE WITHOUT NOTICE) GOVERNANCE PROPERTY, GROSS OVERRIDING ROYALTY (see OVERRIDING ROYALTY) - H - HALSALL v. BRIZELL, DOCTRINE OF (see BENEFIT AND BURDEN PRINCIPLE) HARRIS v. FLOWER, RULE IN (see also EASEMENTS), 777 HEIRS, MEANING OF, 359, 362, HERITAGE SERVITUDES (see CONSERVATION EASEMENTS) HIRE-PURCHASE AGREEMENTS, 872 HISTORY OF PROPERTY LAW, HOMELESSNESS, 116-9, HOMESTEAD LAWS, 390 HUTTERITE COLONIES, 735, I - IMPOSSIBILITY, INVALIDITY BASED ON, IMPROVEMENTS ON ANOTHER S LAND, 213 IN PERSONAM EXCEPTION TO INDEFEASIBILTY (see TORRENS TI- TLE) IN PERSONAM, RIGHTS (see also TORRENS TITLE), 112, 114 IN REM, RIGHTS, 112, 114 INCIDENTS OF TENURE, INCONSISTENT USE, TEST OF (see ADVERSE POSSESSION) INCORPOREAL HEREDITAMENTS, 780, 781, 782, 836 INDIVIDUAL OWNERSHIP (see PRIVATE PROPERTY) INTANGIBLE PROPERTY (see CHOSES IN ACTION; COPYRIGHT; IN- CORPOREAL HEREDITAMENTS, PATENTS; TRADE-MARKS)

10 960 A PROPERTY LAW READER INTELLECTUAL PROPERTY (see COPYRIGHT; PATENTS; TRADE- MARKS) INTER VIVOS GIFTS (see GIFTS) INTERMIXTURE (see CONFUSION OF FUNGIBLES) INVESTEMENT TREATIES (see PROTECTION OF PROPERTY FROM STATE CONFISCATION) - J - JOINT BANK ACCOUNTS, JOINT FAMILY VENTURE (see also CONSTUCTIVE TRUSTS; UNJUST ENRICHMENT), 501-5, 508, 509 JOINT TENANCY (see also ACCOUNTING AMONG CO-OWNERS; PAR- TITION AND SALE; SEVERANCE) creation of, jus accrescendi (or survivorship) and, 691, 694-5, 702, 703, 704, 705, 707, 709, 718, 720, 721, 722, 725, 726 nature of, personal property, of, rights and responsibilities under, 694-5, severance of, 694, 701-9, 722, 726 survivorship (or jus accrescendi) under, 691, 694-5, 702, 703, 704, 705, 707, 709, 718, 720, 721, 722, 725, 726 termination of, words of severance and, , 718 JURISTIC REASON (see also UNJUST ENRICHMENT), 244, 491, 492, 495, 496-7, 506, JUS ACCRESCENDI (see JOINT TENANCY) JUS TERTII, JUSTIFICATIONS OF PRIVATE OWNERSHIP, K - KNIGHT SERVICE, 97, 98, 99, L - LABOUR THEORY (see also OCCUPANCY THEORY), 29-30, 31-2, 35 LAND, PHYSICAL DIMENSIONS OF (see BOUNDARIES) LAND TITLES (see REGISTRATION OF TITLE; TORRENS TITLE) LANDLORD AND TENANT (see LEASES) LATERAL BOUNDARIES (see BOUNDARIES) LAW, RULE OF, 363 LEASEHOLD ESTATES (see LEASES)

11 INDEX 961 LEASES (see also EVICTION; RESIDENTIAL TENANCY LAW, REFORM OF) assignments of, landlord s control over, nature of, 615 breaches of, chattels real, as, 112, 605 conditions in, 640 covenants in, 640 distress for rent, levying of under, 640 equitable, 615 eviction and, 607 exclusive possession and, fixtures and, forms of, frustration of, 639 licences, as distinguished from, mortgages and, non-derogation, and, obligations under, perpetuities and, 640 privity of estate under, 615 quiet enjoyment under, real covenants in, remedies for breach of, rent control and, residential, Spencer s Case, rule in, and, 615, 618 subleases of, landlord s control over, nature of, 615 surrender of, , termination of, LEGAL DESCRIPTIONS (see BOUNDARIES) LEGAL EXECUTORY INTERESTS (see EXECUTORY INTERESTS) LEGAL REMAINDER RULES, LICENCES bailments distinguished from, 661, 676 constructive trusts and, 657, leases, as distinguished from, nature of, 648 proprietary status of, LIENS, 871 LIFE ESTATE (see also CURTESY; DOWER; HOMESTEAD LAWS; SET- TLEMENT (SETTLED ESTATE) language of creation for,

12 962 A PROPERTY LAW READER LIFE ESTATE (see also CURTESY; DOWER; HOMESTEAD LAWS; SETTLE- MENT (SETTLED ESTATE) Continued nature of, 104, 357 operation of law, created by, power to encroach and, , 373, 374, 376, 377, 383, 388 powers and obligations of a life tenant under, waste and, 358, LIFE IN BEING (see PERPETUITIES, RULE AGAINST) LIMITATION OF ACTIONS (see ADVERSE POSSESSION) LIMITATION, WORDS OF, 363 LIVERY OF SEISIN, 470, 530, 573, 574 LOST GOODS (see FINDERS) LOST MODERN GRANT (see PRESCRIPTION) - M - MARITAL PROPERTY LAW (see FAMILY PROPERTY) MINES AND MINERALS, MORTGAGES (see also CHARGE; EQUITY OF REDEMPTION; FORE- CLOSURE) charges, distinguished from, deposit of title deeds, by, 855 disguised forms of, equitable, foreclosure under, Interest Act and, interrelationship of remedies for, 870 leases and, mortgage, meaning of, origins of, personal covenant, possession by mortgagee after default under, 865 receiver, appointment of under, redemption and, remedies under, sale following breach of, MULTI-VARIABLE ESSENTIALISM (see also PRIVATE PROPERTY), 8, 9-10, 11 - N - NAFTA (see also PROTECTION OF PROPERTY FROM STATE CON- FISCATION), 162, NATIVE TITLE (see ABORIGINAL PROPERTY RIGHTS) NEC VI, NEC CLAM, NEC PRECARIO (see also PRESCRIPTION), 757

13 INDEX 963 NEMO DAT QUOD NON HABET, 878-9, 886, 889, 890, 894, 905 NEWS, PROPERTY CLAIMS RELATING TO, 41-9 NISGA A FINAL AGREEMENT (see also ABORIGINAL PROPERTY RIGHTS), NOMINALISM (see also PRIVATE PROPERTY), 8, 10, 11 NON-DEROGATION FROM GRANT (see also LEASES), NOTICE, PRIORITIES AND (see also BONA FIDE PURCHASER FOR VALUE WITHOUT NOTICE; CAVEATS, MEANING OF; FRAUD, PRIO- RITIES AND), 876, 878, 880, 882, 890, 891-2, 893, 895, 897, 898-9, 900-2, 903, 907, 908, 910, 912, , NOVEL CLAIMS TO PROPERTY (see also NUMERUS CLAUSUS POLICY) body parts, land, 70-3 news, 41-9 spectacle, NUMERUS CLAUSUS POLICY (see also NOVEL CLAIMS TO PROPERTY), O - OCCUPANCY THEORY (see also POSSESSION), 29-30, 108 OCCUPATION (see OCCUPANCY THEORY; POSSESSION) OCCUPATION RENT (see also ACCOUNTING AMONG CO-OWNERS; PARTITION AND SALE), 710, 712, 713, 726 OPEN SOURCE SOFTWARE (see GENERAL PUBLIC LICENSE) OVERRIDING ROYALTY, 779 OWNERSHIP, MEANING OF (see PRIVATE PROPERTY) - P - PANHANDLING, , PARTITION AND SALE (see also ACCOUNTING AMONG CO-OWNERS), 712, 713, PATENTS anticommons and, 41 cell lines, for, living organisms and, nature of, PERPETUITIES, RULE AGAINST development of, elements of, leases and, 640 life in being under, 581, 582, 584, 586, 588, 591, 592, 601, 602, 603

14 964 A PROPERTY LAW READER PERPETUITIES, RULE AGAINST Continued purposes of, reform of, stated, 581, 592 top leases and, Whitby v. Mitchell, rule in, 580, 599 PERSONAL ACTION, 111 PERSONAL COVENANT (see MORTGAGES) PERSONAL PROPERTY adverse possession and, choses in action as, 113 choses in possession as, 113 estates and, invalid conditions precedent of, 540, nature of, 111-2, 113 security interests in, shared ownership of, PERSONAL PROPERTY SECURITY LEGISLATION, 230-1, PERSONHOOD THEORY, 29 PLEDGE, 871 POSITIVE COVENANTS (see COVENANTS) POSSESSION (see also ADVERSE POSSESSION) Aboriginal title and, 397, 398, 399, 400, 402, 403, 404-9, 412, 414, 415, 417, 418, 419, 420-8, 431, 435, 437, 438, 439, 440 animals, of, bailment and, basic elements of, constructive, 294, 300, 302, 314, 323, 423 easements, and, 753,754-5 exclusive, requirement of in leases, mortgagee, by, 865 POSSESSORY TITLE (see ADVERSE POSSESSION) POSSIBILITY OF REVERTER (see also DETERMINABLE INTERESTS), POSTPONEMENT (see PRIORITIES) POVERTY (see also HOMELESSNESS; PANHANDLING), 31, 34, 125 POWER OF SALE (see MORTGAGES) PRE-POSSESSORY INTEREST, INVENTION OF, 288-9, 290, 291 PRESCRIPTION, PRIME NECESSITY, DOCTRINE OF, 792, 793

15 INDEX 965 PRINCIPAL CHATTEL (see ACCESSION) PRIORITIES (see also BONA FIDE PURCHASER FOR VALUE WITHOUT NOTICE; FRAUD, PRIORITIES AND; NOTICE, PRIORITIES AND; RE- GISTRATION OF TITLE; TORRENS TITLE), PRIVATE PROPERTY case for, meaning of, 2-5, 6-29 PRIVITY OF ESTATE (see also LEASES; SPENCER S CASE, RULE IN), 615 PROFITS A` PRENDRE, 751, 758, , 900 PROPERTY, MEANING OF (see COMMON PROPERTY; PRIVATE PROPERTY; PUBLIC PROPERTY) PROPRIETARY ESTOPPEL (see ESTOPPEL) PROTECTION OF PROPERTY FROM STATE CONFISCATION (see also ABORIGINAL PROPERTY RIGHTS; EXPROPRIATION) American jurisprudence governing, 142, 143-4, de facto (or regulatory) takings and, investment treaties and, 140, nature of, South African law governing, PUBLIC POLICY, INVALIDITY BASED ON, , 736, , 769, 796, 799, 837 PUBLIC PROPERTY (see also ACCESS TO PUBLIC AND PRIVATE PROPERTY; CANADIAN CHARTER OF RIGHTS AND FREEDOMS; RA- DICAL TITLE OF CROWN) adverse possession and, 314 nature of, 3-4, 39, 355 PURCHASE, WORDS OF, 363 PUREFOY v. ROGERS, RULE IN, Q - QUASI-EASEMENTS (see EASEMENTS; WHEELDON v. BURROWS, RULE IN) QUIA EMPTORES, STATUTE OF, 104-5, 106, 356, 568 QUIET ENJOYMENT, COVENANT FOR (see LEASES) - R - RADICAL TITLE OF CROWN, 355 REAL ACTION, MEANING OF, REAL COVENANTS (see LEASES) REAL ESTATE (see REAL PROPERTY, MEANING OF)

16 966 A PROPERTY LAW READER REAL PROPERTY, MEANING OF, RECEIVER, APPOINTMENT OF (see MORTGAGES) RECEPTION OF ENGLISH LAW agricultural fixtures, detachment rules for, 227 general principles governing, 76, Quia Emptores, 106 Statute of Uses, 106, 109 REDEMPTION (see EQUITY OF REDEMPTION; FORECLOSURE; MORTGAGES) RE-ENTRY, RIGHT OF (see also CONDITIONS SUBSEQUENT, MEAN- ING OF), 538 REGISTRATION OF TITLE (see also TORRENS TITLE) advent of, rules governing, types of, REGULATORY TAKINGS (see EXPROPRIATION; NAFTA; PROTEC- TION OF PROPERTY FROM STATE CONFISCATION) REMAINDER, MEANING OF, RENT CONTROL, RENTCHARGE, 825-6, 836 RESIDENTIAL TENANCY LAW, REFORM OF, RESTRAINTS ON ALIENATION, 543, , 624 RESTRICTIVE COVENANTS (see COVENANTS) RESULTING TRUSTS (see also ADVANCEMENT, PRESUMPTION OF; TRUSTS) illegality and, nature of, 476-7, 492-5, 531 presumption of, 477, 480-3, 486 Torrens title and, REVERSION, MEANING OF, REVERTER, POSSIBILITY OF (see DETERMINABLE INTERESTS) ROYAL PROCLAMATION, 1763 (see ABORIGINAL PROPERTY RIGHTS) - S - SEISIN (see also LIVERY OF SEISIN), 101, 529, 530, 573, 574, 577 SERJEANTY, 99 SERVICES OF TENURE (see also FRANKALMOIN; KNIGHT SERVICE; SERGEANTY; SOCAGE), SERVITUDES (see COVENANTS; EASEMENTS; PROFITS A` PRENDRE)

17 INDEX 967 SETTLEMENT (OR SETTLED ESTATE), 379, 388 SEVERANCE (see also JOINT TENANCY) acts of, 649, 701-9, 722, 726 words of, , 718 SHARED OWNERSHIP, ALTERNATIVE CONCEPTIONS OF (see also ABORIGINAL PROPERTY RIGHTS; COMMON PROPERTY; CON- DOMINIUMS; GENERAL PUBLIC LICENSE; JOINT TENANCY; TE- NANCY IN COMMON), SHELLEY S CASE, RULE IN, 108 SINGLE-VARIABLE ESSENTIALISM (see also PRIVATE PROPERTY), 8-9, 11 SOCAGE, , 102, 105 SPECIFICATIO, 231, 234 SPENCER S CASE, RULE IN (see also LEASES; PRIVITY OF ESTATE), 615-8, 799, 822 SQUATTERS RIGHTS (see ADVERSE POSSESSION) STATE PROPERTY (see PUBLIC PROPERTY) STRICT SETTLEMENT (see SETTLEMENT (OR SETTLED ESTATE)) STRONG v. BIRD, RULE IN (see GIFTS) SUB-BAILMENT (see BAILMENT) SUBINFEUDATION, 97, 98, 101, SUBLEASES (see LEASES) SUBSURFACE, OWNERSHIP OF, SUI GENERIS (see ABORIGINAL PROPERTY RIGHTS) SUPPORT buildings and, 206 natural right of, waiver of liability for, SURRENDER, TERMINATION OF LEASE BY (see LEASES) SURVIVORSHIP, RIGHT OF (see JOINT TENANCY) SYMBOLIC DELIVERY, 348, T - TAKINGS (see PROTECTION OF PROPERTY FROM STATE CON- FISCATION) TENANCIES (see LEASES) TENANCY BY (THE) ENTIRETIES, 695

18 968 A PROPERTY LAW READER TENANCY IN COMMON (see also ACCOUNTING AMONG CO-OWNERS; PARTITION AND SALE) creation of, nature of, rights and responsibilities under, 694-5, TENANT-IN-CHIEF (OR IN CAPITE), 103, 104, 105 TENANTS FIXTURES, TENURES ABOLITION ACT (see TENURES, STATUTE OF) TENURES, DOCTRINE OF, 76, 96-7, , 108 TENURES, STATUTE OF, 105, 108, 467 TERRA NULLIUS, 354, 392, 393, 428, 434-6, 438 TITLE INSURANCE, 876, 902, 935-6, TITLE REGISTRATION (see REGISTRATION OF TITLE; TORRENS TI- TLE) TITLE SEARCH, 896-7, 916, 948 TOP LEASE nature of, 591 perpetuities and, TORRENS TITLE (see also REGISTRATION OF TITLE) Aboriginal land rights and, 419, 451, , adverse possession and, 758, 939 assurance fund under, boundary errors and, 939 cardinal elements of, caveats and, fraud under, gratuitous transfers and, 938 history of, in personam claims and, indefeasibility of title under, overriding interests under, unregistrable interests, volunteers under, 938 TOUCH AND CONCERN (see also LEASES; COVENANTS), 615, 619, 752, , 802, 804, 814-5, 839 TRACING, 245 TRADE-MARKS, TRAGEDY OF THE COMMONS (see also ECONOMIC ANALYSIS OF PROPERTY LAW), 35-6 TRANSACTION COSTS (see also ECONOMIC ANALYSIS OF PROPERTY LAW), 186-7, 281, 282

19 INDEX 969 TRESPASS (see also ADVERSE POSSESSION) chattels, to, 14, 174, 268, , 285, 292 cyber-, 174, land, to, 19, 20-7, 88, 90, 116, 117, 159, 174-9, 182, 184, 187, 193-4, 196, 213, 300, 303, 304, 307, , 326, 327, 408, 422, 423, 425 TRUSTS (see also CONSTRUCTIVE TRUSTS; EQUITY; RESULTING TRUSTS; UNJUST ENRICHMENT; USES) constructive, express, 476 nature of, origins of, resulting, nature of, resulting, presumption of, 477, 480-3, U - UNCERTAINTY, CONDITIONAL TRANSFERS AND, UNFREE TENURES (see COPYHOLD TENURE) UNJUST ENRICHMENT (see also CONSTRUCTIVE TRUSTS) elements of, 244 juristic reason and, 244, 491, 492, 495, 496-7, 506, remedies for, USES (see also USES, STATUTE OF), USES, STATUTE OF (see also EQUITY; TRUSTS; USES), 464-8, 470, 575, 581, 592, 593 UTILITARIAN THEORY, PROPERTY AND, 29, 30-1, 36 - V - VALIDITY OF CONDITIONS (see LEGAL REMAINDER RULES; IM- POSSIBILITY, INVALIDITY BASED ON; PERPETUITIES, RULE AGAINST; PUBLIC POLICY, INVALIDITY BASED ON; RESTRAINTS ON ALIENATION; UNCERTAINTY, CONDITIONAL TRANSFERS AND) VENDOR S LIEN (see LIENS) VEST, MEANING OF, 530 VESTING, PREFERENCE FOR, 533, 562 VOLUNTEERS (see GIFTS; TORRENS TITLE) - W - WALSH v. LONSDALE, RULE IN, 615 WASTE Aboriginal title and, 401 co-ownership and, 711 forms of, 358 life estates and, 358, 380-2

20 970 A PROPERTY LAW READER WATER accretion and, ad medium filum aquae rule and, WHEELDON v. BURROWS, RULE IN (see also EASEMENTS), WILD ANIMALS (see ANIMALS) WOMEN, PROPERTY RIGHTS OF (see also DOWER; UNJUST ENRICH- MENT), WORKING INTEREST (see PROFITS A` PRENDRE) - X, Y, Z - YEARS, TERM OF (see LEASES) ZONING,