INDEX AND SALE) AD MEDIUM FILUM AQUAE RULE. ADOPTION OF ENGLISH LAW (see RECEPTION OF ENGLISH LAW) ADVANCEMENT, PRESUMPTION

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1 INDEX -A- ABANDONMENT chattels, of, 139, 152, 158 easements, of, 140, 397, 398 leases, of, 121, 310-2, 315 real property, of, , 197 ABORIGINAL PEOPLE, POVERTY AND, 82 ABORIGINAL PROPERTY RIGHTS (see also MÉTIS TITLE) Aboriginal conceptions of, 373-4, 375 adverse possession, and, 197 alienability of, 198, 208, 266 Australian developments concerning, communal nature of, 198 conditional transfers and, constitutional protections for, 87, 201, 203, cultural appropriation and, 54-6, 230 cultural property and, 54, 158, 208 dedication, doctrine of, and, 400 equitable doctrines, and, 230 extinguishment of, fiduciary obligations of the Crown in relation to, 202, 204, 230 finders law and, 158 grouphood interests and, 155, 158, 196 honour of the Crown, and, 203-4, 205, 206, 207 infringement of, land registration and, limitations on use of, 183, 199 mines and minerals, and, 199 nature of, other Aboriginal rights, and, overlay of English law on, 75 partition and sale, and, 352 possession (or occupation) and, recognition of, 195-8, reserves, and, Royal Proclamation,1763, and, 199 site-specific rights as, 200, 400 surrender of, 198, 202, 208, 246-7, 495 takings and, 87, treaties and, 197, 202, 203, 205, 207, 208, 399 unique (sui generis) nature of, 75, 183, 196, 198, 208, 246, usufructuary rights, as, 196 waste and, 183 ABSTRACT OF TITLE, 474, 481 ACCESSION animals and, 127 intellectual property and, 127 nature of, 94, principal chattel and, remedies and, security interests and, tests for, ACCOUNTING (see PARTITION AND SALE) ACCRETION (see WATER) ACTUAL NOTICE (see NOTICE) AD MEDIUM FILUM AQUAE RULE (see WATER) ADMIXTURE (see CONFUSION) ADOPTION OF ENGLISH LAW (see RECEPTION OF ENGLISH LAW) ADVANCEMENT, PRESUMPTION OF (see also RESULTING TRUSTS; TRUSTS) children and, joint bank accounts and, 359, meaning of, 232 reform of, spouses and, 233-4

2 502 INDEX ADVERSE POSSESSION Aboriginal land rights, and, 197 animus possidendi and, 135, 145, 148 boundaries and, 144 chattels and, colour of right (or title), entry under, and, 147 co-ownership and, 148 efficiency basis of, elements of, environmental protection and, 143 functions of, inconsistent use, test of, and, pedal possession (pedis possessio) and, 147 personhood and, 144 prescription distinguished from, 391 quieting titles and, 141-2, 497 tacking and, 147 Torrens title land and, 144-5, 497 AGREEMENT FOR A LEASE, 294, 303, 443, 493 AIRSPACE condominiums and, nature of, 95-6 possessory nature of, 96 trespass and, 95-6 ALBERTA BILL OF RIGHTS, 88 ALBERTA PERSONAL PROPERTY BILL OF RIGHTS, 88 ALIENABILITY (see EFFICIENCY; RESTRAINTS ON ALIENATION) ALLODIAL LAND, 62, 71 ALLUVION, 113 ALTERATION, 124, 132 AMBIGUOUS LEGAL DESCRIPTIONS, 108 AMORTIZATION (see MORTGAGES) ANDREWS v. PARTINGTON,RULE IN (see CLASS CLOSING RULES) ANIMALS accession and, 127 animus revertendi and, 137 burial plots for, condominiums and, 370 domestic, ownership of, 137 possession of, wild, qualified property in, 137 ANNE, STATUTE OF (see PARTITION AND SALE), ANTICOMMONS (see TRAGEDY OF THE ANTICOMMONS) ARISTOTLE, 2, 18 ASSIGNMENT bailments, of, 332 book debts, of, 463 chose in action, of, 79, 166, 419, 447 covenants, of, 419, 423 leases, of, B- BAILMENT assignment of, 332 bailee s obligations under, bailor s obligations under, benefit of bailee, for, benefit of bailor, for, bringing suit for breach of, constructive, damages for breach of, 335 essential elements of, exculpatory clauses and, finders and, 328 fixed term, 323 fundamental breach of, 332 fungibles, of, 323 gratuitous, 323, 330 involuntary, 322 leases of land, as compared to, 321, 323, licences, distinguished from, mutual benefit, for, nature of, onus of proof in actions relating to, parking lots and, 324, 330 possession and, sub-bailment and, types of, unique nature of, 321 vicarious liability and, 328

3 INDEX 503 BARE LICENCE (see LICENCES) BARGAIN AND SALE, 226, 474, 475 BARRING OF FEE TAIL (see FEE TAIL) BASE FEE (see also FEE TAIL), 175 BELL, ANDREW, 80 BELLAMY, EDWARD, 11 BENEFICIAL RIGHTS, MEANING OF, 80 BENEFICIARY, MEANING OF, 222 BENEFIT/BURDEN, DOCTRINE OF (see COVENANTS) BENTHAM, JEREMY (see also UTILITARIANISM), 2, 12-5, 28, 38, 49, 185 BLACKSTONE, WILLIAM, 2, 4, 73, 75, 76, 126, 264, 338 BODY PARTS, PROPERTY IN, 51, 52 BONA FIDE (OR GOOD FAITH) PURCHASER FOR VALUE WITHOUT NOTICE, 129, 145, 202, 228, 230, 418, 454, 467, 469, 472, 486, 492, 494, 496, 497 BONA VACANTIA, 212 BOUNDARIES (see also AIRSPACE; FENCES; SUBSURFACE, OWNERSHIP OF; TREES) adverse possession, effect of, on, 144 ambiguous legal descriptions of, 108 conventional line doctrine, and, 108 improvements, effect on, 109 land bounded by land, for, land bounded by water, for, legal descriptions of, metes and bounds descriptions of, 106, 108, 115 permeable nature of, Torrens title and, 497 townships system of delineating, BUILDING SCHEMES (see COVENANTS) BUNDLE OF RIGHTS, PROPERTY AS, 2, 52, 64, 89, 104, 199, 268, 383 -C- CANADIAN BILL OF RIGHTS, 87-8 CANADIAN CHARTER OF RIGHTS AND FREEDOMS (see also CONSTITUTION ACT, 1982), 7, 86-7, 116, 205, 208, 257, 400-2, 403 CAPTURE, RULE OF (see ANIMALS; OCCUPANCY THEORY) CASE FOR PRIVATE PROPERTY, THE (see also CONSENT, PROPERTY RIGHTS AND; EFFICIENCY; FREEDOM, PRIVATE PROPERTY, AND; HAPPINESS, PROPERTY AND; HUMAN FLOURISHING, PROPERTY AND; JUSTICE, PROPERTY AND, LABOUR THEORY; MATERIAL WEALTH, PROPERTY AND; OCCUPANCY THEORY; PERSONHOOD THEORY; PLURALIST ACCOUNT OF PROPERTY RIGHTS; UTILITARIANISM), CAVEATS, 145, 417, 485, CESTUI QUE TRUST, MEANING OF (see also TRUSTS), 222, 228 CESTUI QUE USE, MEANING OF (see also USES), 217-8, 222 CESTUI QUE VIE, MEANING OF (see LIFE ESTATE), 177 CHAIN OF COVENANTS (see COVENANTS) CHAIN OF TITLE, 153, 174, 473-4, 477 CHANCELLOR (see EQUITY) CHANCERY (see EQUITY) CHARGE, MEANING OF (see also FLOATING CHARGE; MORTGAGES), 440

4 504 INDEX CHATTEL MORTGAGE, 129, 448, 463, 464 CHATTELS PERSONAL (see also CHOSE IN ACTION; CHOSE IN POSSESSION) adverse possession of, fixtures, distinguished from, nature of, 78-9 CHATTELS REAL, 76, 77, 78 CHATTELS REAL ACT (NL), 78 CHILD POVERTY, 82 CHOSE IN ACTION (see also PERSONAL PROPERTY), 79, 94, 166, 419, 447 CHOSE IN POSSESSION (see also PERSONAL PROPERTY), 78, 79, 94 CLASS CLOSING RULES (see also CLASS GIFTS) Andrews v. Partington, rule in, 284 Festing v. Allen, rule in, 276, 284 perpetuity reforms, and, 286 CLASS GIFTS (see also CLASS CLOSING RULES), 249, 273, 281, 283 CLOGS ON THE EQUITY OF REDEMPTION (see EQUITY OF REDEMPTION) COASE, RONALD, 2, 100, 101, 102 COASE THEOREM (see also ECONOMIC ANALYSIS OF PROPERTY LAW; EFFICIENCY) basic elements of, cave ownership, and, endowment effect and, 102, 143 property law implications of, transaction costs and, 100, 101 wealth effect and, 102 COHEN, FELIX, 6, 7, 8 COLLECTIVE PROPERTY (see COMMON PROPERTY) COMMINGLING (see CONFUSION) COMMIXTIO (see also CONFUSION), COMMON PROPERTY, MEANINGS OF (see also ABORIGINAL PROPERTY RIGHTS; CONDOMINIUMS; CREATIVE COMMONS; TRAGEDY OF THE COMMONS), 7, 8-10 COMMON RECOVERY (see also FEE TAIL), 175 COMMUNAL PROPERTY (see ABORIGINAL PROPERTY RIGHTS; COMMON PROPERTY) CONCURRENT OWNERSHIP (see CONDOMINIUMS; CO- OPERATIVES; JOINT TENANCY; TENANCY IN COMMON) CONDITIONAL GRANTS (see CONDITIONS PRECEDENT; CONDITIONS SUBSEQUENT; COVENANTS) CONDITIONAL SALES AGREEMENT, 129, 463 CONDITIONS PRECEDENT (see also CONTINGENT INTERESTS) creation of, effect of invalidity on, nature of, 247 tests of uncertainty for, CONDITIONS SUBSEQUENT creation of, effect of invalidity on, 253, 254 nature of, 244 test of uncertainty for, 262 CONDOMINIUMS airspace rights, and, common law, under, easements and, 394 households living in, nature of, origins of, regulation of, Alberta, in, Ontario, in, 367-8, 370 timesharing and, 193 CONFUSIO, MEANING OF (see also CONFUSION), 124-5

5 INDEX 505 CONFUSION, CONQUEST (see NORMAN CONQUEST) CONSENT, PROPERTY RIGHTS AND, 43-4 CONSERVATION EASEMENTS, 410, 429 CONSTITUTION ACT, 1867 (see also CONSTITUTION, PROPERTY RIGHTS AND THE), 86, 89, 207, 270 CONSTITUTION ACT, 1982 (see also CANADIAN CHARTER OF RIGHTS AND FREEDOMS; CONSTITUTION, PROPERTY RIGHTS AND THE), 7, 86, 87, 205, 208, 257, 400 CONSTITUTION, PROPERTY RIGHTS AND THE, 7, 59, 86-8, 89, 201, 203, 205-7, 257, 270, CONSTRUCTION, RULE OF, MEANING OF, CONSTRUCTIVE BAILMENT (see BAILMENT) CONSTRUCTIVE NOTICE (see NOTICE) CONSTRUCTIVE POSSESSION, MEANING OF, 136 CONSTRUCTIVE TAKINGS (see TAKINGS) CONSTRUCTIVE TRUSTS (see also TRUSTS; UNJUST ENRICHMENT) domestic labour and, 239, 240 good conscience form of, 236, 237 institutional, land registration and, 490 licences and, 319 nature of, remedial, unjust enrichment and, CONSUMABLES, ESTATES IN, 212 CONTINGENT INTEREST, MEANING OF (see also CONDITIONS PRECEDENT; PERPETUITIES, RULE AGAINST), 247 CONVENTIONAL LINE DOCTRINE, 108 CONVERSION equitable doctrine of, tort of, bailments and, 325, 334 co-ownership and, 358 nature of, 79, 80, 130, 131, 134, 151 CO-OPERATIVES, CO-OWNERSHIP (see COMMON PROPERTY; CONDOMINIUMS; CO-OPERATIVES; JOINT TENANCY; TENANCY IN COMMON) CO-PARCENARY, 337, 340 COPYHOLD TENURE, 65, 72, 381, 478 COPYLEFT, COPYRIGHT, 4, 8, 21, 34-5, 45-6, 56, 377, 403, 435 CORPOREAL INTERESTS, 78, 365 COVENANTS annexation of, assignment of, 419 benefit/burden principle, 428 benefits of, running of, at law, 423 running of, in equity, building schemes and, burdens of, running of, at law, 423 running of, in equity, chain of, 246 common plans and, conditional grants, and, conservation, and, 410, 429 externalities and, 406 functions of, implied annexation of, 419 leases, in, 307 meaning of, 410 modification of, 430

6 506 INDEX negativity, requirement for, notice and, 410 personal property and, personhood values and, 406 positive, racial restrictions and, 269, 379, real, meaning of, restraints on alienation, and, 268, 407, 433 schemes of development and, termination of, touch and concern requirement under, 416, 418, 420, 425 usual, in leases, COVERTURE, MEANING OF, 73 CREATIVE COMMONS, 377 CRIMINAL LAW, PROPERTY AND, 5, 31, 50, 59, 80, 86, 115, 126, 134, 136, 141, 153-4, 193, 208, 234, 256, 459 CROWN PROPERTY (see PUBLIC PROPERTY) CUJUS EST SOLUM EJUS EST USQUE AD COELUM ET AD INFEROS (see also AIRSPACE; BOUNDARIES; FENCES; SUBSURFACE, OWNERSHIP OF; TREES), 94, 98, 101, 103, 105, 155 CULTURAL APPROPRIATION (see also CULTURAL PROPERTY), 54-6, 230 CULTURAL PROPERTY (see also CULTURAL APPROPRIATION) Aboriginal claims to, 54, 158, 208 finders and, 158 CURTESY abolition of, 192 avoidance of, 218 functions of, 74, 177, 191-2, 218 nature of, CUSTODY, POSSESSION DISTINGUISHED FROM, 136 CUSTOMARY RIGHTS, 374, 375, CYBERSQUATTERS, 48 -D- DE DONIS CONDITIONALIBUS, STATUTE (see also FEE TAIL), 174 DE FACTO TAKINGS (see TAKINGS) DE MATTOS v. GIBSON, RULE IN, DE SOTO, HERNANDO, 27-8, 143 DEDICATION, DOCTRINE OF, 400 DEEDS REGISTRATION (see REGISTRATION OF TITLE) DEFEASIBLE INTEREST, MEANING OF (see also CONDITIONS SUBSEQUENT), 244 DELIVERY, MEANING OF (see GIFTS) DEMOCRACY, PROPERTY AND, 22, 24, 26, 36, 401 DERELICTION (see also WATER), 113, 115 DESERT THEORY (see LABOUR THEORY; NATURAL LAW THEORIES OF OWNERSHIP) DESTRUCTION, OWNER S RIGHT OF, 4-5 DETERMINABLE INTERESTS (see also POSSIBILITY OF REVERTER, MEANING OF) creation of, effect of invalidity on, 253, 254 nature of, test of uncertainty and, 262 DETINUE, 76, 80, 130, 131, 325, 334, 335 DILUVION (see also WATER), 113 DISTRESS FOR RENT, 307-8, 313, 322, 427 DIVINE SERVICE, 63 DIVISIONS IN THE LAW OF PROPERTY, 76-80

7 INDEX 507 DOMESDAY BOOK, 439, 474 DOMESTIC LABOUR (see CONSTRUCTIVE TRUSTS; MARITAL PROPERTY LAW; UNJUST ENRICHMENT) DONATIO MORTIS CAUSA (see also GIFTS) basic elements of, delivery requirement of, 163, functions of, 167 land, of, 168 DOWER (see also CURTESY; HOMESTEAD LAWS) abolition of, 191 avoidance of, 190-1, 218 common law rights of, 177 functions of, nature of, origins of, 73, 189 statutory forms of, 189, 191, 192-3, 212, 354 uses and, 218 DUE-ON-SALE CLAUSES (see MORTGAGES) DUTIES, OWNERSHIP AS INVOLVING, 3-4 -E- EARLY VESTING, PREFERENCE FOR nature of, 247-9, 260 Phipps v. Ackers, rule in, and, 249 EASEMENTS (see also PRESCRIPTION) abandonment of, 140, 397, 398 accommodation requirement for, 382 analogous interests, and, capable grantor and grantee, requirement of, 383 condominiums and, 394 conservation, 410, 429 creation of, through, estoppel, express grant, express reservation, implied grant, implied reservation, 390 prescription, statute, 394 divergent ownership requirement for, 383 dominant tenement requirement for, duration of, estoppel, creation by, land registration and, 493 location based on, 396 loss through, 398 examples of, 381 gross, in, 381 Harris v. Flower, rule in, intended, 387, 390 licences and, 398 location of, necessity, of, 386-7, 398, 404 negative, 384 novel forms of, reluctance of law to recognize, origins of, 381 positive, 384 possession and, quasi-easements and, requirements for, reservations of, scope of, servient tenement, meaning of, 381 severance and, 346 support, of, 398 termination of, Torrens title and, Wheeldon v. Burrows, rule in, 387-8, 389, 390 ECONOMIC ANALYSIS OF PROPERTY LAW (see also COASE THEOREM; EFFICIENCY; EXTERNALITIES; MATERIAL WEALTH, PROPERTY AND; TRANSACTION COSTS) basic elements of, 27-9 endowment effect and, 102, 143 liability v. property rules, and, 76 restraints on alienation, of, 264-5, subsurface rights, and, wealth effect, and, 102 EFFICIENCY (see also COASE THEOREM; ECONOMIC

8 508 INDEX ANALYSIS OF PROPERTY LAW; EXTERNALITIES; MATERIAL WEALTH, PROPERTY AND; TRANSACTION COSTS) adverse possession and, 142-3, 144 basics of, 27-9 exclusivity, and, 27-8 future interests, and, 251, 252 goal of property law, as, 27, 50-1 labour theory, and, 42, 44, 45 land registration, and, 50, mortgages and, occupancy theory, and, 48 rent control and, rent-seeking and, 252 restraints on alienation and, 28, 264-5, transferability and, 28 universality and, 28, 35, 36, 99, 100 utilitarianism, and, 28-9 EJECTMENT, ACTION OF, 76-7 ELLICKSON, ROBERT, 31 ENCROCHMENT, POWER OF (see LIFE ESTATE) ENDOWMENT EFFECT, 102, 143 ENROLMENTS, STATUTE OF, 226, ENTAIL (see FEE TAIL) ENVIRONMENTAL PROTECTION adverse possession and, 143 conservation easements and, 410, 429 constitution and, 86, 206 property law and, 33, 34, riparian rights and, 112 trusts and, 230 ENVY, PROPERTY AND, 20 EQUITABLE INTERESTS (see CONSTRUCTIVE TRUSTS; EQUITY; MERE EQUITIES; RESULTING TRUSTS; TRUSTS; USES) EQUITY (see also TRUSTS; USES) Chancellor, and, 214-6, 217, 218, 242, 273 conflict between law and, 215, 228 Court of Chancery and, 80, 213, fusion of law and, 216-7, 228 maxims of equity, development of, 215 mortgages and, nature of, origins of, reception of, EQUITY OF REDEMPTION (see also FORECLOSURE; MORTGAGES) clogs and fetters on, collateral advantages and, nature of, 441 origins of, 441 social significance of, ESCHEAT, 64, 67, 68, 71, 172, 212, 218 ESTATES, DOCTRINE OF (see also FEE SIMPLE; FEE TAIL; FREEHOLD ESTATES, NATURE OF; LIFE ESTATE) nature of, 64-5, 66, 72, 78, personal property and, ESTOPPEL easements and, 385, 390-1, 395, 396, 398, 493 gifts and, 164 licences, and, priorities and, 471 EVICTION (see LEASES) EX PROPRIO VIGORE, 70 EXCLUSION, PROPERTY OWNER S RIGHT OF, 4-5, 6-7 EXCLUSIONARY SCHOLARSHIPS, VALIDITY OF (see LEONARD FOUNDATION TRUST) EXCLUSIVE POSSESSION (see POSSESSION) EXCULPATORY CLAUSES (see BAILMENT) EXPRESS TRUSTS (see TRUSTS) EXPROPRIATION (see TAKINGS)

9 INDEX 509 EXTERNALITIES (see also ECONOMIC ANALYSIS OF PROPERTY LAW; EFFICIENCY) boundaries and, 116 covenants and, 406 generally, 29-30, 32 negative, 29-30, 35, 116, 406 positive, 30, 42, 181, 406 -F- FEE, MEANING OF, 172 FEE SIMPLE language of creation for, nature of, 172 FEE TAIL barring of, creation of, 174 demise of, 176 function of, nature of, origins of, 174 special forms of, 175 FENCES, 108, 109 FEOFFEE TO USES (see USES) FEOFFOR TO USES (see USES) FESTING v. ALLEN,RULEIN(see also CLASS CLOSING RULES), 273, 276, 284 FIDUCIARY, MEANING OF (see also ABORIGINAL PROPERTY RIGHTS), 204 FINDERS Aboriginal artefacts and, 158 bailees, as, 328 duties of, 328 fixtures and, general rules governing, goods found on premises by, items found embedded in land by, 154, 155 lost or mislaid goods found by, 155 possession and, public lands and historical resources, and, title of, 134, 152, 466 treasure trove of, 157 unlawfulness and, 154 FINE (see also FEE TAIL), 175 FIRST OCCUPANCY (see OCCUPANCY THEORY) FIXTURES agricultural fixtures, detachment rules for, 121 chattels, distinguished from, contract, effect of in classifying, 120 finding, and, generally, 94, mobile homes as, 119 nature of, security interests, and, tenant s, 120-1, 307 test for, FLOATING CHARGE, 463, 464 FORECLOSURE (see also EQUITY OF REDEMPTION; MORTGAGES) effect on other remedies of, 458 final orders of, 453, 472 nature of, 448, 449, 452-4, 455, 457 origins of, 452 FORFEITURE incident of tenure, as, 64, 67 leases and, 121, 299, 300, 303, 307-9, 312 relief from, 244, 308-9, 441, 453 restraint on alienation, form of, 266, 269 FRANKALMOIGN, 63 FRAUD land registration and, 476, 478, 481, 484, 485, , 491, 492 priorities and, 469, 470, 471, 472 FRAUDS, STATUTE OF, 167, 293 FREE AND COMMON SOCAGE (see SOCAGE) FREEDOM OF EXPRESSION private property and, 87, public property and, FREEDOM, PRIVATE PROPERTY, AND, 22-6, 27, 99, 163, 244, 251, 252, 259, 264, 304, 369, 401

10 510 INDEX land, of, policy considerations relating to, 163 Strong v. Bird, rule in, and, symbolic delivery and, 167, 169 GOOD FAITH PURCHASER (see BONA FIDE (OR GOOD FAITH) PURCHASER FOR VALUE WITHOUT NOTICE) GOOD ROOT OF TITLE, 473, 478 GREED, PROPERTY AND, 20, 93, 99 GROUPHOOD INTERESTS (see also ABORIGINAL PROPERTY RIGHTS; PERSONHOOD THEORY), 19, 55, 158, 196 FREEHOLD ESTATES, NATURE OF (see also ESTATES, DOCTRINE OF; FEE SIMPLE; FEE TAIL; LIFE ESTATE), 64-5, 67, 78 FREUD, SIGMUND, 19 FUGACIOUS SUBSTANCES, 32 FUNCTIONS OF PROPERTY LAW (see also JUSTIFICATIONS OF OWNERSHIP; NUMERUS CLAUSUS POLICY) assessing novel claims, attributes approach to, 52-3 cultural appropriation, 54-6 examples of, 51-2 functional approach to, 53 land, and, 56-7 university degrees, concerning, 53-4 generally, FUSION OF LAW AND EQUITY, 216-7, 228 FUTURE INTERESTS (see also CONDITIONS SUBSEQUENT; CONTINGENT INTERESTS; REMAINDER, MEANING OF; REVERSION, MEANING OF) state limitations on, transferability of, types of, G- GENERAL PUBLIC LICENCE (G.P.L.), 376 GIFTS (see also DONATIO MORTIS CAUSA) acceptance of, 160, 161 basic requirements for, between family members, choses in action, of, 166 constructive delivery and, 164, 167, 170 declarations of trust and, 163, 165, 166 deed, by, 166 delivery of, 159, 160, disclaimer of, 161 estoppel and, 164 intention required for, 160, 161 -H- HAMMURABI S CODE, 463 HAPPINESS, PROPERTY AND, 12-5 HARRIS, JAMES, 43 HARRIS v. FLOWER, RULE IN, HEGEL, G.W.F., 16, 17 HEINZ DILEMMA, 10 HENDERSON, SÁKÉJ, 373 HIRE-PURCHASE AGREEMENTS, 463 HOMELESSNESS, 19, 26, 81-2, 87 HOMESTEAD LAWS life estates created by, 192 nature of, origins of, 191 personalty and, 192, 212 policy basis for, HOMESTEADING (see also HOMESTEAD LAWS) occupancy theory, and, 47-8 policy of, 26, 33, 47, 51 HOMO ECONOMICUS (see RATIONAL WEALTH MAXIMIZER) HONORÉ, A.M., 2-5, 211

11 INDEX 511 HONOUR OF THE CROWN (see ABORIGINAL PROPERTY RIGHTS) HOUSING, 82 HUDSON S BAY COMPANY (see also RUPERT S LAND), 64, 70-1, 201 HUMAN FLOURISHING, PROPERTY AND, HUMAN RIGHTS, PROPERTY AND, 4, 257, 259, 314, 433 HUNT, ALAN, 20-1 HUTTERITE COLONIES, 266, 273 -I- IMPROVEMENTS ON ANOTHER S LAND, 109 IN PERSONAM, MEANING OF (see also TORRENS TITLE), 77 IN REM,MEANINGOF,77 IN TERROREM CONDITIONS, INCIDENTS OF OWNERSHIP, 2-7 INCIDENTS OF TENURE avoidance of, 191, 219, 223, 224 nature of, 64, 65, 66, 68, 72, 224, 270 INCOME DISTRIBUTION IN CANADA (see INEQUALITY, PROPERTY AND; OWNERSHIP OF PROPERTY IN CANADA) INCOME v. CAPITAL BENEFICIARY, INCORPOREAL HEREDITAMENTS, 78, 140, 380, 381, 383, 385, 399, 400, 426 INDIVIDUAL OWNERSHIP (see PRIVATE PROPERTY) INEQUALITY, PROPERTY AND (see also OWNERSHIP OF PROPERTY IN CANADA), 83-5 INJURY TO REVERSIONARY INTEREST, 332 INSTITUTIONAL CONSTRUCTIVE TRUSTS (see CONSTRUCTIVE TRUSTS) INTELLECTUAL PROPERTY (see also COPYRIGHT; PATENTS), 8, 34, 46, 52, 54, 56, 78, 208, 372, 375, 376 INTER VIVOS GIFTS (see GIFTS) INTERMIXTURE (see CONFUSION) INTESTATE SUCCESSION, 77, 172, 190, 193, 340, 346 INVALIDITY, CONDITIONAL TRANSFERS AND (see also LEGAL REMAINDER RULES; PERPETUITIES, RULE AGAINST; PUBLIC POLICY; RACIAL AND RELIGIOUS DISCRIMINATION; RESTRAINTS ON ALIENATION; UNCERTAINTY, INALIDITY ARISING FROM), J- JOINT BANK ACCOUNTS, 358, JOINT FAMILY VENTURE, MEANING OF (see also CONSTRUCTIVE TRUSTS; UNJUST ENRICHMENT), JOINT TENANCY (see also PARTITION AND SALE; SEVERANCE) creation of, 338, equity s attitude toward, 341 four unities required for, 338 functions of, 219, 339 jus accrescendi (or survivorship) under, 338-9, 341, 342, 344, 346, 347, 348, 349, 351, 359, 360 nature of, personal property, of, 343 presumption (at common law) in favour of, 341 severance of, statutory changes affecting, survivorship (or jus accrescendi) under, 338-9, 341, 342, 344, 346, 347, 348, 349, 351, 359, 360 termination of, 351-3

12 512 INDEX words of severance and, JOINT WILL, 348 JURISTIC REASON (see UNJUST ENRICHMENT) JUS ACCRESCENDI (see JOINT TENANCY) JUS TERTII, 158-9, 325 JUSTICE, PROPERTY AND, JUSTIFICATIONS OF OWNERSHIP (see also CONSENT, PROPERTY RIGHTS AND; EFFICIENCY; FREEDOM, PRIVATE PROPERTY, AND; HAPPINESS, PROPERTY AND; HUMAN FLOURISHING, PROPERTY AND; JUSTICE, PROPERTY AND, LABOUR THEORY; MATERIAL WEALTH, PROPERTY AND; OCCUPANCY THEORY; PERSONHOOD THEORY; PLURALIST ACCOUNT OF PROPERTY RIGHTS; UTILITARIANISM), K- KEYNES, JOHN MAYNARD, 18-9 KNIGHT SERVICE, 63, 64, 68, 70, 220 -L- LABOUR THEORY (see also LOCKE, JOHN; OCCUPANCY THEORY) alteration and, 132 constitutional protections and, 42 efficiency and, 42, 44, 45 mixing metaphor, and, 39-41, 132 nature of, settlement of North America and, 42 LAND, PHYSICAL DIMENSIONS OF (see BOUNDARIES) LAND TITLES (see REGISTRATION OF TITLE; TORRENS TITLE) LANDLORD AND TENANT (see LEASES; TENANCIES) LATERAL BOUNDARIES (see BOUNDARIES) LAW AND ECONOMICS (see COASE THEOREM; ECONOMIC ANALYSIS OF PROPERTY LAW; EFFICIENCY; EXTERNALITIES; TRANSACTION COSTS) LAW, RULE OF, MEANING OF (see also OPERATION OF LAW, MEANING OF), 174 LEASEHOLD ESTATES (see LEASES; TENANCIES) LEASES (see also RESIDENTIAL TENANCY LAW, REFORM OF; TENANCIES) abandonment of, 121, 310-2, 315 assignments of, equity, in, landlord s control over, nature of, bailments, as compared to, 321, 323, breaches of, chattels real, as, 76, 77, 321 conditions in, 307 contract law and, 289, covenants in, 307 disclaimer, termination of, through, 307 distress for rent under, 307-8, 313, 322, 427 equitable, 294 eviction and, 305, 309, 312, 316, 450 exclusive possession and, 290, fixtures and, 120-1, 307 forfeiture of, and relief therefrom, formal elements of, frustration of, 307 licences, as distinguished from, 290, life, for, 291 merger, termination of, through, 307 non-derogation, and, 305-6, 398 notices terminating, 292, 307 obligations under, origins of, 76-7, part performance, leases and, 294 perpetuities and, 280

13 INDEX 513 personhood values and, 313, 317 privity of estate and, 297, 299 quiet enjoyment under, 303, real covenants in, remedies for breach of, rent and, 293 rent control and, 313, repair obligations under, residential, 296, reversion after, severance of joint tenancies and, Spencer s Case, rule in, and, 297, 299, 321 subleases of, landlord s control over, nature of, 297 surrender of, express, 309 fixtures and, 121 operation of law, by, termination of, top, 280 types of, usual covenants and, 303, 305 vacancy rates, and, 290 waste, liability for, under, 307 LEGAL DESCRIPTIONS (see BOUNDARIES) LEGAL EXECUTORY INTERESTS legal remainder rules and, 273-6, 278 nature of, 271 origins of, 227 LEGAL REMAINDER RULES diminished significance of, equitable interests and, functions of, inter vivos transfers and, legal executory interests and, 273-6, 278 Rule #1, 271 Rule #2, Rule #3, 272 Rule #4, 272-3, 275 testamentary gifts and, LEONARD FOUNDATION TRUST history of, public policy and, recitals in, 258 validity of, 259 LEONARD, REUBEN WELLS, 258 LEVANT AND COUCHANT, 30 LICENCES (LICENSES) bailments, distinguished from, bare, 318 constructive trusts and, 319 contractual, 318 copyright and, 375-6, 377 coupled with an interest, 321 easements and, 398 equitable, estoppel and, irrevocable, 318 leases, as distinguished from, 290, nature of, 294, 318 profits à prendre and, 321 proprietary status of, revocable, 318 unjust enrichment, and, 318 LIENS, 133, LIFE ESTATE (see also CURTESY; DOWER; HOMESTEAD LAWS; SETTLED ESTATES; WASTE) cestui que vie and, 177 equitable, 185 insurance, and, 184 language of creation for, 172, lease for life as, 291 mortgages and, 184 nature of, 5, 64, 65, 172, operation of law, created by, 177, origins of, power to encroach and, pur autre vie, 177 pur sa vie, 177 remedial, 177, 238 rights, powers and obligations of a life tenant under, taxes and, 183 types of, valuation of, waste and, 181-3, 184 LIFEINBEING(see PERPETUITIES, RULE AGAINST)

14 514 INDEX LIMITATION OF ACTIONS (see ADVERSE POSSESSION) LIMITATION, WORDS OF, MEANING OF, 173 LIS PENDENS, 346, 454, 494, 495 LITTLE BEAR, LEROY, LIVERY OF SEISIN (see also SEISIN), 159, 160, 162, 167, 226, 365, 468, 474 LOCKE, JOHN (see also LABOUR THEORY), 2, 37-42, 46, 47, 132 LOST GOODS (see FINDERS) LOST MODERN GRANT (see PRESCRIPTION) LOWER CANADA, PROPERTY LAW IN, M- MAGNA CARTA, 66, 190 MAINE, HENRY, 76 MANAGERIAL RIGHTS, 80, 218, 339 MANOR development of easements within, 381 nature of, in England, 65, 66 MARITAL PROPERTY LAW accumulations approach under, 363 Alberta law of, community property, and, 362 contracting out of, 363 development of, 238, dower, and, 193 family assets, and, 363 nature of, occupation of the matrimonial home under, partition and sale applications and, 364 personhood, and, 21 MARITAL UNITY, DOCTRINE OF abolition of, 74-5 circumvention of, 74, 219 nature of, 73-5, 340, 362 MARRIED WOMEN S PROPERTY LEGISLATION (see also MARITAL UNITY, DOCTRINE OF), 74-5, 362 MARX, KARL, 16, 68 MATERIAL WEALTH, PROPERTY AND, MERE EQUITY, 472, 494 MESNE LORD, 62-3 METES AND BOUNDS (see BOUNDARIES) MÉTIS TITLE (see also ABORIGINAL PROPERTY RIGHTS), MILL, JOHN STUART, 29, 185 MINES AND MINERALS (see also OCCUPANCY THEORY, SUBSURFACE, OWNERSHIP OF), 103-5, 199 MIXING METAPHOR (see LABOUR THEORY) MORAL DEVELOPMENT, THEORIES OF OWNERSHIP BASED ON (see PERSONHOOD THEORY) MORAL RIGHTS (see also COPYRIGHT), 21 MORE, THOMAS, 11 MORTGAGE INDUSTRY, MORTGAGES (see also CHARGE; EQUITY OF REDEMPTION; FORECLOSURE) alienation of, amortization of, blended payments under, 184, 448-9, 460 charges, distinguished from, 440 closed, collateral advantages and, consumer protection concerning, deposit of title deeds, by, 443 disguised forms of, due-on-sale clauses under, 446-7

15 INDEX 515 equitable, equity of redemption under, 441-2, foreclosure under, Interest Act and, interrelationship of remedies for, 458 life estates and, 184 mortgage, meaning of, 437 mortgagee, meaning of, 437 mortgagor, meaning of, 437 origins of, personal covenant under, 448-9, 458 possession by mortgagee after default under, receiver, appointment of under, 452 redemption of, relief from acceleration under, remedies under, sale following breach of, duties of mortgagee under, nature of, 448, severance of joint tenancies and, 346 social significance of, waste and, 448, 451 MULTI-VARIABLE ESSENTIALISM, 6 MUNZER, STEPHEN, 49 MURDOCH, BEAMISH, 47, 76, 137 MUTUAL WILLS, N- NATIVE TITLE (see ABORIGINAL PROPERTY RIGHTS) NATURAL LAW THEORIES OF OWNERSHIP (see also DESERT THEORY; LABOUR THEORY), 38-42, 45 NEC VI, NEC CLAM, NEC PRECARIO (see PRESCRIPTION) NEGATIVE EXTERNALITIES (see EXTERNALITIES) NEGATIVE LIBERTY (see FREEDOM, PRIVATE PROPERTY, AND) NEMO DAT QUOD NON HABET, 153, 266, 466, 468, 480, 485, 486 NEWS, PROPERTY CLAIMS TO, 44, 45 NOMINALISM, 5-6, 53 NON-DEROGATION FROM GRANT easements, and, 387, 388, 390 leases, and, 305-6, 398 NORMAN CONQUEST, 62, 474 NORTH AMERICAN FREE TRADE AGREEMENT (N.A.F.T.A.), NOTICE actual, 470 constructive, covenants and, 418 deeds registration and, exculpatory clauses and, 331 imputed, 471 terminate a lease, to, 292, 307 NOVEL CLAIMS TO PROPERTY (see also NUMERUS CLAUSUS POLICY) concerning land, 56-7 cultural appropriation, 54-6 generally, 51-3 university degrees, 53-4 NOZICK, ROBERT, 23 NUISANCE, 80, 90, 96, 110, 116, 357, 381, 392 NUMERUS CLAUSUS POLICY (see also NOVEL CLAIMS TO PROPERTY), 56-7, 270, 379, 424 -O- OCCUPANCY THEORY (see also POSSESSION), 46-9 OCCUPATION (see OCCUPANCY THEORY; POSSESSION) OCCUPATION RENT (see also PARTITION AND SALE) co-owners, as between, 354-7, 364 mortgagee in possession, owed by, 451 trespass and, 109 OCCUPY MOVEMENT, 401-2

16 516 INDEX OLD RULE AGAINST PERPETUITIES (see WHITBY v. MITCHELL, RULE IN) OPEN SOURCE SOFTWARE, 376 OPERATION OF LAW, MEANING OF (see also LAW, RULE OF, MEANING OF), 177 OWNERSHIP, MEANING OF (see also PROPERTY, MEANING OF), 2-7 OWNERSHIP OF PROPERTY IN CANADA (see also INEQUALITY, PROPERTY AND), 81-4, 290, 364-5, P- PART PERFORMANCE, DOCTRINE OF, 294, 386, 443 PARTICULAR ESTATE, MEANING OF (see also LEGAL REMAINDER RULES), 244 PARTITION AND SALE accounting on, Alberta statute law governing, 354 contracting out of, 353 dower and, 354 improvements, claims for on, nature of, occupation rent and, 354-7, 364 origins of, 351 ouster and, 354-5, 364 personal property and, 358 refusal of order for, repair claims on, 357 severance and, 347 Statute of Anne, claims under, on, waste and, 357 PARTNERSHIP ASSETS, CO- OWNERSHIP AND, 340, 341, 358, 360 PATENTS, 86, 127 PENN CENTRAL TEST (see TAKINGS) PERPETUITIES, RULE AGAINST abolition of, class gifts and, 281, elements of, examples of limitations concerning, if at all, meaning of, as part of, 282 interests affected by, land registration and, 497 leases and, 280 life in being under, child en ventre sa mère as, 282 meaning of, perpetuity period, calculation of, under, professional negligence and, 279 purposes of, reform of, royal lives clause and, 283 stated, 279 vesting required by, Whitby v. Mitchell,rulein,278 PERSONAL ACTIONS, 76 PERSONAL COVENANT (see MORTGAGES) PERSONAL PROPERTY adverse possession and, chattels, 76 chattels personal, 78-9 chattels real and, 76, 77, 78, 321 choses in action as, 79, 94, 166, 419, 447 choses in possession as, 78, 79, 94 co-ownership of, covenants and, estates and, invalid conditions precedent of, real property compared to, 76-8 security interests in, uses, and, 223 PERSONAL PROPERTY SECURITY LEGISLATION (OR P.P.S.A.) accession and, fixtures and, 123 reform of, 464 PERSONALITY, PROPERTY IN, 52 PERSONHOOD THEORY (see also GROUPHOOD INTERESTS)

17 INDEX 517 accession, and, 132 adverse possession and, 143, 144 chattels, recovery of, and, 77, 132 copyright, and, 21 covenants and, 406 mortgages and, 438-9, 451 nature of, 16-21, 43, 162 residential tenancy law and, 313, 317 settled estates and, 186 waste and, 182 PHIPPS v. ACKERS, RULE IN (see also EARLY VESTING, PREFERENCE FOR), 249 PILGRIMAGE OF GRACE, 221, 227 PLEDGE, 439, 462, 464 PLURALIST ACCOUNT OF PROPERTY RIGHTS, 49 PORTER, JOHN, 83 POSITIVE COVENANTS (see COVENANTS) POSITIVE EXTERNALITIES (see EXTERNALITIES) POSSESSION (see also ADVERSE POSSESSION; FINDERS; OCCUPANCY THEORY) Aboriginal title and, animals, of, animus element of, 135 bailment and, 324 basic elements of, constructive, 136 corpus element of, 135 custody, distinguished from, 136 easements, and, employee, by, 136, 158 exclusive, requirement of, in leases, 290, factum element of, 135 mortgagee, by, nature of, policy factors, importance of concerning, 135 pre-possessory right, and, prevalence in the law, of, title, as, 140, 158, 335 POSSESSORY TITLE (see ADVERSE POSSESSION) POSSIBILITY OF REVERTER, MEANING OF (see also DETERMINABLE INTERESTS), 245 POSTPONEMENT (see PRIORITIES) POVERTY IN CANADA, 81-5, 87, 239 POWER OF SALE (see MORTGAGES) POWER, PROPERTY AND, 19, 21, 22, 24-6, 243, 290, 441 POWER TO ENCROACH (see LIFE ESTATE) PRECATORY TRUSTS, 250 PRECATORY WORDS, PRE-POSSESSORY RIGHT (see POSSESSION) PRESCRIPTION abolition of, 392 adverse possession, as distinguished from, 391 elements of, lost modern grant, by, 392-3, 394 nature of, nec clam requirement and, nec precario requirement and, 393 nec vi requirement and, 393 statute, under, 392, 394 time immemorial, by use since, 392, 394 PRIME NECESSITY, DOCTRINE OF, 403 PRIMOGENITURE, 77, 189, 219, 340 PRINCIPAL CHATTEL (see ACCESSION) PRIORITIES (see also REGISTRATION OF TITLE; TORRENS TITLE) adverse possession and, 473 equitable interests, and, legal interests, and, 468

18 518 INDEX nature of, prior equitable v. subsequent legal, of, prior legal v. subsequent equitable, of, 471 PRIVATE PROPERTY (see also PROPERTY, MEANING OF) case for, general nature of, 1-7 multi-variable essentialism and, 6 nominalism, and, 5, 6, 53 single-variable essentialism, and, 6 PRIVITY OF ESTATE (see also LEASES; TOUCH AND CONCERN, MEANING OF), PROFITS À PRENDRE, 78, 280, 294, 321, 380, 399 PROPERTY, MEANING OF (see also OWNERSHIP, MEANING OF) definitions of, 1-7 divisions of, relationships, as set of, 2 PROPRIETARY ESTOPPEL (see ESTOPPEL) PSYCHOLOGY OF OWNERSHIP (see PERSONHOOD THEORY) PUBLIC DOMAIN, 8, 34, 56, 372, 375 PUBLIC POLICY Canadian Charter of Rights and Freedoms and, 257 covenants and, 407-9, 433 meaning of, sources of, 257 PUBLIC PROPERTY nature of, 7-8, 9, 10 rights over, PUBLIC ROADS, RIGHTS OVER, 400 PUBLIC TRUST DOCTRINE, 7, 230 PUFENDORF, SAMUEL VON, 2, 38, 135 PUR AUTRE VIE (see LIFE ESTATE), 177 PUR SA VIE (see LIFE ESTATE), 177 PURCHASE, WORDS OF, MEANING OF, PUREFOY v. ROGERS, RULE IN, Q- QUASI-EASEMENTS (see EASEMENTS; WHEELDON v. BURROWS, RULE IN) QUIA EMPTORES, STATUTE, 67-9, 71, 271, 446 QUIET ENJOYMENT, COVENANT FOR (see LEASES) -R- RACIAL AND RELIGIOUS DISCRIMINATION (see COVENANTS; HUMAN RIGHTS, PROPERTY AND; LEONARD FOUNDATION TRUST) RADICAL TITLE, 9-10, 75 RATIONAL WEALTH MAXIMIZER (HOMO ECONOMICUS), 28, 36, 101, 162, 267 REAL ACTIONS, 76, 77 REAL COVENANTS, MEANING OF, REAL ESTATE (see REAL PROPERTY) REAL PROPERTY nature of, 76-8 personalty, compared to, 76-8 RECAPTION OF GOODS (see SELF- HELP) RECEIVER, APPOINTMENT OF (see MORTGAGES) RECEPTION OF ENGLISH LAW agricultural fixtures, detachment rules for, 121 Alberta, rules governing in, 69 equitable principles, of, general principles governing, Quia Emptores, Statute,71 socage, of, 70-1

19 INDEX 519 Statute of Uses, of, 225 RECTIFICATION, EQUITABLE DOCTRINE OF, 80, 173, 472, 490 RE-ENTRY, RIGHT OF, MEANING OF (see also CONDITIONS SUBSEQUENT), 244 REGISTRATION OF TITLE (see also TORRENS TITLE) advent of, costs of, 31 deeds registration forms of, efficiency, and, 50, notice system of, 476 race-notice system of, 477 race system of, titles registration, systems of, REGULATORY TAKINGS (see TAKINGS) REICH, CHARLES, 22, 23 RELIGIOUS RESTRICTIONS, INTERESTS SUBJECT TO (see HUMAN RIGHTS, PROPERTY AND; LEONARD FOUNDATION TRUST; RACIAL AND RELIGIOUS DISCRIMINATION) REMAINDER, MEANING OF, 244 REMEDIAL CONSTRUCTIVE TRUSTS (see CONSTRUCTIVE TRUSTS) REMEDIAL RIGHT, MEANING OF, 80 RENT (see LEASES) RENT CONTROL, 313, RENTCHARGE, 78, 292, 346, 380, RENT-SEEKING (see EFFICIENCY) REPAIR, LEASEHOLD COVENANT FOR (see LEASES) REPLEVIN, 335 REPUGNANCY, 179, 264, 269 RESIDENTIAL TENANCY LAW, REFORM OF Alberta s approach to, 296, elements of, 296, factors giving rise to, personhood and, 21, 313 rent control and, 313, RESTRAINT OF TRADE, 417, 433, 445 RESTRAINTS ON ALIENATION Aboriginal lands and, 198, 266 condominiums and, 370 contractual, 266, covenants and, 268, 433 critique of rules concerning, disabling, 266, 268, 269 efficiency and, 28, 264-5, factors affecting validity of, forfeiture, 266, 269 freedom and, indirect, 268 mortgages and, perpetuities and, 288 promissory, 266, rationale of law governing, rules prohibiting, RESTRAINTS ON ANTICIPATION, 74 RESTRICTIVE COVENANTS (see COVENANTS) RESULTING TRUSTS (see also ADVANCEMENT, PRESUMPTION OF; TRUSTS) common intention form of, 234 nature of, presumption of, REVERSION, MEANING OF, 244 REVERTER, POSSIBILITY OF (see POSSIBILITY OF REVERTER, MEANING OF) RICE ORDER, 455 RIPARIAN RIGHTS (see WATER) RISK ALLOCATION, PROPERTY DEALINGS AND, 27, 102, 117, 142, 143, 194, 366, 425, 438, 456, 466, 467, 480, 485, 495 ROYAL PROCLAMATION, 1763, 199

20 520 INDEX RUPERT S LAND (see also HUDSON S BAY COMPANY), 64, 69, 70, 201 -S- SCUTAGE, 63 SECURITY RIGHTS (see also MORTGAGES), 80 SEISIN (see also LIVERY OF SEISIN), 65, 160, 222, 226, 270, 271-3, 275, 277 SELDEN, JOHN, SELF-HELP, 141, 151, 152, 313, 315, 335 SEN, AMARTYA, 22 SERJEANTY grand, 63 petty, 63 SERVICES OF TENURE (see also DIVINE SERVICE; FRANKALMOIGN; KNIGHT SERVICE; SERJEANTY; SOCAGE), 63-4, 65, 66 SERVITUDES, MEANING OF (see also COVENANTS; EASEMENTS; PROFITS À PRENDRE), 379 SETTLED ESTATES, SETTLOR, MEANING OF, 222 SEVERANCE (see also JOINT TENANCY) acts of, agreement, by, agreement precluding, bankruptcy, by, 350 course of dealing, by, declaration, effect of on, 347 easements and, 346 equity, in, 345, 347 failed negotiations, by, 349 lease, by, mortgage, by, 346 murder, by, 340 operation of law, by, 350 partial alienation, by, partition and sale proceedings and, 347 policy basis underlying, 344, 349 unilateral action, by, words of, SHARED OWNERSHIP (see COMMON PROPERTY; CONDOMINIUMS; CO- OPERATIVES; CREATIVE COMMONS; JOINT TENANCY; TENANCY IN COMMON) SHELLEY S CASE, RULE IN, 172 SHIFTING INTEREST, 274, 276 SHORT FORMS OF LEASES LEGISLATION, 304 SINGLE-VARIABLE ESSENTIALISM, 6 SLAVES, PROPERTY IN, 53 SMITH, ADAM, 185 SOCAGE, 64, 68, 70-1, 220, 225 SOCIAL COSTS (see EXTERNALITIES) SOCIAL DARWINISM Leonard Foundation Trust and, 258 restraints on alienation and, 265 SPECIFIC PERFORMANCE, 216, SPECIFICATIO (see ALTERATION) SPENCER S CASE, RULE IN (see also PRIVITY OF ESTATE), 297, 299, 321, 379, 416 SPES SUCCESSIONIS, 173 SPRINGING INTEREST, 231, 272, 274, 276 SQUATTERS RIGHTS (see ADVERSE POSSESSION) STALLMAN, RICHARD, 375, 376 STANDING, PROPERTY DISPUTES AND, 59 STATE LIMITATIONS ON PRIVATE DISPOSITIONS (see also

21 INDEX 521 LEGAL REMAINDER RULES; PERPETUITIES, RULE AGAINST; PUBLIC POLICY; RACIAL AND RELIGIOUS DISCRIMINATION; RESTRAINTS ON ALIENATION; UNCERTAINTY, INALIDITY ARISING FROM), STATE PROPERTY (see PUBLIC PROPERTY) STATUS, PROPERTY AND (see also PERSONHOOD THEORY), 20-1 STEWARDSHIP, PROPERTY AND, 55, 59-60, 172 STORK DERBY, 25 STRATA TITLE (see CONDOMINIUMS) SUB-BAILMENT (see BAILMENT) SUBINFEUDATION, 62-3, 67-8, 212, 271 SUBLEASES (see LEASES) SUBSTITUTION, 62, 67 SUBSURFACE, OWNERSHIP OF (see also MINES AND MINERALS), SUI GENERIS (see ABORIGINAL PROPERTY RIGHTS) SUMPTUARY LAWS, 20-1 SUPPORT buildings and, 117 easements of, 398 natural right of, 116-7, 398 SURRENDER (see ABORIGINAL PROPERTY RIGHTS; LEASES) SURVIVORSHIP, RIGHT OF (see JOINT TENANCY) SYMBOLIC DELIVERY (see GIFTS) -T- TAKINGS (see also CONSTITUTION, PROPERTY RIGHTS AND THE), TENANCIES, TYPES OF (see also LEASES; RESIDENTIAL TENANCY LAW, REFORM OF) fixed term, 291 periodic, 292 perpetual, residential, sufferance, at, 292 will, at, 292 years, term of, 291 TENANCY BY (THE) ENTIRETIES, 337, 340 TENANCY IN COMMON (see also PARTITION AND SALE) creation of, equity s preference for, 341 nature of, statutory presumption in favour of, 342 termination of, uses of, TENANT IN CHIEF (OR IN CAPITE), 62-3, 65, 67-8 TENANT IN DEMESNE, 62-3, 65 TENANT-LIKE MANNER, MEANING OF, 306 TENANT S FIXTURES, 120-1, 307 TENURES ABOLITION ACT, 1660 (see TENURES, STATUTE OF) TENURES, DOCTRINE OF, 62-6 TENURES, STATUTE OF, 68, 70, 71, 72, 224 TERRA NULLIUS, 47 TIME IMMEMORIAL customary rights and, 374, 399, 400 prescription and, 392, 394 TIMELY VESTING, RULE OF (see also LEGAL REMAINDER RUES; PUREFOY v. ROGERS, RULE IN), 272, 273, 275, 277, 278 TIMESHARING, 172, 193-5, 370 TITLE INSURANCE, TITLE PARAMOUNT, 305, 309

22 522 INDEX TITLE REGISTRATION (see REGISTRATION OF TITLE; TORRENS TITLE) TOP LEASE, 280 TORRENS, ROBERT, TORRENS TITLE (see also REGISTRATION OF TITLE) Aboriginal land rights and, adverse possession and, 144-5, 497 assurance (insurance) fund under, benefits of, 482 boundaries and, 145, 497 cardinal elements of, caveats and, curtain principle and, 481, 483, 492, 496, 497 easements and, forgery and, 484, 485, 486 fraud under, gratuitous transfers and, 496 in personam claims and, indefeasibility of title under, deferred, immediate, nature of, 483 qualifications on, insurance principle of, 482 mirror principle of, 50, 144, 481, 492, 493 misdescription under, 497 net principle of, 482 origins of, overriding interests under, 492-3, 496 personal rights and, prior certificate of title and, substantive validity of documents under, volunteers, and, 496 TORT LAW, PROPERTY AND (see CONVERSION; DETINUE; INJURY TO REVERSIONARY INTEREST; NUISANCE; TRESPASS) TOUCH AND CONCERN covenants, in relation to, 416, 418, 420, 425 leases, in relation to, TRAGEDY OF THE ANTICOMMONS, 34-6, 67 TRAGEDY OF THE COMMONS (see also ECONOMIC ANALYSIS OF PROPERTY LAW) co-ownership and, 353 generally, mortgages and, 456 responses to, 30-4 waste and, 181 TRANSACTION COSTS (see also ECONOMIC ANALYSIS OF PROPERTY LAW; EFFICIENCY), 28, 50, 72, 100, 101, 102, 137, 152, 363, 466 TREASURE TROVE (see FINDERS) TREES, 53, 58-9, 110, 118, 182, 200 TRESPASS, 3, 26, 80, 96, 98, 109, 110, 130, 131, 134, 140, 141, 142, 149, 150, 153, 156, 157, 197, 216, 292, 294, 296, 318, 325, 335, 355 TRUSTEE, MEANING OF (see also TRUSTS), 80, 222 TRUSTS (see also BENEFICIARY, MEANING OF; CESTUI QUE TRUST, MEANING OF; CONSTRUCTIVE TRUSTS; EQUITY; RESULTING TRUSTS; SETTLOR, MEANING OF; TRUSTEE, MEANING OF; UNJUST ENRICHMENT; USES; USES, STATUTE OF) constructive, 234-8, express, hockey tickets and, modern deployment of, origins of, resulting, nature of, resulting, presumption of, U- UNCERTAINTY, INVALIDITY ARISING FROM covenants and, 407, 409, 433 generally, preventing invalidity due to, tests for, 262

23 INDEX 523 UNIVERSITY DEGREES, CLAIMS FOR PROPERTY IN, 53-4 UNJUST ENRICHMENT (see also CONSTRUCTIVE TRUSTS) development of current Canadian law, 230 domestic labour and, 45, elements of, 45, improvements and, 109 joint family venture and, labour theory and, 45 licences and, 318 life estates and, 177 remedies for, Torrens title and, 491 USES (see also USES, STATUTE OF) active duties under, cestui que use, under, 217-8, 222 corporations, held by, 222 curtesy and, 218 doctrine of marital unity and, 219 dower, and, 218 dry, 222 execution of, feoffee to uses under, 217-8, 219, 220, 221, 222, 223, 274 feoffor to uses under, 217, 222, 226 functions of, nature of, origins of, personalty, of, 223 separate, 219 use upon a use device, and, 223-4, 276 USES, STATUTE OF (see also EQUITY; TRUSTS; USES) avoidance of, execution of uses under, exhaustion of, factors giving rise to, incidental effects of, legal remainder rules and, nature of, operation of, personalty and, 223 reception of, 225 statutory precursor of, 220 terms of, USUAL COVENANTS, 303, 305 USUFRUCTUARY RIGHTS, 96, 112, 198, 211, 400 UTILITARIANISM (see also BENTHAM, JEREMY), 12-5, 28-9, 49, 161 UTOPIAS, PROPERTY AND, 11 -V- VALIDITY OF CONDITIONS (see also LEGAL REMAINDER RULES; PERPETUITIES, RULE AGAINST; PUBLIC POLICY; RACIAL AND RELIGIOUS DISCRIMINATION; RESTRAINTS ON ALIENATION; UNCERTAINTY, INALIDITY ARISING FROM), VALUE, MEANING OF, VENDOR S LIEN (see LIENS) VESTED, MEANING OF (see also EARLY VESTING, PREFERENCE FOR; PHIPPS v. ACKERS, RULE IN) generally, 247 interest, in, 247 perpetuities, meaning in relation to, 281 possession, in, 247 VILLEINAGE TENURE, 65 VOLUNTEERS (see also GIFTS), 163, 469, 496 -W- WAIT AND SEE legal remainder rules and, 273, 275 perpetuities reforms and, 286 rule against perpetuities and, 281 WALSH v. LONSDALE, RULE IN, 294, 386 WASTE Aboriginal title and, 183 ameliorating, 181, 182, 183 co-ownership and, 357 equitable, 183 leaseholds, and, 307 mortgages and, 448, 451 permissive, 181, 182, 184 personhood theory and, 182

24 524 INDEX tragedy of the commons and, 181 unimpeachable for, 181 voluntary, 181, 182 WATER accretion and, ad medium filum aquae rule, boundaries, and, public trust doctrine, and, 230 riparian rights and, 112-3, 114, 115, 116, 398 WEALTH EFFECT (see COASE THEOREM; ECONOMIC ANALYSIS OF LAW) WHEELDON v. BURROWS, RULE IN, 387-8, 389, 390 WHITBY v. MITCHELL, RULE IN, 278 WIKIPEDIA, 377 WILD ANIMALS (see ANIMALS) WILLS, STATUTE OF, 1540, 227, 275 WOMEN (see also MARITAL UNITY, DOCTRINE OF; MARRIED WOMEN S PROPERTY LEGISLATION) poverty, and, 82, 239 psychology of ownership and, 18 -Y - YEARS, TERM OF (see TENANCIES) YOUNG PEOPLE, POVERTY AND, 82 -Z- ZONING, 80, 107, 406, 432