Intro to Property Nature of Property Right cannot subsist as property unless: Property gives right to: Property is:

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1 Intro to Property Nature of Property Property is a collection of rights that are enforceable against others Right cannot subsist as property unless: Definable Identifiable by third parties Permanence or Stability Property gives right to: Exclusiveness: Power to include Excludability: Power to exclude Property is: Transferable Has Market Value Exclusive Justifications for Property Economic: Private property is responsible for the wealth and development around us Tragedy of the Commons: A manifestation of the perils of unregulated open access, communal property o Does the commons tell us we should have regulation or common property Tragedy of the Anticommons: Too much ownership or right of exclusion stifles economic development Labour/Dessert theories: You reap the benefits through labour, benefit emerges from contribution of labour First Occupancy: First in time, first in right Utilitarian: What brings the most happiness/ pleasure to the most people? o Connected to efficiency Flourishing of Freedom: promotes autonomy, guarantee of every other freedom o Rise of Economic oligarchy Theories based on personhood, moral development/ Human Nature: Conferring property right on a person makes that person a better citizen - Important on security Pluralist Approach: Various approaches together

2 Classifications of Property Real Property Right to horizontal plane of area, rights attached to soil, fixtures Corporeal Hereditaments: interests capable of being held in possession o Actual things over which rights of ownership can be exercised Incorporeal Hereditaments: Intangible, non- physical, rights affecting the land o Interest that are non possessory: Easements, Profit a prendre, restrictive covenants Personal Property Chattels Personal Money Funds Choses in Possession: Tangible property o Fungible: something that can be replaced by something that is of equal value o Infungible: Something of aesthetic value, antique coin v. currency Choses in Action: Capable of being assigned to a 3 rd party o Debt o Goodwill o IP o Stocks and Shares o Commercial Paper o Negotiable Instruments o Documents of Title to goods Rights in Personam: Claiming value from a person Rights in Rem: Claiming the exact object Legal Implication o Remedy: rights in rem or rights in personam o Registration systems: Proof of ownership Novel Claims in Property Attributes Approach: Does the object have the same characteristic as traditional objects of property o If it looks like property, it is property Functional Approach: property for social or economic reasons o What societal function would be served Numerus Clausus Principle o Courts are prevented from recognizing item outside of closed set o Too many property rights can stifle innovation o Prevent the tragedy of the anti- commons

3 Doctrine of Tenure and Estates Doctrine of Tenure: Focuses on rights and obligations related to the land, in context of lord/ tenant relationship; absolute ownership NOT recognized under this system, rules for setting duration of property rights are needed Doctrine of Estates: concerned with the individuals interest in the same parcel of land successively, diving interests over time. Fee Simple Largest estate known to the law or potentially infinite duration How to create Fee Simple: Words of purchase à To A Words of limitation à and his/her heirs Gift Inter vivos: the words need to be exact o Shelley s rule: To A for life and remainder to his heirs (Created life estate and fee simple remainder) Will: more flexibility is given, intention is enough Property Law Act [RSBC 1996] c. 377 s. 19 Land Title Act RSBC 1996 c 250 s. 186 (5) & (6) Rights in Fee Simple: Possession (Usus) of the property Profits (Fructus) derive benefits (Rent and derive income) Destroy/ alienate (Abusus) sell it, give it or destroy it Life Estate Measured by your life. Cannot transfer by will. Cannot destroy or alienate the property How to create Life estate: Conventional (Gifts Wills) Cestui que vie: Person whose life measure the life estate Pur sa vie: Life of Recipient Pur autre vie: Life of another person à This happens when a life estate is transferred to someone else. TO C for Life; C sells to A; A has the estate until C dies. Operation of the Law Historically dower and curtsey (abolished by WESA) BC Land (Spouse Protection) Act S. 4 WESA S.33 Rights in Life Estate Carry it for your life Permissive Waste is allowed RE Walker: Life Estate or Fee Simple: If there is more than one intention, look to the dominant intention. Doctrine of Repugnance: Cannot grant fee simple and then attempt to control the property (Wife or Nephews What interest does the Wife have) RE Waters: Life Estate or License: Look at the intention of the grantor (Lady gets the house for her life)

4 Doctrine of Waste (conduct that permanently alters the state of the freehold) Ameliorating Acts that enhance the value Costs may burden the remainder Affects enjoyment Equitable Severe and malicious destruction LE must explicitly confer the ability Law and Equity Act 1996, S. 11 Voluntary Conduct that diminishes the value of the land Not wasteful to clear land for cultivation Permissive Damage resulting from the failure to preserve or repair (allowed in LE) May expressly be asked to repair Intestate Succession in Common Law - Wills, Estate, Succession Act S. 2 (1) (b) Marriage like relationship (non- married couples, heterosexual or same- sex) S. 5 (1) when persons die simultaneously, presumed that each person survives the other unless contrary intention appears S. 5 (2) (a) When people are joint tenants; and (b) die simultaneously and it s unknown who dies first each person is deemed to have held property as tenants in common S. 21 (3) & (4) Spousal Preference Assumption that the Spouse gets the first dibs on the estate S. 21 (5) & (6) When the net value of estate is less than or greater than spousal preference (5) Less à estate is given to the spouse (6) Greater/ Same à Spouse gets preferential share (a) if there is residue after the spouse get half of it (b) (i) S. 23 (1) applies if person dies without will and without surviving spouse If both spouses die at the same time, their estates are not combined and then divided à they are divided separately Surviving Spouse can acquire spousal home to satisfy share from estate S. 26 Right of surviving spouse to Spousal Home S. 27 (2) time in which surviving spouse must exercise right to acquire the spousal home S.28 Spousal home can t be disposed of by personal representative w/o surviving Spouse consent S.33 surviving spouse can apply to court to retain spousal home S. 32 elements that he court considers S.60 allows the court to divide up estate as they think is Adequate, just and equitable, if will maker dies leaving a will that does not do so Adopted and illegitimate kin S.37 (1) Adoption Act à Basically states that once child is adopted birth parents cease to have any parental rights and child becomes child of adoptive parents S. 61 (1) (b) Law and Equity Act à abolishes any distinction between child born inside marriage and child born outside Tatayrn v Tataryn (hated eldest son) Testamentary autonomy vs adequate, just and equitable. Phrase must be viewed in light of societal norms 1) Legal obligation 2) Moral obligation: society s reasonable expectation of what a judicious person would do in the circumstances by reference to community standards Leaseholds Estate for a definite duration Commercial Tenancy Act RSBC 1996 c.57 Residential Tenancies Act, RSBC 2002 c 78 o Rebalances inequality of bargaining power o Lessen the preference for landlord o Create new forms of dispute resolution

5 o Demographic of renters is vulnerable Lease v Licence License = permission to do which would otherwise amount to a trespass Lease = Transfer of exclusive possession o Quiet Enjoyment o LL holds fee simple, but right to possn is suspended For Rent (S.1 RTA not a security deposit Limited Duration (S.45 RTA) o Fixed term o Periodic

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7 Aboriginal Title 1. Source: The right or interest derives from physical occupation and possession of land which pre- dates British colonization (Guerin) NOT fee simple estates AT: legal recognition that aboriginal people were occupying the land before European settlers arrived (Calder, 1973). Crown grants are not the source of aboriginal title as it arises from the aboriginal people's occupation of land prior to sovereignty (Delgamuukw, 1997). Sui generis - unique to aboriginal people (Guerin, 1984). Royal Proclamation 1793: Affirm existence of a right that precede sovereignty 2. General inalienability. The interest cannot be transferred, sold, or surrendered except to the Crown (Guerin + Delgamuukw); Creates fiduciary duty (Guerin) 3. Right to fairness. In the event of surrender to the Crown, the Crown is under a fiduciary obligation to treat Aboriginal peoples fairly and, particularly, to deal with the land for the benefit of the surrendering Aboriginal peoples (Guerin); 4. Communal ownership. An Aboriginal individual cannot hold the interest (Delgamuukw); and Communal in nature in that, aboriginal title is a collective right to land held by all members of an aboriginal collective (Delgamuukw). 5. Restricted right to exclusive use and occupation. While a broad range of uses are permitted and uses need not be elements of "Aboriginal practices, customs, and traditions which are integral to distinctive Aboriginal cultures" of the group claiming the right (i.e., the definition of an Aboriginal right), uses must "not be irreconcilable with the nature of the group's attachment to the land" (Delgamuukw). 6. Range of Uses Not limited to traditional uses but must not be irreconcilable with the nature of the attachment to the land, which forms the basis of the particular group s AT. o Can t be a hunting ground converted to strip mining. No limitations on fee simple except some statutory like zoning by law 7. Constitutionally Protected Constitution Act 1982: S/35 (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed Proof of Aboriginal Title - Delgamuukw 1) Must be shown that the land was occupied at prior treaty of the assertion of British sovereignty (Oregon Treaty, 1846). 2) If present occupation is relied upon as proof, continuity between present and pre- sovereignty must be shown (unbroken chain not necessary, disruptions can be okay). 3) Occupation must have been exclusive! This means intention and capacity to retain exclusive control. Evidence of exclusivity was not necessary, only capacity to do so. Should be applied with caution because the purpose here is reconciliation between common law and aboriginal perspectives (Marshall and Bernard) Intensive Use over Definite Tract of Land (Eg: Fences, clear boundaries) (Marshall) o Ranging from construction of dwellings, cultivations, and enclosure of fields, to regular use of definite tracts of land for hunting, fishing, or exploiting resources. o No need to establish unbroken chain of continuity but must be a substantial maintenance of the connection between the people and the land (Delgamuuk). Semi- nomadic: o AT can only be proven based on site- specificity and (2) on those specific sites there has to be proved intensive use.

8 o Ex: Salt licks, narrow, defiles between mountains and cliffs, particular tracks or promontories used for netting salmon, or in other areas of the country, buffalo. (Tsilhqot'in). Not the same as requirement as definite tract of land (land that is proven through property markings where boundaries are defined). Justification Test to S. 35 (Sparrow & Delgamuukw) Post 1982, extinguishment of AT is not allowed: Did the right/ title exist, historically? Does it still exist today or was it extinguished at some point (clear and plain intention - Calder)? If the right/ title is still in existence, does the government action, prima facie, infringe it? If yes, can that infringement be justified? In furtherance of a legislative objective that is compelling and substantial? In keeping with the Crown s fiduciary obligations? *in this case, fair compensation fulfilled fiduciary obligation Treaties (Nishga) Recognize Nisga a Lisims Government (Nation) Nisga a Village Governments Hernando De Soto: Property right can be used to generate wealth o Sounds good on paper but may result in cultural destruction and loss of title to land o What is the result when the land is turned into FS? Foreclosure, displacement of aboriginals, cultural and communal existence extinguished

9 Conditional Estates Strings attached Vested: no limitation or condition obstructing In Possession: To A for life. In Interest: then to B Contingent: vesting is delayed pending the occurrence of a condition (condition precedent) Types of Interests: Reversion: (Always vested) G: To A for life à G has reversion interest Remainder: (Can be vested or contingent) G: TO A for life, then to B in fee simple à B has remainder interest Conditions Uncertainty about Keeping (Vested and Subject to Divestment) Defeasible Interest Subject to condition subsequent Can be brought to an end on occurrence of a specific event Grantor has a contingent right of re entry (Must do so within 2 years Limitations Act S.6) Words used: On condition that, may, however, but if, provided that If it is invalid it is struck out and the owner will get it in fee simple Courts will hold this to a high standard. The person needs to know precisely what they would need to do to loose their interest Determinable interest (vested and subject to determinable limitation) Interest will end automatically on the happening or not happening of the prescribed event Intention of the Grantor is integral Grantor has vested possibility of reverter Words used: while, during, so long as, until If the condition is invalid the entire grant is invalid Uncertainty about Getting Condition precedent = condition of eligibility Until the condition occurs there is no vesting Grantor has reversionary interest If the condition is invalid the entire grant is Note cy- pres exception for charitable gifts Invalidity of Conditions Improper restraint on alienation Mode of alienation: Prohibiting to sell/mortgage/ lease Class or recipients: sell to only certain individuals Time Period: Certain time Price: Restriction on the amount Blackburn v Cox alienation and time period o 2 sons could not sell or mortgage for 25 years o Does the condition take away the power of alienation, substantially? RE Brown class of recipients. If there is a diminishing class of buyers it will be invalid o 4 brothers, can only sell it to themselves Doe d Gill - Upheld only sell to sisters and their kids Atwater - Invalid only sell to brothers Re MacLeay - Upheld Can sell only to family Re Rosher - Void must sell property at a very low price

10 Uncertainty CS High Degree of certainty required o Donee must be able to see what actions will lead to a loss of interests o If it is not certain it is struck off and the own in what was vested CP less rigorous test o Plausible meaning to the words Sifton: if she resides in Canada o Courts prefer early vesting so will choose CS over CP o It was struck off for being uncertain, she held it in FS Conditions contrary to public policy Conditions that contravene public policy will not be enforced Where harm to the public is substantially incontestable Sources of Public Policy: Human rights Charter Gov t pronouncement Int l treaties Statutory acts Potential Grounds Encouraging criminal activity Separating parent from child Encouraging a couple to separate Racism General Restriction on Marriage o But can exclude a particular person/ limit class of potential spouses/ prohibiting reconciliation between couples already apart (Ziff) Prevent someone from exercising rights Kent v McCay à cannot prevent recipients of will from challenging the will à against statutory public policy Canada Trust à Not all discriminatory restrictions are contrary to public policy. Saved by Doctrine of Cy- pres: allows court to amend the terms of the charitable trust as closely as possible to the original intention of the testator to prevent the trust from failing (LOOK AT DISSENT) Ramsden Estate à discriminatory and goes against the University Act but is upheld because of the Doctrine of Cy- pres

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13 Future Interests Transmissibility of Interests Cannot convey at CL: Right of re- entry and possibility of reverter Contingent interest to a third party EG. TO A, but if A ever starts smoking B may enter. Could say To A for life, then to B if B has finished law school (a contingent remainder, allowed) No Gaps in Seisen There can never be a moment during in which someone was not seized of the land Must be timely vesting Splitting of Titles (Trusts) Trustee legal title à disposition, management, administration, possession Beneficiary Equitable title à Fructus, Usus Why: Get around rule of primogeniture Avoid Gaps in Seisen Legal title creates a resulting trust Possibility of Reverter and rights of re- entry for 3 rd parties Done through legislation today but historically trusts were done to do this Statute of Uses 1535 à Created to get rid of trusts 2 ways to get around it Avoiding the Statute: Leasehold: To A for 99 years to the use of B (A does not have a fee simple interest) Applies to people not corporations: EG. To Canamek Ltd in trust for B Creating language that avoids it: Seised of Land Exhausting the Statute Trust on a Trust: To A to the use of B to the use of C; To B to the use of B to the use of C = Statute collapses Only for a fee simple on trust for a fee simple o To A to the use of B, the to the use of C, if C is 21, but if C is not, then to the use of D Wills also get around the statute Trusts Today Create trust so that trustee holds legal title o Protection of minors o Investments o Pension fund etc Avoid c/l restriction on future interests o Timely vesting rule o No Gap in Seisen Gaps in Seisen Today Only applies when the legal title hasn t been split and it is a gift inter vivos Resulting and Constructive Trusts RT Legal executor interest: gap in vesting of a future interest Property is transferred suggesting that the transferor did not intent for the transferee to have the beneficial interest Gap in vesting goes back the original grantor s estate CT

14 Wrongful enrichment No common intention Rule against Perpetuities Maximum period where a condition precedent must vest If there is a possibility that an interest will vest outside of the period it will be void ab initio 1) Identify any interest which are contingent 2) Identify the vesting event. E.G. To T in trust for the first grandchild of A to marry 3) Determine maximum period in which vesting event could take place (Life in being) 4) Having determined latest date at which vesting could occur match this against, lives in being + 21 years In BC the max period is 80 years S 7 (1) (b) Perpetuity Act.

15 Concurrent Interests Tenancy in Common Co owners have an equal right to possession and use of the whole property Can make disposition of share in the undivided property Can dispose of share by will Each owner is separate tenant of their share E.G. if A dies, A s share goes to A s heirs Joint Tenancy Co owners have an equal right to possession and use of the whole property Can make disposition of share in the undivided property Right of survivorship On death of joint tenant, her share of property goes to the surviving co- owner Title not divided A, B, and C have right to possession over the whole property A s share goes to B and C = right of survivorship Advantage creditors cannot take property Joint Tenancy or Tenancy in Common 1) Are all four unities present? No à TC, Yes à could be TC or JT Unity of Possession - Interests must relate to same piece of property o JT and TC are the same on this Unity of Title - Concurrent ownership must have been created in same instrument Unity of Interest - Equal in nature, duration and extent Unity of Time - Receive estates at the same time 2) Intention and Rules of Construction Intention determines whether it is JT or TC If not clear presumptions apply 3) Common Law Presumption Joint Tenancy Presumed in the presence of four unities, unless contrary in the will/ grant 4) Legislated Presumption Tenancy in Common (land only) BC Presumption in favour of tenancy in common (for land only) BC Property Law Act S. 11 (2) Creating Joint Tenancy 1) Express declaration that grant/ devise is to be in JT 2) Four unities present: Clear expression of joint tenancy Except in creating a Joint tenancy in a legal interest of a trust McEwen v Ewers & Ferguson Statutory presumption is tenancy in common unless there is clear intention otherwise Common Law presumption is Joint Tenancy unless contrary intention is present à there was no contrary intention in the case Creating Tenancy in Common S.11 (2) PLA BC: Presumption of Tenancy in Common (for land) 1) Express creation of TC or a failed attempt to create a joint tenancy Jointly and Equally à TC Words of division/ distribution à TC

16 2) Pursuant to the statutory presumption 3) Severance of Joint Tenancy Feinstein v Ashford Once JT is created you can convert it into TC Destruction of the right of survivorship Unilateral action: On person acting on their share By mutual agreement Note: you can have a combination of JT and TC on same property. EG: A, B, C, D own as JT. A sells to Z Z now hold TC with B, C, and D B,C, and D still have JT with each other If B dies Z will have ¼ and C and D will hold ¾ JT Feinstein v Ashford, 2005 BCSC: As long as there is intention to severe and it was executed a JT can turn into a TC. He signed the application but had not registered it.

17 Matrimonial Property Who? When? Family Law Act S. 3(1)(a) Spouses who are married Family Law Act s. 3(1)(b)(i) Marriage like relationship for a continuous period of at least 2 years Family Law Act s. 93 Can contract out written set aside agreements respecting property division Family Law Act s. 92 lists agreements respecting property division that can be excluded subject to variation by the court under s. 93 if court finds it unfair Division takes place upon a triggering event. Before this event, the property relationship between the couple is governed by Doctrine of Separate Property. o During marriage separate property they can dispose of their property as they wish (subject to s. 91(1) and S.3 of the Land Act to stop spouse from selling off house before separation is solidified) Family Law Act S. 81 (b) Triggering event - upon separation each spouse right to undivided half interest in all property as tenant in common Family Law Act s. 3(4)(b) evidence of separation Death is not a triggering event o Would go to WESA upon death spousal preferential share What Family Law Act s. 81(a) Both spouses are entitled to property irrespective of contribution Family Law Act s. 84 subject to s.85 (exclusion) family property is all real property Family Law Act s. 91(1) - a party may apply for interim orders to restrain other spouse from disposing of any property at issue Land (spouse protection) Act s. 3 When disposition of family home without consent of spouse is void Family Law Act s. 85: excluded property i.e. pre- relationship property, gifts, and inheritances Family Law Act s.84(2)(e) - Occupational Pension is included in family property Family Law Act s. 84(2)(g) - Value increase of excluded property is family property ** Remember particular property may be excluded by agreements s. 92 How? Family Law Act s. 81(b) - Presumptively equal shares irrespective of fault or contribution Family Law Act s. 93(5) - unequal division possible where equal would be significantly unfair Cases Murdoch v Murdoch: Land in H s name. W significantly contributed to their overall wealth. W was not entitled to a share because there was no proof of contribution Dissent: Laskin (Constructive Trust) Focus on unjust enrichment in cases like these LeBlanc v LeBlanc: Equal sharing strong presumption in Canada, unequal is justified where it would be significantly unfair SCC authorized 92 8% split, H made no contribution and had been MIA McIntire v McIntire Reapportionment (would arrive at same decision today with (S 85 FLA) Inherited property excluded but increase in value is included Equal decision would have been unfair to the husband 80/20 division Royal Bank of Canada v Fraser Mortgage was a mode of severance, they changed to TC 3 forms of protection for spouses, in terms of real property: o Family Law Act S any disposition or encumbrance must be done with consent of other spouse otherwise null and void o Land (spouse protection) Act S. 3 (1) any disposition of the homestead by one spouse is null and void if other did not explicitly consent o If JT, a mortgage severs the JT into a TC and only the interest of the spouse who mortgages would be liable in case of default

18 Kerr v Baranow Unjust enrichment CL spouse stayed at home at raised family, while the other was building a business Where one party gains disproportionate share of assets resulting from joint family venture AND a monetary appropriate à should be calculated on basis of share of those assets proportionate to claimants contributions Joint Venture = Mutual effort, common goal, economic integration, actual intent Horne v Horne Contingent interest as a subject of property division

19 Land Title Registration Nemo dat quod non habet No one can get that which they do not own Ceveat emptor Buyer beware Transferring Land 2 stage Process: 1) Contract of Purchase and Sale (Equitable Title) 2) Transfer of Title (Legal Title) Priority Rules: 1. Two Equity First in time is first in right 2. Two Legal First in time is fist in right 3. Legal Interest and Equitable Interest First in time is first in right Right of redemption: When using property interest for a loan, the legal interest is transferred to the lender, but court of equity created the equitable right of redemption 4. Equitable Title and Legal Title BNFPFV without notice will take priority ( First is time is not necessarily first in right) General Principles Registration Principle: Land Title Act S 20 (1) à No interest passes until something is registered Indefeasibility Principle: Land Title Act S 23 (2) à conclusive proof in law and equity that registered owner is the true holder of title o Land Title Act S 26 (1) indefeasibility only applied to fee simple interest not to charges o Land Title Act S 23 (2) (i) Fraud Exception Deferred indefeasibility = pushed moment of indefeasibility one step removed from the rogue Immediate indefeasibility = BFPFV would hold fee simple interest indefeasibly immediately upon registering title o Land Title Act S. 25 (1) BC operates under a system of immediate indefeasibility (applies only to fee simple NOT charges) Abolition of Notice Principle: Land Title Act S 29 (2) (a) (b) o You don't need to worry about unregistered interests. Even if you know of the prior unregistered interest the doctrine of notice does not apply o Undoing common law without notice à line between notice and fraud There has to be evidence of something more than actual notice for fraud in the case With current system Notice is not sufficient for purchaser to lose title Assurance Principle: Land Title Act S. 296 (2) (a)(i) (ii) à compensating the original owner o Three part test: (a) Was the claimant deprived of land? (i) Would the claimant have been able to claim under the common law? (ii) Was there fraud? Charges Something less than fee simple Mortgagor is considered the owner of the property o It is an encumbrance of the property o Mortgage by one JT doe not sever JT only when you transfer title to self LTA 23 (2).. the person named in the title as registered owner is indefeasibly entitled to an estate in fee simple 25.1 (2) (3).even though an instrument purporting to transfer a fee simple estate is void 26 (1): a registered owner of a charge is deemed to be entitled to the estate Mortgage creates a charge in favour of creditor - S. 231 (1) LTA; s. 30 PLA Credit Foncier v Bennett owner of charge is deemed entitled = rebuttably presumed S.23 (2) LTA Original Title > Fraud Mortgage> Void Mortgage

20 Gill v Bucholtz Original Title à Fraud Title à Void Mortgage (M1;M2) LTA does not give indefeasible title to charges (Nemo Dat applies) Registration Charges: S.28 Priority of charges depends on the order of their registration Canadian Commercial Bank v Island Realty Investments Ltd: Priority of Mortgage 3 rd mortgage holder who got the charge directly from the owner and not through fraudulent transactions and so was entitled to priority over the discharging mortgage. Remedies for Non- Payment 1. Sue on the personal covenant In the mortgage covenant (promise to repay contractual) Different than taking the house as security 2. Interim measures Taking possession à Generate profit from rent Appointing a receive à Income from property is applied to the money owing 3. Foreclosure/ sale S. 271 LTA (a) Foreclosure a. Lender becomes owner of property b. Debt extinguished, cannot sue on personal covenant, if there is a deficiency S. 32 PLA (b) Sale a. Can be private, tender, auction Lender applies for foreclosure Borrower can o File statement of defence dispute claim, court may order period of redemption usually 6 months (S16 Law and Equity Act) o Pay money owing o Do nothing Caveat A registered charge warning future purchasers that no further dealings in the land are subject to someone else s interest. Charge S.1 (a) & (b) A charge à any interest in the land lower than a fee simple An encumbrance à judgement or certificate of impending judgment Skeetchestn Indian Band v BC (Registrar of Land Title): Aboriginal title is not an interest that is capable of being registered; therefore no caveat can be put on the land.

21 Easements A landowner s right in relation to another s land. It is a right less than ownership but more than a mere license. o License attaches to the person, not the land o Easements are not personal; they are attached to the land o Benefit and Burden run with the land Land Transfer Act S. 82 (1): Only with express rejection of the easement does the easement not pas son conveyance, unless it is made for a restricted period of time or is extinguished Kind of easements Positive Easement: A right which allows the dominant land owner to do something to the servient land Negative Easement: Allows the dominant landowner to prevent the servient landowner from doing something on the servient land o Restricted because of the Numerus Clausus principle o The right to use one s land for (a) support; (b) water; (c) air; or (d) light o If an owner wasn t to protect property a better route is through a restrictive covenant (Phipps v Pears) Characteristics of an Easement 1. Existence of dominant and servient lands a. Only exception: Land title Act, Statutory right of way 218 (2); Land Act S.40 b. Easements of utility or conservation easements created by gov t, gov t does not have DL but can acquire easement on SL 2. DL and SL owned by different people a. NOW under s. 18 (5) and (7) of BC Property law Act common ownership and possession of the DL and SL does not extinguish an easement 3. Easement must accommodate (enhance) the dominant land (Ellenborough) a. Must be an advantage not to the individual, but to the dominant land b. Improving land beyond mere increase in value 4. The right must be capable of being granted a. Rights should be sufficiently delineated and not so large in scope that is tantamount to ownership or full possession Creation of an Easement 1. Statute: hydro, telephone and conservation easements s.218 (1) Land Title Act s Express Grant: owner of servient land grants an easement over land a. A owns land; subdivides it and sells half of land to B. Give B a right of way (an easement). 3. Express Reservation: owner of dominant land retains and interest on land transferred 4. Implied Grant of Easement (sale of dominate land) (only for subdivisions) a. Common Intention: if it is within the common intention of the parties that they new owner B would be granted an easement b. Easement of necessity: Use a fire escape or an elevator c. Quasi easements (Israel v Leith) i. Must have been used by A before A sold it to B ii. Use must be continuous and apparent iii. Related to Reasonable enjoyment of B s land 5. Implied Reservation (Reservation of behalf of dominant land owner) a. Common intention easements and easements of necessity b. NOT Quasi easements. c. Exists in the context of severance 6. Court order easements a. Repair or work S. 34 (1) b. Adjoining land S. 36

22 Scope If the burden on the SL has markedly increased in terms of character, nature, or extent of use, the person enjoying the easement will be restrained by injunction (or will be liable in trespass) If express grant: must stick to what is dictated If Implied grant: owner of DL cannot increase beyond accustomed use (Malden Farms) Extinguishment Express Release Completion of use for which easement was granted Expiry of time Court order Abandonment Profit- a- Prendre: right to exploit resources from a SL works in a similar situation

23 Covenants General: Valid contractual undertaking Promise to do or not do something regarding land (positive/ negative) Promises under seal s. 16 PLA Characteristics: Do NOT RUN with land Servient Tenement: Burdened by the covenant Dominant Tenement: Benefits from the covenant Covenantor: Assumes the Burden Covenantee: Obtains the benefit Positive: covenantor promises to do something o Like keeping your trees under a certain height o In form it is a negative à Practice this is positive (Aquadel Golf Course) Negative (Restrictive Covenant): Covenantor promises to NOT do something o Never to paint his house green A person ca modify or cancel a covenant S.35 (1) PLA Reasons for Creating Covenants Control the use of the land (Historical Building) Regulate the nature or quality of residential houses o Open a half- way house next door Covenants in the past o Drummond Wren 1945 and Noble/Wolfe 1949 Public Policy Do not touch and concern the land Covenants without Privity of Contract Dominant Lands Sold Benefit of covenants do not run with the land unless o Original owner of dominant lands assigned benefit of contract, OR o Benefit of covenants are intended to run with the land: Did they agree to intend it to run with the land and continue with new owner? o Must prove: In the original covenant they have expressly agreed it can continue to be claimed by a new owner or be inherited. If no assignment: Common law Original covenantee held the legal estate (As opposed to equitable estate) New owner of the DL has the same legal estate Original parties intent that the benefit would attach to the DL o If it is expressed that it is a favour à his will be an obligation and not intended to run with the land Covenant touches and concerns the DL (Glabraith v Madawasca Club) o Affects DL and mode of occupation: what it is used for NOT MANNER of occupation of land: Limiting WHO you can sell it to is void for public policy o It must by itself affect the value of the dominant land Would opening a halfway house by itself decrease the value of the homes surrounding it Equity Rationale: o Because you want it to pass in equity OR

24 o The new owner only has equitable title à so you can only access equitable title o So you can access equitable remedies: specific performance or injunction Criteria: o Touch and concern the dominant land? (Galbraith) o Assignee of covenantee show entitlement thought either: Annexation The DL is clearly identified in the document creating the covenant OR It means the original coventee is explicitly identified as assigned as the owner of the land The existence of a building scheme (S. 25 PLA) In the cases of a condo plan, or development So there is no DL but the developer has attached the covenant to the building Scheme Servient Lands Sold Does the burden of covenant run with servient lands? Common Law o No (Durham Condo v Amblewood) Equity o Does not include Positive Covenants o Negative (restrictive) covenants run in certain circumstances o But in equity they are seen as obligations, if certain conditions are fulfilled (Tulk English case on covenant to maintain land as a park: purchaser so servient and who knew of the covenant): Negative Intended that the burden would attach to the servient land Where the servient land is clearly identified and the obligation Touches and Concerns the dominant land Annexation etc The dominant lands clearly identified in the document Had actual or constructive notice before purchasing the land S. 186 (2) (C ) PLA as long as other conditions are fulfilled it doesn t matter whether he ahs notice or not Both Lands Sold Can new owner of the dominant land enforce covenant against new owner of the SL? Both condition shave to be fulfilled communally o Whether the benefits would run Run the test for running in equity o Whether the burdens would run Don t run in CL Would run in equity if Restrictive Covenant