READER CASES, QUESTIONS, & COMMENTARY THIRD EDITION
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1 A READER CASES, QUESTIONS, & COMMENTARY THIRD EDITION Bruce Ziff Jeremy de Beer Douglas C. Harris Margaret E.
2 TABLE OF CONTENTS CHAPTER 1: CHAPTER 2: THE NATURE OF PROPERTY 1. Introduction 1 2. The "Properties" of Property 2 (a) the meanings of property 2 C.B. MacPherson, Meaning of Property" 2 (b) the right to exclude 6 W. Merrill, "Property and the Right to Exclude" 6 Questions Yannerv. Eaton 12 Note 19 Questions 19 Harrison v. Carswell 19 Note 30 Questions and Comments The Case for Private Property 32 C. Lewis, "The Right to Private Property in a New Political Dispensation in South Africa" 33 Questions and Comments Private vs. Common Property NovelClaims 47 (a) judicial approaches to novel property claims 47 International News Service v. Associated Press 47 Note 54 Questions 54 Victoria Park Racing and Recreation Grounds Ltd. v. Taylor 54 Note 59 Questions 59 Moore v. The Regents the University of California 60 Note 76 Questions 77 (b) restrictions on the recognition of new property interests 78 B. Ziff, Irreversibility of Commodification" 78 Questions 80 Review Question 81 PROPERTY IN PERSPECTIVE 1. Introduction The Sources of Canadian Property Law 84 (a) Aboriginal legal traditions 84 J. Borrows, Recovering Canada: The Resurgence of Indigenous Law 84 Questions 88 Richard Overstall, "Encountering the Spirit in the Land: 'Property' in a Legal Order" 88 (b) English common law 104
3 x A PROPERTY LAW READER J. Cribbet & C.W. Johnson, Principles of the Law of Property 104 B. Ziff, "Warm Reception in Cold Climate: English Property Law and the Suppression of the Canadian Legal Identity" 110 R. Chambers, An Introduction to Property Law in Australia 114 Questions and Comments Property, Class, andpoverty 119 J. Waldron, "Homelessness and the Issue of Freedom"... Questions 123 Ellickson, "Controlling Chronic Misconduct in City Spaces: Of Panhandlers, Skid Rows, and Public-Space Zoning" 123 Questions 129 Victoria (City) v. Adams 130 Questions and Comments Protections for Property 140 (a) introduction 140 B. Ziff, "'Taking' Liberties: Protections Private Property in Canada" 140 (b) constitutional protections for property 143 Questions 145 (c) CHAPTER 3: expropriation or regulatory takings B. Ziff, "'Taking' Liberties: Protections Private Property in Canada" 146 Pennsylvania Coal Co. v.mahon 148 Lucas v. South Carolina Coastal Council 149 Note 152 Mariner Real Estate Ltd. v. Nova Scotia (Attorney General) 152 Note 162 Questions and Comments 163 Canadian Pacific Railway Company v. City of Vancouver 163 Question 166 (d) the North American Free Trade 166 Ziff, "'Taking' Liberties: Protections for Private Property in Canada" 167 Metalclad Corp v. United Mexican States Questions and Comments 172 BOUNDARIES 1. Introduction Land: Airspace and Subsurface 176 (a) introduction 176 (b) above the surface 176 Didow v. Alberta Power Ltd. 176 Notes 182 Questions 182 Comment 183
4 TABLE OF CONTENTS xi (c) below the surface 184 Edwards v. Sims 184 Questions 188 B. Ziff, "Digging Below the Surface: The Story Beneath the Great Onyx Cave Cases" 188 (d) an economic perspective 192 B. Ziff, "Digging Below the Surface: The Story Beneath the Great Onyx Cave Cases" 194 Questions 198 (e) mines and minerals 198 Canadian Law Mining Lateral Boundaries 201 (a) land bounded by land 204 Robertsonv. Wallace 204 Questions 207 Wilkinson 207 Note Questions and Comments 211 (b) water boundaries 213 R. v.nikal 213 Note 219 Questions 219 Review Questions Fixtures 224 La Salle Recreations Ltd v. Canadian Comdex Investments Ltd. 225 Questions 228 Diamond Neon (Manufacturing) Ltd. v. Toronto-Dominion Realty Co 230 Questions The Transformation of Chattel Ownership 233 Glencore International A.G. v. Metro Trading International 234 McKeown v. Yachts Pty. Ltd. 241 Questions and Comments 246 Shank 247 Questions and Comments Tangible and Intangible Resources 252 (a) copyrights 252 v. Galerie du Petit Champlain inc 252 Note 259 Questions 259 (b) patents 259 Monsanto Canada Inc. v. Schmeiser 259 Notes 270 Questions 270 (c) trade-marks 272 Mattel, Inc. v Canada Inc 272 Note 278 Questions and Comments 278 v. 282 Note 289
5 xii A PROPERTY LAW READER Questions 290 Comment 291 CHAPTER 4: THE CONCEPT OF POSSESSION 1. Introduction Some Basic Definitions 293 Popov v. Hayashi 293 Note 301 Questions and Comments Acquisition of Tide by Possession: Squatters 306 v. Arillotta 307 Note 314 Questions and Comments 315 Teis v. Ancaster (Town) 317 Questions and Comments The Relative Nature of Title: Finders 329 Trachukv. Olinek 329 Questions and Comments 339 Charrierv. Bell 342 Questions and Comments Gifts 346 J.B. Form" 346 Nolan v. Nolan 350 Note Questions and Comments 364 CHAPTERS: COMMON LAW ESTATES AND ABORIGINAL TITLE 1. Introduction The Estate in Fee Simple 367 R.C. "Property in Land" 367 Thomas v. Murphy 369 Questions and Comments The Life Estate 374 (a) introduction 374 (b) creation 374 Re Walker 374 Questions Christensen v. Martini Estate 383 Questions and Comments 387 (c) powers and obligations 390 of Land Law 390 Questions 392 Powers v. Powers Estate 393 Questions 399 (d) life estates arising by operation law 400 W. Renke, "Homestead Legislation in the Four Western Provinces" 400
6 TABLE OF CONTENTS xiii CHAPTER 6: CHAPTER 7: 4. Estates in Personalty 402 Principles Property Law Aboriginal Property Rights 403 (a) introduction 403 (b) Aboriginal title at common law 409 Delgamuukw v. British Columbia 409 Note 429 Questions 429 T. Flanagan, C. Alcantara & A. LeDressay, Beyond the Indian Act: Restoring Aboriginal Property Rights... R. v. Bernard; R. v. Marshall 432 Note 439 Comment 439 Haida Nation v. British Columbia (Minister of Forests) Comment 446 (c) Aboriginal land rights on reserves 446 Indian Act 446 Questions 449 THE ORIGINS AND NATURE OF EQUITABLE INTERESTS 1. Introduction The Origins of Equity 451 Law, 4thed 451 Questions and Comments 458 Darling?' Resulting Trusts 466 Question 468 Pecore 468 Note 475 Questions and Comments Constructive Trusts 478 v. Baranow; Vanasse v. Seguin 480 Soulosv. Korkontzilas 508 Note 515 Bulun Bulun v. R. & T. Textiles Pty. Ltd. 517 Questions 525 QUALIFIED TRANSFERS AND FUTURE INTERESTS 1. Introduction Basic Concepts 528 v.kiansky 528 Comments 531 McKeen Estate McKeen Estate 533 Caroline (Village) v. Roper 537 Questions and Comments State Limitations on Private Power 542 (a) introduction Ungerv. Gossen 542 Question 545
7 xiv A PROPERTY LAW READER CHAPTER 8: (b) uncertainty 545 H.J. Hayes Co. v. Meade 546 Questions and Comments 550 (c) publicpolicy Re Leonard Foundation Trust 552 Note 563 Questions and Comments 563 B. Ziff, Unforeseen Legacies: Reuben Wells Leonard and the Leonard Foundation Trust 566 (d) restraints on alienation 569 Trinity College School v. Lyons 569 Questions and Comments The Legal Remainder Rules 574 of Land Law 575 Questions and Comments 577 Crow 579 Questions and Comments The Rule Against Perpetuities 582 L.A. "Understanding the Rule Against Perpetuities: Adopting a Five-Step Approach to a Perpetuities Problem" 582 Comments and Questions 592 Scurry-Rainbow Oil (Sask.) Ltd. v. Taylor 595 Note 601 Questions and Comments 601 Perpetuities Act 604 Questions 608 BAILMENTS 1. Introduction Nature of a Lease 609 Ltd. (in liquidation) v. Commissioner of Inland Revenue 610 Question and Comment The Landlord's and Tenant's 619 Merger Restaurants v. D.M.E. Foods Ltd. Note 624 Question Comment 624 Sundance Corp. v. Richfield Properties Ltd Questions and Comments Obligations of Landlords and Tenants 633 Southwark LBC v. Tanner 633 Note 637 Comments 637 Petra Ltd v. Jeffrey Rogers 640 Comment Termination and Remedies 645 Highway Properties v. Kelly, Douglas & Co 646 J.W. Lem, "Annotation: Unisys Canada Inc. v. York Three Associates Inc." 653
8 TABLE OF CONTENTS xv CHAPTER 9: Questions and Comments The Proprietary Status of Licences 654 Toronto (City) v. Jarvis 657 Questions and Comments Residential Tenancy Reform Bailment 662 Mercer v. Craven Grain Storage Ltd. 662 Note 667 Questions and Comments 667 Letourneau v. Otto Mobiles Edmonton Ltd. 668 Questions and Comments 677 M. et v. Sinclair c. o. b. Riding Stables 681 Question 683 Punchv. Savoy's Jewellers Ltd. 684 Questions 693 SHARED OWNERSHIP 1. Introduction Basic Concepts 695 of Land Law 695 Question Methods of Creation 698 of Land 698 Re Bancroft, Eastern Trust Co. v. Colder 700 Questions Severance of Joint Tenancies 704 Re Sorensen & Sorensen 704 Note Questions and Comments Resolving Concurrent Ownership Disputes 713 (a) rights and responsibilities of 713 of Land Law 713 Question 718 (b) terminating 718 Lem & B.G. Clark, "Annotation" 718 Question Shared Ownership of Personalty Question Comment Law 726 Braglinv. Braglin The Nature of Condominiums Alternative Conceptions of Shared 733 Hoferv.Hofer 734 Note 739 AJ. Esau, "The Judicial Resolution of Church Property Disputes: Canadian and American Models" 739
9 xvi A PROPERTY LAW READER CHAPTER 10: J.S. Youngblood Henderson, Tenure in Adantic Canada" 741 Questions 743 GNU General Public License 744 Questions 750 SERVITUDES OVER PROPERTY 1. Introduction The Nature of Easements 754 of Land Law 754 Questions and Comments Creation of Easements 757 v. Alberta Ltd. 762 Notes 771 Questions Scope, Location, and Termination 773 Lauriev. Winch 773 Maiden Farms Ltd. v. Nicholson 777 Questions and Comments Other Servitudes and Servitude-Type Rights 783 British Columbia v. Tener 783 Bank of Montreal v. Dynex Petroleum Ltd. 784 Questions Property 789 Cie Generate des Michelin Michelin & C.A.W.-Canada 792 Sky City Auckland Ltd. v. Wu 795 Question Covenants Running With Property B. Ziff, "Restrictive Covenants: The Basic Ingredients" Berry v. Indian Park Assn 808 Questions 816 Filion, The Restrictive Covenants Affordable Housing and Non-Single Family Use ofhomes: A Waterloo Region Case Study Positive Covenants 821 Amberwood Investments Ltd. v. Durham Condominium Corp Note 838 Questions Invalidity and Termination 841 Ziff, "Restrictive Covenants: The Basic Ingredients" Purpose 843 Questions 846 CHAPTER 11: MORTGAGES AND OTHER SECURITY INTERESTS 1. Introduction The Origins the Mortgage 848
10 TABLE OF CONTENTS xvii CHAPTER 12: W.S. Holdsworth, An Historical Introduction to the Land Law 848 D. & R. Warrington, "Land law, citizenship, and the invention of The strange world of the equity of redemption" The Contributions of Law and Equity 853 Athabasca Realty Ltd. v. Lee 853 Questions and Comments 859 Investments Ltd. Morrison 860 Notes Remedies and Related Matters 864 (a) introduction 864 (b) the personal covenant Ontario Ltd. v Ontario Inc 864 Question 867 Reliant Capital Ltd. v. Development Corp 867 Questions and Comments 873 (c) taking possession or appointing a receiver 874 North American Trust Co. v. Gas Co 874 Capsule Investments Ltd. v. Heck (d) foreclosure (and redemption) 877 Shankman v. Mutual Life Assurance Co. of Canada 879 Questions and Comments B.C. Ltd. v. Properties Ltd. 886 Note 889 (e) sale 890 Manufacturers Life Insurance Co. v. Huang & Danczkay Properties 890 Questions and Comments Other Security Interests: An 892 Ziff, Principles Property Law 892 Comment and Question 894 AND REGISTRATION 1. Introduction Priorities at Common Law and in 898 S. Levmore, "Variety and Uniformity in the Treatment of the Good-Faith 898 Comments 900 Northern Counties of England Fire Insurance v. Whipp Questions and Comments 904 A. O'Connor, "Security of Property Rights Tide Registration Systems" 904 Chippewas Band v. Canada (A.G.) 905 Note 916 J. Reynolds, "Aboriginal Title: The Chippewas of Sarnia" 916 Questions 917 Rice v.rice The Advent of Registration 918
11 xviii A PROPERTY LAW READER T.G. Youdan, "The Length of a Title Search in Ontario" 918 Comment 920 Canadian Imperial Bank of Commerce v. Rockway Holdings Ltd. 922 Note 924 Question Title Registration 925 (a) history of title registration in Canada 925 D.C. Harris, Review of Greg Taylor, The Law of the Land: The Advent of the Torrens System in Canada (2008) 925 (b) the curtain - indefeasible title 927 D.C. Harris, "Indefeasible Tide in British Columbia: A Comment on the November 2005 Amendments to the LandTitleAcr 928 Lawrence v. Wright 929 Questions and Comments 936 (c) the mirror - tide registration and prior unregistered interests Holt Renfrew & Co. v. Henry Singer Ltd. 938 Notes 947 Alberta (Ministry of Forestry, Lands and Wildlife) v. McCulloch 948 Questions and Comments 953 (d) (e) title registration and Aboriginal title 955 Skeetchestn Indian Band and Aboriginal Nation v. Registrar of Land Titles, Kamloops 956 (f) other features of tide registration Title Insurance 962 B. Ziff, 'Tide Insurance: The Big Print Giveth, But Does the Small Away?" 962 Review Question 971 Index 973
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