PROPERTY LAW LAW 231, Section SYLLABUS

Transcription

1 Professor Tony Sheppard Office #467 Allard Hall 1822 East Mall, UBC Office phone: PROPERTY LAW LAW 231, Section SYLLABUS 1. The outline follows substantially the material in UBC Cases and Text on the Law of Real Property 5th ed., 1998, with revisions (2003, 2009, 2010, 2011, 2012, 2013, 2015, 2016). The length of the syllabus exceeds the time available. Students will not be responsible on exams for topics not covered in class. 2. ** Indicates material that will not be dealt with in class. Students are not responsible for knowledge of these items on exams. * Indicates material that may not be dealt with in detail in class. Students are not responsible for knowledge of these items on exams. MATERIALS A. Required AJ McClean and KB Farquhar (eds), Cases and Text on the Law of Real Property (5 th ed, 1998; revised, 2016) [current only](to be distributed in class) B. Recommended Bruce H Ziff, Principles of Property Law (6th ed, 2014) (UBC Law Library Reference Room, 2 nd floor, call no KE 618.Z ) C. Further reference 1. Canada Anger & Honsberger, Law of Real Property, 3 rd ed (2006, loose-leaf) (UBC Law Library Reference Room) Benson, Bowden & Newman, Understanding Property: A Guide to Canada s Property Law, 2 nd ed (2008) (UBC Law Library Reference Room) The Continuing Legal Education Society of BC, Land Title Practice Manual (2007, loose-leaf) (UBC Law Library Reference Room) Di Castri, Registration of Title to Land (1987, loose-leaf) Land Titles Branch, Ministry of Sustainable Resource Management, Province of BC, Land Title Electronic Transfer Forms Guidebook (2013) (UBC Law Library Reference Room) Legal Dictionary of Property in Canada (2009), online: Mossman & Flanagan, Property Law: Cases and Commentary, 3rd ed (2014) (UBC Law Library Reference Room)

2 - 2 - Sinclair & McCallum, An Introduction to Real Property Law, 6 th ed (2012)(UBC Law Library Reference Room) Ziff, DeBeer, Harris, McCallum, A Property Law Reader: Cases, Questions and Commentary, 4 th ed (2016) (4 th ed is unavailable, but on order as of August, 2016) 2. United Kingdom Cheshire & Burn s Modern Law of Real Property, 18 th ed (2011) (UBC Law Library) Gray and Gray, Elements of Land Law, 5 th ed (2009) (UBC Law Library Reference Room) Megarry & Wade, The Law of Real Property, 8 th ed (2012) (UBC Law Library Reference Room) CLASS SCHEDULE Tuesdays and Thursdays, 11:00 a.m. to 12:30 p.m., in Allard Hall, room #122. COURSE EVALUATION Marks in Property Law are based on exams. Students write two exams. The exam format for this section of Property Law, unless changed after consultation with the class, will be "limited open-book" (which means students may bring into the examination room and refer to the Required Materials (above), materials distributed in class ( Handouts ), and the student's own notes and summaries but no library books or textbooks may be brought into the examination room. Subject to reconsideration in light of consultation with the class, the examination questions will be problem-oriented, with an optional brief essay question. Maximum marks and suggested times will be indicated for each question on the examination. See the Exams link on the UBC Law Library website for archives of previous exams. Students who cannot attend the scheduled examination because of temporary illness or for any other reason should refer to the Faculty of Law's examination rules and procedures. A one-hour exam is scheduled for Wednesday, 16 December 2016, at 1:30 p.m. that will cover material to the end of first term s classes. The December exam mark will count for 0% or 25% of the final mark for the course. The final exam, covering material in both terms classes, is scheduled for Monday, 24 April, 2017, at 1:30 p.m. Duration of the final exam will be determined in consultation with the class, but usually it is three hours. The final exam will count for either 100% or 75% of the final mark, depending on a comparison of the scores on the two exams. The December exam will count for 25% of the total exam mark if the December mark is greater than the mark on the April exam, plus 75% for the mark on the April exam. Alternatively, if the mark on the April exam is greater then the mark on the December exam, the April mark will comprise the full mark for the course. A lower mark on the December exam than on the April exam would not affect the course mark, whereas a higher mark on the December exam than on the April exam improves the course mark. The final mark will be determined as follows: December Exam 0% or 25% April (Final) Exam 100% or 75% TOTAL 100% All UBC law students are subject to the University's rules on Academic Misconduct ( and are expected to act with academic integrity at all times. Students should be especially aware of the University's rules in

3 - 3 - relation to plagiarism. Plagiarism may be subject to penalties set out in the UBC calendar: ( For more about academic misconduct, visit the UBC Library's website on academic integrity ( Examples of academic misconduct can also be found in the UBC Annual Report on Student Discipline ( READING LIST CHAPTER I THE LEGAL CONCEPT OF LAND A. CUJUS EST SOLUM EJUS EST USQUE AD COELUM ET AD INFEROS Ad Coelum (a) Common Law Kelsen v Imperial Tobacco Co The Chancery Amendment Act, 1858 (UK), 21 & 22 Vict, c 27 ( Lord Cairns Act ) s 2... [Handout] Law and Equity Act, s Property Law Act, s Bernstein (Lord of Leigh) v Skyviews **Manitoba v. Air Canada (b) Legislation Land Title Act, ss Strata Property Act, ss 1, ** 2. Ad Inferos B. FIXTURES 1-21 Re Davis Zellstoff Celgar Limited v British Columbia CMIC Mortgage Investment Corp v Rodriguez C. WATER Riparian Rights Water Sustainability Act, ss 1-2, 5-7, 22, Water Protection Act, ss

4 - 4 - * (a) The Development of British Columbia Law * H.A. Maclean, "Historic Development of Water Legislation in British Columbia" (b) The Conjunction of Common Law and Statutes Johnson v Anderson Schillinger v H Williamson Blacktop & Landscaping Ltd (No 2) Steadman v Erickson Gold Mining Corp * 2. Percolating Water Ownership of the Beds of Watercourses, Lakes and Ponds Land Act, ss Accretion and Erosion Southern Centre of Theosophy Inc v South Australia ** 5. Access by Riparian Owners ** North Saanich (District) v Murray D. SUPPORT ** Cleland v Berberick ** Bremner v Bleakley Gillies v Bortoluzzi Rytter v Schmitz CHAPTER II THE GENERAL PRINCIPLES OF LAND LAW INTRODUCTION A. REAL AND PERSONAL PROPERTY B. REASONS FOR STUDYING THE LAW OF REAL PROPERTY Dispositions Use of Land (a) Common Law (b) Private Arrangements (c) Legislation C. SOME BASIC PRINCIPLES OF LAND LAW Tenure

5 Corporeal and Incorporeal Interests in Land, and the Doctrine of Estates (a) Corporeal Interests (i) Fee Simple (ii) Fee Tail Property Law Act, s (iii) Life Estate (iv) Estate Pur Autre Vie (v) Leasehold Estates (vi) Future Interests (b) Incorporeal Interests Legal and Equitable Interests (a) Origin of Equitable Interests (b) Development of the Use (c) The Statute of Uses (d) Emergence of Modern Trust Freedom of Alienation (a) Freedom of Disposition (b) Restraints on Alienation (i) Direct Restraints (ii) Fee Tails (iii) Future Interests ** (iv) Strict Settlements (c) Mechanics of Transfer (i) Establishing Good Root of Title (ii) Methods of Transfer D. RELATIONSHIP BETWEEN REAL AND PERSONAL PROPERTY Tenure The Doctrine of Estates Re Fraser Alienability Devolution on Death E. THE RELEVANCE OF ENGLISH LAW Law and Equity Act, s

6 - 6 - CHAPTER III ABORIGINAL TITLE *A. THE BACKGROUND * P Tennant, "The Indian Land Question in B.C.: A Chronology B. THE CURRENT LAW Constitution Act, 1982, s [Handout] Delgamuukw v British Columbia Mitchell v MNR R v Marshall; R v Bernard William v British Columbia 3-52 * BC Treaty Commission, online: CHAPTER IV ACQUISITIONS OF INTERESTS IN LAND INTRODUCTION A. CROWN GRANT Land Act, s B. INTER VIVOS TRANSFER The Contract Law and Equity Act, s The Transfer - Form (a) Writing and Sealing Property Law Act, ss 15, (b) Registration - Prescribed Forms Property Law Act, ss Land Title Act, ss 39, 185, (c) Standard Forms Land Transfer Form Act, ss The Transfer - When Is It Operative? Land Title Act, ss Ross v Ross Zwicker v Dorey MacLeod v Montgomery Transfers to Volunteers

7 - 7 - Property Law Act, s (a) Pre Statute of Uses (b) Statute of Uses (c) The Trust C. WILL OR INTESTACY Wills, Estates and Succession Act, ss 37, 39, 40, Wills, Estates and Succession Act, s D. PROPRIETARY ESTOPPEL Clarke v Johnson Law and Equity Act, s 59(3)(b) *APPENDIX A: Form of Crown Grant *APPENDIX B: Contract of Purchase and Sale *APPENDIX C: Land Title Act - Form A *APPENDIX D: Land Title Act - Form B CHAPTER V REGISTRATION OF TITLE: AN OVERVIEW A. HISTORICAL BACKGROUND Common Law Conveyancing The Recording System The Torrens System The Torrens System Introduced in British Columbia B. THE GENERAL PATTERN OF REGISTRATION Land Title Districts What Can Be Registered? (a) The General Principle * R v Kessler (b) Prohibition of Registration of Common Law Interests (c) Registration of Non Common Law Interests (d) Aboriginal Title Skeetchestn v Registrar of Land Titles, (affirmed 2000 BCCA 525; 80 BCLR (3d) 233, leave to appeal discontinued [2000] SCCA No 599)

8 The Basic Scheme of Registration (a) The Legal Fee Simple Land Title Act, ss 179, Strata Property Act, ss 239, (b) Charges Land Title Act, s The Legal Fee Simple (a) Initial Application Land Title Act, s (b) Transfer Inter Vivos (c) Transmission on Death Charges (a) General Land Title Act, s (b) Caveats; Certificates of Pending Litigation; Judgments (i) Caveats Land Title Act, s (ii) Certificates of Pending Litigation Land Title Act, ss (iii) Judgments (1) Type of judgment that can be registered (2) Manner of registration (3) General effect of registration Court Order Enforcement Act, s 86(3) **C. THE ROLE OF THE REGISTRAR Re Land Registry Act, Re Evans Application Re Land Registry Act and Shaw Property Law Act, s **Heller v British Columbia (Registrar, Vancouver Land Registration District) **Land Title Act, s D. THE ASSURANCE FUND Land Title Act, ss , McCaig v Reys

9 - 9 - Royal Bank of Canada v British Columbia (AG) CHAPTER VI REGISTRATION INTRODUCTION Land Act, s A. REGISTRATION: THE FEE SIMPLE Land Title Act, s Land Act, s Agricultural Land Commission Act, ss 1, 16, 20, 21, 28, The General Principle of Indefeasibility Creelman v Hudson Bay Insurance Co Indefeasibility and Adverse Possession Land Act, s Limitation Act, ss 2, 3, 5, Land Title Act, ss 23(3)-(4), Property Law Act, s Statutory Exceptions to Indefeasibility (a) Section 23(2)(d) - Leases Land Title Act, s 1 [definition of lease or agreement for lease for a term not exceeding 3 years if there is actual occupation under the lease or agreement ] (b) Section 23(2)(g) - Charges and Other Entries Carr v Rayward (c) Section 23(2)(h) - Boundaries Winrob v Street (d) Section 23(2)(i) - Fraud (i) Forgery Gibbs v Messer , 15 Frazer v Walker Land Title Act, s Gill v Bucholtz (ii) Notice of Unregistered Interests Land Title Act, s McCaig v Reys Hudson's Bay Co v Kearns and Rowling

10 Vancouver City Savings v Serving for Success Counselling Greveling v Greveling Re Saville Row Properties Ltd "In Personam" Claims Pacific Savings and Mortgage Corp v Can-Corp Developments McRae v McRae Estate B. REGISTRATION: CHARGES Meaning of Registration Land Title Act, ss 197, Dukart v Surrey (District) Indefeasibility? Land Title Act, ss 26, Crédit Foncier Franco-Canadien v Bennett Land Title Act, s 27(3) Canadian Commercial Bank v Island Realty Investment Ltd Priorities Land Title Act, s CHAPTER VII FAILURE TO REGISTER A. THE GENERAL PRINCIPLE Land Title Act, s Sorenson v Young Land Title Act, s B. "EXCEPT AGAINST THE PERSON MAKING IT" Judgments Judgments ** Yeulet v. Matthews Court Order Enforcement Act, s 86(3) Martin Commercial Fueling Inc. v. Virtanen Other Interests L&C Lumber Co Ltd v Lungdren "Prohibited Transactions"

11 International Paper Industries v Top Line Industries Inc Land Title Act, s CHAPTER VIII APPLICATIONS TO REGISTER Land Title Act, ss 31, 288, ** Peck v Sun Life Assurance Co Rudland v Romilly ** Paramount Life Insurance Co v Hill ** Canada Permanent Mortgage Corporation v British Columbia (Registrar of Titles) ** Land Title Act, ss 155, Breskvar v Wall CHAPTER IX THE FEE SIMPLE A. CREATION Common Law Statute Property Law Act, s 19(1), (2) Land Title Act, s 186(4)-(8) Wills, Estates and Succession Act, s 41(3) Tottrup v Ottewell Estate Wills, Estates and Succession Act, ss 25, 46(2) Problems of Interpretation - Repugnancy Re Walker Re Shamas Cielein v Tressider **B. WORDS FORMERLY CREATING A FEE TAIL The Common Law (a) Technical Words of Limitation (b) Informal Words of Limitation (c) The Rule in Wild's Case Wild's Case

12 CHAPTER X THE LIFE ESTATE A. CREATION By Act of the Parties By Statute (a) Introduction (b) Wills, Estates and Succession Act (c) Family Law Act (d) Land (Spouse Protection) Act Land (Spouse Protection) Act, s B. RIGHTS OF A LIFE TENANT Occupation, Use and Profits Transfer Inter Vivos Devolution on Death C. OBLIGATIONS OF A LIFE TENANT TO THOSE ENTITLED IN REVERSION OR REMAINDER Waste (a) Permissive Waste (b) Voluntary Waste (c) Equitable Waste Vane v Lord Barnard Law and Equity Act, s New Westminster (City) v Kennedy Liability for Taxes, Insurance, etc Mayo v Leitovski D. STATUTORY POWERS CHAPTER XI CO-OWNERSHIP - CONCURRENT ESTATES A. TYPES OF CO-OWNERSHIP Coparcenary Tenancy by the Entireties

13 Property Law Act, s Tenancy in Common Joint Tenancy (a) Right of Survivorship (b) The Three Unities (i) Unity of Title (ii) Unity of Interest (iii) Unity of Time B. CREATION OF CONCURRENT INTERESTS Common Law ** Re Bancroft, Eastern Trust Co v Calder Equity Robb v Robb Statute Property Law Act, s Partnership Act, s Transfer to Self and Co-Ownership Property Law Act, s C. REGISTRATION OF TITLE Land Title Act, ss 173, D. RELATIONS BETWEEN CO-OWNERS Share of Profits Spelman v Spelman Property Law Act, s Share of Expenses Property Law Act, ss 13, * Mastron v Cotton Bernard v Bernard E. TERMINATION OF CO-OWNERSHIP Severance of Joint Tenancy (a) Destruction of One of the Unities Stonehouse v British Columbia (AG)

14 North Vancouver (District) v Carlisle * Lyons v Lyons Land Title Act, s 231[noted] Sorensen Estate v Sorensen (b) Agreement Between Joint Tenants Flannigan v Wortherspoon (c) Unilateral Intention of One Joint Tenant * Walker v Dubord Partition and Sale Partition of Property Act, ss 2, 3, 6, 7, * Harmeling v Harmeling CHAPTER XII FUTURE INTERESTS [TBA] CHAPTER XIII CONDITIONAL AND DETERMINABLE INTERESTS [TBA] CHAPTER XV INCORPOREAL INTERESTS INTRODUCTION A. EASEMENTS Characteristics (a) Common Law In re Ellenborough Park (i) Accommodation (ii) The Subject Matter of a Grant Dukart v Surrey (District) Shelf Holdings Ltd v Husky Oil Operations Ltd Phipps v Pears (b) Statutory Modification Land Title Act, s

15 Property Law Act, s **2. Creation (a) Express Grant Laurie v. Winch CHAPTER XVI COVENANTS INTRODUCTION A. POSITIVE COVENANTS B. RESTRICTIVE COVENANTS Common Law Equity (a) The Burden Tulk v Moxhay Aquadel Golf Course Ltd v Lindell Beach Holiday Resort (b) The Benefit ** (i) Annexation ** Canadian Construction Co. v. Beaver Lumber (Alberta) Ltd