PROPERTY LAW LAW 231 SECTION Professor Karin Mickelson Office: Room 340; Tel.: ;

Transcription

1 PROPERTY LAW LAW 231 SECTION Professor Karin Mickelson Office: Room 340; Tel.: ; mickelson@allard.ubc.ca This course introduces the common law concept of property and explores its changing nature and application. The course serves (at least) two functions. On the one hand, it will provide you with an understanding of an area of the law that is a fundamental component of any legal system, and plays a particularly important role within common law-based legal systems. On the other, it will lay the foundation for a number of upper year courses, such as Trusts, Family Law, Real Estate Transactions, and Aboriginal Peoples and Canadian Law, that will assume a familiarity with the basics of the law of property. Evaluation: Evaluation in this course is based on a final, limited open book examination. In addition, there will be a December examination; this is mainly intended to be a practice examination, but it could account for 25% of your final examination grade if your mark is higher in December than in April. Office hours: If you have questions or concerns about the course, I would be happy to set up a time to meet outside of class time. In addition, I am almost always available to answer questions right after class. My practice is to establish formal office hours later in the term. Course Materials: The required casebook is Cases and Text on the Law of Real Property (A.J. McClean and K.B. Farquhar eds., 5th ed., 1998; minor revisions by Professors Farquhar, Harris, McCue, Mickelson and Ramsay, 2003; revisions to 2016 by Professor Sheppard). It is available as a custom course materials package that will be distributed in class. There will also be some cases and materials not included in the casebook that will be provided in electronic form by the instructor. A useful text is Bruce Ziff, Principles of Property Law; the 6 th edition of which came out a couple of years ago. Two copies are available in the reference law at the Law Library (call number KE618 Z ) This preliminary syllabus contains a list of most of the topics we are likely to cover during this academic year. A more comprehensive version will be made available shortly, which will provide a detailed listing of the materials under each heading. There may also be guest lectures and extra topics added to the syllabus as we go along. Unless otherwise indicated, all page references will be to the casebook. Certain portions of the materials or cases will be dealt with only in passing; these are indicated with an asterisk. Please note that when cases or sections of the casebook are not on the syllabus it is because we will not be covering them in class (and you will not be responsible for them for the purposes of evaluation).

2 -2- The Legal Concept of Land The General Principles of Land Law Acquisition of Interests in Land The Fee Simple The Life Estate Future Interests Conditional and Determinable Interests FALL TERM 2016 SPRING TERM 2017 Overview of Registration The Relationship between the Common Law and the Land Title System Registration Failure to Register Aboriginal Title The Relationship between Aboriginal Title and the Land Title System Co-Ownership: Concurrent Estates Easements Covenants

3 -3- FALL TERM 2016 THE LEGAL CONCEPT OF LAND A. CUJUS EST SOLUM EJUS EST USQUE AD COELUM ET AD INFEROS Ad Coelum 1-1 (a) Common Law 1-1 Kelsen v. Imperial Tobacco Co 1-1 Bernstein (Lord of Leigh) v. Skyviews 1-7 Manitoba v. Air Canada 1-11 (b) Legislation 1-15 Land Title Act, ss , 141, B. FIXTURES 1-21 Re Davis 1-21 La Salle Recreations Ltd v. Canadian Camdex Investments Ltd [ ed separately] Zellstoff Celgar Limited v. British Columbia 1-23 C. WATER Riparian Rights 1-36 Water Sustainability Act, ss. 1-2, 5-7, 22, Water Protection Act, ss (a) The Development of British Columbia Law* 1-40 H.A. Maclean, Historic Development of Water Legislation in British Columbia * 1-41 (b) The Conjunction of Common Law and Statute 1-45 Johnson v. Anderson 1-45 Schillinger v. H Williamson Blacktop & Landscaping Ltd (No. 2) 1-49 Steadman v. Erickson Gold Mining Corp 1-51 THE GENERAL PRINCIPLES OF LAND LAW INTRODUCTION 2-1 A. REAL AND PERSONAL PROPERTY 2-1 B. REASONS FOR STUDYING THE LAW OF REAL PROPERTY Dispositions Use of Land 2-3 (a) Common Law 2-3 (b) Private Arrangements 2-3 (c) Legislation 2-4 C. SOME BASIC PRINCIPLES OF LAND LAW Tenure Corporeal and Incorporeal Interests in Land, and the Doctrine of Estates 2-7 (a) Corporeal Interests 2-7 (i) Fee Simple 2-7 (ii) Fee Tail 2-8 Property Law Act, s (iii) Life Estate 2-9 (iv) Estate Pur Autre Vie 2-9 (v) Leasehold Estates 2-9 (vi) Future Interests 2-10 (b) Incorporeal Interests Legal and Equitable Interests 2-11

4 -4- (a) Origin of Equitable Interests 2-11 (b) Development of the Use 2-12 (c) The Statute of Uses 2-14 (d) Emergence of Modern Trust Freedom of Alienation 2-17 (a) Freedom of Disposition* 2-17 (b) Restraints on Alienation* 2-19 (i) Direct Restraints* 2-19 (ii) Fee Tails* 2-19 (iii) Future Interests* 2-20 (iv) Strict Settlements* 2-20 (c) Mechanics of Transfer 2-21 (i) Establishing Good Root of Title 2-21 (ii) Methods of Transfer* 2-22 D. RELATIONSHIP BETWEEN REAL AND PERSONAL PROPERTY Tenure The Doctrine of Estates 2-24 Re Fraser* Alienability* Devolution on Death* 2-29 E. THE RELEVANCE OF ENGLISH LAW 2-29 Law and Equity Act, s ACQUISITIONS OF INTERESTS IN LAND INTRODUCTION 4-1 A. CROWN GRANT 4-2 Land Act, s B. INTER VIVOS TRANSFER The Contract 4-4 Law and Equity Act, s The Transfer - Form 4-7 (a) Writing and Sealing 4-7 Property Law Act, ss. 15, (b) Registration - Prescribed Forms 4-8 Property Law Act, ss Land Title Act, ss. 39, (c) Standard Forms 4-11 Land Transfer Form Act, ss TheTransfer - When Is It Operative? (dealt with only in lecture) 4. Transfers to Volunteers 4-33 Property Law Act, s Pecore v. Pecore [ ed separately] C. WILL OR INTESTACY 4-35 Wills, Estates and Succession Act, ss. 37, 39, 40, Wills, Estates and Succession Act, s Tataryn v. Tataryn Estate [ ed separately] D. PROPRIETARY ESTOPPEL 4-38 Clarke v. Johnson 4-38

5 -5- THE FEE SIMPLE A. CREATION Common Law Statute 9-2 Property Law Act, s. 19(1), (2) 9-2 Land Title Act, s. 186(4)-(8) 9-2 Wills, Estates and Succession Act, s. 41(3) 9-3 Tottrup v. Ottewell Estate* 9-3 Wills, Estates and Succession Act, s.46(1)(b) Problems of Interpretation Repugnancy 9-9 Re Walker 9-9 Re Shamas 9-12 Cielein v. Tressider 9-17 THE LIFE ESTATE A. CREATION By Act of the Parties By Statute 10-2 (a) Introduction 10-2 (b) Wills, Estates and Succession Act (WESA) 10-2 (c) Family Law Act 10-3 (d) Land (Spouse Protection) Act 10-3 Land (Spouse Protection) Act, s B. RIGHTS OF A LIFE TENANT Occupation, Use and Profits Transfer Inter Vivos Devolution on Death 10-4 C. OBLIGATIONS OF A LIFE TENANT TO THOSE ENTITLED IN REVERSION OR REMAINDER Waste 10-5 (a) Permissive Waste 10-5 (b) Voluntary Waste 10-6 (c) Equitable Waste 10-7 Vane v. Lord Barnard 10-7 Law and Equity Act, s New Westminster (City) v. Kennedy* Liability for Taxes, Insurance, etc 10-8 Mayo v. Leitovski* 10-8 D. STATUTORY POWERS FUTURE INTERESTS INTRODUCTION 12-1 A. NATURE OF FUTURE INTERESTS 12-1 B. VESTED AND CONTINGENT INTERESTS Vested Interests Contingent Interests 12-2 Browne v. Moody 12-4 Re Squire 12-8 Re Carlson 12-11

6 -6- C. TYPES OF FUTURE INTERESTS Common Law Future Interests (a) Reversions (b) Rights of Entry and Possibilities of Reverter (i) Rights of Entry (ii) Possibility of Reverter (iii) Consequences of the Distinction Property Law Act, s. 8(2), (3) (c) Remainders (i) Defined and Illustrated (ii) Creation - Restrictive Rules (iii) Destructibility of Contingent Remainders (1) Natural Termination Equitable Future Interests (a) The Governing Rules (b) Creation of Equitable Interests Re Robson Wills, Estates and Succession Act, s CONDITIONAL AND DETERMINABLE INTERESTS INTRODUCTION 13-1 A. CROWN GRANTS* 13-2 Land Act, s. 11(3) 13-2 B. UNCERTAINTY 13-2 Noble v. Alley 13-2 B. RESTRAINTS ON ALIENATION (dealt with only in lecture) D. RESTRAINTS ON MARRIAGE AND OTHER PERSONAL RESTRAINTS MacDonald v. Brown Estate E. HUMAN RIGHTS LEGISLATION Canadian Charter of Rights and Freedoms, ss. 15, Human Rights Code, ss Land Title Act, s Canada Trust Co. v. Ontario (Human Rights Commission) Spence v. BMO Trust Co [ ed separately]