CONCEPTS OF PROPERTY

Essential Elements of Property:

1.	Owned & possessed to the exclusion of others
2.	Use
3.	Manage
4.	Obtain profits/ enjoy fruits
5.	Destroy/abuse
6.	Protect from State expropriation
7.	Transferability to others [during life and/or at death]
8.	Exchange value

3 key elements:
1.	Ability to use and & enjoy
2.	Ability to exclude others transferability

INS v. AP 1918 (USSC)
-	news wire service
-	news is quasi-property
-	Exchange value = money, time, and effort: function in society is economic.
-	Holmes & McKenna (dissent in part): law must recognize interest in property and empowers you to exclude others, from using it
o	must show that you are exercising right
-	Brendeis (diss) – property rights req excl of others, control over others = prop right
-	Once communicated, not property

Victoria Park Racing & Recreation Grounds v. Taylor & othrs
(1937 aust.)
-	horse race
-	right to look over neighbor’s fence
-	spectacle cannot be owned therefore not property

R. v. Stewart 1988 (can)
-	theft of hotel employee list
-	owner of info is not deprived of it once taken
-	property under civil law, not crim

	Moore v. UCLA et al.(1990CASC)
-	cells stolen from patient
-	don’t own cells once extracted from body

President & Fellows of Harvard College v Canada (2002) (commissioner of patents)
-	Oncomouse
-	Couldn’t go beyond written patent act, left for legislature to decide

Caratun v. Caratun (1992)
-	dental license
-	not property, doesn’t meet den’n no prepared to extend common law def’n of prop
-	benefits = right to work 

Aubrey v. Editions Vice-Versa
-	picture of girl
-	fault was not in taking of picture but in publishing 

Alberta v. Hansen (1998ABQB)
-	dam on private lands case
-	chattel v. fixture
-	fixture due to permanence of affixing

POSESSION
-	Control/animus/Action 
-	must TAKE possession (exude effort) 
-	active possession hold
-	constructive = de Facto

Keron v. Cashman (1896 NJ)
-	Sock with $
-	No animus posessidendi  (intention to poses)

Ontario v. Mar-Dive Corp.(1996 Ont)
-	sunken ship
-	dive lines = intention to posess
-	imbedded in bottom therefore fixture, crown property	FINDERS

Obligations of finders
-	give true owner op to retrieve
-	conduct search for true owner

Armory v. Delamirie (1722 engl)
-	Boy finds jewel and gets appraised
-	Finders keepers 
-	Have title over all but true owner

Bridges v. Hawkesworth (1851 UK)
-	notes in ship
-	finder possession over landowner where found

Hannah v. Peel (1945 UK)
-	Broach /Blackout curtains case
-	Handed to police, owner not found
-	Finder took title over land owner
-	Never took initiative to possess 

White v. Alton-Lewis (1975 OR)
-	store clerk found jewel on floor where she worked owner not found
-	if item found within context of employ belongs to employer

Parker v. BAir (1982 UK)
-	found bracelet in lounge
-	finder has rights
Finders rights
-	only rights if abandoned or lost, and takes into care & control
-	finder of chattel acquires limited rights if dishonest intent or trespassing upon finding
-	servant as a bove
-	obligation to find owner
Occupier’s rights
-	rights superior to finders for chattels attached to land
-	superior rights to finder for un-attached chattels only when takes measures to control
-	obligated to attempt to find rightful owner

Dowe v. JJ’s Pawn Shop (1994 NSJ)
-	pawned “found” watch
-	true owners required to come forward within a set amount of time
-	limitation begins at time of finding
-	cannot pass better title than held	
Bona Fide Purchaser For Value Without Notice
(pawn shop owner didn’t enquire)

Cranbrook (City) v. Brown (1998 BC)
-	Couch case
-	Original owner of chattel, if known, has superior title to property found than of current chattel owner of any property found

Millas v. British Columbia (Attorney General) (1999)
-	off duty cop found bag of $
-	Bona vacantia (vacant goods)
-	Took means to posess

Elwes v. Briggs Gas
-	lease premises to Briggs 99 years
-	find pre-historic ship in context construction
-	lessor is owner of the ship as landowner not giving rights to what is sub-surface

So. Staffordshie v. Sharman
-	Water company acquires land from city
-	WC hires Sharman to clean pool
-	Sharman finds 2 gold rings in mud at bottom of pool
-	Sharman gives rings to police to find true owner
-	Land in control of real property owner found in mud

Bird v. Fort Francis
-	trespasser has possessor right as finder
-	law encourages peaceful resolutions to disputes
-	if no rights to property -> no obligations
-	wrongful taker has rights
-	poolhall owner didn’t complain of trespass, or attempt to take possession therefore bird had rights over police

	BAILMENT
Bailment – title doesn’t pass
-	not necessarily a contract
-	goods owned by but not in possession of owner, because goods have been transferred into the lawful possession of the bailee
-	recipient of goods usually in possession for a particular purpose
-	temporary possession of unowned property
-	lawful owner of chattels not in posession
Gratuitous
1)	Benefit of Bailor
-	Custody (depositum)
-	To accomplish specific purpose (mandatum
2)	Benefit of Bailee
-	Loan (commodatum)
Duty of Care re Bailment
1.	From Bailor to Bailee
a) Bailor owe duty to ward of known defects
b) Bailor for reward owe general duty to ensure bailed chattels are reasonably fit & in working order for purpose leased
- gratuitous bailor duty of (a) above
2.	From Bailee to Bailor
a) Bailment to benefit bailor – only slight diligence required by bailee – low duty of care – liable only for gross negligence
b) Bailment or benefit baile – high standard of care owed so must exercise extreme diligence as liable for slight negligence
c) Bailment to benefit bailor AND bailee – ordinary degree of diligence so liable for ordinary negligence

Bailor must prove:
1)	delivery of property
2)	for purpose
3)	no re-delivery

Bailee
1)	duty of care
2)	met standard of care	Heffron v. Imperial Parking (1974OntCA)
-	parking garage case
-	bailee v. licensee:
-	gave control
-	surrender of ticket necessary to obtain delivery/return
-	provision of attendant
-	conditions announced on tiket
-	notice of closing  active operation

Punch v. Savoy’s Jewelers Ltd. et al
-	sub-bailment of ring (uninsured for transport) (1986OntCA)
-	no permission to sub-bail
-	may indemnify between parties
-	onus shift

Neff v. St Catherines Marina Ltd.
-	accidental fire in boat yard
-	not liable due to accidental fire’s act
-	bailee not responsible for cause of fire
(1998OntCA)

GIFTS
-	intention to give
-	acceptance of give
-	act of delivery
-	 equity will not perfect a non-perfected gift 

Types of Gifts:
1)	inter vivos
2)	testamentary
3)	Donatio Mortis Causa
 onus on Donee to accept gift

Jones v. Locke
-	Iron monger gift to baby
-	cheque must be cashed to be perfected

Re: Fry
-	requests consent to donate shares, dies before receipt
-	gift not perfected (could change mind)

re: Rose v. IRC
-	transfer shares to wife
-	tax laws change before completion of transfer,
-	once signed certs out of control – too bad

Carson v. Wilson 
-	tells lawyer to hold deeds and postpone delivery
-	doesn’t transfer control
	
Strong v. Bird
-	to release debt by way of gift must prove:
-	intention
-	immediate inter vivos gift
-	specific property
-	donee appointed executor of estate

Donationes mortis causa – req:
1)	gift in contemplation of death
2)	intention immediate, but within condit of death
3)	delivery within doners life
4)	property capable of being gifted

Cochrane v. Moore (1890UkCA)
-	gift of ¼ race horse, sold horse to pay debts with seller’s knowledge of gift
-	legal title v. equitable title
-	trust for giftee’s interest

Thomas v. Times Books Co. Ltd.
-	Dylan Thomas manuscript
-	Onus on Donee to prove gift
(1966HC)
Re Cole, a Bankrupt (1964CA)
-	annced gift of home an furnish. to wife
-	not considered accepted
-	no actual, constructive or symbolic delivery

Dyck v. Shingles Estate (1984ABCA)
-	uncle died intestate gave keys, intended to make will but died
-	no claim to property

Beresford v. Beresford (2000NfdCA)
- father gave son piece of land and told to build house, father died intestate, siblings contested
- a will must be signed
- deemed gift
- doctrine of estopel

Re Bayoff Estate (2000SKQB)
-gave keys to safety deposit box before death
- died before filling out form
- inter vivos perfected when became executrix as perfection met	Public Trustee v. Skoretz
-	old folks home
-	parent & child relationship
-	duty

ESTATES

Freehold Types:
1)	fee simple: (absolute/determinable/s.to conditions)
2)	Fee tail (abolished 1956)
3)	Life estate
-	no words of limitation assume fee simple
-	words of purchase (to “A”)
-	Words of limitation
-	Words of inheritance
-	Words of condition

Fee tail keeps prop. In family

Determinable estate (terminating event described in the words of limitation):  AUTOMATIC END
“so long as” “whilst” “during” “until”
 invalid condition = estate fails

Condition subsequent (terminating event = added clause): RIGHT TO END
“provided that” “but if” “if it happens that”
 invalid condition = estate becomes fee simple

Doctrine of Waste: Tenant owes duty to future interest to leave the land unimpaired.
Division of Expenses: To what extent must future interest holders compensate life tenants for expenses?  Life estate holder has right to income and profits but not capital.
Problem of Alienation: A life estate owner cannot convey more than he or she owns.

Defeasible = contingent remainder (brought to pre-mature end if event occurs)
Determinable  reverts back to grantor if event occurs (prec or sub)	Re Waters (1978OR)
-	left residence to woman, unclear as to whether it was a license or a life estate
-	looked to intention and other sections
-	determined life estate

Re Hand (1976OR)
-	determination of who entitled to remainder of estate, sister or Hamilton club
-	duty of court to interpret will

Types of waste
1)	ameliorating – positive changes to land (acts of commission) 
2)	permissive – life tenant has done nothing, but land has been altered (due to acts of omission) 
3)	voluntary – i.e. cutting down trees for farming
4)	equitable – wanton destruction & malicious conduct upon land

Re Rynard (1980OR)
-	will
-	clause equivalent to a determinable life estate

Re: Chupryk (1979ManCA)
-	retired Cantor wants to borrow $ against life estate to effect repairs
-	(can lease property for up to 21 years)
-	Fiduciary to land, maintain for remainderman

Re: Esex County…(1977OntHC)
-	request to remove conditions from land as no longer needed for school
-	rule against perp voids condition (condition subsequent)

Re: Down (1968OntCA)
-	“On the farm”
-	Condition precedent/subsequent?
-	Determine subsequent then void for uncertainty

Valid & void Conditions
 Invalidating factors:
1)	restraint on alienation 
2)	restraint on marriage 
3)	uncertainty 
4)	Violate judicial view of public policy 
5)	Violation of Legislation	
Re: Collier(1966NfldSC)
-	property to stay in family forever
-	condition void for repugnancy

In re Tuck’s Settlement Trusts
-	Jewish Baron Case (1978UKCA)
-	Grantor provided mechanism to clear up uncertainty
-	Not void

Re McColgan (1969OntCA)
-	left house to woman until death or not living there personally
-	sought medical treatment in US
-	rendered condition sub vague
-	granted fee simple life estate

Re: McBride (1980OntHC)
-	despised son’s wife
-	void due to being against public policy

Re: Leonard Foundation (1990Ont)
-	white supremacy policies for scholarship
-	struck down  public policy 
-	didn’t cause to trust to fail due to doctrine of Cy Pres (not examinable)

Re: Wishart Estate (1992NBQB)
-	Horses
-	Clause void for public policy/waste

Legal remainder rules
1)	no gap in seisin
2)	cannot take place in future
3)	contingent remainder void unless it vests before term. Of prior estate
4)	void if it cuts short a prior estate
5)	remainder after a fee simple is void
Rules against perp.
1)	is there a contingent interest
2)	if yes, what is the perpetuity period (person’s life +21 years)
3)	could contingency not be resolved within the perpetuity period

Monsanto Canada Inc. v. Schmeiser
-	canola  (2004SCC)
-	onus on P to show violation of patent
-	no damages	copyright
-	mandated by int’l treaties and national legis
-	bundle of rights assoc. with work allowing owner of work to control it…
-	(rights to control use once author no longer controls copyright)
-	Way in which idea is expressedh
Patent
-	Inventiveness of work
-	Protects work itself  inventions
-	New
-	Non-obvious – should not be readily discernable to those involved in the domain
-	Cannot be a natural law
-	Reduction to form of practice
-	Have utility
-	Software patents often filed as business process 
trade secret
-	not protected by legislation but by common law
-	exception in California
-	method
-	importance in how the secret is maintained
-	eg. KFC recipy, Zildgan symbols
trademarks
-	protects words, marks etc. which identify goods or services of a specific entity
-	nationally registered marks

Cujus est solum ejus est usque ad celum et ad inferno – from the heavens to the center of the earth

Bernstein v. leigh (1975UK)
-	plane flying low taking photos
-	can only restrict airspace to reasonable use and prevent interference to owner

 	Didow v. Alberta Power (1988ABCA)
-	telephone poles over farmer’s field
-	trespass  interferes with land farmer would use
-	permanent v. transient nuisance (trespass v. nuisance)

Earl Putnam v. Macdonald (1978OntCA)
-	right to light
-	no right which would otherwise be legal can become illegal due to motive or maliciousness
-	right to vertical light, not lateral light from adjacent property

Pugliese et al v. Nat’l Capital Comm 
-	screwed around with water-table causing damage to homes
-	owner does not have an absolute right to support of water beneath his land, not flowing from defined channel, but has right not to be subjected to interference of support of such H2O amounting to negligence or nuisance (1977SCC)
-	can’t interfere w/ neighbor’s prop.

Rideau Falls v. Ottawa (City) (1997OJ)
-	riparian rights  right to natural flow of H2O
-	right to access to the H2O
-	right of drainage
-	rights relating to the flow of H2O
-	Rights relating to the quality of H2O
-	Rights relating to the use of H2O
-	Righte of accretion
-	Onus is on the sufferor of damage

Gautier et al v. Naneff (1977OntHC)
-	injunction against regatta which would interfere with riparian rights
-	rights to potability and purity recognized but not a factor

Gallant et al v. FW Woolworth Co
-	Right to expect that your land will hold
-	Neighbor cannot remove support of your property
-	Cannot construct/remove from their property that cause damage to your property
-	Right to lateral support (1977SKCA)
	
STEPS TO SOLVING A PERPETUITIES PROBLEM

1.	Is their a contingent interest in play? If all vested than forget about it. **Is it a condition precedent or just date of distribution. If date of distribution then RAP doesn’t apply. 
Aside: court likely to interpret “when” as vested, but must ultimately look at it in context of the overall document. Ex. To my grandchildren when the youngest marries.
2.	What is the perpetuity period? Look at nature of the interests are anyone designated as life in being. In case of inter vivos grants – grantor could be the life in being.
3.	Could this contingency not come to finality outside the perpetuity? If not then we have not run a foul to the rule of perpetuities. Otherwise we have breached the rule. 
4.	Consider all possible future circumstance where the perpetuity may not be met. How is it possible for any non-lives in being to enter the picture?
5.	What is the position at common law and has the statute impacted it in some way?
o	At common law if we said that the contingency might not be met or fail in the period, we strike it out right then.
o	At statute, not automatically void. 4(1) Wait and see, presume it is valid until we see what happens. If it is possible it could vest or fail inside or outside we wait. If we know from beginning that it is incapable of vesting in then void.
	Rights and Duties of a Trustee:
1.	All rights, powers, obligation onto the property as ownership
2.	Equity imposes duties -  duty of loyalty (fiduciary duty-benefit must flow to beneficiary)
o	duty of care, but mistakes can be made
o	duty to account and explain for management of property
o	duty of hand over property at specified time
Emergence of the use and the trust:
•	Under a grant to uses land was transferred by A (feoffers to uses), to B (the feoffee), to be held for the benefit of C (cestui que use). Goal of such a conveyance was to place legal title in B, who was intended to hold it for uses destined to serve C.
•	Used in cases where it was thought wise to separate legal title from the person who was intended to have the real benefit of the land, usually because of some disadvantage associated with legal title.
•	As far as common law was concerned cestui que use had no rights, legal title was held by feoffee.
•	Eventually courts of equity recognized C’s rights and was primarily used in its enforcement. Equity regarded feoffee’s legal interst as purely managerial.
•	Use for malevolent (avoid wife’s dower rights) and non-malevolent purposes (protect wife’s property from husband’s control, early form of a will, avoid feudal obligations of tenants, etc.)
	Statute of Uses:
•	Use was used to separate legal title from the beneficial ownership of property.
•	Statute of uses in 1535 removed legal title from the feoffee and gave it to the cestui que use – now possessed both equitable and legal interests in land.
•	Sealed off the tax loophole.
•	Post statute uses called trusts – now cestui que trust or beneficiary.
•	Two ways to get around Statute of Uses:
•	Avoidance:
o	Statute applies where a person is seised to the use or trust of another person or corporation.
o	Can avoid this main provision when the feoffee/trustee holds a leasehold estate, because cannot be seised to another. “to B for 99 years to hold for the use of C.”
o	Statute does not apply to personalty.
•	Exhausting the Operation of the Statute:
o	Statute of Uses has limited potency – decided that it can only execute one fee simple of uses. Thus allowed conveyances such as “to A (in fee simple) to the use of B (in fee simple) to the use of C (in fee simple). A’s interest is executed and conferred by the law to B, but now the statute has run its course – it is exhausted. This use upon use now results in equitable title held by C – Sambach v. Daston. Now creates a trust with B as trustee and C as beneficiary.
•	Statute of uses has been abolished in England but may still be a part of the law in Canada.
•	Important because if still applies semantics important in creating a trust. Ex. To the use of B in trust for C, creates a trust while, to B in trust for C, does not.
•	Three incidental effects of Statute of Uses:
•	Revolutionized conveyance practices.
•	Led to enactment of Statute of Wills.	
Legislation:
Perpetuities Act
Conveyance and Law of Property Act
Land titles act
Family law act
Line Fences Act
Beds of Navigable waters act
Registry Act
Real Property Limitations Act
Limitations Act	o	Legal remainder rules apply only to inter vivos gifts.
o	Everything else applies to everything  
o	Rule against perpetuities applies to everything except determinable interests, But statute makes it apply.

Land can’t be gifted intervivos  statute of frauds

Checklist

1)	what kind of transfer is it?
•	Fee simple
•	Fee tail (abolished 1956)
•	Life estate
2)	is it defeasible or determinable? 
3)	is there a condition subsequent?
4)	Check shelley’s rule
5)	Rule against perp?	Modern Equity and the Trust:
•	Difference between common law and equity still resolved in favour of equity.
•	Protective trusts can be established to allow a person to enjoy the benefit of trust income while preventing that beneficiary from having complete control over the property.
•	Can be created in a testamentary context to allow for the management of a descendants estate.
•	Also creates special rules for charitable trusts.
•	May minimize tax liability. 

Usufructuary rights = rights of use

Three touchstones of efficient property law system:
1)	exclusivity
2)	universality
3)	transferability

Conventional line doctrine

Water boundaries:
•	non tidal/non navigable = adjacent to H2O
•	middle of river
•	where tidal and navigable  high water mark

cap on riparian H2O a household may trap is 1250 cubic meters
	
Creation of Joint Tenancy (4Unities)
o	unity of interest
o	unity of title (instrument)
o	unity of time
o	unity of possession
o	 Ontario presumption is unity of possession and intention to create a right of survivorship
o	Insulation from creditors
o	Creation requires statement of intention
o	Severance:
o	Unilateral action
o	Mutual agreement
o	Course of conduct sufficient to intimate that interest were treated as TIC
o	Co-owners have rights to end relationship – options (physical divisin, sale and distribution of proceeds, or sale amongst owners)
Bank accounts presumed TIC
Tenancy in Common
o	only requires unity of possession
o	(all 4 may be present)
o	Creation
o	Express
o	Pursuant to statutory presumption
o	Result of failed creation of JT
o	By operation of law
o	s55(2) of the Succession Law Reform Act – treats as TiC

Early Common law presumption JT, equity is TIC  times changed CL presumption may be negated through language “equally amongst them”, “equal” … “jointly”

Osachuk v. Osachuk (1971ManCA)
o	two properties JT, lived in one and let other go vacant
o	bailiff liable for both amounts collected and amounts not collectable due to willful default
o	one JT liable to the other for share of rents
o	four cases where common owner may recover from other for taking exclusive use
o	exclude & wrongly prevent use
o	received more than fair share of rent
o	bailiff
o	as tenant of other’s share
o	not entitled to rent or mortgage 	Walker v. Dubord [1992 BCCA)
o	sever JT and grant interest to sister
o	didn’t sever through sale
o	must assign property
o	(no difference between real and personal property)

Dibattista(in trust) v. Menecola
o	bought land TIC
o	partition or sale order?
o	Partition

Silva v. Silva
o	family home JT  doesn’t want to sell matrimonial home until other issues settled
o	allowed for the sale

Trusts:
an equitable obligation binding a person(s) (who is called the trustee) to deal with real and/or personal property over which he or she has control (called the trust property) for the benefit of persons, of whom he may be one, (who are called the beneficiaries or cestuis que trust) or objects, in such a wa that the real benefit of the property goes to the objects or beneficiaries of the trust and not to the trustee personally.
o	effect of recognizing an equitable interest in property on behalf of a beneficiary
o	limited to equitable remedies
o	equity will not impose penalty on Bonifide purchaser for value
o	Resulting trusts: (tee c’t ben)
o	Occurs by1) beneficial entitlement under a trust not being fully or properly disposed of by setlor
o	2) property gratuitously conferred 
o	3) common intention
o	4) if deed of trust fails
o	Constructive Trusts
o	Imposed by equity regardless of the parties intent
o	Equity’s response to unconscionable conduct
o	Means of remedying unjust enrichment
o	Express Trusts
	Basic Duties on a Trustee
1)	no conflict between duty owed and self interest
2)	no delegation permitted of duties [now subject to “reasonable business practices” test & s.20 of trustee act]
3)	No right to remuneration (now subject to s. 61 of Trustee Act where court to set “fair and reasonable allowance for his cares, pains and trouble and the time expended”)
4)	Personally liable for own breaches [but see ss. 28 & 35 of trustee act]
5)	High standard of care owed re maintenance & investment of trust property [see ss 26-28 of the trustee act]
6)	Duty to act impartially between beneficiaries
7)	Duty to disclose
8)	General duty to comply with settlor’s wishes as set out in trust instrument

Murdoch v. Murdoch (1975 SCC)
o	husband and wife work farm/ranch (partnership)
o	no financial reward for work performed
o	not believed shared owner the intention of the parties (necessary for RT)
o	based arg. On resulting trust – facts didn’t support
o	dissent: discussion of constructive trust 
o	court under equity may allocate interest in exchange for labour
o	Construct trust – no evid of intent nec
o	Duty to another to convey, based on unjust enrichment through retention

Petkus v. Becker (1980 SCC)
o	bee keeping (he screwed her)
o	resulting v. constructive
o	no intent therefore no resulting arg.
o	CT requires unjust enrich
o	Unjust enrich requires:
o	1) an enrichment
o	2) a deprivation
o	3) no juristic reason for enrich
o	CT based on contributions – longer relationships more difficult to quantify

Sorochan v. Sorochan (1986 SCC)
o	refines constructive trusts to apply to unjust enrich in the case of common law spouses
o	took care of 6 children collaborated on venture and marriage had been discussed
o	1clear link btw contrib&prop 2expect of proprietary interest 3length or relshp	
DOCTRINE OF UNJUST ENRICHMENT
TEST = 
1. One party is enriched by the actions of another;

2. The other person suffers a corresponding deprivation; and

3 There is an absence of juristic reason to explain or justify the enrichment and deprivation - 2 stages:
•	Claimant must show a prima facie case there is no juristic reason within the ‘established categories’ which at present are = “contract, disposition of law, donative intent and ‘other valid common law, equitable or statutory obligation’ ” [Garland v. Consumer’s Gas; Pacific National Investments v. City of Victoria]
•	Onus shift to defendant to rebut by show there is some other valid reason to deny recovery - lead to consideration of reasonable expectation of parties & public policy considerations

Arndt v. Arndt (1993 OnCA)
•	post valuation decline in value
•	no clean hands thwarted case

Peter v. Beblow (1993 SCC)
- Remedies for unjust enrich:
-	quantum merut
-	equitable remedy   constructive trust
-	damages should  be seen as primary remedy 
-	only move to constructive trusts when damages would be inadequate

Walsh v. Bona (2002 SCC)
- matrimonial property act doesn’t apply to unmarried spouses – other legislation enacted in most jurisdictions	REMEDIES
1)	damages
2)	Constructive trust (appropriate where:
-	causal connection between the claimant’s contribution and the disputed property (must show link)
-	claimant has a reasonable expectation that s/he will get an actual interest in the disputed property and not just $ as compensation
-	enriched party can reasonably be expected to be aware of claimant’s expectation; and
-	relationship is of sufficient longevity that a constructive trust is appropriate

FIDUCIARY DUTIES
-	self imposed
-	promise to work in relation to particular property
-	trustee always fiduciary (fiduciary not always a trustee)
-	forged upon fiduciary’s promise
Test for fid. Relationship:
-	fiduciary has scope for the exercise of discretion of power
-	fiduciary may unilaterally exercise that discretion or power so as to affect the beneficiary’s legal or practical interest
-	beneficiary is particularly vulnerable 

LAC Minerals v. International Corona Resources(1989 scc)
-	Cor mining co. in negotiations to purch prop., also neg. JV w/ LAC 
-	Breach of confidence 3 element
-	1) confidential info conveyed
-	2) conveyed in confidence
-	3) misuse by party acquired
-	(br of fiduc only issue if dmgs differ from br conf)
-	Fid found see criteria above
-	Constructive trust found to be appropriate remedy (pg64fid)	Moffat v. Wetstein (1996 Ont gen)
-	accountant failed to disclose self dealing and obligations of investment business
-	individual owes fiduciary duty to partners
-	did relationship exist past resignation from partnership?
-	Yes

Korkontzilas et al. v. Soulos (1997SCC)
-	real estate agent purchased land he was negotiating for client
-	agent owes fiduciary duty to client
-	constructive trust imposed

Pacific National investments v. Victoria (SCC 2004)
-	city to re-zone for construction project
-	sued for unjust enrich and breach of K
-	found unjust enrich 

ABORIGINAL LAW
-	aboriginals retain property until taken away by legitimate action by state
-	features:
1)	inalienable except to crown
2)	held communally by abo group
3)	source is the 1763 royal proclamation
-	Royal proclamation affirms that all land not colonized or granted to HBC to be that of the aboriginals
-	Right to exclusive use & occupation is within bundle of rights – parallels feeSi
-	Existence of aboriginal LRight  abo land rules  territorial pocket
-	Exclusivity of occupations justified on two grounds 1) proof of title s/b consistent w/ property interest acquired 2) req of exclusivity prevents chance of conflicting claims
-	Certain rights need not require title but demonstrated practice at time of European contact
-	May lose rights by surrender or unilateral sovereign act
-	Crown owes fiduciary duty to aboriginal peoples
-	Ability to alter aboriginal relationship is subject to constitutional restraints
-		
Worcester v. Georgia (1832USSC)
-	affirms royal proclamation
-	right to self govern (Cherokee)
-	distinct community

St. Cahterine’s Milling & Lumber co. v. the queen (1888)
-	discusses royal proclamation
-	Canada to regulate Indian affairs
-	Province entitled to revenue

Calder v. AttorneyGen of BC (1973SCC)
-	four bands sought declaration that land title had never been extinguished as territory had never been conquered
-	royal proc had no bearing as BC was not under British rule until 1846
-	Indian title quashed by granting to province in 1858

Guerin et al v. The Queen (1985CNLR)
-	leased aboriginal land for golf course
-	crown in breach of oral terms understood by band
-	rights not dependent upon RP
Dickson:
-	surrender of lnd mst be assented to by majority of band elders
-	crown failed to exercise requisite care of fiduciary (not a trust)
-	fiduciary duty comparable to trust (once breached)
Wilson (obiter)
-	certain obligations can impose a trust 
	R. v. Sparrow (1990 SCC)
-	fished with nets that were bigger than regs permitted
-	section 35 did not revive previously extinguished rights only protection to those rights in existence in 1982
-	must be clear & plain language to statute extinguishing rights
-	right to fish for food and social and ceremonial purposes (tie to trad. Act)
-	legislative purpose of conservation was a valid objective however priority/consideration s/b granted to aboriginal community in determ levels
-	right to:
-	subsist
-	fish for communal purposes 
-	no rights to commercial fishing
-	not clear that net size violated purpose of fisheries regs.
-	Onus on crown to prove extinguishment of right
-	TEST
-	Is there a right
-	Has right been extinguished
-	Has right been infringed
-	Was infringement justified
-	Just: does legislation interfere with an existing abo. Right?
-	Is the limitation un reasonable
-	Does the limitation impose undue hardship
-	Does the regulation deny right holders their preferred means of exercising right
-	 onus on party claiming right

R.v. Van der Peet (1996 SCC)
- selling fish caught under aboriginal license
- activities prior to CONTACT are protected
TEST was whether activity seeking protection was an element of practice custom or tradition integral to the distinctive culture of the group claiming the right
-	no market system pre-contact
-	precise nature of claim & demo.exist of abo right
-	must be of central sig. to community 	Rights of the Aboriginal Peoples of Canada
Recognition of existing aboriginal and treaty rights 
- 35.
 (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. 
Definition of "aboriginal peoples of Canada" 
(2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Métis peoples of Canada. 
Land Claims agreements
(3)For greater certainty, in subsection (1) "treaty rights" includes rights that now exist  by way of land claims agreements or may be so acquired.
(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons
35.1 The government of Canada and the provincial governments are committed to the principal that, before any amendment is made to Class 24 of section 91 of the "Constitution Act, 1867", to section 25 of this Act or to this Part,
(a) a constitutional conference that includes in its agenda an item relating to the proposed amendment, composed of the Prime Minister of Canada and the first ministers of the provinces, will be convened by the Prime Minister of Canada; and
(b) the Prime Minister of Canada will invite representatives of the aboriginal peoples of Canada to participate in the discussions on that item.

Van der Peet continued:
Continuity of custom pre-contact
R. v. NTC Smokehouse Ltd. (1996 SCC)
- commercial smokehouse purch fish under Indian license
- sale of fish not integral to culture pre-contact

R.v.Gladstone (1996SCC)
- sold herring under improper license
- trade integral to distinct culture
-regulatory schemes didn’t extinguish right
Justification
-	pursuant to valid legis objective
-	actions consistent w/ fiduciary duty to abo
-	 internal limits	
Ontario AG v. Bear Island Foundation (1991SCC)
-	title fight, ONt claimed rts exting
-	ext by treaty
-	crown breached fiduciary duty under treaty
-	sufficient occupation to claim rights (but treaty superseded)
-	breach element to be negotiated
-	treaty extinguished rights

Delgamuukw v. BC (1997 SCC)
-	use of aboriginal land must be consistent with nature of the group’s attachment to the land
-	protection is implicit upon continuity of relationship to land over time  past and future 
-	Abo Title – establish:
1)	land occupied prior to british sovereignty
2)	if present occupation relied upon as pre-sovereignty, continuity must be shown
3)	at time of sovereignty the occupation must have been exclusive
-	Burden on crown to disprove
-	Gov’t must allocate resources such that it considers the aboriginal rights associated with those resources
-	Lamer CJ identified 3 cat o consult:
1)	Narrow category - “occasional,” “rare” or “mere consultation” – if breach is “less serious” or “relatively minor” suggests that talking together for mutual understanding & sharing of information required.
2)	Most cases, something “significantly deeper than mere consultation” will be required. This broad middle ground seems to be primarily concerned with the Crown’s duty to accommodate the interests of the Aboriginal peoples.
3)	The other narrow category of consultation may require the “consent” of the Aboriginal group involved. This category appears limited to instances of proven Aboriginal title and it is not yet clear as to when consent is a requirement.	ROYAL PROCLAMATION OF OCTOBER 7, 1763
Key Components:
1.	Create ‘Indian country’ outside of prior & new former French colonies
2.	refer to Indian Nations as ‘Nations or Tribes’ – recognition of sovereign status
3.	promise no molestation by colonists [stop “Great Frauds & abuses”]
4.	prohibit purchase other than by Crown representative
5.	prohibit colonial governors from issuing patents outside own colonial borders
6.	confirm treaty-making as mechanism to acquire Indian lands with requirement for duly appointed Crown representative to negotiate through public meetings
7.	require all colonists to leave Indian country
8.	control trade via require colonists to have Crown licence
9.	give jurisdiction to colonial governments to pursue criminal fugitives into Indian territory
10.	create new colonial governments for former French colonies in Quebec, Florida & Grenada	R. v. Marshall (1) (1999SCC)
- Eels – claim sale allowed under treaty
- fishing out of season & fishing w/o license
- treaty examined in light of oral evidence
- treaty right to trade for subsistence
- removal of mechanism of trade did not remove right 
- denial of right would harm integrity of crown
Per mclachlan dissent: (peace not land)
1)	aboriginal treaties constitute a unique type of agreement and attract special principles of interpretation:
2)	treaties should be liberally construed and ambiguities or doubtful expressions should be resolved in favorer of the aboriginal signatories
a.	favor aboriginal understanding of agreement
3)	the goal of treaty interpretation is to choose from among the various possible interpretations of common intention the one which best reconciles the interest of both parties at the time the treaty was signed
-	various possible interpretations should best reflect reconciliation of interest of parties at time of signing
-	presume integrity and honor of crown has been fulfilled
4)	in searching for the common intention of the parties, the integrity and honour of the crown is presumed
5)	in determining the signatories’ respective understanding and intentions the court must be sensitive to the unique cultural and linguistic differences between parties
6)	the words of the treaty must be given the sense which they would naturally have held for the parties at the time
7)	a technical or contractual interpretation of treaty wording should be avoided:
8)	while construing the language generously, courts cannot alter the terms of the treaty by exceeding what “is possible on the language” or realistic.
9)	Treaty rights of aboriginal peoples must not be interpreted in a static or rigid way.  They are not frozen at the date of signature.  The interpreting court must update treaty rights to provide for their modern exercise.  This involves determining what modern practices are reasonably incidental to the core treat right in its modern context;
	
Marshall 2 (1999 SCC)
-	motion by intervener
-	Marshall's acquittal could not be generalised to a declaration that licensing restrictions or closed seasons could never be imposed as part of the government's regulation of the Mi'Kmaq limited commercial right to fish.  
-	The federal and provincial governments had the authority to regulate the exercise of a treaty right where justified on conservation or other grounds

R. v. Powley (2003 SCC)
- Métis right to fish & hunt?
- must be members of metis community (community acceptance)
- self identify w/ community
- entitled to hunt for subsistence
- infringement not justified
- adjustment to vdPeet test to Pre-European control rather than contact
- ancestral connection

Haida Nation v. BC(2004SCC)
-	Duty to consult depends upon circumstances
-	duty to consult or accommodate (requirements):
-	serious issue to be tried
-	irreparable harm will be suffered if injunction not granted
-	balance of convenience favors injunction
-	interlocutory injunctions are a stopgap
-	sovereign Indians, not conquered therefore honor of crown requires negotiation
-	duty arises when crown has knowledge of potential existence of aboriginal right or title
-	scope of duty to consult varies w/ circumstances	Real Property Limitations Act
-	10 years for adverse possession (Ontario)

ADVERSE POSSESSION
•	Law of Adverse Possession ultimately gives greater right to Adverse Possessor [APor] even over PTH if test met re 
1. Nature of possession 
2. Basis for possession
3. Length of time in possession
- be careful of Torrens systems 

ACOVEN TEST
Actual
Continuous
Open
Visible 
Exclusive
Notorious
ACOVEN + clear Animus Possedendi + length of time

Requirements:
1)	ACOVEN
2)	Intention to possess to exclusion of others (consent of PTH will destroy Adverse)
3)	Discontinuance of possession by PTH

20 years federal or NS, NB PEI & NFd

Walker et al v. Russell et al (1966ontHC)
-	cottage
-	Kind of possession?
-	Licensee/tenant at will/trespass
-	No adverse to license
-	Found trespass – significant degree of continuous possession (may be seasonal)
-	Only granted area being used (+ right of way)

	Keefer v. Arillotta (1977OntCA)
-	posessory title through easement 
-	PTH must intend to exclude AdP
-	Only granted garage portion (due to it being the only portion which excluded PTH)

Lutz v. Kawa (1980 AltCA)
-	misplaced fence 
-	adverse possession available for inadvertence
-	bonafide purchaser for value restarts clock
-	clock started when kawa obtained title
-	available for mistake

Giouroukos v. Cadillac Fairview Corp. Ltd. et al (1983 ontCA)
-	parking lot for restaurant
-	only asserted control when put up signage “for customers only”
-	must dispossess landlord not tenant
-	landlord must reclaim possession for AdP to take action
-	affirmed by SCC

Hanson et al v. Jones et al (1988Ont)
-	uncle bought cottage lot from neph
-	neph kept property in his name
-	1968 did not create interest in land because no consent by municp
-	Colour of title 
-	Form of use of AdP must be inconsistent w/ PTH
-	AdP found

Keil v. 762098 Ontario Inc. (1992 OntCA)
-	driveway dispute
-	no inconsistencies between AdP’s use and PTH’s use
-	dismissed

Skidmore v. Parkin(2002 ont trial)
-	land title dispute
-	conveyed part of land
-	no actual possession to prevent AdP
-	$1 lease of disputed lands

Lehal v. Murray (2001 Ont)
- no clean hands	
EASEMENTS

Easement = the right to use the real property of another for a specific purpose. The easement is itself a real property interest, but legal title to the underlying land is retained by the original owner for all other purposes

Hereditament = any kind of property which can be inherited by will or by intestacy. This is old-fashioned language still found in some wills and deeds. = inheritable 

Corporeal Hereditament = land and all physical matter which can be seen or handled that is a part of or affixed to land oer which ownership is exercised [e.g., rocks, trees, garages, houses, etc.]

Incorporeal Hereditament = a right growing out of, concerning annexed to a corporeal thing but is NOT the corporeal thing itself; something collateral to but distinct from the corporeal thing [ie, is a mere right recognized at law rather than the physical thing itself but real property law applies to incorporeal hereditaments]. Common law does not recognize all interests in land as incorporeal hereditaments only:

1) rent charge = legal interest arising when a periodic sum of $ payable re land to a person who has no reversionary interest in land [is NOT the landlord] yet where payment of the $ is a charge upon the land secured by a right of distress given by express agreement (created by will, deed, or statute) between the parties – little used today   ability to sue and enforce against land if not paid (may take back rent charge rather than mortgage

2) profit a prendre = right to take something off land owned by another but not necessarily appurtenant to a dominant tenement so as to qualify as an easment	Creation of easements
1)	express grant
2)	statute
3)	implied grant – must have intended  necessity
4)	implied reservation
5)	prescription
6)	proprietary estoppel 

Four essential characteristics
1)	easements must be connected to a dominant tenement
2)	easements must accommodate the dominant land
3)	Dominant and servient tenements cannot be in the same hands
4)	easement must be capable of forming part of a grant
Profit a prendre – right to take fruit of land

COVENANTS
-	any promise under seal
-	enforceable to parties of promise

Garfinkel v. Reinberg (1955OntCA)
-	Chimney
-	Prescriptive easement through common law (found way into limitations act)
-	20 year prescription
-	no secrecy of use
-	no use of force
-	no elements of fraud 
-	no consent  no repeated consent

Temma Realty co. Ltd v. Enterprises Ltd. et al (1968ONCA)
-	beneficial owner granted right to use laneway
-	lost easement due to barricade

Jengle v. Keetch (1992 OntCA)
-	H2O access – parking spot
-	Cannot seek to expand ease
-	Type may change as long as purpose remains C
-	Only a parking spot	In re Ellenbourough Park [1956]
-	right to use park
-	must be a relationship between property and dominant/servient tenement 
-	park meets 4 criteria
-	clear language of grant

Phipps v. Pears (1965 QB)
-	houses built side by side by common owner
-	right of support
-	covenant for light or right of way goes with future conveyances  rights in Common law and equity

Dukart v. District of Surrey (1978SCC)
-	BC beachfront property
-	homeowners acquired right to walk freely on beach area reserved for them
-	nothing to abolish easement
-	sufficient specificity as to nature of easement
-	expect to find description of an express easement
-	nothing in writing which articulates nature of easement
-	easement by express grant if not in writing

Wong v. Beaumont Property Trust Ltd.
-	Chinese restaurant (1965QB)
-	Lease finalized before layout for ventilation system
-	Must have right by way of easement and not implied K
-	Man who has a right to an easement can use it in any proper way so long as he does not substantially increase the burden on the  servient tenement  doesn’t increase burden
-	Easement of necessity

Barton v. Raine (1980 OntCA)
-	blocked access to right of way?
-	Father owned both properties then sold
-	Trial judge – implied easement
-	Cannot claim easement of necessity   not landlocked
-	Implied.
-	No abandonment of easement 

TYPE	 D of Care	 D of Diligence	 Comments	
 Gratuitous, benefit to bailor	 Low	 Low	 Bailee only liable in case of gross negligence	
 Gratuitous, benefit to bailee	 High	 High	 Bailee liable for even slight negligence	
 Reward Bailment	 Ordinary	 Ordinary	 Bailee only liable for ordinary negligence	

Sale 	Gift	
Intention to sell	Intention to give	
Intention to buy	Intention to accept	
Consideration	Chattel must be delivered	

Express Trusts
-	created by the intention to create it
-	traditionally the use was used to separate legal title from the person that intended to use it
-	prior to 1535 to A & his heirs to use of B. separated legal title from equitable title
-	1535 statute of uses deprived A of legal title & B got both legal & equitable title

Exceptions:  statute of uses
-	does not apply to leasehold interest
-	does not apply when a corp holds for someone else 
-	doesn’t apply to personal property
-	exhausting 
o	to A to the use of B to the use of C  b legal title, C equitable title
o	to A to the use B in trust for C  same as above
o	to B to the use of B to the use (or in trust for) C  same as above
o	unto and to the use of B to the use of C  same as above
o	to B in trust for C (flirts with statute) 
Resulting trusts: (created by law)
-	when beneficial entitlement under a trust is not fully or properly disposed by the settlor it results back
o	to baker co. in trust for C  for life
-	if a deed of trust if ineffective it results back to the settlor
-	when property is given as a gift equity assumes a trust & not a gift but it can be rebutted by showing the intention was a gift (exception assumed a gift if between family members)

Sparrow
-	Trial: For 35(1) to apply must be  a treaty
-	Pre-35(1) – not subject to section 1 of charter
o	Own internal limitation clause
o	May interfere if appropriate test is met
-	Test:
a.	Is there a right (claimant onus)  insert test from Van Der Peet
i.	(portion of test not fully developed) 
b.	Has it been extinguished before entrenchment of 35(1) in 1982
c.	Does legislation interfere with the existing right 
i.	Unreasonable 
ii.	Undue hardship
iii.	Does it deny preferred means of expressing right
d.	Justification (crown onus)
i.	Is there a valid legislative objective
ii.	In light of the fiduciary relationship
1.	Consultation 
2.	compensation
3.	as little infringement as possible
4.	proportionality
-	must be entire band claiming title
-	aboriginal rights are individual, but title is a collective right (held by band etc)

Van der Peet
-	practices traditions and customs (PTC) have to be central to aboriginal societies
-	must have existed prior to European arrival
-	must be sensitive to rights of aboriginals
-	Test
a.	look to precise nature of right
i.	is it distinctive to the group (v. distinct because distinct would have to exclude others)
ii.	integral to community
b.	central significance to community
c.	must trace rights to before European contact (sovereignty claimed – look to 1846 but varies from case to case)
d.	rules of evidentiary presentation be sensitized to native community
e.	right must be of a specific and not a general nature
f.	practice to be integral importance to aboriginal culture (not incidental)
g.	distinctive rather than distinct from other bands
h.	right cannot exist because of European contact