1. Austin v. Rescon Construction - don't interfere with the land beneathh me (Accursius' maxim) 2. Pickering v. Rudd - modern aviation is the exception to AAccursius' maxim 3. Real Property Act, 1885 - attempted to abolish the fee tail 4. Real Property Act, 1889 - accidentally reintroduced them 5. Law of Property Act, s.30 - gives a way of converting fees tail tto fees simple absolute 6. Saunders v. Vautier - rule which says that a full & sole eqquitable owner can approach his trustees & take over the common law title himself. 7. Wills Act, 1837 (UK) - said that the presumption would be inn favour of fees simple, when interpreting a will 8. The Wills Act (MB), s.26 - similar Canadian provision 9. Real Property Act, s.87 - said that the presumption would be thhe same in dealing with lands registered under the Torrens system 10. Law of Property Act, s.4 - created the same presumption for landds not registered under the Torrens system 11. Shelley's Case - rule of law which states that where XX attempts to do this: Blackacre to A for life, the remainder to the heirs of A; that it would instead of giving a life estate to A and a contingent remainder to the possible heirs of A with a reversionary interest left with X (in the case that A had no heirs), would give A a full fee simple. 12. Re Simpson - the Rule in Shelley's Case does not aapply in Alberta 13. Law of Property Act, s.17.11(1) - abolished the Rule in Shelley's Case here in Manitoba 14. Re Hornell - thou shalt not mount a fee upon a feee; once you've given away all you've got, you can't give it to someone else 15. Re Leach - spendthrift trust created by way of ddeterminable fee 16. Re Machu - not really sure; except that it said something about conditions that were void for public policy 17. Re Tilbury West Public School Board, Alexander v. Hastie - Hastie got the land back/expropriatioon money; it was a determinable fee (language of continuance) 18. Re McKellar - this was a fslucs. They are subject to the rule against perpetuities. As well, where void, only the condition will be struck out (the gift/grant does not fail). Gift given unconditionally. 19. Clayton v. Ramsden - uncertainty (Jewish spouse clause strruck out). If you can imagine a situation where the condition could not be met, it will be void for uncertainty. 20. Re Tigg - also void for uncertainty (how Angliccan?) 21. Re Tuck - is this the baronette one? If so, thhis was the one upheld because it provided a standard 22. Re Selby - is this the one about conditions preccedent? I think so. It tells us that the test for certainty is much lower (in fact, opposite to that used for conditions subsequent). If you can imagine a situation where the condition COULD be met, then it will be upheld. Not too uncertain. 23. Re Allen - condition would never pass the strictt test laid out in Clayton v. Ramsden. However, it didn't have to because it was deemed to be a condition precedent. 24. Sifton v. Sifton - what was meant by residency? I thinkk she ended-up with a full fee simple. Condition was struck out. If it was determinable, then the whole gift would fail. 25. Eastern Trust Co. v. McTague - void for public policy, because he waas attempting to interrupt a marriage. 26. Lord Coke in Littleton - invented the idea of repugnancy. Saiid that fees have two characteristics: they last forever and they must be alienable. Total restraints on alienation would be invalid, but partial restraints on alienation were okay. 27. In re Macleay - this was deemed to be a partial restrraint on alienation & was upheld; mainly because it only lasted for a short duration (one lifetime) 28. In re Rosher - similar time limitations as in Macleaay existed, but the court still felt that it was void for repugnancy. Didn't accept the Macleay theory that these conditions were okay if they only lasted for a short while. 29. Perrin v. Lyon - partial restraint - couldn't marry a Scot. Upheld. 30. Jenna v. Turner - partial restrain - couldn't marry a ddomestic servant. Upheld. 31. Perpetuities & Accumulations Act, 1982 - made all life estates in Manitoba equuitable ones. 32. Re Baggot - an equitable life tenant does not havve an inherent right to possess the property, only to receive the income generated by it 33. Taylor v. Taylor - same as above 34. Doherty v. Allman - this is about ameliorating waste; thiis is the one where tenant fixes up sheds. No remedy - why wouldn't he like this? 35. Meux v. Cobley - another case of ameliorating waste (tthe greenhouses). Again, no remedy. It was improving the land. Why should he complain? 36. Browko v. Fairchild - a case which gave an injunction againnst ameliorating waste to save the family mansion. 37. Honeywood v. Honeywood - explains estovers (when life tenant oor lessee can use timber on property - plowbote, heybote and housebote) 38. Vane v. Bernard - example of equitable waste. Even wheen you make yourself or another unimpeachable of waste, there are limits as defined by equity. 39. Statutes of Marlbridge & Gloucester - said that life tenants & lessees shouuld be treated the same in terms of waste 40. Pattison v. Central Canada Loan Co. - life tenants in ON were not liable foor permissive waste 41. Morris v. Cairncross - yes they should be treated the same bbut they should be liable for permissive waste 42. Law of Property Act, ss.12 & 13 - in Manitoba, both are held liable forr permissive waste 42. Re Denison - goes to fiduciary relationship betweeen life tenant & remainder man 43. Mayo v. Leitovski - fiduciary relationship between life ttenant & remainder man. Life tenant must look after interest of remainder man (here, pay the taxes) 44. Settled Estates Act, 1856 (UK), ss.1, 2, 11 & 32 - explained situations where life tenannts may grant a lease, sometimes with or without the permission of the court, even though it may affect the remainderman's interest. Also explained that such capabilities would be limited depending what kind of property/lease it was (agricultural, residential...) and that sometimes, if was for mining, certain portions of the revenues would have to be kept aside for the remainderman. As well, life tenant could petition the court to sell his land as a fee simple, but in such cases he only gets to keep the interest from the money paid...the capital goes to the remainder man (major disincentives). 45. Re Moffat - showed that Settled Estates Act was aadopted by normal processes of reception in Saskatchewan 46. Queen's Bench Act, s.55(1) - obliquely adopted Settled Estates Actt here in Manitoba (said our courts had the same powers as the court of chancery in UK at the time of confederation (which was totally governed by Settled Estates Act.) Must be part of law of MB. 47. Re Moore - difference between possessory rights of common law & equitable life tenants 48. The Trustee Act, ss.20-30, s.60 - Mentions the power to mortgage, unlikke the Settled Estates Act. Thus, when life tenant and trustees face-off over affecting each other's interests through application to the courts (only, of course, where it is an equitable life estate - which all in Manitoba are), trustees have the extra possibility of mortgaging. 49. Chupryk v. Haykowski - happened before the Perpetuities Act came into effect, so not all life estates were held on trust. If Mr. Chupryk's had been, he could have applied to the courts for the power to obtain a mortgage to fix-up his little duplex. 50. Kensingson v. Bouverie - explained the ability of the life tennant to recoup monies paid toward a pre-existing charge on the property from the remainder man. Life tenant only responsible for the interest on such a charge (principal is the responsibility of the remainderman), up to the income producing capacity of the land. However, when he goes above & beyond this duty & pays the remainder man's share, he can recoup only when there exists no generous intention (cannot show that he did it out of a spirit of generosity, with no thought of being repaid later). If this intention is not present, a charge on the same terms as that paid-off is registered against the remainderman's interest for the benefit of the life tenant. 51. Re Warwick's Settlement Trusts - this exact issue came before the courrts again. Endorsed the test centred on intention imposed in Kensingson (above). Found that a spirit of generosity was present here; life tenant had never intended to recoup the monies when he paid them. No recoupment here. But they did talk about when such a charge could be payable. Still undecided: can the life tenant request payment at any time, or must he wait until his interest expires (until he dies & then his estate can claim it)? Irvine prefers option #1. Otherwise life tenant has too much power over the remainder man. 52. Holland v. Hodgson - seminal case on fixtures. Two steps:: degree of annexation. If highly annexed, then a presumption that it is a fixture arises. If not annexed, then a presumption that it is not a fixture arises. This also determines who bears the burden of proof of the next step, object or purpose of annexation. Can only be rebutted in two ways: (1) it was meant to increase the land value (in which case it would be a fixture) or (2) it was meant to improve the efficiency/usefulness of the chattel (in which case it would remain a chattel, property of the tenant). This rules are widely applicable - not limited to life-tenant scenarios. 53. Smith v. Simon - the henhouse case. Deemed to be a fiixture, even though only sitting upon the land. 54. Homfray v. Homfray - trustee case; equitable life tenant ccannot demand possession, but is entitled to income from the land; cannot be forced to pay for repairs. To recoup them, a charge is set-up over the remainderman's interest. 55. Law of Property Act, ss.9-10 - abolished the common law notions of ddower & tenancy-by-the-curtesy 56. Homesteads Act, ss.1, 4, 7, 9, 10, 16, 19, 21(1) - s.1: definitions (homestead & dispossition) - s.4: no longer says what the consequuences will be. Used to make the whole transaction void. - s.7: Change of Residency requirementts. - ss.9 & 10: Duty to Acquire Consent llaid out - s.16: remedy in damages - how to callculate? - s.19: ability to register a homesteaad notice down at land titles office - s.21(1): this is the one that sets-upp the life-estate, even where spouse left-out of will. Reads it in. 57. Re Scott - disagrees with the notion that 'ownerr' should be construed liberally. Only a lower-level Alberta court decision. 58. Re Ripstein - dual-use properties. Very strict hollding - said that wife couldn't claim life estate in the property - it was a commercial building. 59. Re Ostrapowicz - much softer take on these dual-use prroperties. Wife allowed to claim Homestead even though the building also had a commercial purpose. Test: whether it was their primary dwelling?????????? 60. Re Empey - a very broad & liberal interpretationn of homestead 61. Re Neuhaus - in obiter, stated that wife subject tto prior claims of husband's creditors 62. Crichton v. Zelenitsky - husband's creditors come first. Makees wife's protection rather flimsy. 63. Brown v. Prairie Leaseholds - court takes a harsh stance against peeople who don't follow the rituals of dower act consent. Transaction set aside. 64. Senstad v. Makus - much more lenient view. Need not be followed rigorously or rigidly. Court can wink at minor mistakes. 65. Westward Farms v. Cadieux - may have remedy against registrar or spouse when dower act consent not obtained 66. Reep v. Shuckett - farmer makes declaration - "I have noo wife." - indeed he does; lenders foreclose on mortgage. Wife loses homestead & possible life estate. No remedy, because there was no reason for lenders to suspect that Reep was lying when he made the declaration. Transaction cannot be set aside. 67. Fisher v. Wig - old case explaining common law presummption in favour of joint tenancies; three equitable exceptions. 68. Law of Property Act, s.15 - adopts the equitable position insteadd, creating a presumption in favour of tenancies-in-common 69. Re Sterenchuk - this is the unwed couple sharing the laundromat - expressly took title as joint tenantss; equity can no longer intervene 70. Novak v. Gatien - cannot kill off one life tenant to sppeed up the process; must hold his half on trust - you make no progress (cannot profit from your own wrongdoing) 71. Re Gore - same as above 72. Real Property Act, s.50(1) - statutory mechanism which allows the last remaining joint tenant to register as sole owner of the property 73. William v. Hensman - three modes of severance: (i) unilatteral act of disposition; (ii) mutual agreement; (iii) mutual course of dealing 74. Sorenson v. Sorenson - a life estate is not a disposition 75. York v. Stone - a mortgage does qualify as a disposittion 76. Lyons v. Lyons - a mortgage does not qualify as a dispposition 77. Re Brooklands Lumber - Canadian support for Lyons v. Lyons 78. Stonehouse v. AG (BC) - disposition need not be registered doown at land title office, in provinces using the Torrens system, in order for it to effect severance. 79. Real Property Act, s.79(1) - changed in Manitoba. Now, in order tto effect severance without registration, you must get consent from all co-owners or give them notice of your intention. 80. Power v. Grace - involuntary disposition (i.e. by foreeclosure or judgment) does effect severance 81. Re Young - same as above 82. Flanagan v. Wotherspoon - a case about severance by course of mmutual dealing. Two brothers, joint tenants of a farm. Split the deposit, before the sale was complete, and put it in two separate bank accounts. Then, one brother attempted to leave his share to his daughter by will, while his brother looked on. Severance was effected; they became tenants-in-common & William was able to leave his half to his daughter by will. 83. Burgess v. Romsley - Lord Denning's attempt to create anotther mode of severance: unilateral declaration. Only condition: the other tenants must hear it. 84. Re Wilkes, Child v. Bulmar - this case seems to repudiate Denning''s theory of a fourth mode of severance. This would be the clearest case of unilateral declaration, yet the court stated that severance had not occurred. 85. Law of Property Act, ss.18-26 - incorporated the Partition Act's provvisions into our current law. Court may order partition (do not need to meet common law requirement of consent of all co-owners) 86. Re Winspear Higgins Stevenson - power to grant partition is discretioonary. Cannot insist upon it. - burden of proof is on party opposing partition 87. Kennedy v. DuTrafford - no fiduciary relationship between co--owners (unlike life-tenants & remaindermen) 88. Nunes v. District Registrar (Winnipeg Land Titles Office) - no fiduciary relationship between co--owners. They can each pursue their own interests ruthlessly & selfishly. 89. Statute of Anne, 1750, s.27 - may call for accounts to be taken up (1) when one co-owner ousts the other; (2) where one co-owner becomes a baliff for the other; (3) in the context of a partition suit; or (4) according to the Statute of Anne, where one co-owner has received more than his just share or proportion. 90. Queen's Bench Act, s.77 - wholly adopted the Statute of Anne 91. Henderson v. Eason - tells us that 'just share or proportiion' is not necessarily determined in the same ratio as the estate is held. In this case, the absentee co-owner got nothing, while his brother who had maintained the farm throughout his lifetime got 100%. 92. Osachuk v. Osachuk - contains many important points about partition. Expands on Henderson v. Eason, since here in Manitoba we can also get 'constructive receipts' (where co-owner in possession wilfully or by his neglect fails to rent the property or fulfil its income-generating capacity). Note that the Statute of Anne explicitly required receipt. However, the court decided that this was not a case where such constructive receipts were appropriate. As well, we examined when a co-owner who enjoys sole possession of the property may be required to pay to the other co-tenants occupation rents. Reciprocally, the other tenants may be required to pay for his expenses on repairs or improvements. 93. Queen's Bench Rules, Rule 55.04(2) - this is the rule which expands on thee Statute of Anne to include constructive receipts. 94. Leigh v. Dickeson - if one tenant has made improvements wwhich have increased the selling value of the property, the other tenant cannot take the advantage of increased price without submitting to an allowance for the improvements. - one tenant in common of a house who eexpends money on ordinary repairs has no right of action against his co-tenant for contribution. - a purely voluntary payment, not expreessly requested by the other tenants, cannot be recovered, except in the context of a partition suit. - co-tenants are not partners; one is nnot the agent for the other. - definitely no way to recover for imprrovements. - Issue: "Is there any obligation uponn one tenant in common to contribute to expenses property incurred by another tenant in common in respect of the property held in common? Does the law cast upon tenants in common the duty to contribute for the cost of maintaining the property in good condition?" No, except in the context of a partition suit. 95. Mastron v. Cotton - "when, as here, one tenant has paid mmore than his share of encumbrances, he is entitled to an allowance for such surplus." - where these payments are made as giftts, later no allowance shall be payable