1L Fall Property Mini CAN - Harris PDF

1 Expropriation: Direct Expropriation: Statute Based  BC Expropriation Act: A person cannot dispute authority to expropriate land; right to notice and a hearing; but cannot dispute the necessity of the project; entitled to compensation at market value (entitled to special compensation if the...

1 Expropriation: Direct Expropriation: Statute Based  BC Expropriation Act: A person cannot dispute authority to expropriate land; right to notice and a hearing; but cannot dispute the necessity of the project; entitled to compensation at market value (entitled to special compensation if their occupation is from land and for any improvements made)  Expropriation Acts generally require compensation for direct expropriation. o However: although governmental expropriation of property w/o compensation is discouraged by our common law tradition, it is allowed when Parliament uses clear and unambiguous language (Authoson v. Canada 2003) o The Court will use the doctrine of strict construction to interpret statutes that give power to government to expropriate, especially w/o compensation (Riopell v The City of Montreal (1911) Indirect Expropriation: Common Law Based Test: Annapolis Group Inc v Halifax Regional Municipality 2022 (SCC); CPR v Vancouver 1. Regulations that leave a rights holder with only notional use of the land, deprived of all economic value, can satisfy the test. 2. An advantage or benefit flowing from the property to the state can be “acquisition” the state need not actually acquire the land. *if owner proves indirect expropriation occurs, they are entitled to compensation, they cannot stop the expropriation *A claim of regulatory expropriation must recognize that in Canada extensive regulation is norm (Mariner) Reasonable use? a. Preclusion of residential development, particularly on lands as environmentally sensitive as the beach, is not an extinguishment of all rights associated with ownership. b. The refusal of the application to develop was not an inevitable consequence of the designation or act so not expropriation. c. The Arbutus bylaw does not prevent CPR from using its land to operate a railway, the only use to which the land has ever been put during its history (CPR) d. does not preclude CPR from leasing the land for use in conformity with the by-law and from developing public/private partnerships (CPR) i. Per Alberta (Minister of Public Works, Supply & Services) v Nilson 1999: the regulation must be of severity to remove virtually all of the rights associated with the property holder’s interest Acquisition of Benefit/interest? e. The freezing of development and strict regulation does not itself confer any property interest onto the Province (Toronto Area Transit Operating Authority v Dell Holdings Ltd (1997) f. The City has gained nothing more than some assurance that the land will be used or developed in accordance with its vision, without even precluding the historical or current use of the land. This is not the sort of benefit that can be construed as taking (CPR) g. The substance of the alleged advantage; for example: permanent or indefinite denial of access to the property or the government’s permanent or indefinite occupation of the property would constitute a taking; regulations that leave a rights holder with only notional use of the land, deprived of all economic value, would satisfy the test; confining the uses of private land to public purposes, such as conservation, recreation, or institutional uses such as parks, schools, or municipal buildings (moving us closer to Penn Central) (Annapolis) * Mariner said state had to acquire property interest  CPR recognized acquisition of beneficial interest flowing from property  but Annapolis broadened to any advantage and suggests loss of all economic value is sufficient Indirect Expropriation in International Agreements: Main Differences from domestic:  easier to prove indirect expropriation (b/c based on investment back expectations and loss of economic value (like Penn Central) instead of removal of all uses)  allows foreign investors to challenge validity of public purpose/discriminatory actions b/c agreements make public purpose a restriction on government decisions (unlike in BC EA)  do not need to show that there was an advantage flowing to state or acquisition of property made by government.  Might include ISDS and international tribunals  2 Boundaries: Airspace: Trespass Test Didow v Alberta Power: 1. Proper remedy for interference with a landowner’s air space is in trespass as opposed to nuisance. 2. Property interest is limited to height of actual or potential use and enjoyment of the land (latin maxim does not apply) (Lacroix The Queen) All other cases treat transitory as the same as permanent invasions so assumed the same rule Subsurface: Land Act BC: A crown grant does not include almost anything subsurface. This is the case unless explicitly stated otherwise in the grant. Mineral Tenure Act: Surveying and mining require license. The person who has the mining rights has the right to enter the property as long as they give notice to the owner. That miner would have to compensate the owner for any damages but not for the value of the minerals. *Edward v Sims can be persuasive authority that caves are the property of owners. *Star Energy Weald Basin Ltd v Bocardo: cannot compare subsurface w/airspace bc subsurface no public use; owner owns to center of earth (however in Canada no right to minerals or resources) (latin maxim applies) Lateral Boundaries – Trees: Nuisance Test Nuisance Test: Antrim Truck Centre Ltd v Ont 2013 (SCC); Allen et al v MacDougall et all There must be interference with a property owner's use and enjoyment that is both substantial and unreasonable. Substantial: only those inconveniences that materially interfere with ordinary comfort as defined according to the standards held by plain and sober tastes. Compensation will not be ordered for trivial annoyances Reasonable: must be analyzed from a mutual point of view. Is the claimants claim reasonable considering the fact that he has a neighbour? If the owner moved into a neighbourhood heavily populated with trees, they cannot claim that a tree is a nuisance Demenuk v. Dhadwal Common-law regime allows each property owner, within the boundaries of his or her 2013 BCSC property to do as they wish, with respect to planting trees, which may tomorrow block a neighbour's view or spill onto a neighbour’s property, and with respect to pruning or cutting the branches and roots of trees that cross a property line. *Overruled by any bylaws It does not matter if the self-help remedy kills or destabilizes the tree as long as the or statutes by remedy was taken on owners’ property alone. municipality/province. *does not apply to trees that straddle property line (bc their common property) Lateral Boundary – Water: Statute-barred Water Sustainability Act BC: property & right to use any stream (natural water source or water supply) is vested in Provincial Crown; person cannot divert water w/o authorization; but people can divert & use for domestic purpose or mineral prospecting any unrecorded water from stream. Land Act BC: natural boundary means the visible high-water mark; any Crown grant prior to Mar 27, 1961, no part of bed/shore below natural boundary is passed to grant-holder; same rule applies to Crown land grants that border water source. *not applicable on reserve lands bc they are federal jurisdiction. Common Law Riparian Rights Regime – Owners had rights to: 1. Natural flow (water) 2. Ad medium filum aquae: presumption that owner of land adjacent to a body of water also owns the solum or bed of the water to the midpoint. In Canada this would apply to non-navigable waters. 3. Fisheries *Ad Medium Filum Aquae rule has been largely displaced unless it is clear in the transfer instrument that the body of water is included (like when the body of water is shown in red on the crown grant then it is included). Robertson v Wallace 2000 1. Water boundaries are not frozen in time. (AB) 2. The boundary will be moved if the river changes slowly over time (accretion). 3. If the movement of the river happens suddenly or in a moment (avulsion) then the boundary remains as it was before (regardless of whether the sudden movement is caused by natural disaster or man-made actions) Fixtures:  3 Test: LaSalle Recreations Ltd v Canadian Camdex Investments Ltd 1. Degree of annexation - how permanent/attached is the object to the land a. Is the object attached? If yes, it raises a presumption that the object is a fixture. The stronger the degree of attachment the stronger the presumption is. b. If no, presumption is that it is chattel. 2. Purpose of annexation (objective test) a. Was the object attached to enhance the land/property? b. Was the object attached to make better use of the object as an object? If attached presumption = fixture, so if party wants to claim it is chattel they have burden to prove the purpose of attachment was to enhance chattel not realty (vice versa is true) *Type of building can matter (EG: hotel can’t function w/o carpets LaSalle) *(building built w/ substructure of the floor to have troughs for the bowling ball return can make bowling alley fixture NorthWest Trust Co. v Rezyn Developments Inc., 1991) *(Building where bowling alleys just attached after fact can make them chattel (R v Davis 1954). Personal Property Security Act: Where there are competing security interests – one has interest in land and one who has security interest in goods. If the creditor with the personal property interest fails to register them before the good becomes a fixture, the party with the interest in the land (like a mortgagee) will take priority and the personal property interest creditor will lose out. Possession: Do they have possession/possessory interest? Test: Popov v Hayashi (USA) 1. Physical Control 2. Intent to Posses Possession is good against the whole world except the person who can show good title Asher v Whitlock 1865 or someone with a stronger claim (the private landowner) Trachuk v Olinek Possession is prima facie evidence of property Nolan v Nolan Did true owner abandon?  finder wins Test: Wicks Estate 1. Did the owner physical leave behind/abandon property 2. Did the owner intend to abandon (subjective test) If no true owner claim  How did, they get possession?  Found item on private land  lost (finder wins) or hidden (landowner wins if they have actual title and make claim)  Found item on common property  finder keeps unless state property Alternative ways of enforceable possession?  Gift while alive  was their intent to give? intent to accept? and delivery (actual or constructive: intend to give full control)?  Gift in Common Establishment  was their unequivocal act to show delivery and relinquishment of donor control  Gift in Contemplation of Death  was death known and imminent? delivery (actual or constructive)? was the gift only to take effect on death (if not  inter vivos gift)?  Transfer  was their written contract w/ parties, price, and property, signed by both parties? Was there transfer instrument signed by transferor and registered by transferee?  Exceptional TransferWas there one of 2 exceptions to a need for written contract (L&E 59(3)(b)c)? Was there acceptance by registrar of common law alternative (Title Deed)? Finders: Trachuk v Olinek 1995 AB 1. The finder of lost chattel, while not acquiring any absolute property or ownership, acquires a right to keep it against all but the true owner or one who can assert a prior right to keep the chattel (EG: landowner) which was subsisting at the time when the finder took the chattel into his care and control. 2. One can displace finder’s right only if they are the owner (or working on owner’s behalf) or are the occupier of the privately owned land where the chattels were discovered under or attached to. As a general principle, where a person has  4 possession of a house or land, if something is found on or under the land, the presumption is that the possession of that thing is in the owner of the land. 3. To rebut the presumption that the owner of the land has stronger right is to demonstrate that the item was lost on their land (not hidden). Armory v. Delamirie finder of a lost object can keep it, the owner of the property on which the lost object is found has no claim that can defeat the finders. (chimney boy finds lost bracelet in chimney). Gifts: Inter Vivos Gift: one that is intended to take effect during the lifetime of the donor. 3 valid ways for making (a) deed (b) declaration of trust (c) delivery. Essential Elements of Inter Vivos Gift in the absence of deed or declaration of trust: (Nolan v Nolan) 1. Intention to make gift (usually expressed by words/writing) 2. Intention to accept the gift 3. Delivery (actual or constructive) Constructive delivery may take various forms. The donor must give up all control. EG: Where the nature or bulk of the goods renders manual delivery impossible; when the donee is already in possession or, according to some authorities, when the donee already has custody, of the chattels. Nolan v Nolan 1. Donative intention is characteristically accompanied by words of gift which evince the intention and delineate the object and extent of the intended benefaction. Nevertheless, donative intention need not be manifested by words of gift (Corin v. Patton 1989-90) 2. A valid delivery marks the termination of the donor's dominion. A continuation of control or power by the donor is inconsistent with a valid delivery and hence inconsistent with a perfect gift (Young v Cockman 1943) 3. Although delivery can precede, accompany, or follow the gift, delivery must occur while the donative intention subsists. At any stage until delivery occurs, the donor can validly retract the gift 4. Where possession of the chattels by the intended donee precedes the words of gift, the gift may be perfected without the necessity for the donor to retake possession of the chattels in question in order to affect a valid delivery. But the donee must have had the chattels delivered into his possession by the donor at some point (Stoneham v Stoneham 1919) 5. Delivery in Common Establishments: There needs to be some unequivocal/clear act that possession was transferred to other person. 6. Courts will not complete imperfect gift/assist volunteer Donatio Mortis Causa (gift in contemplation of death): a gift does not take effect until death Essential Elements: (Rushka v Tuba 1986 & Re Bayoff) 1. Impending death from an existing peril 2. Delivery of subject matter 3. The gift is only to take effect upon death and will revert to the donor should they recover Re Bayoff 1. Handing a key to safety deposit box counts as delivery for death gifts because Bayoff only means he had to control contents of box. 2. A donor can revoke gift any time prior to death 3. If the donor intends to give gift prior to death inter vivos 4. Delivery for inter vivos gifts is not met by giving of key alone? 5. An unfulfilled gift will be treated as complete if the donee becomes an executor under the Will of the donor so long as intention to give continues till death. Once donee is executor delivery accomplished. * When it is about gift giving around someone who is imminently going to die – the presence of a will does not mean imminent death. A statement that some months before she died, she made a gift is also not a gift in contemplation of death because she did not know that her death of imminent. The person needs to know that death was imminent and death as to be actually imminent.  5 Transfers of Property: Statutory Stages of Property Contracts: 1. Contract of purchase & sale a. Essential terms: 3Ps (parties, property, price) b. Purchaser makes offer and signshands it to sellerseller than can accept by signing the purchase/sale (both parties must sign) 2. Transfer a. Completion datewhen the transfer actually occurs (when transferee registers the title) b. Requires only transferor to sign Transfer Instrument IS THERE A CONTRACT? Law & Equity Act BC: general rule: property contracts need to be in writing and include an indication that a transfer agreement has been made and a reasonable indication of the subject matter (3Ps). *reasonableness is objective test. 59(3)(b): transfer agreement can be enforced if the party against whom the contract is being enforced against has done an act or acquiesced in an act (EG: giving of a deposit by buyer / receiving deposit is seller) that indicates an agreement has been made even if not in writing 59(3)c): transfer agreement can be enforced when one party reasonably relied on it and that reliance changed their position which would make it inequitable to not enforce; this applies even if contract not in writing. IS THERE A TRANSFER? Land Title Act BC: transfer of a freehold estate must be in the prescribed form (Form A) - You need a notary or lawyer as a witness. The transfer instrument is only signed by the transferor (seller); an instrument purporting to transfer, does not operate to pass an estate or interest in the land unless the instrument is registered (moment of transfer occurs when registered). Exception: Form A does not apply if, in the opinion of the registrar, it would be proper to accept another form of transfer. (EG: Title Deed – transferors sign it promising they have title and that they are transferring to transferee - this is what occurred prior to title registration system – here the transfer occurs when the deed (signed and sealed) is delivered in accordance with common law transfer requirements: A written instrument; A deed (signed, sealed and delivered); Whereby an interest pass. (here moment of transfer is delivery) Adverse Possession: Statute-barred in BC Common law device by which the right of the prior possessor of land, typically the holder of registered title, may be displaced by a trespasser whose possession of the land goes unchallenged for a prescribed period of time. The prior possessor's right to recover possession is curtailed by a limitation period. *Historically: Statute of Limitations RSBC 1960: private titleholder had 20 yrs to dispute adverse possessor before adverse possessor could claim title; 60 yrs for Crown land. Limitation Act SBC 2012 c13: no right or title in or to land may be acquired by adverse possession once title has been registered; when title is first registered there is a brief window if the adverse possessor meets the requirements and comes forward; does not interfere w/ land acquired by adverse possession before July 1, 1975. Property Law Act RSBC 1996 c 377: another exception to no adverse possession b/c court can grant easement or title to land where building/fence encroaches adjoining land (Owners of Strat Plan VR 10 v EE Management Corp 2015 BCSC). Land Title Inquiry Act: A person claiming to be the owner of a fee simple estate in land is entitled to have the title judicially investigated and its validity declared by the court. Nelson City v Mowatt Test for adverse possession: Act of possession must be actual (physical possession and intent to possess), open and notorious, adverse (cannot be hidden), exclusive (not sharing w/owner), peaceful (no force, w/o permission of owner, and continuous (does not need to be the same person as long as there is always someone for the owner to sue). *Inconsistent use requirement does not form part of the law in BC (but it is in Ont) Essay Materials: Key definitions of property: Emergence of Property:  Liberalism  labour theory (Locke)  6  Colonialism Whiteness as Property (racism formed basis of property); Yanner v Eaton (Crown); ignore Indigenous Categories of Property: range based on right to exclude  Public/state (state determines rules of access - usually no exclusion), common (some exclusion), private (full exclusion), open access (no exclusion) Macpherson – Meaning of Property:  Property is a right, not a thing. To have property is to have a right in the sense of an enforceable claim to some use or benefit of something.  What constitutes the property, is the legal title, the enforceable exclusive right, to or in the tangible thing. Merril – Property & Right to Exclude:  Property is about rights of persons in respect to things. Property is about a relationship between people with relation to things o Criticism: this definition does place humans as the subjects and everything else an object. Humans are the owners and everything else is to be owned (New Zealand River/Park Personhood)  Single Variable Essentialism: the right to exclude others is a necessary and sufficient condition of identifying the existence of property o Merrill Agrees: Give someone the right to exclude others from a valued resource, i.e., a resource that is scarce relative to the human demand for it, and you give them property. o EG: Yanner v Eaton Dissent, Cohen definition, Whiteness as Property  Multivariable Essentialism: a bundle of rights involved in property; exclusion is one of them. The right to exclude is a necessary but not a sufficient condition of property. o EG: CPR case, Expropriation cases (rec multiple incidents of ownership), Tony Honore,  Nominalism: property as a purely conventional concept with no fixed meaning—an empty vessel that can be filled by each legal system in accordance with its peculiar values and beliefs o EG: Yanner v Eaton: property is but a fiction. Property is no more than the aggregate of the various rights of control by the Executive that the legislation created; Braiding Sweetgrass; Principle of Sharing – Morales; Justifying Property: Macpherson – Meaning of Property:  Property is not self-justifying there is a need for justificatory theories for property because the legal right must be grounded in a public belief that it is morally right. Lewis – The Right to Private Property:  Right of discoverer: o Finder or first occupier has rights o EG: Edward v Sims (Dissent); Finders  Freedom Justifications: o (Hegel) the individual's right to act as a free person is dependent on the opportunities made possible by private property (security, independence, stability, & encourages responsibility) o EG: everything has to be done somewhere / homelessness; Whiteness as property; Nova Scotia cases  Labour Theory: o (Locke)labouring on material resources in a state of nature, a person acquires an interest in them. The mixing of one's labour with the resource in itself gives rise to entitlement. o EG: Moore case; Edward v Sims (Dissent); Finders; Baseball & Fox case; Adverse Possession  Economic Justifications: o (Hernando de Soto) land without fee simple or free trade rights is dead capital. o In order for property to be useful economic tool, it needs to be clearly defined and exclusive to someone, universal. o Private property can be sold in markets - markets give information using price signal and are efficient. o EG: Moore case; Edward v Sims (dissent); Nisgaa Final Agreement.  Utilitarian Justifications: o the total, or average, happiness of society will be greater if resources, particularly the means of production, are owned and controlled by individuals o EG: Moore case (total benefit to humanity better- Majority);  Rights-based Approaches:  7 o people have an interest (right) in owning things when they have justly acquired which is sufficiently important to command respect and to retrain gov. o EG: gifts Tragedy of the commons: a situation in which individuals with access to a public resource act in their own interest and, in doing so, ultimately deplete the resource. (economy needs property to have exclusivity, universality, and transferability/exchange –too much common property not enough exclusion) (EG: street nuisance) Tragedy of anti-commons: a type of coordination breakdown, in which a common never occurs and resources are under- utilized. An example is where private property has become so overwhelmingly subdivided that to create and use anything is burdensome - dividing property into too small parcels creates a patent thicket (too much exclusivity and private property)  This is why you have numerous clauses and why you cannot allow people to create new property interests & why the legislature must be sole source of property rights and why court needs to follow stare decisis  EG: Harison v Carswell; Moore cell lines case; Keppel v Bailey 1843 EWHC How Property is a Cultural Construct: Harris – Whiteness as property:  Possession — the act necessary to lay the basis for rights in property - was defined to include only the cultural practices of whites. This definition laid the foundation for the idea that whiteness — that which whites alone possess — is valuable and is property.  Because the "presumption of freedom [arose] from color [white]" and the "black color of the race [raised] the presumption of slavery," whiteness became a shield from slavery, a highly volatile and unstable form of property. Baron – Gifts, Bargains & Delivery:  Anthropological, sociological, and psychological studies of gifts all suggest that gifts and bargains are alike exchanges, differing only in that bargains involve the exchange of commodities, while gifts may involve the exchange of non-commodities such as status, obligation, "psychic reward" or the like.  Despite the benevolent motives and family settings usually associated with gifts, the accepted justification of donative formality assumes that, in giving, people are fundamentally unreliable and deceitful. Despite the self- interested aims and arm's length relationships usually associated with bargains, the accepted justification of the consideration doctrine assumes that, in business, people are trusting and trustworthy. INDIGENOUS LEGAL ORDERS: Morales – Principle of Sharing:  issues arise when our conceptions of property are premised on the drawing of bright lines, because the creation of those boundaries entails the conversion of social relations into a set of discrete bounded things.  Rather, membership in a property-owning family group tends to be flexible over time, emerging less from rigid social ordering, and more from the actual practice of ordered kin relations.  Relationships are not just between people - but also between people and things/spaces/land Burrows:  The Anishinabek Nation rendered its judgment in the case of Nanabush v. Deer, Wolf et al.  Story telling as law Napolean:  Legal Systems: state-centered legal systems in which law is managed by legal professionals in legal institutions separate from other institutions  Legal Orders: law embedded in non-state social, kinship, political, economic, spiritual institutions. (Law is a process that people do not a thing) Nisga’a Agreement:  Different way of distributing property  Different forms of tenure – fee simple ownership is optional Kimmerer – Braiding Sweetgrass:  Freely given gifts cannot be made into someone else's capital (wile strawberries shouldn’t be sold). Same reason we do not sell sweetgrass. Because it is given to us, it should only be given to others.  That is the fundamental nature of gifts: they move, and their value increases with their passage.  The more something is shared, the greater its value becomes. This is hard to grasp for societies steeped in notions of private property, where others are, by definition, excluded from sharing. Practices such as posting land against trespass, for example, are expected and accepted in a property economy but are unacceptable in an economy where land is seen as a gift to all.  8  When gifts were given to the settlers by the Native inhabitants, the recipients understood that they were valuable and were intended to be retained. Giving them away would have been an affront. But the indigenous people understood the value of the gift to be based in reciprocity and would be affronted if the gifts did not circulate back to them.  From the viewpoint of a private property economy, the "gift" is deemed to be "free" because we obtain it free of charge, at no cost. But in the gift economy, gifts are not free. The essence of the gift is that it creates a set of relationships. The currency of a gift economy is, at its root, reciprocity. o Western thinking, private land is understood to be a "bundle of rights," whereas in a gift economy property has a "bundle of responsibilities" attached New Zealand Examples: Te Urewere Act 2014 (Park)  Te Urewera is a legal entity, and has all the rights, powers, duties, and liabilities of a legal person.  Te Urewera establishment land ceases to be vested in the Crown  Te Urewera land must not be alienated, mortgaged, charged, or otherwise  disposed of Te Awa Tupu (River Claims Settlement) Act  the legal recognition of Te Awa Tupua  the vesting of the Crown-owned parts of the bed of the Whanganui River  and other lands in Te Awa Tupua  Te Awa Tupua is a legal person and has all the rights, powers, duties, and  liabilities of a legal person.  The office of Te Pou Tupua is established to be the human face of the river and act in its name