Property Winter 2023 Course Map PDF

PROPERTY Winter 2023 Course Map Table of Contents Adverse Possession.........................

PROPERTY Winter 2023 Course Map Table of Contents Adverse Possession.......................................................................................................................................... 2 Estates............................................................................................................................................................. 3 Co-Ownership.................................................................................................................................................. 5 Easements....................................................................................................................................................... 6 Restrictive Covenants....................................................................................................................................... 8 De Facto Expropriation..................................................................................................................................... 9 Aboriginal Title.............................................................................................................................................. 10 Commercial Leases......................................................................................................................................... 11 Residential Tenancies..................................................................................................................................... 14  Ivan Hsieh 2 Adverse Possession Adverse possession: Uninterrupted enjoyment of land of the correct nature over a period of time stipulated by law by a squatter deprives the owner of his or her title (s. 15) and effectively gives the squatter a title to land. Period of Time If someone with the right to take an action to recover land does not do so within 10 years, their right to do so is lost. Real Property Limitations Act, s. 4. o The inchoate (not fully formed) possessory title can pass from one person to another. o Clock starts again if the possessor at some point acknowledges the title in writing. s. 13. o For disabled persons, have 5 years after the person ceased to be under any such disability or died. s. 36. Quality of Possession 1. Actual possession for the statutory period by themselves and those through whom they claim. o Possession needs to be actual, exclusive, peaceful, open or notorious, continuous, and adverse/hostile. ▪ Actual: Sufficient acts of possession. Courts look to “the nature of the property, the appropriate and natural uses to which it can be put, the course of conduct which the owner might reasonably be expected to adopt with a due regard to his own interests”. (Teis) ▪ Open or notorious: “The opportunity … to have knowledge.” (Lundrigans) ▪ Continuous: There the whole time? But for some types of property, even intermittent use will satisfy the element of continuity. (Teis) ▪ Exclusive: Principally dealt with under discontinuance of possession. ▪ Adverse/Hostile: Without permission. 2. Intention of excluding from possession the owners or persons entitled to possession. o Only look to the intention of the adverse possessor if there is any doubt about their actual possession. (Beaudoin) ▪ Contradicts Masidon Investments, where the court strongly implies that the squatter must intend to effectively exclude the owner specifically. o In cases of mutual mistake, the court may reasonably infer that the claimant intended to exclude all others. (Teis) 3. Discontinuance of possession for the statutory period by the owners and all others, if any, entitled to possession. o An occasional short-lived entry is not sufficient in itself. The owner must do something on the land. ▪ But the smallest act by the owner would be sufficient to show that there was no discontinuance of his possession. Picking cherries. (St Clair Beach)  Ivan Hsieh 3 o Inconsistent Use Test: Changed to “effectively excluded the true owner from possession”. Did the adverse possessor make uses of the land that are inconsistent with the uses the owner wishes to make of the land in the present? (Masidon Investments) ▪ Sets up a very difficult standard since owners can say their intention was to not physically use the land but keep it for sale or development at a later time. ▪ Does not apply to cases of mutual mistake. Possibly unilateral mistakes too. (Teis) ▪ Rationale is that under the inconsistent use test, the owner will always prevail because not knowing she owned the land, she could not have a use for it. Law should protect the good faith reliance on boundary errors or at least the settled expectations of innocent adverse possessors. Estates English land law still theoretically rests on the idea that all land “owners” are not owners, but tenants of the Crown. The doctrine of estates defined the effective duration of a grant. Freehold estates known to the common law: o Fee simple: The amplest estate which a tenant can have in or over land. Relatively few limitations on his power to dispose of an estate in the land. o Life estate: Estate whose duration is measured by the lifetime of a person. ▪ The measuring life is that of the tenant of the estate (pur sa vie) OR the measuring life be someone else (pur auture vie). The common law required strict adherence to conveyancing formulae if a person wishes to transfer inter vivos an estate in fee simple (ex. “to Dan Carter and his heirs”). o Altered by the Conveyancing and Law of Property Act and the Succession Law Reform Act. Presumption that the person transfers an estate in fee simple. Two types of future interest: o A reversion is an interest retained by the grantor. o A remainder is an interest created in a third party which follows the granting of an estate less than the fee simple absolute. Conditions Estates may be granted subject to conditions: o Conditions precedent: These conditions must be satisfied before the grantee has any right of enjoyment at all. ▪ Before the condition is satisfied, only have a contingent interest. After, have a vested interest. o Conditions subsequent: Operate to defeat an estate which has already been granted or willed to a person.  Ivan Hsieh 4 ▪ These conditions of defeasance are personal if they relate to the person. If the condition relates to use of the land itself, will go with the land. When are conditions void? o Uncertainty ▪ Condition must be such that the court can see from the beginning, precisely and distinctly, upon the happening of what event it was that the preceding vested estate was to determine. Unclear what “continues to reside in Canada” meant. (Sifton) Strict standard for certainty in a condition subsequent. ▪ Condition subsequent struck because of the uncertainty attaching to the requirement of Jewish parentage and Jewish faith. (Clayton) BUT no difficulty of ascertain who is “Anglican or Presbyterian” in (Peach Estate) or “Roman Catholic” in (Blathwayt) o Public Policy ▪ Not against public policy to have a clause in a restrictive covenant that barred non-whites. (Noble and Wolf) Changed by the Conveyancing and Law of Property Act. ▪ ‘Quasi-public’ dispositions of property do attract judicial scrutiny on public policy grounds. Legal and fiscal privileges attach to charitable trusts. Doesn’t affect private family trusts. (Canada Trust) Tarnopolsky JA suggests an equality analysis (ss 1 and 13 of the Human Rights Code or s 15(2) of the Charter) Robins JA inferentially suggests that motive matters. Some decisions have validated conditions that make distinctions on the ground they were not premised on religious supremacy (University of Victoria, Ramsden). ▪ The common law principle of testamentary freedom protects a testator’s right to dispose of their property for whatever reason they want, even on discriminatory grounds. (Spence) BUT can be struck down if: There is a statutory duty on a testator to provide for someone. Implementation of the testator’s wishes requires a testator’s executors, trustees, OR a named beneficiary to act in a manner contrary to law or public policy. (Spence) o (i) conditions in restraint of marriage and those that interfere with marital relationships o (ii) conditions that interfere with the discharge of parental duties or undermine the parent-child relationship… o (iii) conditions that disinherit a beneficiary if she takes steps to change her membership in a designated church or her other religious faith or affiliation o (iv) conditions that incite a beneficiary to commit a crime or to do any act prohibited by law “Unworthy heir”: a beneficiary whose self-declared reasons for existence involve activities that constitute offences under  Ivan Hsieh 5 Canadian criminal law and run contrary to Canadian public policy against discrimination. (McCorkill) Co-Ownership Two forms of co-ownership: Joint tenancy: Absolute unity between the co-owners (title from same source, vested at the same time, interests are identical in size, and possession). Thought of as one person. o Right of survivorship (jus accrescendi) applies only to joint tenancies. Tenancy in common: The intimate union which exist between joint tenants does not necessarily exist. May hold different interests, different titles, etc. Distinguishing at the Time of Creation The four unities are only a necessary condition for a joint tenancy, not a sufficient one. There must be the intention to create one. If intention is unclear: o At common law, presumed to be joint tenancies. ▪ Section 13 of the Conveyancing and Law of Property Act created a presumption that a tenancy in common is created for real property. o Equity preferred tenancies in common. Tries to find “words of severance” in a grant or will (ex. “to John and Jenny equally”). o Traditionally, circumstances where equity read what is at common law a joint tenancy as a tenancy in common: ▪ (a) where money is advanced on a mortgage, whether in equal of unequal shares ▪ (b) where the purchase price is provided in unequal shares ▪ (c) where the property belongs to a business partnership ▪ (New d) if possession of jointly owned property is shared by individuals pursuing separate commercial interests o Unless a contrary intention appears, if joint tenants die in circumstances where it is unclear which of them survived the other, both shall be deemed to have held as tenants in common. s. 55(2) of the Succession Law Reform Act. Severance of Joint Tenancies Severance of the common law title requires an act of one or more of the joint owners operating on their own share so as to destroy one of the four unities. o No circumstances where equity would insist on retaining a joint tenancy in equity. Severance of the equitable title if (Williams v Hensman): o (1) A joint-tenancy may be severed by mutual agreement. ▪ Agreement found because they initially agreed on a price, even though it was not in writing. (Burgess v Rawnsley)  Ivan Hsieh 6 o (2) Any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common. ▪ Sufficient if one party makes clear to the other that he desires that their shares should no longer be held jointly be held in common. BUT does not suffice to rely on an intention declared only behind the backs of the other persons interested. (Burgess v Rawnsley) Indication to sell necessarily implies that they wanted their interests to be held separately. ▪ Negotiations indicate that the separated husband and wife regarded themselves as tenants in common, became only a question about the value of their respective interests. (Robichaurd v Watson) ▪ Need to look at the entire course of conduct. Cannot treat prior cases as if they recognize categories that restrict the course of dealing analysis. (Hansen Estate). Relations Between Co-Owners (applies equally to joint tenants and to tenants in common) At common law, there were only two actions that could be taken by one co-owner against another: o An action for “waste” was available if one co-owner damaged the land. o If one co-owner seeks to exclude the other from the land, the action of ouster is available. In equity, could obtain an action for account. o The general rule is that co-owners must make their own contracts if they wish to be paid a share of the revenues. o EXECPETION: Can go to a court of equity to get a remedy is co-owner receives more than their just share. Revenue received by virtue of being a co-owner, not from “sweat of the brow”. (Reid v Reid) Ending a Co-Ownership: Partition or Sale Partition Act 3(1) …may bring an action or make an application for the partition of such land or for the sale thereof under the directions of the court if such sale is considered by the court to be more advantageous to the parties interested. o Section is not concerned with encouraging development. Sale is not more advantages for the appellant, so order for partition instead. (Dibattista) o In ordering a partition, a Court may make all just allowances as will do complete equity between the parties. Wife entitled to have taken into account all payments. (Mastron) Easements Is the Right a Valid Easement? Can the right claimed ever be an easement?  Ivan Hsieh 7 o Right to tunnel under land, to maintain power lines and towers, to discharge water, to have drainage pipes and sewers underground, to string a clothes line, to use a neighbour’s washroom, etc. Does this particular right meet the Ellenborough Park test? o (1) There must be a dominant and servient tenement. ▪ Must be able to point to particular pieces of land. o (2) An easement must “accommodate” the dominant tenement. ▪ Reasonably necessary for the better enjoyment of that tenement. If there isn’t the necessary connexion, it is merely a contractual right personal to and only enforceable between the two contracting parties. ▪ Look to the nature of the alleged dominant tenement and the nature of the right granted. ▪ Ex. The park became a communal garden for the benefit and enjoyment of those whose houses adjoined it or were in its close proximity. (Ellenborough Park) o (3) Dominant and servient owners must be different persons. o (4) Right over land needs to be capable of forming the subject matter of a grant. This element consists of sub-propositions: ▪ (a) Whether the right conferred is too wide and vague. Is it clearly defined, not an indefinite and unregulated privilege? ▪ (b) Whether it is inconsistent with the proprietorship or possession of the alleged servient owners. Does it amount to a joint proprietorship or possession? o (New 5) No new negative easements will be created. These prevent the owner of the servient tenement from doing something with their land. (Phipps v Pears) ▪ Previously recognized negative easements: right to light, right to receive air by a defined channel, a right to lateral support for buildings, and a right to continue to receive a flow of water from an artificial stream. Was the easement created? The common law maintains that all easements “lie in grant”, that is they must be created by one person with an interest in land granting the right to another. o Express grant of an easement o Express reservation of an easement Implied grants and reservations o (1) General implied grant rule (Wheeldon) ▪ Get what you see: “there will pass to the grantee all those continuous and apparent easements.” ▪ Also get what is necessary: “all those easements which are necessary…, and which have been and are at times of the grant used by the owners of the entirety for the benefit of the part granted.” ▪ Addition: Common intention of the parties. Can argue that a grant can be implied from the circumstances. (Pwllbach)  Ivan Hsieh 8 Manner or purpose for which the land granted is to be used. Grant of a lease was for the very purpose of carrying on a restaurant business. Could not be carried on unless a ventilation system was installed by a duct of this kind. (Wong) o (2) No implied reservations rule. If a grantor intends to reserve any right, it is their duty to reserve it expressly in the grant. Exceptions: ▪ (a) “Ways of necessity” are rights of way to land that would otherwise be landlocked. ▪ (b) Mutual easements. Both landowners are claiming the same easement from reach other. ▪ (c) Simultaneous sale of two pieces of land, such as at an auction. ▪ (d) Common intention. "The law will readily imply the grant or reservation of such easements as may be necessary to give effect to the common intention of the parties to a grant of real property, with reference to the manner or purposes in and for which the land granted or some land retained by the grantor is to be used". (Pwllbach) Common intention to continue to use the driveway by right, “an accepted reality of their lives”. No requirement that there be affirmative evidence admitting of no alternative possibilities. (Barton) Restrictive Covenants What is the difference between covenants and easements? o An easement is the right to use another’s land. A restrictive covenant is the right to tell another landowner what they cannot do with their land. o Covenants directly affect the servient land, easements do so inferentially. o Covenants are potentially much wider in scope than easements. Terms: o The covenantor, who agrees to do/not do something with their land, has what is called the burden of the covenant. o The covenantee, the person for whose benefit the covenant is made, has what is called the benefit of the covenant. o Being able to enforce the benefit against or for a successor in title to the original party is known as running the burden or the benefit of the covenant. A restrictive covenant is a covenant that equity will enforce against successors in title to the original covenantor. Terms of the covenant become attached to the land. o Otherwise, owner cannot sell part of their land “without incurring the risk of rending what he retains worthless.” (Tulk) Requirements for a Covenant to Run Notice. (Tulk)  Ivan Hsieh 9 o The Land Titles Act requires registration, which is sufficient notice. (1) Negative in substance. Fits with the primary remedy, the injunction. Positive burdens seen as more onerous. (Hayward) o Ex. Can say “keep and maintain the said piece of ground in an open state uncovered by buildings” because it is a prohibition on development. (Tulk) (2) There must be a dominant and servient tenement. Dominant tenant must retain land, capable of being benefited by the covenant. (LCC v Allen) o If the vendor has retained no land which can be protected by the restrictive covenant, the basis of the reasoning in Tulk is swept away. (3) The dominant tenement must be clearly identified in the deed. (Sekretov) o Unless the identity of the land to be benefited is clearly identified, impossible for purchaser to know by whom the covenant could be enforced and whether it is enforceable at all. Would need to “wait in fear and trembling”. o Not sufficient that the benefited land can be ascertained from the deed or from the surrounding circumstances. Deed must define the land. (Victoria University) (4) Covenant must touch and concern the dominant land. (Rogers) o Must relate to the use of the dominant land. Must serve the land as opposed to being personal. ▪ Restricting the identity of those occupying the land has nothing to do with the use to which the land may be put. (Galbraith) ▪ Borderline case. Also shows that the line between use and identity is not always a clear one. (Excel Resources). ▪ Ex. MacDonalds selling part of land with a proviso saying no fast-food restaurant can be built is personal. o The covenant must affect private land. Cannot confer a general public benefit. ▪ Road did not serve the individual lots directly, but rather created a public benefit (Austerberry) ▪ Covenant to build by a certain date benefited the municipality qua municipality. (Jain) De Facto Expropriation A de facto expropriation is where the state regulates the uses of property to such a degree that it can be argued that it has effectively taken property. o Unless the words of the statute clearly so demand, a statute is not to be construed so as to take away the property of a subject without compensation. (De Keyser’s Royal Hotel Ltd) PREVIOUSLY, for there to be de facto expropriation: o (1) must be property o (2) property must be taken from the private citizen  Ivan Hsieh 10 ▪ Expropriation only when the regulation is of sufficient severity to remove virtually all of the rights associated with the property holder’s interest. (Mariner Real Estate) ▪ Property had not been taken even though much of the economic value had been lost. Act that designated land as a beach. (Mariner Real Estate) o (3) must be acquired by the government ▪ Manitoba Fisheries’ customers had been forced to do business with the new Crown corporation, thereby effectively transferring goodwill. (Manitoba Fisheries) ▪ Denial of access to lands amounts to a recovery by the Crown of a right granted to the respondents. (Tener) ▪ Changed to “an acquisition of a beneficial interest in the property or flowing from it”. Not acquired since city gained only assurance that the land will be used or developed in accordance with its vision. (CPR v Vancouver) NOW, constructive taking occurs when (Annapolis Group): o (1) a beneficial interest, understood as an advantage, in respect to private property accrues to the state, and o (2) the impugned regulatory measure removes all reasonable uses of the private property at issue. Aboriginal Title Recognised aboriginal title as a legal right arising from common law, that is, derived from the Indians’ historic occupation and possession of their tribal lands. (Calder) Nature/Content of Aboriginal Title Indians have a sui generis interest in the land. Legal right to occupy and possess, the ultimate title to which is in the Crown. (Guerin) o General inalienability. The Indian Act provides the mechanism whereby surrender can take place, involving a vote of the band members. o The Crown has a fiduciary duty to deal with the land for the benefit of Indians. ▪ When one party has an obligation to act for the benefit of another, and that obligation carries with it a discretion power that party thus empowered becomes a fiduciary. ▪ After the Crown’s agents had induced the band to surrender its land on the understanding that the land would be leased on certain terms, the Crown cannot simply ignore those terms. ▪ Need to seek the band’s counsel on how to proceed. The content of aboriginal title be summarized by two propositions (Delgamuukw): o (1) Aboriginal title encompasses the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes, which need not be  Ivan Hsieh 11 aspects of those aboriginal practices, customs, and traditions which are integral to distinctive aboriginal culture. o (2) Lands held pursuant to title cannot be used in a manner that is irreconcilable with the nature of the claimants' attachment to those lands. ▪ Changed to “It cannot be alienated except to the Crown or encumbered in ways that would prevent future generations of the group from using and enjoying it.” (Tsilhqot’in Nation) Proof of Aboriginal Title For proof of Aboriginal title (Delgamuukw) o (1) The land must have been occupied prior to sovereignty. ▪ Sufficient. Group must show that is historically acted in a way that would communicate to third parties that it held the land for its own purposes. ▪ Look to the Aboriginal culture and practices and compares them in a culturally sensitive way with what was required at common law to establish title on the basis of occupation. (Tsilhqot’in Nation) ▪ Regular use of territories for hunting, fishing, trapping and foraging can be "sufficient" use to ground Aboriginal title. (Tsilhqot’in Nation) o (2) If present occupation is relied on as proof of occupation pre-sovereignty, there must be a continuity between present and pre-sovereignty occupation. ▪ Does not require evidence of an unbroken chain of continuity. Simply, present occupation must be rooted in pre-sovereignty times. o (3) At sovereignty, that occupation must have been exclusive. ▪ Should be understood in the sense of intention and capacity to control the land. Justification for Infringements of Aboriginal Title (Delgamuukw) (1) Compelling and substantial objective. o Range of legislative objectives is fairly broad in wake of Gladstone. (2) Consistent with the Crown’s fiduciary obligations. A function of the nature of aboriginal title. o (a) Exclusive use and occupation: Altered approach to priority. o (b) Right to use what uses land can be put: Consultation. ▪ Involvement of aboriginal peoples in decision taken with respect to their lands. o (c) Inescapable economic component: Compensation. Commercial Leases At common law, the leasehold interest is conceived as an estate in land. Independence of covenants: Failure by either party to perform an obligation does not give a right to the other to terminate the lease.  Ivan Hsieh 12 o The lease can be made conditional on the performance of a particular ancillary obligation. The breach of that condition would enable the landlord to end it. Lease-Licence Distinction Certainty of duration a necessary condition, but not a sufficient condition, for a lease. “What the document says” approach – Was the intention of the parties to confer such an estate on the tenant? o One of the rights you get as someone with exclusive possession is the right to give up some of your rights. Nothing inconsistent. (Metro-Matic Services) Abandonment and Surrender A surrender by operation of law occurs when the parties to a lease participate in a course of action inconsistent with the continued existence of the lease. (Goldhar) o (1) New arrangement with the tenant (compromise between tenant and the landlord, where there is acceptance of a new interest by the lessee). o (2) Or by acceptance of possession by the Landlord. ▪ The landlord has resumed some control over the premises. Must be an intention to take possession and put an end to the lease. ▪ Another is where the landlord has made a new lease to a third party prior to the expiry of the existing term. This is a surrender. ▪ A third is a landlord upon proper notice to the tenant may re-let on the tenant’s behalf and recover any deficiency resulting therefrom. No longer sensible to pretend that a commercial lease is simply a conveyance and not also a contract. When a tenant abandons, landlord can: (Highway Properties) o (1) Do nothing to alter the relationship of landlord and tenant, but simply insist on performance of the terms and sue for rent or damages. o (2) Elect to terminate the lease, retaining the right to sue for rent accrued due, or for damages to the date of termination for previous breaches of covenant. o (3) May advise the tenant that he proposes to re-let the property on the tenant’s account and enter into possession on that basis. o (New 4) Elect to terminate the lease, but with notice to the defaulting tenant that damages will be claimed on the footing of a present recovery of damages for losing the benefit of the lease over its unexpired term. Cases introducing the contractual concept of fundamental breach into commercial leases. o Fundamental breach of contract had occurred when permission to sublet was refused. Tenant required permission to sublet, but landlord covenanted not to withhold permission unreasonably. (Lehndorff) o Landlord’s breach by not giving the law firm a right of first refusal to adjoining space substantial enough to justify a declaration that the lease is terminated. (Ad Hoc Management) o Agreed to but failed to use best efforts to get a replacement. (Arton Holdings)  Ivan Hsieh 13 Landlord’s Duty to Mitigate We do not have to decide in the present case whether the landlord was under an obligation or a duty to mitigate. Hints at the idea that there ought to be a duty. (Toronto Housing Co) Examples of duty to mitigate: o Grouse Mechanical Co v Griffith et al (1990 BCSC) ▪ Duty can be avoided in situations where the landlord had “substantial and legitimate interest in actual performance.” o Pension Fund Realty Ltd v PCEP Properties Ltd et al (2004 Man QB) Examples of no duty to mitigate: o Transco Mills Ltd v Percan Enterprises Ltd (1993 BCCA) o Almad Investments v Mister Leonard Holdings (1994 ONCA) Implied Obligations on the Landlord Covenant for quiet enjoyment supports the tenant’s right to possess the whole of the land granted without interference by the landlord or persons acting under the landlord. o A non-trivial interference that does not deprive the tenant of the whole benefit of the lease. Get damages. o Purpose for which the lease was given matters. Also, the landlord does not have to actually enter upon or invade the premises. (Owen v Gadd) Covenant not to derogate from grant. A grantor may not give with one hand and take away with the other. o A non-trivial interference that deprives the tenant of the whole benefit of the lease. Fundamental breach. o Landlord needs to have some indication of what the tenant will do. Sort of like constructive knowledge. (Harmer v Jumbil) o It is not derogation from grant for a landlord to permit competitive enterprises in neighbouring premises. Still able to use the physical premises. (Port v Griffith) Tenant’s Obligation to Pay Rent If rent is included in the lease, then the common law imposed an obligation to pay. Right to forfeit could be exercised as soon as the tenant failed to pay rent. o Commercial Tenancies Act, s 18(1) makes the payment of rent a statutory condition and gives the tenant 15 days before the condition becomes operative. Landlord can then re-enter to repossess. ▪ Note that s. 18(1) says “unless it is otherwise agreed”. Many commercial leases do indeed include a provision shortening the 15-day grace period. If the tenant fails to pay rent, the landlord can: o (1) Forfeiture. Done either by a physical re-entry by the landlord or through an action in court for possession. Can sue for rent due. o (2) Distress. Enter the rented premises and take some of the tenant’s property. ▪ Landlord generally cannot both forfeit the lease and take distress.  Ivan Hsieh 14 However, If the tenant agreed that the landlord can seize and sell its goods to satisfy arrears of rent, no reason why some effect should not be given to such a clause. (Country Kitchen Ltd) ▪ Can only take goods of the tenant that are on the rented premises. Sections 31(2) and 37 of the Commercial Tenancies Act respectively. But does not apply to “good or chattels on the premises in the possession of the tenant under a contract for purchase.” ▪ Distress needs to be reasonable. Section 43. ▪ Five days after distress is taken and notice given, with the cause of such taking, for owner of goods to replevy, then appraise. Section 53. ▪ Distrainer who take excessive distress or takes distress wrongfully is liable in damages. Section 55(1). Forfeiture and Relief Section 19(2) is a notice requirement, which the courts have interpreted strictly. o A right of re-entry or forfeiture under any stipulation in a lease for a breach of any covenant or condition in the lease is not enforceable unless the lessor services the lessee notice. o Notice needs to specify the particular breach complained of, and if breach is capable of being remedied requiring remedy, otherwise compensation. Section 20 relief against forfeiture. Courts balance the parties’ positions. Criteria: o (1) whether the landlord can be adequately compensated by money or by the imposition of terms. ▪ The Court should take into account all of the relevant circumstances surrounding the lessor-lessee relationship, including breaches of other covenants. (Jeans West) ▪ There is prejudice to the landlord, but not the type that the Court can and should take into account. (Elias Restaurant) o (3) the hardship that would be imposed on the tenant if relief is not granted, in view of the extent of the tenant’s investment in the premises. ▪ “Not a case of hardship where the tenant is, as a result of a careless oversight or other reason, being forced out.” (Jeans West) ▪ Section 20(7)(a) Does not apply to a tenant whose lease is being forfeited because the tenant has breached a condition that they are not to assign or sub-let the premises. That tenant has no investment. Residential Tenancies Residential tenancies statues deal principally with the legal rights and obligations of landlords and tenants. o Rent control for sitting tenants only. s 113 of the Residential Tenancies Act. o Creation of agencies other than courts for adjudicating residential tenancy disputes.  Ivan Hsieh 15 The conceptual basis of residential tenancies law different from that of commercial tenancies in two fundamental ways. o (1) While the commercial lease is still an estate, the residential lease is a contract for accommodation. ▪ Some sections introduce contractual doctrines (s 16 mitigation; s 17 interdependence of covenants; s 19 frustration; s 40 abolishes distress). o (2) It is in significant ways a regulated contract. ▪ Rationale: inequality of bargaining power. ▪ Prohibition of “contracting out” (s 3), the elimination of landlords’ “self- help” remedies (ss 21, 25, 39, and 40), the prohibition of “no-pet clauses (s 14) ▪ Security of tenure: Right of tenant to occupy is separated from the tenancy agreement. A tenancy may be terminated only in accordance with this Act. (s 37). Deemed renewal where no notice. (s 38) A landlord shall not recover possession unless: (a) the tenant has vacated or abandoned the unit, or (b) an order of the Board evicting the tenant has authorized the possession. (s 39) Act seeks to ensure that tenants understand their rights. o Use of plainer language than is used for common law concepts. o Imposing requirements on the landlord to provide the tenant with information about his or her rights (ss 11 and 12). Landlords’ Rights as Owners The Residential Tenancies Act does not require property owners to be landlords. Can terminate with 60 days’ notice and be at the end of term for: o s 48. Personal residential occupation by: ▪ (a) landlord, (b) landlord’s spouse, (c) child or parent of the landlord of the landlord’s spouse, (d) person providing care services to the people above. o s 49 Landlord may give the tenant notice terminating tenancy on behalf of the purchaser, if the purchaser requests possession for the residential occupation by: ▪ Same as above. o s 50 Can give notice of termination if landlord requires possession to: ▪ (a) demolish it, (b) convert it to a purpose other than residential premises, (c) extensive repairs or renovations. Requirement is not “reasonableness”. All that matters is the genuineness of the owner’s intentions. (Jaffer v Sachdev, Chin v Dejager -child with cancer, Salter v Beljinac - economically motivated) o But relief from eviction can still be granted under s 83. (Jaffer v Sachdev)  Ivan Hsieh 16 The Residential Tenancies Act seeks to provide some remedies for tenants who are victims of landlord bad faith. They are contained in ss 55.1 and 57. o Section 57(3)(1) does something similar, by making it possible for the Board to order compensation to the displaced tenant based on the increased rent that displaced tenant has to pay for a year. Tenant Faults Tenant faults that can lead to eviction: o Persistent Late Payment of Rent. s 58(1). ▪ Eviction at end of term. ▪ Requires a long and consistent pattern of lateness. Ex. 25 out of 29 rental payments. (Senkow et al) o Non-payment of Rent. s 59(1). ▪ s 59(1) the landlord may give the tenant notice of termination of the tenancy effective 14 days after notice is given. ▪ s 59(3) voids the notice if the tenant pays before the landlord applies to the Board for an order terminating the tenancy and evicting the tenant. As per 74(1), landlord cannot make application before the day following the termination date specified in the notice. ▪ s 74(2). Paying between when the landlord applies to the Board and when the hearing is held. Needs to pay costs of the application. ▪ s 74(3) and (4) voids an eviction order if rent owed is paid before the eviction notice becomes effective. o Illegality. s 61. ▪ Landlord need not prove the illegality on the “beyond a reasonable doubt” standard. ▪ Can be any contravention of a statute, not only Criminal Code. ▪ BUT offence must have the potential to affect the character of the premises or disturb the reasonable enjoyment of the premises by the landlord or other tenants. (Samuel Property Management) ▪ Landlord need only show that the tenant permitted the illegal act if it was actually done by some third party, not an occupant. o Undue Damage to the rental unit or the residential complex. s 62. Interference with Reasonable Enjoyment of Other Tenants or the Landlord. s 64. ▪ Landlord must give notice of termination, providing a termination date not early than 20 days later, the grounds for termination, and giving the tenant 7 days to “make good”. ▪ Landlord cannot apply to the Board for an eviction order during the 7-day remedy period. s 70. o Impairment of the Safety of any person. s 66. ▪ No make good provision and a short 10-day notice period. ▪ Subjective intimidation is insufficient grounds. There must be objective evidence of actions/behaviour.  Ivan Hsieh 17 Housing Tribunal is bound by legislation to comply with the Human Rights Code, particularly when exercising its discretion under s 84 as to whether it would be unfair to evict a person suffering from a disability. (Walmer Developemnts v Wolch) o Need to consider whether the disruption can be sufficiently alleviated by reasonable accommodate without undue hardship to the landlord. Section 83(2) makes consideration of relief mandatory. o Britannia Glen Co-operative Homes v Singh (1996): “eviction should be ordered as a last resort… Short of losing one’s liberty, the loss of one’s home is as serious a matter as can be imagined.” o Harm to the landlord’s economic and/or reputational interests is considered against the seriousness of the conduct and the tenant’s circumstances.