Can property rights arise without anyone intending to create them?
Yes, they can arise by operation of law even without anyone intending to create them.
e.g: repairer’s lien, a trust that arises when one joint tenant murders the other, or a prescriptive easement.
Is a creation of a new right different from transferring an existing right?
Rules applying to a right’s creation can differ from those applied to its transfer.
e.g.: creating a new leasehold estateby granting a lease to a tenant. They can transfer that estate or create a new one by subletting premises.
What is inter vivios?
A transaction if it occurs during life
What is testamentary?
a transaction if it takes effect on death
Do the same rules apply to inter vivios as testamentary?
No, different rules apply as there are more formalities for testamentary.
End of a life or joint tenant’s interest is testamentary.
False.
Life estate or joint tenancy may be created by will and so begin as a testamentary disposition (a disposition or transfer of property by the testator by gift, deed, or will effective after testator’s death)
What does it mean that rules for creating property rights depends on if the right is legal or equitable?
If property rights don’t exist at common law, they are equitable.
E.g.: the interest of a beneficiary under a trust or a restrictive covenant over land
Other rights can be legal or equitable depending on how they were created.
E.g: a long leasehold estate is created at law by deed or registration but an equitable lease can be created by contract.
If a property right is legal or equitable can matter when someone is making competing claims to the same things.
How does one make a gift?
Transfer legal title to the intended donee.
It is possible to give them the benefits of ownership by creating a trust for them with someone else holding legal title -> either inter vivos or testamentary
How does subject matter affect how one transfers legal title?
There are different methods of transferring legal title according to what it is.
Goods and cash are transferred by delivery -> goods can also be transferred by deed but less common.
Land -> transferred by deed or registration
Intangible things can’t be delivered -> transferred by document or registration (intangible things e.g patents, debts, company shares and copyrights)
What is required to make a gift by delivery?
1) intention of donor to give -> different from contract because here only intention on part of donor is enough whereas contract requires intention on both parties.
2) donee obtains possess -> can reject but doesn’t need to know that it was intended as a gift for the gift to be complete
Is an act of delivery always required for something to be a gift?
Not always required -> if donee has possession when donor intends to give, gift is complete -> doesn’t matter which occurs first, just has to coincide at some point.
what case is an example of the courts rejecting that delivery is required for a gift to be complete?
Thomas v The Times Book Co Ltd
- T lost original manuscript to his play at a pub and C the producer got stencil copies and gave them to T before T went back to NY
- T was grateful and told C, if he ever found the original he could keep it. C found it the next day
- T died 3 weeks later; manuscript sold few years later -> T’s widow sued buyer to recover it claiming gift to producer was incomplete because there had been no act of delivery.
- Claim rejected because C got possession of the manuscript and was in possession w/ consent of Thomas therefore gift is complete.
is it enough for a donee to obtain possession?
No, it is also necessary for donor to give up possession. (Re Cole)
Is delivery evidence that a gift was made?
No, it’s how a gift is made. Intention alone won’t perfect a gift even in it’s absolutely certain that a gift was intended -> must do something to give effect to that intention.
for goods -> either a transfer of possession to the donee or the execution of a deed is enough
A document that is signed, sealed, and delivered.
A deed
What needs to be delivered in order for title to pass?
Delivery of deed causes title to pass not delivery of the land but physical delivery of the deed often not required.
it’s considered delivered when grantor has clear intention that it should be effective at once.
Can a deed be executed and transferred to third party?
yes, the third party holds in escrow pending the fulfillment of certain conditions.
delivery occurs when conditions met because 3rd party holds the deed on behalf of the grantor until that occurs and then on behalf of the grantee
What is the system to create or transfer property rights in BC?
Title registration; property rights are created or transferred by document even if the document is a forgery. The legal title transfers when appropriate document is registered.
what is the exception provided by title registration in terms of leases?
leases of up to 3 years don’t have to be in writing -> can be informally created by putting tenant into possession if rent is being paid.
Document contains instructions by person who makes it (testator) about what to do with their estate after their death.
Wills
What does a will do?
- it appoints an executor
- may contain instructions about burial or cremation
- can change it by revoking current and creating a new one or make a codicil (amending it without revoking)
what happens to the will when the testator dies?
It is submitted to court to probate will which confirms if the will is valid.
The will can’t come into effect before death.
What type of contract is a contract to grant or transfer an interest in land such as a contract to sell a house or grant a mortgage?
land contract
In what 2 ways do land contracts differ from all contracts?
subject to normal rules that apply with 2 exceptions:
1) not normally enforceable in most jurisdictions unless the essential terms are in writing and signed.
2) a land contract can give rise to equitable interests in land if it is specifically enforceable.
