Limits on "private" powers over land Flashcards
Restraints on alienation
Dead hand control – nephews not allowed to sell to anyone except belonging to same family with same last name – is restriction justified? – O’Sullivan v Phelan 245
Can general prohibition on alienation survive if there is a time limit? “land shall not be at their disposal until 25 years after my death”- Blackburn v McCallum 245
Common law rules for substantial restraints
Land left to CPC on condition that it never be sold – Lepage v Communist Party Canada 248
Property left to granddaughter on condition it could not be sold for 30 years – Phillips Estate v Edwards 248
Business left to sons, sons only allowed to sell shares to one another – Re Brown 248
Land given to son, only allowed to sell it/will it to his own son, that son only allowed to sell in furtherance of their education – Re Thibodeau 248
Employees forced to sell houses to company – Laurin v Iron Ore 248
Uncertainty
Property left to son on condition he be “steady boy, in respectable family until of age” – Pew v Lafferty 248
Property left to son on condition he fully abstain from drinking, card playing – Re Jordan and Dunn 248
“payments to daughter only for so long as she resides in Canada” – Sifton v Sifton 249
Public policy, human rights discrimination
Scholarship trust recipients must be British, protestant, white nationalists, women only receive one quarter of total fund – Re Canada Trust & Ontario HRC 253
Religious freedom, scholarships, public policy
Trust that half of estate paid to university for goal of funding bursaries exclusive to protestant students – Re Ramsden 263
Scholarships for practising Roman Catholic students – UVic v BC 263
Will says property must be sold to Anglican, Presbyterian – Peach Estate (Re) 263
Public policy, public-private distinction
“disapproved of marrying non-Jewish person” – Fox v Fox 263
Balancing public policy and testamentary freedom
No prima facie evidence of racial discrimination, but external evidence points to daughter being excluded from father’s will because interracial pregnancy – Spence v BMO Trust 265
Rule in Shelley’s Case
- Problem in creating freehold estates
“my son not allowed to sell, mortgage interests in land, executors have full discretion to grant or withhold his life estate, any attempt to sell will result in his life estate ending and transferring to my other son and his heirs” – Re Rynard 271
“to my nephew, upon his death I direct the land to transfer one of his descendants or a descendant of my parents for their absolute lifetime use – land not to be sold, stay with descendants of my parents” – Re Swenson Estate 276
Present and future interests
“property not to be sold, to be used solely for benefit of my single, unmarried children currently living there” – last living child named in will has dementia – BC v Engen 279
