Property Law

Question 1

What is Property?

Answer 1

In the common law, property refers to bundles of mutual rights and obligations between “subjects” and “objects.”

Aboriginal people focus on their relationships with the land.

Question 2

What is Progressive Property?

Answer 2

Seeks to remedy inequality in housing (i.e. Subsidized rents).

Question 3

What is Subversive Property?

Answer 3

Creating spaces for marginalized groups (i.e. aboriginal support centre).

Question 4

What is Indigenous concepts of property?

Answer 4

It recognizes the idea of “land stewardship” which contrasts with common law ideas of dominion of land.

Question 5

Importance of the Victoria Racing v. Taylor Case

Answer 5

1. • Just because a precedent cannot be found does not mean a principle supporting Victoria Park fails to exist; in other words, since there is no contrary authority, the court should recognize the spectacle
2. • Absence of precedent was understandable because simultaneous broadcasting or television was quite new
3. there were legal limits to the right to overlook a neighbor’s land, and the limitation required an “attempt to reconcile the right of free prospect from one piece of land with the right of profitable enjoyment of another”.
4. Limits should be recognized when it decreases the enjoyment of the property by the owner

Question 6

What is private property?

Answer 6

My home, or the land I purchased.

Question 7

What is common property?

Answer 7

roads, streets etc.

Question 8

What is state property?

Answer 8

state-owned parks

Question 9

What is a quasi property?

Answer 9

Mix of common property and private property.

Question 10

What are the two categories under real property?

Answer 10

Corporeal (Land and house) and Incorporeal (Easement, pathway to the beach, etc.)

Question 11

Dominion and Control (History)

Answer 11

Historically, A person in possession exercises dominion and control and is said to have owned the property.

Question 12

The Bundle of Rights

Answer 12

Property comprises bundles of mutual rights and obligations between subjects in respect of certain objects.

Question 13

Does the state have the right to regulate public property? For example, if there are protesters on a public property , can the state exclude them? Yes or No.

Answer 13

Yes

Question 14

Open Access Property

Answer 14

Everyone has common use and no one can exclude anyone else from it. For example, the right to air.

Question 15

Harrison v. Carswell Ratio

Answer 15

Private property owner has the right to exclude.

Question 16

Novel Claims - Attribute Approach

Answer 16

the court use the traditional approach to determine the property, such as bundle of rights.

Question 17

Novel Claims - Functional Approac

Answer 17

the court looks at policy factors and how property can be a tool of social policy.

Question 18

What is the importance of finding out the possession

Answer 18

It is the first step in resolving disputes. It is the corner stone of finding out first possession, finders and adverse possession.

Question 19

The law of possession help us determine how certain objects become owned. True of False

Answer 19

True

Question 20

Property Interests are always

Answer 20

Relative

Question 21

Asher v. Whitlock

Answer 21

The possessory title is good unless against someone with a prior possessory claim.

Dad passed to his wife and then passed to his daughter.

The possessory title is > than defacto possession.

Question 22

The Law of First Possession

Answer 22

It is the root of title establishing proprietary interest in cases involving: wild animals, thing/objects yet unexploited by individuals or nations - ocean beds minerals Mars.

Question 23

What elements are necessary to constitute possession in the law of property?

Answer 23

Actual Possession or a high degree of physical control of the property. (Factum)

Unequivocal intention to control/possess and exclude others from the object or thing. (Animus Possidendi)

Question 24

Pierson v. Post

Answer 24

You need a clear act for all the world to understand in order to establish possession. (Animus Possidendi)

Possession requires a clear act whereby all the world understands that the pursuers has an unequivocal intention of appropriating the animal to his/her individual use.

The clear act here is killing the fox.

Question 25

Constructive Possession

Answer 25

Actual physical control is not always required. Constructive possession is sufficient when nature and/or situations of the property at issue doesn’t allow for actual possession through dominion and control.

Example: capturing a wild animal in a net.

Question 26

If a wild animal escapes, is your title in the animal lost?

Answer 26

Yes

Question 27

Possessory title is good against the entire world except against those with continuing prior, superior claim. T of F

Answer 27

True

Question 28

JCM v. Ana

Answer 28

In certain instances a court may consider bodily fluids to be property

Question 29

Michelin v. Caw

Answer 29

1. There was no trademark infringement because CAW was not applying the trademark to a commercial activity or to advertising (exceptions in the Trademarks Act)
   2 Because the modification had “little creativity”; the modified work reproduces a substantial portion of the original work.
   * CAW depictions do not fall under the exception in the Copyright Act for “fair dealing for the purpose of criticism” as fair dealing had not extended to include a parody or ridicule.
2. Because even if the trademarks and copyrights are intangible property, they are still considered private personal property.

Question 30

Mariner Real Estate Ltd v Nova Scotia

Answer 30

The bundle of rights constituting ownership must be within “lawful” uses, and as such those rights can, by law, be severely restricted.

For a de facto expropriation to occur, two requirements must be met:
1. An acquisition of a beneficial interest in the property or flowing from it; and
2. Removal of all reasonable uses of the property
This requirement must be assessed “not only in relation to the land’s potential highest and best use, but having regard to the nature of the land and the range of reasonable uses to which it has actually been put”

Regulation of land does not, in and of itself, constitute de facto expropriation.

Question 31

de facto possession

Answer 31

physical possession of the property.

Question 32

Canadian Pacific Railway v City of Vancouver

Answer 32

Vancouver passed a by-law in an attempt to de facto expropriate Arbutus Corridor, but Canadian Pacific Railway sued and said it’s ultra-vires.

The court decided that -

• A municipality given the power to enact by-laws that adversely affect land is not liable for those adverse effects, nor is the municipality required to acquire the land, if the by-law (ODP in this case) is done in the public interest.

-Where a bylaw has a provision that the effects of the bylaw could not equal expropriation, then no compensation is required to be paid by the government, and the common law cannot supercede that statutory guidance.

• Two-part test for defacto ex to occur, that requires compensation under the common law.
  1. Has the city acquired an official interest? Is it the ONLY beneficiary?
  2. Have they removed every reasonable use of the property?
• If yes to both, then it results in actual expropriation, not de facto, which means claimant is entitled to compensation

Question 33

If a chattel (personal property) is lost or abandoned, the first finder has the right to it. True of False

Answer 33

True

Question 34

Why do we confer title onto finders?

Answer 34

1. rewards finders for bringing found goods back into social use
2. Can facilitate the return of the object to its rightful owner.
3. The finder has a responsibility to take reasonable steps to locate the true owner.
4. To establish a link in the chain of ownership so that property can be dealt with.

Question 35

Extinguishing the rights of the true owner

Answer 35

An action against a finder with possession of a chattel belonging to a true owner must be commenced by the person with title within 2 years after the claim arose.

Question 36

Factors supporting an inference of intention to abandon an object:

Answer 36

1. Passage of time
2. Nature of the transaction
3. The owner’s conduct
4. Nature and value of the property

Question 37

What is a mislaid object?

Answer 37

A mislaid object is one that the true owner has the intention to retrieve it. For example, I left my phone on the table by accident and have the intention of getting it back. Mislaid objects will still allow the owner to have the title in it because it is assumed that the owner may retrace their steps to find it.

Question 38

What is a hidden personal property?

Answer 38

If property is hidden, it is not considered to be lost.

ie. Hide it in my security box.

Question 39

Moffatt v. Kazana

Answer 39

Forgetting is not the same as abandoning.

The true owner’s claim is stronger than the finder’s claim.

Question 40

What is an abandonment of a chattel?

Answer 40

Abandonment is giving up. It is a total desertion and absolute relinquishment of private goods by the former owner.

Question 41

Charrier v. Bell

Answer 41

If done for customary, religious or spiritual belief, grave objects buried with the dead are not abandoned property.

Question 42

Armory v. Delamirie

Answer 42

A finder does not acquire absolute property or ownership, but they have rights against all but the true owner.

Question 43

Parker v. British Airways Board

Answer 43

Occupier’s right to the lost item is greater than the finder’s right only when the occupier shows an intention to control or own the lost items. For example, in this case, the judge ruled that since BA didn’t have a lost item policy, it didn’t have the intention to own lost items. Thus finders keepers rule still applies.

Question 44

Responsibilities of a Finder

Answer 44

• obligation to take reasonable care of the item
• obligation to take reasonable steps to find the true owner
• If a finder has an employer, then the employer would have a claim. Employees who find in the court of their employment find on behalf of their employer.

Question 45

Rights are limited when there is dishonest intent / finder was in course of trespassing.

Answer 45

True

Question 46

Occupier has superior rights to chattels than a finder, regardless of whether occupier is aware of presence of chattel.

Answer 46

True

Question 47

Occupier has superior rights over finder only if occupier had demonstrated intention to exercise control over building and things in/upon it.

Answer 47

True.

Question 48

What is joint finding?

Answer 48

Joint finding cases make it difficult to determine when intention actually crystallized.

Question 49

Popov v. Hyashi

Answer 49

Popov had put his glove up and made contact with the abandoned baseball, but was prevented from catching the ball when he was illegally attacked by people.

Hayashi saw the ball on the ground and picked it up.

Both claimed ownership of the ball.

If physical control is prevented by illegal acts, courts may find a pre-possessory right based on equity.

Pre-possessory interest constitutes a qualified right to possession which can support a cause of action for conversion.

Question 50

Bird v. Fort Frances

Answer 50

• Where A enters upon land of B and takes possession and removes chattels to which B asserts no legal rights and A is wrongfully dispossessed of those chattels, A may bring an action to recover the same chattels (limited rights of finder can mature into full rights, if owner does not assert ownership)

Question 51

Adverse possession

Answer 51

A person who does not have legal title might gain title to land through adverse possession. Squatter’s right.

Question 52

Asher v. Whitlock

Answer 52

Possession is good against all but the true owner or someone claiming prior possession

• Possession is the root of title.
• A person in possession has prima facie title - though no on paper but has other things to prove ownership.
• A person in defacto possession is presumed to be in possession.
• A person in possession is presumed seized of the land.
• A person seized of the land is presumed to have a fee simple estate.

Question 53

Adverse Possession Requirments

Answer 53

1. actual possession for at least 10 years. (Statutory Period)
2. such possession was with the intention of excluding the registered owner from possession; (Animus Possidendi)
3. Discontinuance of possession by the owner for at lease 10 years. (Discontinuance)

When the squatter shows its onus, it extinguishes the title of the paper title holder.

Question 54

Statute of Limitation

Answer 54

a claimant has two years to commence a legal proceeding from the day they discover the claim.

Question 55

Adverse Possession by mutual mistakes requirements

Answer 55

1. Actual possession for at least 10 years.
2. Discontinuance of possession by the owner for at least 10 years.

Question 56

Purpose of Statute of Limitation

Answer 56

1. Defines the relationship between a person who has an interest based on possession and a person with a prior claim to possession.
2. Establishes an end point, after which a true owner or anyone else with prior right to possession can no longer succeed in challenging the possessory title.
3. In Canada, each province has a defined time period in their statute of limitation for attempts to recover land.

Question 57

Re St Clair Beach Estate Ltd. MacDonald

Answer 57

Failed to show discontinuance use of land by grant because grant picked cherry tree once a year.

Failed to exclude true owner. = no animus possidendi

Question 58

There is no adverse possession of land in the land titles system. True of false

Answer 58

True.

Question 59

What is a tenancy at will

Answer 59

a tenancy at will is that landlord and tenant agreed to continue the tenancy until one of the parties terminate the contract.

Question 60

What is a leasehold estate?

Answer 60

An estate in land which provides the holder of the estate with rights of possession and use of the land but not ownership.

Question 61

What is a right of reversion?

Answer 61

Landlord has the right to take back the property. (Revert back to prior owner)

Question 62

Actual Possession for Adverse Possessor

Answer 62

1. Open and Notorious: the claimant is using the property as an owner would and puts the true owner on notice that the statutory period has begun to run.

• there is nothing secretive about the possession.
• the true owner should be put on notice but they don’t have to be
• this is part of the case that the claimant has to show

2. peaceful: the claimant must come into possession in a peaceful manner; they cannot forcibly remove the true owner off the land.
3. adverse: it has to be done w/o permission of the paper titleholder. If the claimant acknowledges right of true owner, then possession is not adverse.
4. Exlusive: The owner cannot be on the land with the adverse possessor - both cannot be in actual possession at the same time.
5. Continuous: contextual and depends on the type of property.

• Factors to consider: Nature of the property, appropriate and natural uses of the property, and course of conduct.

Question 63

Keefer v. Arillotta

Answer 63

It established the Inconsistent test for Animus Possidendi for the Adverse Possessor.

• TEST: For an adverse possession claim to succeed, an adverse possessor must demonstrate:
• Actual possession for the statutory period by themselves and those through whom they claim;
• Animus possidendi – which is the intention of possessing the land to the exclusion of the owner of the land (and others).
• Dispossession or* discontinuance for the statutory period by the owners and anyone else entitled to possession (ie tenant, guest)
• *the ‘or’ element is confirmed in the RPLA, s. 5(1) which came into force in 1990
• Any small action of the legal titleholder that shows possession is not dispossession nor discontinuance of possession is sufficient.

Question 64

Pflug test

Answer 64

Is the adverse possession test.

• Court found that for a party seeking to establish title by possession, the following must be demonstrated by the claimant:
• Actual possession for statutory period
• That such possession was with the intention of excluding from possession the owners, persons entitled to possession
• Discontinuance of possession for the statutory period by the owner and all other, if any, entitled to possession (this became to be discontinuous or dispossession through common law even though they blended the two in this case - and RLPA then affirmed it)
• Failure in one area of the above test means the claim for adverse possession must be dismissed

Question 65

How to prove that Adverse Possessor has Animus Possidendi

Answer 65

apply the inconsistent test. Inconsistent user test: used to determine whether acts of trespassers were sufficiently contrary to titleholder’s intent to use land in order to establish adverse possession; this means the use of land must be contrary to the intent of the owner (thus, animus possidendi is the intention to exclude owner from such uses as the owner wants to make of his/her property).

In Keefer’s case, Keefer used it as a garage, and A used it as a store for deliveries or parking space for the customers. Clearly, they have different intentions.

Question 66

Teis v. Ancaster

Answer 66

For mutual mistake, the claimant does not need to satisfy the inconsistent test.