Property Law Flashcards
Property
Types of property (2)
A relationship between people wrt things
Real = Land or anything permanently attached to land, is fixed and not moveable
Personal = anything that isn’t real property, can be tangible or intangible
Types of possessory interests in land (3)
Fee simple = greatest private interest person can have in real property, ownership
Life estate = rarely used, person can live on the land for their lifetime only and after death the land is transferred to another person, used in estate planning
Leasehold estate = Interests in real property limited to specific time period, after which possession of land reverts back to owner, can be residential or commercial, created by lease agreement
Non possessory interests in land (5)
Easement = gives person right to use portion of another’s land for specific purpose
- ex Canada post entering property to deliver mail
Right of war = allows person to cross another’s land to get somewhere
- ex shared driveway
License = allows person to use another’s land for profit
- ex gold course on municipally owned land
Restrictive covenant = promise that prevents party from specific action on the land
Mortgage = gives holder right to take possession of real property if debtor defaults
Joint tenancy
Tenants in common
Join tenancy = 2 or more people own equal shares in 1 parcel of real property, when one dies the other inherits their interest
Tenants in common = don’t have equal share and there is no right of survivorship, dead tenant’s interests go to their heirs
Mediums for transfer/registration of land interests (4)
Provincial land registry system (outdated)
Contractual agreements for purchase and sale of property
Electronic land titles system
Title insurance
Condominium
Combination of fee simple (apartment unit) and co ownership (common area such as lobby)
Cooperative housing
Not for profit
Members don’t own their units, pay for property maintenance
Members vote on how co-op is run
Cost is usually much lower
What things are limited in residential tenancies (6)
Deposits Rent increases Discrimination Dispute resolution Termination and eviction Landlord's right of distress
Basic terms that a commercial lease will cover (7)
Basic rent and additional rent Gross vs net leases Permitted use of premises Rights of renewal Assignment and sublease Term and termination Remedies for breach
Lockmac Holdings Ltd v Earle
About: land interests, personal covenants
Plaintiff claimed that a restrictive covenant didn’t run with the land (dies with original vendor) (contract law)
Court agreed that personal covenants are enforceable only by/against original parties to the deed, not tied to the building scheme
Covenants that run with the land can be enforced by/against subsequent owners (property law)
If parties intended for the restrictions to run with the land, the land must be clearly defined
Woolworth v Hudson’s Bay
About: restrictive covenants
Restrictive covenants will run with the land when the covenant is expressly stated to run, or when the land is part of a common building scheme
Peters v Peters
About: land interests
Court held that 2/3 brothers’ application for sale of property jointly owned with 3rd brother wasn’t for vexing/oppressive reasons, but because of their inability to operate as joint owners
Court ordered sale of property
Semelhago v Paramadevan
About: land interests and specific performance
Awarded plaintiff damages for breach of contract relating to house sale
Rejected traditional view that specific performance is a is a remedy for breach of contract wrt land because every piece of land is unique, since in modern real estate properties are often mass produced
Rules about personal property (2)
If personal property is permanently affixed to real property, they become real property
Finders keepers: finders have good title against everyone except the true owner, unless the goods are lost on private property
Bailment
When one person (bailee) has possession of goods that belong to someone else (bailor)
If something happens to the goods during bailment, the bailee is usually responsible
- standard of care expected will be influenced by value/nature of goods, whether bailment benefitted bailee or bailor, and terms of contract
Thomas v Canada
About: personal property, finders keepers
Plaintiff found $18k accidentally put in his PO box, turned it over to the postal office but was denied recovery of money after no true owner was found
Court rules that plaintiff came into possession of money as soon as he opened it and didn’t give up possession when he turned it over to postal office because that wasn’t his intent, and ex turpa causa doesn’t apply because there was no intention of criminality
Plaintiff was entitled to money
Trachuk v Olinek
About: finders keepers for personal property
Construction workers found money buried in ground and true owner was never found, owner of land where money was buried didn’t have right to money because possession of land didn’t translate to possession of money
Bird v Ford Frances
About: finders keepers for personal property
Young boy found money on private property and turned it over to police, boy sued municipality for the money after they deposited it in a trust for the true owner after no owner was found
Costello v Chief Constable of Derbyshire
About: ex turpa causa
Thief’s prior possession of the stolen car seized by police doesn’t allow him to recover possession if the good is lawfully divested from him and invested in another
Baird v BC
About: ex turpa causa
Plaintiff wanted to recover money that he stole after it was seized by police
Seizure of money was defended on basis of ex turpa causa (no cause of action may be founded on an illegal/immoral act)
Weitzner v Herman
About: personal property
Defendant who found money hidden in house they just bought claimed title to the money because of salvage rights, but judge ruled that since neither party had knowledge of the money, it was impossible for it to have been included as part of the ‘as is’ sale of the house
Plaintiff (wife of deceased husband who hid money originally) entitled to money
Longley v Mitchell Fur co
About: bailment
Plaintiff sued fur storage company after their coat was stolen while in their custody, court ruled that since company wasn’t an insurer and demonstrated that they took reasonable care there was no case
Samuel Smith & Sons v Silverman
About: bailment
Plaintiff sued parking lot for damage that occurred to their car on the premises, defendant admitted to negligence in their care of car but they had disclaimer for theft/damage on parking receipt
Court dismissed plaintiff’s case because of disclaimer
Intellectual property
Protects creations of the mind but not the ideas themselves (protects applications of those ideas)
Trademarks
Registered vs unregistered
Are words/logos/symbols that distinguish G/S
Applies to specific G/S, don’t exist in abstract (exception is ‘famous marks’)
Colour cannot be trademarked, sound can be trademarked
Registered (renewable) = provides rights of use across Canada, protection against a challenge based on prior use after 5 years, and 15 years of protection
Unregistered = arises automatically, but only provides local rights
Types of trademark infringement (2)
Passing off = requires goodwill/reputation in original mark, public misrepresentation by company doing the trademark infringement, and resulting damages
Dilution = using a mark in a non confusing manner that tarnishes/diminishes value of original mark
Remedies for trademark infringement (4)
Damages
Injunctions (most valuable)
Account of profits (turn over profits from infringement)
Delivering up (turning over merchandise with trademark infringement)
Copywrite
Protects original creative works from unauthorized copying
Arises automatically if criteria (original, fixed medium, connected to Canada) is satisfied
Valid for author’s life (not owner’s) + 50 years
Usually not registered, can be sold
Fair dealing
Exception to copyright protection, allows for
- review
- criticism
- news reporting
- private study
- parody/satire
Moral rights
Rights of the creator to be associated with the work and not to have the work disparaged/humiliated
Belongs to creator, can’t be transferred
Can be waived by creator
Patent
Criteria (3)
Remedies
Protects inventions (products/compositions/processes/improvements on existing inventions), provides exclusive right to practice an invention for 20 years
Only applies to specific use of the invention
Can’t be sold, leased, or used as collateral
Unless stipulated in contract, if employee invents something that invention belongs to them, not their employer
Criteria
- new (can’t have been disclosed to public more than 1 year before patent application)
- serve a useful, specific purpose
- not obvious
Same remedies as trademark infringement (damages, injunction, profits, merchandise)
Industrial designs
Protects visual appearance of a product against manufacture/sale/rent/importation
Must be registered within 1 year of initial use, lasts for 10 years
Do not extend to functional components or composition, only for design/appearance
Trade secrets
Don’t count as intellectual property because they are protected through contract and are no property
Harvard College v Canada Commissioner of Patents
About: patents
Harvard’s patent for oncomice production was refused, SCC allowed Commissioner of Patents to appeal the overturn of their initial refusal
Composition of matter (Patents Act) shouldn’t include genetically modified higher life form, as ‘matter’ is only one aspect of a higher life form
Reasonable to assume that Parliament didn’t intend Patent Act to extend to higher life forms
Lego v Mega Bloks
About: trademark, industrial design
Registrar rejected Lego’s trademark of its blocks after Mega Bloks began making identical blocks after Lego’s patent for locking system expired, since the distinctive locking system was purely functional
A distinctive mark should not be confused with the product itself
Trademark law isn’t intended to prevent competitive use of utilitarian features of products
Armando Pastor v Roger Chen
About: trade secrets, intellectual property
Court held that confidentiality agreement between plaintiff and defendant wasn’t unenforceable restraint of trade (only prohibited disclosure of plaintiff’s trade secrets)
Plaintiff’s dance was determined to be copyrightable, not too far in public domain that confidentiality could not be reasonably requested
Awarded plaintiff for damages for defendant’s breach of contract
Saltman Engineering v Campbell Engineering
About: intellectual property
Requirements of a valid confidentiality agreement are
- confider must demonstrate that info is not in public domain
Info must have bee communicated in a way that imported obligation of confidence
Confider must prove that confidant breached obligation of confidence
Mattel Inc v Canada
About: intellectual property, trademark
SCC dismissed Mattel’s opposition to a restaurant’s trademark registration of ‘Barbie’ since the industries were so different that it wouldn’t create confusion
