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PROPERTY: CONDENSED OUTLINE TOPIC Aboriginal rights and title

PRINCIPLES AND CASES

-early sources describe it as usrufuctary, personal (St. Catherine's Milling)
-BC denied that title was a legal burden until land claims process started
-Calder shifted legal landscape, began to view title as sui generis
-Sparrow: test for extinguishment, infringement and justification
-Van der Peet: right must exist pre-contact
-Gladstone: justification of infringement expanded
-Delgamuukw:
-title is sui generis, inalienable, arises from prior occupation and rels bw CL and FN teneurial system, held communally
-to make a claim for title, group must prove: pre-occupation, continuity in occupation, exclusivity in occupation at sovereignty
-province cannot extinguish rights pre or post Confed
-limits: not fee simple, equitable waste analogy, can be infringed
-Bernard/Marshall: title narrowed, exclusive possession of intention and capacity to control land is required
-Haida: duty to consult is a constitutional obligation, rooted in honour of crown, fiduciary duty; duty to accommodate; scope depends on impact on title
-impact of jurisprudence on property law: CL/FN land rights remain contentious, treaties, criminal cases (e.g. hunting), challenging of fed programs thru CH, cultural property
-reserves: reg by unique property rules, IA transferred framework for reserve allocation and mgmt. into a default system; FN Land Mgmt Act> empowers FN to est land codes
-Metis title: unique, 3 forms Equitable Interests Historical
-feudal origins: feeoffer/settlor (possessor) transferred land to Background, feeoffee/trustee, who became legal owner, held land for Statute of beneficiary, the equitable owner> problematic as beneficiary Uses lacked legal rights
-Statute of Uses:
-executed the use (means to transfer land) by reuniting legal w/equitable title for beneficiary
-attempted to close tax loophole that was by elite
-exhausting the use: lawyers were able to reinstate loophole by adding another party to initial grant as the statute only applied to the 1st use> resulted in the modern law of trusts
-revolutionized land conveyance (deed, land registration system developed)
-shaped modern will enactments Trusts
-all trusts rely on equitable remedies
-highlight difference bw equitable and legal ownership
-types:

2 i) express- explicitly created ii) resulting iii) constructive- institutional, remedial, real estate transactions iv) trust- like obligations, e.g. fiduciary Resulting
-can result from: trust not being properly disposed, if trust Trusts contradicts public policy, if there is a gratuitous transfer, common intention (mostly replaced by constructive trust)
-presumption of constructive trust: as equity assumes bargains and not gifts, if property is not disposed of and trustee has not given any consideration to settlor, then the trust is presumed to advance back to settlor, can be rebutted w/evidence of intent of settlor, but BoP is on transferee (Pecore)
-presumption of advancement: a gift is held to exist in context of gratuitous transfers bw spouses and parents/children, but this does not apply to adult children (Pecore) Constructive
-imposed by equity, do not concern intent but justice to remedy Trust unjust enrichment or prevent wrongful acts
-institutional trusts may be found where (Soulos)
-equitable obligation bw parties that gives rise to D's acquisition of the assets
-assets were acquired by D from breach of equitable obligations
-P must show legitimacy for proprietary remedy ($ inadequate)
-no other factors rendering trust unjust
-remedial trusts:
-means to respond to unjust enrichment, need not provide remedy for wrongs
-test if it should be ordered: (Peter, Rathwell)
-enrichment that occurs w/o compensation to other party
-deprivation of P on behalf of D
-no juristic reason for enrichment (i.e. if there was legal obligation or it supports policy)
-link bw services rendered and property in dispute
-$ compensation must be inadequate
-domestic contributions can = a claim for unjust enrichment, can apply for CL couples (Peter)
-real estate: in signing of sale of land K, land can be held in constructive trust for purchaser Acquisition and transfer of land i. Crown
-occurs by letters patent, is irrevocable (why there are Grant expropriation acts)
-s. 50 LA: outlines what owner receives w/grant and what rights the crown reserves ii. Intervivos
-purchaser would enter into K (reqmts in s. 59 LEA), title would transfers, by transfer and then would need to be registered gift or K
-LTA: reqmts for transfer (ss. 185-6, 20, 22)
-PLA: ss. 4-7, 15-16
-ct of equity enforces K- can construct a trust
-Semelhago: shifted framework (before was conceived as owner in

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iii. Will or intestacy

iv. Proprietary estoppel Mortgages

equity), held that property that is not unique may not be subject to SP
-EAA: ss. 71, 77, 78, 79, 83: rights of transfer of spouses, executors; what happens in case of intestacy
-WA: ss. 3-5: reqmts of a valid will
-LEA s. 44- equity prevails over CL
-presumption against intestacy in CL (McKeen)
-only for easements
-ct rectifies D's detrimental actions thru granting an order for an easement
-borrowing money to buy property> K requires that borrower (mortgagor) gives lender (mortgagee) proprietary interest which provides security if payment is not met
-in torrens, bank has secured a charge against property but title is not transferred (LTA s. 27)
-is a charge on title (LTA s. 23, 28)
-based on equitable principles- e.g. mortgagor has continuing equitable interest in land even after title is transferred to mortgagee (Pacific Savings)
-amount borrowed = principal; payment schedule = demand
-default> inability of mortgagor to make payments, if it occurs, mortagee can exercise K'al rights and foreclose
-remedies: lender can: bring action against mortgagor (K); take possession; appoint a receiver; foreclose- obtaining a ct ordered termination of equitable right of redemption (equitable remedy granted if debt is repayed); sell land (common)

4 Conditional Gifts, Future and Qualified Interests
*** see chart, p. 9

State Limitations on Private Power
*** see chart, p. 9

-future interest> interest vests in future time
-vested interest> certain, fixed right to present or future enjoyment, not dependent on a condition (natural termination of estate does not = condition- Stuartburn)
-contingent interest:
-one that may or may not vest, depends on condition precedent
-right of re-entry, remainder is contingent
-possibility of reverter is vested as determining event is a limitation
-condition precedent> you must do something before you can have interest, if this fails, you do not get gift as it was never yours
-remainder> rest of life estate that hasn't been dealt w/> passes on
-reversion> an incomplete gift, only part of estate is passed, rest goes back to testator at end of some period (e.g. death)
-reverter> grant of a fee simple w/a qualification- it reverts back if not met
-right of re-entry> distinct from reverter bc it involves possibility of going to court
-defeasible interests> brought to premature end on a condition subsequent, contains a vested interest
-determinable interest> right is granted until it is no longer required, will naturally end or condition is breached
-cts presume against intestacy, try to preserve testator's intent, favour interpretations of vested interests over contingent, w/preference given to early vesting, conditions subsequent preferred to precedent (McKeen; Stuartburn)
-Caroline: highlights that ct seeks to preserve testator's intent
-PLA s. 8: contingent, future interest and right of re-entry can be transferred
-LTA, s. 172, 180: registration reqmts triggered if 2 or more ppl own interest
-WA, s. 2: contingent interests, right of re-entry can be bequeathed
-can be void for uncertainty, as a restraint on alienation or bc of a violation of public policy
-uncertainty:
-can be held if void if ambiguous
-a practical level of clarity is required
-conceptual certainty: main form, uncertainty is so deep that condition cannot be rationally applied, unclear if it extends to wide or narrow class of persons than testator intended or where ct is concerned it should not be enforced> will be struck down if language cannot pass objective test of certainty
-evidential uncertainty: may not be struck down as there is room to argue on the facts of the case
-legal uncertainty: arises if it is unclear if condition is precedent or

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