Oxbridge Notes | Property Law Midterm

PROPERTY MIDTERM: CONDENSED OUTLINE

Remember to:

-state the legal issue at the outset

-start w/ CL but remember that statute trumps CL > refer back to actual statute, not notes

-acknowledge counter arguments and complexities but a pick a perspective

TOPIC	PRINCIPLES AND CASES
Defining Property p. 2	-Ziff- a bundle of rights good “against the world;” reflect social values -attributes/ essentialism- looking for likeness based on attributes, traditional -Moore, Victoria, INS, Calder, dissent in Yanner -functional/ nominalism- policy approach based on social function, fluid, judicial discretion, adaptable -majority in Yanner; minority in Carswell -Cohen: involves duties and rights as opposed to an object; dependent on state framework for enforcement of right to exclude -Posluns- concept of boundaries and property is culturally contingent, reflects relationships of power -Rose- importance of yelling and labour (Monsanto, Moore, INS, dissent in Victoria Park) -Yanner > distinction bw control and ownership -‘quasi property:’ expires, is only good against competitor (INS)
Functions of Property Law p. 2	-regulates rights of property owners -promotes economic efficiency thru reducing transaction costs -assesses novel claims (addresses fluid nature of def property)
Historical Perspective p. 5	-historically teneurial but statute in 1665 abolished all forms except free and common socage (continues today, socage is directly to the crown); at this point inheritance rights developed (concept of right “against the world” develops) -we conceive we own land allodially but this is false as it is in fee simple w/ crown as true owner in form of estate -s. 2 Law and Equity Act-UK law transplanted to Can except if 1) if law was enacted prior to 1885; 2) if inapplicable to local context (e.g. water maxim) 3) if UK law would be modified by legis validly passed
Divisions of Property Law p. 6	-realty vs. personalty -realty> corporeal vs. non corporeal (intangible) hereditaments -personalty> chose in possession or action (intangible) -line bw 2 blurred contemporarily -can be exchanged > equitable doctrine of conversion, can exist even w/o physical exchange (contemplates future exchange will occur, still relevant for testamentary gift)
Fixtures p. 14	-buyer and seller can determine what is a fixture but this is not binding absent of a fixtures notice- must look to law of fixtures -to determine if it is a fixture or chattel, objective test if objective person would perceive it to be part of the sale of land, or is it better used as a chattel? -prima facie characterization: if attached even slightly = fixture (Stack v. Eaton), but if it is unclear look to degree and object (purpose) of annexation. If permanent, supports it is a fixture, intention of person affixing not relevant (La Salle) -tenant’s fixtures can be removed if they 1) are not a protected fixture; 2) removal will not cause DM; 3) detachment does not violate K; 4) timely removal
Constitutional Protection of Property p. 6	-fed- under trade, commerce, bankruptcy, reserves, POGG, etc. -prov- P/CR, local matters, wood, minerals -shared- enviro -no constitutional protection of property, incl expropriation in CH- contrast to US and AU
Expropriation p. 7	-Constructive taking- interpretation of Expropriation Act: 1) acquisition by the govt of beneficial interest in property (distinguished from interest in it); 2) removal of all rights of usage; no public purpose or diminishment in value is required (contrast to US) (Mariner, CPR) -legislative schemes compensating expropriation can be overridden by statute -de facto taking- govt reg to the point where it arguably = appropriation bc of diminished value in land and compromises usage (Penn, Lucas, not really protected in Can) -exception for Amn style takings in Can: under s. 1110 of NAFTA (Abitibi, Metaclad)
Above and Below Boundaries p. 9	-mostly governed by legislation, maxim of absolute ownership applied in a limited way by courts -airspace- included in ownership of land, treated as possessory; open to protection through an action to trespass- need to demonstrate infringement of reasonable use and enjoyment of property (Bernstein) -Land Title Act, s. 141- airspace is subdividable -below the surface- rights are absolute (Edwards v. Sims) -mines and minerals- CL grant of land historically carries grant of minerals but this is overridden by s. 50 of the Land Act- most minerals = crown
Land Boundaries p. 10	-usually lateral boundary clear and stated in title -if not look to natural monuments, ct can order remedy in terms of encroachment as per s. 36 Prop Law Act -support of land: owner is entitled to support in its natural state and level (both horizontal and vertical), based on easement or prescriptive right (20 yrs possession- but abolished by Land Title Act in 1975) (Rytter) -rights do not protect against erosion or extend to bldgs on the land
Land Bounded by Water p. 11	-navigable: maxim that rip owner owns to midpoint of bed of river abolished as per s. 55-56 of Land Act > title is in crown(Nikal); but does not apply to title acquired pre-1961 if decided by ct or explicitly bed ownership addressed in title -tidal: ownership is to high water mark, beyond is crown owned, incl foreshore -rip access to tidal water affirmed but cannot interfere w/public navigation or construct anything that interferes w/the foreshore (Monashee) -groundwater not protected by statute, is owned by whoever appropriates it first, but right to use free of contamination exists (Steadman) -streamwater: right to use unrecorded for domestic purposes, is a fragile right (Steadman; Water Act) -accretion: process by which land increases bc water decreases; rip owner gets benefits if process is gradual and imperceptible unless explicitly expressed -s. 85 Land Act: Crown can reserve a strip from high water mark- in Monashee as boundary moved from high water,...

Defining Property p. 2

-Ziff- a bundle of rights good “against the world;” reflect social values

-attributes/ essentialism- looking for likeness based on attributes, traditional

-Moore, Victoria, INS, Calder, dissent in Yanner

-functional/ nominalism- policy approach based on social function, fluid, judicial discretion, adaptable

-majority in Yanner; minority in Carswell

-Cohen: involves duties and rights as opposed to an object; dependent on state framework for enforcement of right to exclude

-Posluns- concept of boundaries and property is culturally contingent, reflects relationships of power

-Rose- importance of yelling and labour (Monsanto, Moore, INS, dissent in Victoria Park)

-Yanner > distinction bw control and ownership

-‘quasi property:’ expires, is only good against competitor (INS)

Functions of Property Law

p. 2

-regulates rights of property owners

-promotes economic efficiency thru reducing transaction costs

-assesses novel claims (addresses fluid nature of def property)

Historical Perspective

p. 5

-historically teneurial but statute in 1665 abolished all forms except free and common socage (continues today, socage is directly to the crown); at this point inheritance rights developed (concept of right “against the world” develops)

-we conceive we own land allodially but this is false as it is in fee simple w/ crown as true owner in form of estate

-s. 2 Law and Equity Act-UK law transplanted to Can except if 1) if law was enacted prior to 1885; 2) if inapplicable to local context (e.g. water maxim) 3) if UK law would be modified by legis validly passed

Divisions of Property Law

p. 6

-realty vs. personalty

-realty> corporeal vs. non corporeal (intangible) hereditaments

-personalty> chose in possession or action (intangible)

-line bw 2 blurred contemporarily

-can be exchanged > equitable doctrine of conversion, can exist even w/o physical exchange (contemplates future exchange will occur, still relevant for testamentary gift)

Fixtures

p. 14

-buyer and seller can determine what is a fixture but this is not binding absent of a fixtures notice- must look to law of fixtures

-to determine if it is a fixture or chattel, objective test if objective person would perceive it to be part of the sale of land, or is it better used as a chattel?

-prima facie characterization: if attached even slightly = fixture (Stack v. Eaton), but if it is unclear look to degree and object (purpose) of annexation. If permanent, supports it is a fixture, intention of person affixing not relevant (La Salle)

-tenant’s fixtures can be removed if they 1) are not a protected fixture; 2) removal will not cause DM; 3) detachment does not violate K; 4) timely removal

Constitutional Protection of Property

p. 6

-fed- under trade, commerce, bankruptcy, reserves, POGG, etc.

-prov- P/CR, local matters, wood, minerals

-shared- enviro

-no constitutional protection of property, incl expropriation in CH- contrast to US and AU

Expropriation

p. 7

-Constructive taking- interpretation of Expropriation Act: 1) acquisition by the govt of beneficial interest in property (distinguished from interest in it);

2) removal of all rights of usage; no public purpose or diminishment in value is required (contrast to US) (Mariner, CPR)

-legislative schemes compensating expropriation can be overridden by statute

-de facto taking- govt reg to the point where it arguably = appropriation bc of diminished value in land and compromises usage (Penn, Lucas, not really protected in Can)

-exception for Amn style takings in Can: under s. 1110 of NAFTA (Abitibi, Metaclad)

Above and Below Boundaries

p. 9

-mostly governed by legislation, maxim of absolute ownership applied in a limited way by courts

-airspace- included in ownership of land, treated as possessory; open to protection through an action to trespass- need to demonstrate infringement of reasonable use and enjoyment of property (Bernstein)

-Land Title Act, s. 141- airspace is subdividable

-below the surface- rights are absolute (Edwards v. Sims)

-mines and minerals- CL grant of land historically carries grant of minerals but this is overridden by s. 50 of the Land Act- most minerals = crown

Land Boundaries

p. 10

-usually lateral boundary clear and stated in title

-if not look to natural monuments, ct can order remedy in terms of encroachment as per s. 36 Prop Law Act

-support of land: owner is entitled to support in its natural state and level (both horizontal and vertical), based on easement or prescriptive right (20 yrs possession- but abolished by Land Title Act in 1975) (Rytter)

-rights do not protect against erosion or extend to bldgs on the land

Land Bounded by Water

p. 11

-navigable: maxim that rip owner owns to midpoint of bed of river abolished as per s. 55-56 of Land Act > title is in crown(Nikal); but does not apply to title acquired pre-1961 if decided by ct or explicitly bed ownership addressed in title

-tidal: ownership is to high water mark, beyond is crown owned, incl foreshore

-rip access to tidal water affirmed but cannot interfere w/public navigation or construct anything that interferes w/the foreshore (Monashee)

-groundwater not protected by statute, is owned by whoever appropriates it first, but right to use free of contamination exists (Steadman)

-streamwater: right to use unrecorded for domestic purposes, is a fragile right (Steadman; Water Act)

-accretion: process by which land increases bc water decreases; rip owner gets benefits if process is gradual and imperceptible unless explicitly expressed

-s. 85 Land Act: Crown can reserve a strip from high water mark- in Monashee

as boundary moved from high water,...

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