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Property Law Midterm Notes

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This is an extract of our Property Law Midterm document, which we sell as part of our Property Law Notes collection written by the top tier of University Of Victoria; University Of Toronto students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Property Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:


-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 Defining Property p. 2

Functions of Property Law p. 2 Historical Perspective p. 5

Divisions of Property Law p. 6

-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)
-regulates rights of property owners
-promotes economic efficiency thru reducing transaction costs
-assesses novel claims (addresses fluid nature of def property)
-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
-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


Fixtures p. 14

Constitution al Protection of Property p. 6 Expropriatio n p. 7

Above and Below Boundaries p. 9

Land Boundaries p. 10

occur, still relevant for testamentary gift)
-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
-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 CHcontrast to US and AU
-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)
-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
-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

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