Property conceptualized by right to exclude – property related to governance relationships – between humans and land Infringe property rights by inappropriate use of song/dance/crest – no entitlement (similar to copyright) Property compensation for death – termination of property with time, mother’s death Or if can’t meet feast obligation (like mortgage) Property has a political dimension – need to recreate property rights Expire certain amount of time Ex. Cnd presence in Arctic “beating the bounds” – exercising rights Also trademark system “[T]he ownership of territory is a marriage of the and the land. Each Chief has an ancestor who encountered and acknowledged the life of the land. From such encounters came power. The land, the plants, the animals and the people all have spirit – they all must be shown respect. That is the basis of our law” Discussion Points: Linkage between concepts of property/governance Bundle of rights replaces or displaced by bundle of obligations Connections between property rights and environment Property rights embedded in larger context Respect: integral aspect of property regime System of Feudal Tenure Doctrine of tenure describes relationship between tenant and lord Feudal Tenure Subordination and protection Freehold Tenure Owner and occupier law Allodial land-holding system – individual is the owner Tenurial system - individual the land to someone superior Canada = tenurial in form, allodial in substance (crown has underlying ownership of land System: Crown --- tenant in chief (in capite) --- mesne lords (lord and vassal) --- tenant in demesne (vassal in possession of land) *all landholders tenants Purpose of tenure system – allocate societal tasks/roles, tax system, justice system Obligations between lords and tenants – protection for loyalty Types of tenure (free)
Security: knight service Splendor: serjeantry tenure (grand and petty) (butlers, cooks) Spirit: Frankalmoin tenure (priest) Subsistence: free and common socage - residual tenure (fee simple) Free tenure – always know role, what you have to do (aristocratic) Unfree tenure (copyhold) – held by vassal-labourers – limited by custom Incidents of tenure (obligations) Homage and fealty Aids (dowry, knight of eldest son, ransom) Relief Customary dues (taxes) Escheat and forfeiture – sole echo of feudal law Expires from treason Today happens if die with no heir – goes to crown Company dissolved w/ no mechanism to distribute land Subinfeudation – tenant transfers to someone else, pass down rights/obligations – attempts to evade – created more tenants/demense/etc Response: Statute Quia Emptores Terrarum (1290) Prohibited subindfeudination (other than Crown) transfer land, but substitution not subinfeudation Statute of Tenures – reduced vailable tenurial forms (only socage) Tenure not abolished – convenience, fear of consequences British Settler Societies (Canada) Reception: process through which England’s laws became applicable in colonies For settled colonies – “laws of England form part of laws of the colony in so far as these are applicable to conditions in the colony Local law stayed in place until ruled by a new sovereign This was brought to Canada Some areas not applicable (exception not rule) Geographic factors – eg. NFLD fishery, sea beds Why did Cnd Courts largely accept UK common law? Convenience, of nobility (from England), prudence – don’t pull one thread and all comes apart – judicial conservatism Suggests colonies just extension of the UK Different context/circumstances – can make own laws Property, and Poverty Homelessness and Issue of Freedom 4 main points to focus on:
Does the party enjoy exclusive possession? – no landlord can stay, right to add lodgers License if owner provides services that require constant access Key – is it actually exercised – not just reservations – look past agreement to actual situation *Note, landlord may try to make it look like licence (not lease) Greater power/authority Can evict No legal recourse if interference with possession Licensee may not get same protections as tenants (depends on BC law) Obligations of Landlords and Tenants Freedom of contract – commercial leases Terms implied by CL: Covenant by landlord not to derogate from lease Covenant by tenant to pay rent, keep up repair, pay taxes, allow landlord to enter/view state of property Covenant for Quiet Enjoyment Gives tenant protection against substantial interference w/ use/enjoyment of premises by landlord or others claiming under landlord Includes: Direct physical interference (Kenny v Preen) Indirect action in certain circumstances (Pellatt v Monarch Investments – renovating apt during bar exam) May include regular excessive noise/odour/mess Southwark LBC v Tanner 2 separate properties, two separate P’s. Neighbour’s noise reasonable – paper thin walls. No sound insulation. Issue: breach to right to quiet enjoyment? Right doesn’t cover paper thin walls – disturbance there at beginning of term, so not covered – no breach Different approaches to whether disturbances by tenants is breach: 1) Disturbances caused by tenants in circumstances where landlord could’ve taken action but didn’t – breach (Albamor Construction) 2) Where tenants cause disturbance, landlord must have consented or actively participated (Curtis Investments) Survivorship Estates and Succession Act Part 2, Division 2 – Survivorship Rules Order of Death in Common Disaster Doctrine of lapses – gift to a beneficiary who predeceases the testator, will lapse
Want to allow property to move around freely – no friction Market provides best mechanism for allocating resources to result in concentration of wealth (within families) May prevent improvements on property Trinity College School v Lyons Facts: 2 aspects of agmt in question – right of first refusal granted by T & MB, and option of first refusal – not restraint on alienation – seen as aspect of proprietary freedom (given by the Bennetts through land they owned) Post-mortem option is restraint (executrix of will acquired property less than f/s – not her will, but decision of TCS Blackburn v McCallum Facts: Can’t sell/encumber land for 25 years post-testator’s death Test: does the condition take away whole power of alienation substantially? Look at : Mode of alienation (ie. mortgage, no selling), of recipients, time period, price Here – can’t mortgage or sell, nobody can buy, time is 25 yrs – found void Thibodeau v Thibodeau From parents to son. Can’t transfer property to anyone except James’ son Luc. Luc can only sell to continue education. Class – just one individual – substantial restriction so void Re: Brown Facts: Family business given to 4 sons – can sell or mortgage only to each other Void because limited class * Note - different in Re. MacLay – can only sell to family members – found valid b/c on other restrictions (time, mode, price) and the class can increase Equitable Interests CL is wary of contingent remainders – want estate to be vested Way around LRR rules – creation of trusts Equitable interests not subject to rules against legal remainders – trustee always seised of the land Statute of Uses Executes the use Ie – to A for the use of B (A has legal f/s, B has equitable f/s) Now A dropped from grant – B now has both legal and equitable f/s Ways around the Statute of Uses: 1) Leasehold Estate Statute interpreted as applying only to freehold estate, not leasehold To A for 999 years to use of B for 999 years (Statute won’t execute) 2) Conveyance to a corporation
Amberwood – traditional rule affirmed – positive covenant can’t be enforced (in this case for 2nd property owners to share in costs for condo project) said not for CL – needs to be legislated Don’t want to find new interest in property (like INS) Possible workaround: Leases Statute – LTA s. 219 Chain of covenants Rentcharges + conditional grants Doctrine of Halsall v Brizell – if take benefit of easement, must take burden