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Property

Final Exam Prep

Act / Provision / CaseContent
Property Law Act s.19(1) When transferring an inter vivos estate in fee simple, it is sufficient to use the words "in fee simple" without the words "and his heirs
Property Law Act s.19(2) A transfer of land inter vivos without words of limitation passes in fee simple or the greatest estate / interest in the land the transferor has power to give (unless a contrary intention appears)
Property Law Act s.19(3) An inter vivos gift that is not expressed as being "for the use and benefit" does not prevent a resulting trust
Property Law Act s.11(1) Joint tenants can be severed by declaration of trust and orders of the court
Property Law Act s.11(2) Persons are assumed to be tenants in common unless there is a contrary intention
Property Law Act s.11(3) If the interests of tenants in common are not stipulated they are presumed to be equal shares
Property Law Act s.18(1) A joint tenant may transfer land to him/herself
Property Law Act 18(3) A transfer of a joint tenant to him/herself has the effect of severing the JT
Property Law Act 18(5) The owner of a fee simple, registered lease, or sublease may grant to himself an easement or restrictive covenant over land that he owns for the benefit of other land that he owns
Property Law Act 18(7) Common ownership of the dominant and servient tenements does not extinguish an easement or covenant
Land (Spouse Protection) Act s.1 Definition of spouse includes "marriage like relationship"
Land (Spouse Protection) Act s.2 A spouse can register an interest in their partner's land
Land (Spouse Protection) Act s.3 If an interest is registered, the land-owner cannot pass off the land inter vivos without written permission from the registered spouse
Land (Spouse Protection) Act s.4(2) A life-estate is granted to the non-owning spouse on the death of the owning spouse
Land (Spouse Protection) Act s.6 This Act does not apply when spouses have (a) separated (b) resolved ownership of property under the Family Law Act
Family Law Act s.2 Spouse includes a marriage like relationship
Family Law Act Part 5 This Act only applies to property acquired after the relationship began
Family Law Act s.85 Gifts, inheritance, insurance payouts, and compensation for personal injury are excluded from the Act
Family Law Act s.81 Upon separation each spouse has the right to an undivided half interest in all property as tenants in common
Family Law Act s.90 Exclusive occupation of the family home may be granted to one spouse by an order of the court
Wills, Estates, and Succession Act s.41(3) A gift in a will (a) takes effect according to its terms, and (b) gives to the recipient of the gift every legal or equitable interest in the property that the will-maker had the legal capacity to give, unless a contrary intention appears
Wills, Estates, and Succession Act s.45 A gift to two or more beneficiaries is a tenancy in common unless a contrary intention appears
Wills, Estates, and Succession Act s.46(1) If a gift in a will cannot take effect the gift must, unless a contrary intention appears, be distributed as follows: (a) to alternate beneficiary (b) if beneficiary was brother/sister/descendant, to their descendants (c) to surviving beneficiaries
Will, Estates, and Succession Act s.46(2) s.1 applies whether the beneficiary died before or after the will was made
Wills, Estates, and Succession Act s.2(1)(b) Spouse includes marriage like relationship
Wills, Estates, and Succession Act s.20 An intestate estate with spouse and no children will be given to the spouse
Wills, Estates, and Succession Act s.21(2) An intestate estate with spouse and living descendants, spouse will receive: (a) personalty associated with enjoyment of the spousal home (b) a preferential share of the estate
Wills, Estates, and Succession Act s.21(3) If the descendants are also that of the spouse's, the spouse's preferential share is $300,000
Wills, Estates, and Succession Act s.21(4) If the descendants are not also the spouse's, the spouse's preferential share is $150,000
Wills, Estates, and Succession Act s.26(2) The spouse should receive the family home to satisfy their share
Wills, Estates, and Succession Act s.60 The court may order provisions it considers just and equitable on application of the spouse or descendants if they have not been adequately provided for
Land Title Act s.23(2) An indefeasible title remains in fee simple unless (i) a person deprived of land can show fraud in which the registered owner participated
Land Title Act s.23(3) Title is not acquired by length of possession
Land Title Act s.23(4) This section only applies to the first registered title
Land Title Act s.25.1(2) An unregistered interest is not void if the transferee (a) is named in the instrument (b) provided valuable consideration in good faith
Land Title Act s.25.1(3) A registered instrument is not void if the transferee (a) is named in the instrument (b) is the registered owner on the day the instrument comes into effect (c) provided valuable consideration in good faith
Land Title Act s.29 If a registered owner received notice of an unregistered lease prior to purchase it will be binding
Land Title Act s.221(1) The registrar must not register a restrictive covenant unless (a) the obligation is negative or restrictive (b) the beneficial land and burdened land are both adequately described in the instrument creating the covenant
Land Title Act s.221(2) Just because a restrictive covenant is registered does not mean that it is a restrictive covenant or that it is enforceable
Creelman v. Hudson Bay Insurance (1920) JCPC Hudson Bay had valid title to land because they had registered title under the BC Land Title Act.
Gibbs v. Messer (1891) JCPC Lawyer creates fictitious person and fraudulently registers title. Takes out mortgage on the land and absconds. Title to property returned to original owner (foreclosure not valid)
Frazer v. Walker (1967) JCPC Wife forges husband's signature on mortgage. On foreclosure of mortgage property sold and registered to a third party. Third party keeps title (immediate defeasibility - distinguishes Messer)
Pacific Savings v. Can-Corp (1982) BCCA House foreclosed and sold to third party. Mortgagors registered a lis pendens before the new purchaser registered title. Purchaser prevented from obtaining title (If purchaser had registered first would likely have received title)
Station v. Shangri-La (1979) BCSC Land sold without notice of leaseholder. Not obligated to honour lease due to the equitable doctrine of notice and s.29 of the Land Title Act.
Me-N-Ed's Pizza v. Franterra (1975) BCCA P had 20 year lease but did not register it. Land sold to D with notice of the lease and change in PP reflective of pre-paid rent. D must honour lease.
Nicholson v. Riach (1997) BCSC Mom brought property and registered it as 50% co-owner with son because of undue pressure from the son. Court orders sale of son's portion. Sale is valid because purchaser had no constructive or actual notice of the fraud.
RE: Ottewell (1969) SCC Devised gift to brother who was deceased. Niece claims property should go to her. Court rules it was an intestacy death and niece not entitled to property.
RE: Walker (1925) Ont. App. Div. "Should any portion of my estate still remain in the hands of my wife remainder shall be divided as follows..." Courts determine condition is repugnant and property distributed according to wife's will.
RE: Richer (1919) Ont. App. Div. "free use" of property to wife but "that will remain unspent, if any" on her death should be passed to the children. Life estate with remainder to children (land cannot be "spent")
RE: Shamas (19670 Ont CA Property given to wife. If wife re-marries equal shares between wife and children (at 21), if not wife gets whole and children get equal shares death. Life estate with right to encroach with condition subsequent.
Hiltz v. Langille (1959) NSSC Mom transfers property in life estate to herself and remainder to daughter. Allows son to cut down trees. Mom only permitted to use what is necessary for reasonable estovers and cannot permanently injure the land.
City of New West v. Kennedy (1918) BC Co. Ct. House foreclosed and previous owners given 1 year to redeem. Strip house of everything valuable. Repair of house ordered by court (equitable waste).
Vane v. Lord Barnard (1716) Dad gives life estate to himself with remainder to son. Gets in argument with son and strips castle of everything valuable. Court ordered repair.
Mayo v. Leitovski (1928) Mann KB Life tenant fails to pay taxes and property foreclosed. Mother buys property and gives property to daughter in fee simple. Equity imposes a trust on the mother to hold the property for the remainder.
Morris v. Howe (1982) Ont HC Life tenant cannot maintain property and wants a partition order against remainderman's wishes. Partition denied because remainderman's opposition was reasonable.
Howard v. Howard Estate (1997) BCCA Late in life marriage, husband dies and does not leave anything to his wife. Wife applies for Variation of will but will is upheld because they had signed an agreement that neither would expect anything.
Pickets v. Hall (2009) BCCA Marriage like relationship. BCCA increases funding (was provided for in will). Looks at: length of relationship and promises made on deceased's death bed.
Tartaryn v. Tartaryn Estate (1994) SCC Determined that "adequate provisions" within the WES Act includes moral obligations to family members beyond mere necessities.
Hall v. Hall (2011) BCCA Estranged son not provided for in will. Court determines no moral obligation and will was not changed.
Austin v. Goerz (2007) BCSC Can a person enter a marriage like relationship while still married? Factors to consider with marriage like relationships: financial commitment, children, personal behaviour, living arrangements
Bancroft Eastern Trust v. Calder (1936) NSSC Shares of estate to be divided between wife (1/2) and 1/4 to each of 3 children 1/4 split between two grandchildren (parent dead). One grandchild dies surviving grandchild received as JT. Any slight intention to divide property will result in TIC.
Winchester v. McCullough (2000) NB Crt. QB "successors" indicates TIC whereas "survivors" indicates JT.
Bull v. Bull (1955) CA If only one name appears in registry but two people have substantially contributed courts will apply a TIC.
Spelman v. Spelman (1944) BCCA Rooming house, P left voluntarily for 6 years, claims half of income. No obligation to share profits in a TIC unless parties entered a K. If 1 tenant is exclusive occupier, other tenant cannot claim rent unless they were forced out.
Leigh v. Dickenson (1884) CA All co-owners must pay for common obligations. Other expenses can be claimed if TIC requests prior to completing work. If expenses increased the property value can be claimed through equity on sale of property.
Bernard v. Bernard (1987) BCSC Except as an ouster or express bailiff, there is no need to charge an exclusive occupying owner with occupation rent. If on partition the occupying owner claims for their expenses then rent can also be claimed. Divorce turns JT to TIC.
Stonehouse v. AG of BC (1963) SCC Husband & wife JTs. Wife conveyed her interest in property to daughter inter vivos (H not aware). Daughter did not register deed until day after mother dies. Severance occurs at the time a deed is made.
Lyons v. Lyons (1967) Aus Mortgages do not sever because they are only a charge on the land (not a transfer of title).
North Vancouver v. Carlisle (1922) BCCA If mortgage goes into foreclosure JT is severed.
Public Trustee v. Mee (1972) BCCA H declares trust for his son with himself as trustee. Trust never registered but still severed unity of title when created. (Trust must have certainty as to intent, beneficiary, and what property is being conveyed to be legally binding)
Foort v. Chapman (1973) BCSC Property conveyed to son but payments not completed. Mother had written post-dated letters forgiving son of all payments before death. Title had not yet transferred. Post-dated letters show intent for son not to retain possession yet.
Sorenson v. Sorenson (1977) Alta. App. Div. JTs can be severed through the execution of divorce agreement, a partition by the court, or a trust. Only trust works: intention for property to remain as JT after divorce and died day of partition order.
Flannigan v. Witherspoon (1953) BCSC Brothers own property as JTs and are selling and "splitting profit". One brother dies and daughter claims his share. A course of dealings that indicates a mutual intent to sever will do so.
Walker v. Dubord (1992) BCCA Unilateral declaration does not sever JT unless it has been carried through. Transfer of land to yourself does sever JT.
Morrow v. Eakin and Eakin (1953) BCSC Creditor wants to bring partition of sale for JT's share of property. Only JTs and TICs can seek orders of partition.
Rayner v. Rayner (1956) BCSC Husband wants order of partition for land ex-wife is currently living on. Court refuses partition because he had lived as sole occupant on the land for 7 years and she is entitled to the same.
Phipps v. Pears (1965) CA Old house demolished leaving one side of neighbouring house exposed to weather. No easement because it would unduly restrict the servient tenement from use of their land (must get a covenant)
RE: Ellenborough Park (1956) Engl. CA Legal requirements for easements: must be a dominant and servient tenement, must objectively benefit land of the dominant tenement, must be the subject matter of a grant, must have been an intention for it to run with land to be binding on future parties.
Smith v. Snipes (1949) CA Woman had covenant with D to protect land from flooding. She sold land and assigned benefit to P. Land floods. Covenant was still binding on D. Benefit of covenants runs with the land if the intention of original parties supports this.
Austerberry v. Oldham Corporation (1885) Landowners agreed to build road and maintenance was covenanted to be binding on successors. P buys property and is not required to pay. Covenant does not "touch and concern" the land, and only benefit can pass (not burden).
Parkinson v. Reid (1966) SCC Staircase with covenant to maintain burns down. Covenant not enforceable. Affirmative covenants do not run with the land.
Tulk v. Moxhay (1848) Ch. Div Covenant with property to maintain the garden. Purchaser bought land with notice of covenant but want to build on garden. Equity will enforce the burden of a covenant if the purchaser had notice.
LCC v. Allen (1914) CA For a burden to bind successive 3rd party title holders, a dominant tenement is required, the covenant must be negative in substance, and successive holders of servient tenement must have notice.
Honslou v. Twickenham Garden Dev. (1971) Eng. Ch. Div. D employed by P to carry out construction. K was terminated and P sued D for trespass. Judgement for D, licenses are revocable but must give reasonable time to depart land.
Errington v. Errington (1952) CA Father in law buys house gives to daughter-in-law in unilateral K. Father dies wife wants daughter off land. License cannot be revoked mother bound by K.
Grafstein v. Holme & Freeman (1958) Ont CA Locked box found in basement of store, opened by two employees, large amount of cash. Store owner gets money because had exerted care and control of the box.
Cranbrook (City) v. Brown et al. (1998) BCSC Money found in couch. Determined money was cached so returned to estate of likely owner.
Kowal v. Ellis (1977) Man CA Pump found on land. Landowner did not know it was there, belongs to finder. If property is attached or under land, if landowner knows its there, or has obligations to true owner then it belongs to property owner.
Parker v. BA (1982) Man finds bracelet in executive lounge at airport. Gives to attendant and requests that bracelet returned to him if true owner is not found. D sells bracelet and keeps profit. Finder had rightful title.
Morris v. CW Martin (1965) P gives fur to man to clean. With P's knowledge, sends fur to D. D steals fur. D is liable to P.
Punch v. Savoy (1986) Jewelry lost in mail while being cleaned. Sub-bailee has K that limits liability. Limitations of liability can only be relied on if owner assents.
Property Law Act s.13.1(1) A co-owner (TIC or JT) may apply to the court for relief if they have paid more than their fair share of expenses on a property.
Property Law Act s.14(1) After hearing an application under 13.1 a court may: (a) order that an applicant has a lien on the property (b) order the defaulting owner's share within 30 days (c) make any other orders, including that the other tenant purchase the share owed money
Property Law Act s.14(2) The amount recoverable is the amount that the tenant would have been liable to contribute
Brown v. Moody (1936) Son gets life interest and 1/2 interest in $100,000 given to son's daughter and 1/2 split between son's 3 granddaughters on his death. If 1 dies should give to their issue. 1 dies without issue. Immediate vesting - distributed by her will at son's death.
RE: Squire (1962) Ont. H.C. Testator (T) leaves property with beneficiary to hold until son turns 30. Could encroach on capital before that to pursue education. No condition - immediate vesting. "Upon obtaining" not condition subs. "if you should attain" is.
RE: Carlson (1975) BCSC Income from investing capital of residue used for maintenance of son (C) until he turns 21. Then residue divided between C, daughter (D) & 3rd son to pay debts (10%) (A). Condition precedent of C turning 21. A&D no immediate vesting.
Phipps v. Ackers (1842) H.L. Land devised to godson (G) upon reaching 21 but if he dies before and does not leave issue then to wife (P). G does reach 21 but P claims income accumulated while waiting. Condition subsequent - G got immediate vesting (so gets income).
RE: Barton Estate (1941) SCC T left money to grandson (G) when he "shall attain 21". If G does not reach 25 and has no issue or wife then should fall back into residue estate. G takes immediate vested interest (gets accumulated interest subject to condition subs (applies Ackers).
Festing v. Allen (1843) Exch. T leaves land to granddaughter (G) for life and upon death to grandchildren that attain 21. Otherwise distributed according to will. G dies children not yet 21. Rule of destruction for contingent remainder. Shows limits of Ackers.
RE: Tilbury West Public School Board (1966) Ont. H.C. Land conveyed to school board so long as they use for school purposes. "So long as it shall be used for" = determinable interest not condition subsequent. Limit within granting clause not separate. (gave less in first place)
RE: McKellar (1972) Ont. H.C. Land granted to CNR "only so long as they use it for railway purposes". Grant included words "become entitled to enter" so considered condition subsequent (right of entry).
Blackburn & Cox v. McCallum (1903) SCC T devised land to son with condition that it cannot be disposed of until 25 years after his death. Total restraint never valid (even if limited by time).
RE: Brown (1954) Ch. Div. T left property to sons with restriction that can only alienate to brothers. Repugnant because class diminishing. Old rule that all restraints repugnant now only relates to 3 situations: absolute restraint, void for uncertainty, restriction on marriage
RE: Porter (1907) Ont. Div. Ct. Property devised to son with restriction that cannot mortgage or sell. Valid because son can still lease or give away. A clause restricting a particular type of alienation is OK.
RE: Leach (1912) Ch. Div. Land devised to nephew (P) "until" nephew assigned or charged or became bankrupt. Determinable interest (not condition subsequent) so restraint OK. Gave less in first place.
RE: Messinger Estate (1969) BCSC T devises property to wife "while she resides in home". Condition void for uncertainty. Courts determined condition subsequent to could be "flicked off" (if determinable interest whole gift would be invalid)