Property Law Notes - ubclss.com

1 Property LawWhat is Property : -A physical object of value-Held publicly or privately -A collection of enforceable rights-A collection of enforceable )Can be alienated inter vivos or on deathb)Except Aboriginal land (1)Only alienable to the System: -A registration system with two functions: the written legal effect to registrationa)Given by relevant information related to titleb)Creates indefeasible title ( land Title Act )-Legal interest is good against the as against the person making it-Equitable interest is formed by making a binding contract -Has three underlying principles: Principlea)Title is a complete reflection of all interestsb)Except enumerated exceptionsc)Unregistered documents may have an effect ( land Title Act ) Principlea)Immediate indefeasibility of title (1)Conclusive in law and equity (Creelman v. Hudson s Bay)b)There is no indefeasibility of Principle a)There is compensation available if a mistake occursb)Must show loss occasioned by LTA statute/Registrar (McCaig v.

2 Reys) c)Must show you were deprived of an interest in land (McCaig v. Reys)d)Does not apply to unregistrable interests (Royal Bank v. AGBC) e)An action cannot be brought to correct the register (McCaig v. Reys)f)Certain conditions apply: (1)The AG must be a listed party in any action against the AF ( land Title Act (3))(2)There is a six-year limitation period ( land Title Act (8))(3)The following people cannot claim against the fund: ( land Title Act ))(a)Undersurface Rights Owners(b)Equitable Mortgages(c)Errors in airspace parcels(d)People who have had contributory negligence can only recover in part Role of Registration: -Registration is required in order to transfer legal interest ( land Title Act )-Registration is not mandatory, but you may lose out on benefits and certainty-Registrar has discretionary power to cancel or correct mistakes (Heller v. The Registrar) -Registrar has the ability to reject applications that have mistakes ( land Title Act )-Delays caused by the LTO will not affect a purchaser s right to title (Rudland) -Priority of registered charges is determined by time and date on title ( land Title Act )-No registration means no transfer of legal interest no protection under the Assurance Fund-If you don t register, someone can register it and beat you to it (Stonehouse v.

3 AGBC) you leave an unregistered Form A with a lawyer (Feinstein) -The following categories of things can be registered: simples:a)The actual owner of the land with indefeasible :a)Covenants ( land Title Act )b)Mineral Rightsc)Life estatesd)Mortgages (Registered on Form B)e)Caveats ( land Title Act )f)CPLs ( land Title Act )g)Judgements ( land Title Act )h)Statutory Easements ( land Title Act )i)Co-habitation agreements/marriages (Family Relations Act )j)ALR Parcels (Agricultural land Commission Act)k)Statutory building schemes ( land Title Act )-The following things cannot be registered: bylaws (Kessler) mortgages ( land Title Act ) ( land Title Act ) title (Skeetchestn) to purchase ( land Title Act )Form A-Must be filed with Registrar-Must not have any spelling mistakes-Boundaries must be sufficiently lawyers are not required to verify they are is established by land surveys-There must be marketable title in fee simple-Transferor must legally hold title-Transferee must pay all Property taxes before registration-The transferor does not need to be alive, as long as the Form A is the transferor is dead the executor must obtain a Grant of Letters the executor can use Form A to dispose of landSources of Property Law.

4 -Aboriginal people occupied the land until 1700s-Reception of English Law in BC occurred in 1858 (Law and Equity Act ) existing British statutes and case law became codified-1870 passed the land Registry Ordinance which introduced the Torrens System-1871 BC joined Confederation- Property rights are of provincial jurisdiction-Feudal Concept of land Ownership: Crown owns all the land , with the exception of two remaining )Only has two remaining concepts: forfeiture (treason) and escheat (no heirs) b)Conditions under which land is )How long can an interest in land be held? b)Corporeal interests(1)Right to use(2)Right to possession-Fee heirs to be direct descendants of by ( Property Law Act )-The Provincial Crown owns all the land except: Crown Landsa)Public Harbours, natural defence, Indian Reserves, Owned Landa)But Crown still has right to take land Title Landsa)Granted by treaty or rights contingent on settlements-Future an estate is promised to the holder in the like in Back to the FutureProvincial Jurisdiction of Property Rights: -Control is exercised in the common law, equity, and statute-What statutes govern BC?

5 What do they govern? Acta)Crown Landb)Crown Grants ( land Act )(1)Normally given for leases, rights of way, and licenses of occupationc)7 land districts(1)Four officesd)Surveying of Title Acta)BC Torrens land Registration Systemb)Requires Transfers on Form A and a single page ( land Title Act )(1)Unless another statute allows a different form(2)Unless the registrar accepts a different Law Acta)Everything elseb)Statutory provisions with land Transfer Form Acta)The meaning to be given words in the prescribed forms ( land Transfer Form Act )The Relationship Between Property Types: - Property is divided into two categories: Propertya)Corporeal-tangible(1)Right to possessionb)Incorporeal-intangible(1)Rig ht to Propertya)A holder of a life estate in personal Property must preserve it for the ultimate recipient (Re Fraser) (1)Free to alienate upon death or inter vivos(2)Need not register gifts of personal Property (3)Absolute/allodial ownership(a)The courts can create an equitable interest in Property (b)This can result in the creation of a personal Property estate(c)This would happen in the case of car leases, for exampleb)Choses in possession-tangible(1)Chattelc)Choses in action-intangible(1)Intellectual Property (2)Money(3)Stocks(4)Etc.

6 -There used to be different actions related to forms of Property , but not anymore-There is no distinction between real and personal Property where wills are concernedLegal vs. Equitable Interests: -What is the difference between a legal interest and an equitable interest? Interestsa)Arise through common lawb)Good against the worldc)Delivered upon registration in Interestsa)Governed by the court of equityb)Not as secure as legal interestsc)Governed by contractsd)Held for the benefit of a 3rd partyFreehold or Leasehold? Freehold estatesLeasehold estatesIndefinite, uncertain (almost forever) time periodCertain, ascertainable, limited time periodExclusive possessionIn possession of the land [landlord retains some residual possessory rights]Ex: Fee simples, Life estatesEx: LeasesPossession of Property : -Right of to to exclude others-All corporeal interests have a right of possession-Depends on the nature of the land -Exclusivity is not title can be possession is adequate for titlea)ie.

7 Summer cabin-Law of keepers losers of chattel acquires title good against entire worlda)Except true ownerb)Reasonable search must be made for true ownerc)No presumption of indefeasibility because there is a true owner-Adverse not exist in BC ( land Title Act (3))a)Except where indefeasible title has not been posed before (CPR 2002) ( land Title Act (4)) by the court ( land Title Inquiry Act ) through mutual mistake or knowing meet the following criteria to be valid: a)Open and notoriousb)Without permissionc)Exclusived)Peacefule)Activef )ContinuousAboriginal Title: -Sui law and Aboriginal perspectives must be considered (Delgamuukw)-Extinguished by the Royal Proclamation of by (Calder) Royal Proclamation does not apply to Aboriginal title (Calder)-Aboriginal people only have a personal and usufructory right to land (St. Catherines) : right or interest less than an estate in fee : right of enjoyment of land owned by another-Do not have a legal or equitable interest in land (St.

8 Catherines) -Aboriginal rights and title have always existed at common law (Calder) -Aboriginal title is protected under of Constitution Act 1867 (Van der Peet)-Aboriginal title is not has roots in original occupation of land (Calder)-The Crown has a fiduciary duty to Aboriginal people (Guerin)-Aboriginal rights: of practice, custom or traditional (Van der Peet) faithfully and objectively into modern rights those indicating possession will be transferred into title (Marshall / Bernard) to be integral, but that was overturned by (Delgamuukw)a)Use of land under title does not have to be integral to the groupb)Can use land under title for any purpose integral, look at: a)Perspective of peopleb)Precise nature of claimc)Central significance to societyd)Continuity of traditione)Oral histories about tradition (Delgamuukw)f)Specific nature of traditiong)Must be distinctive, but not necessarily distinct-Aboriginal title cannot be transferred to anyone but the Crown (Delgamuukw)(Skeetchestn)-Aboriginal title is held by the band for the use of the band (Delgamuukw)-The only Aboriginal land that can be registered is Nisga a-There is an inherent limit on land use based on band s attachment to land (Delgamuukw)-To establish Aboriginal Title: physical occupation exclusive possessiona)Nomadic people can establish exclusivity by showing patterns of intention and capacity to control connection to land is of central significance to distinct continuity of practicea)This is not affected by colonial separationCharges.

9 -An interest or estate in land less than fee simple-Charges are registered with specific are registered on Form are registered on Form B-The Registrar can refuse to register a charge if: ( land Title Act ) believes there is no good safeholding and marketable charge is not a registerable interest under the land Title Act-Trustee s name will appear on title, but the details of the trust can not be registered ( land Title Act )-Easements may be registered as a trust if they are done so in accordance with the land Title Act (Dukart v. Surrey) -Charges can be rebutted by verifying the state of accounts (Credit Foncier) ( land Title Act )-Charges are not subject to immediate a charge serves as giving notice, but does not validate its claimCaveats: -An instrument registered by a person who cannot by lack of Form A or by operation of law-Prevent further dealing in the land -Expire after 2 Registrar files it himself, which has no expiry dateCertificates of Pending Litigation: -Freezes disputed title and gives notice to potential buyers-Registration does not have to be merit-based, just based on a claim (Peck)-Priority based- title that is acquired prior to registration is good (Peck) (Rudland)-A bona fide purchaser for value can claim the right to registration if.

10 Has been no for registration was done before CPL was filed-A bona fide purchaser for value is not a party to litigation involved in a CPL (Canada Permanent Mortgage) -Unregistered CPLs have no effect (First Citizens) Judgements: -Enforced by the Court Order Enforcement Act-Non-Monetary judgements alter title to the land -Expire after two years, but can be re-registered-Registered against the equitable interestPhysical Dimensions of land : - land is measured both horizontally and vertically-Dimensions of land change through accretion and equally to riparian owners, leaseholders, and inland lakes (Southern Centre of Theosophy v. South Australia) be gradual and be naturally change in boundaries must be registered ( land Title Act )-Surveying of land is required in BC ( land Title Act ) certainty of is divided into a lot, block, district lot, section, township, may accept a metes and bounds description ( land Title Act ) is on owner of indefeasible title to prove land is wrongly described ( land Title Act (2)(h)) do not have an obligation to investigate the description of land (Winrob v.)