Simran_Property Law_Synthesized Notes_Fall 2021

public to enter the executive lounge, this limited access did not reach the level of exclusivity that is found within a bank vault or private residence.” (114) Notes Rights and Obligations of the Finder: 1. The finder has rights as long it has been abandoned or lost and he takes it into his care and control 2. Very limited rights if he takes it into his care or control with dishonest intent or in the course of trespassing 3. Finder does not have absolute ownership in the chattel, he simply has a right over anyone but the true owner 4. Any employee who finds a chattel while working, takes it into their care and control on behalf of their employer 5. Finder has an obligation to try everything they can to find the true owner of the object Rights and Liabilities of an Occupier 1. Occupier has rights over the finder over chattels attached to the land or building , regardless of whether the occupier is aware of the presence of the object 2. Occupier has rights superior to a finder over chattels upon or in , but not attached to the land/building, IF before the object was found, he has manifested an intention to exercise control over the building and the things inside it (ie. a bank vault or someone’s home) 3. An occupier who exercises control under (2) has an obligation to ensure that lost chattels are found and returned (or attempted to return) to their true owner, and to take care of it in the meantime. 4. “Occupier” also applies to those occupying a chattel, like a ship, motor car, etc.

Parties’ Arguments: Defendant: possession does not occur until the person has complete control of the object. “A ball is caught if the momentum of the ball and the momentum of the fan while attempting to catch the ball ceases. A baseball, which is dislodged by incidental contact with an inanimate object or another person, before momentum has ceased, is not possessed… The first person to pick up a loose ball and secure it becomes the possessor.” (121) People assume at baseball games that whoever has complete control will be the owner of the ball. Plaintiff: Popov had a clear intent to possess the ball. Definition from defendant “requires that a person seeking to establish possession must show unequivocal dominion and control, a standard rejected by several leading cases… possession occurs when an individual intends to take control of a ball and manifests that intent by stopping the forward momentum of the ball whether or not complete control is achieved.” (121) ANALYSIS Reasoning: It cannot be ignored that the reason Popov did not retain control of the ball is because he was violently attacked. His efforts to establish possession were interrupted by the collective assault of a mob. Ignoring this would be endorsing the actions of the mob and would encourage future mobs to do the same. Popov should have had an opportunity to try and complete his catch unimpeded. Therefore, Popov has a claim to the ball, despite not having full complete possession of the ball. Hayashi also had an interest in the ball. Hayashi was not a member of the mob, he was also a victim. When he picked up the ball, he attained unequivocal dominion and control over the ball. “Popov did not establish a full right to possession, but that Mr. Hayashi’s right was ‘encumbered by the qualified pre-possessory interest’ of Mr. Popov.” CONCLUSIO N Decision: Both parties have an interest in the property and neither outweighs the other. An equitable remedy required. They were required to divide the spoils. Notes Discussion Notes  i) Differing Perspectives on Popov v Hayashi o Ball eventually sold for $450,000 and the sum was evenly split between both parties. o The pre-possessory interest/equitable division remedy is controversial o Some suggest Popov should have anticipated the dangerous situation he was entering o “... slippery slope called a pre-possessory interest” (124)  ii) Shared Rights in Cases of Finding o Court relied on decision in Keron v. Cashman and its approach o Could equitable remedy idea be extended to disputes between a finder and an occupier? o “... preferable rule, in the writer’s view, would be one of equal division of the proceeds of sale of the lost chattel between occupier and finder.” 124 o Such a rule would be more clear and predictable o Inclusive solution? (c) The issue of Intention Chapter 2, Section 2.c. | pages 125-130 C. The issue of Intention  Intentions of the finder and occupier are relevant to determining claims of possession Bird v Fort Frances [1949] 2 DLR 791 (ONT HC) FACTS Parties: Plaintiff: Bird, who was 12yo when he found the thing in question Defendant: The municipality of Fort Frances

 Labour Theory: John Locke: Labour provides rights à through labour one adds value to an object: owner is first person to combine their labor with the thing that comes to be possessed à if you aren’t putting in work you shouldn’t benefit from property à Ins. V. AP fox and hound  Clear Act of Occupancy: clear act of possession or just Clear Act à Pierson v. Post  Marx: from each according to his ability to each according to needs: goods and capital; social and economic equality  Carol Rose:  Consent theory: property determined by community norms and narratives (every community has a cultural understanding of acts determining possession): seal hunters (Aboriginal Title) e.g. maintenance of homes  Property based on responsibility: Stewardship of land: indigenous  Property as fact, based on possession  property as a way to foster social equality  Progressive Property: inter alia: property law should promote the ability of each person to obtain material resources for full social and political participation, and establish the framework for a social life appropriate to a free and democratic society. Social obligation norm where all individuals have obligation to others in the community to promote capabilities that are essential to human flourishing.  Subversive Property: social properties reflected in identities e.g. whiteness. How property operates as an instrument of meaningful political change.  Social function of property: obligations not rights  Common law : occupancy & control : clear act theory of possession à combines labor and consent theory but there must be an act that alerts society with a claim to possession (clear act of control and possession) Important elements:  A person in possession has prima facie title  A person in de facto possession is presumed to be in actual possession  A person in possession is presumed seized of the land  A person seized of the land is presumed to have a fee simple estate A. Possession as a Property Interest in Land: "Possessory Title"  * NEED TO ADD THE NOTES* Discussion Notes  i) The (Medieval} History of Claims to Possessory Title: Asher v Whitlock Asher v Whitlock 1865 FACTS Thomas Williamson had enclosed an unused plot of land and resided there for over 20 years. In his will he transferred his rights in the property to his wife for as long as she lived or until she remarried, in which case the remainder went to his daughter. His daughter eventually died, and her second husband continued to live on the property. Granddaughter sued to eject this husband from property claiming she was entitled to her mother’s interest, while the second husband argued Williamson had never gained proprietary interest in the land. ISSUE Did Thomas Williamson have an interest in the land that was capable of being devised by will? RULE Possessory titles are only good against the entire world except as against the true owner or whoever has a superior possessory interest. ANALYSIS  Williamson established first chain in link to ownership: possessory title that could be transferred by will;  His daughter had superior interest to second husband

 SO 1% of properties under the registry act are subject to adverse possession. 65% in land titles are. o Carol Rose, “Possession as the Origin of Property”  *NEED TO ADD NOTES o Discussion Notes:  Underlying Justifications for Possession as Title (and Statutes of Limitation)  Punish the legal titleholder for neglect in relation to land Encourage use of land by “rewarding” active use of possessor as opposed to punishing  Quiets other claims à facilitates trade and reduces conflict  Curing titles so registered descriptions are congruent with actual locations  2. Acts of "Possession" and the Commencement of the Statutory Limitation Period o Dispossession: squatter must INTEND TO EXCLUDE legal titleholder o Discontinuance: legal title holder discontinues possession (they have constructive possession due to registered title): onus is on squatter  You only need to prove one o Tacking: Periods of possession by a continuous succession of persons may be added together to create a statutory period of possession. Piper v Stevenson 1912 Ontario FACTS Piper bought 6 lots but accidentally enclosed 8: enclosed by fence from 1901 until 1912 when neighbour brought an action for trespass. ISSUE Did Piper dispossesses her neighbour? RULE When possession of land is continuous and exclusive for 10 years an individual dispossesses the property owner: maintained property and acted to reap the full benefit of the land: where facts of possession are unequivocal an intention to possess will be presumed. ANALYSIS Everything was done that an owner in actual, constant occupation would do for that land. She ploughed lots, fenced them off, fertilized lots, harvested, erected buildings CONCLUSIO N Yes, in 1901 when she fenced off the lots. Notes Re St. Clair Beach Estates Ltd v. MacDonald: small acts 1974 Ontario FACTS St Clair wanted to register a parcel of land she had purchased from Ms. Grant in the Land Titles Act in ON. Ms. Grant’s neighbours had used some of this land without objection and initiated an action to obtain legal recognition of their possessory title. They had taken possession of this parcel since August 1961 whereas the respondent is the absolute owner in fee simple, and has been such since 1969. ISSUE Did the appellants establish their claim to possessory title of the land? RULE Smallest act by owner is sufficient to show there was no discontinuance: just need an occasional use by titleholder in a manner consistent with the uses that land may be put to ANALYSIS Ms. Grant picked cherries on the parcel every spring until 1969  Owner of farm cannot be said to be out of possession because they don’t perform positive acts all the time Did the McDonalds have intention to exclude? Actual acts of possession? Did the statutory period begin to run?

 From 1946 onwards David had actual, exclusive, continuous, open, visible, and notorious possession of land CONCLUSIO N Yes. Notes  vi. Possessory Title and Tenants' Rights to Possession of a Leasehold Estate  ADD NOTES vii. Leaseholds and Limitation Statutes in Ontario: Giouroukos v Cadillac Fairview Corp Ltd. . . . . . . . . . . . . . . . . 152 C. The Element of Intention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153 Keefer v Arillotta . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153 Discussion Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159 i. Possessory Title and "Intention" . . . . . . . . . . . . . . . . . . . . . . . . 159 Brian Bucknall, "Two Roads Diverged: Recent Decisions on Possessory Title" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159 ii. Rejecting Leigh v Jack: Possessory Title Claims in England. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164 D. "Mistake": Reassessing the Inconsistent Use Test . . . . . . . . . . . . . . . . . . . . . . . . . . . 166 Wood v Gateway of Uxbridge Properties Inc . . . . . . . . . . . . . . . . . . . 166 Discussion Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174 i. Reassessing (Different) Tests for Possessory Title: Teis v Ancaster (Town) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174 ii. Possessory Title and Mutual Mistake: Mueller v Lee. . . . . . . . 175 iii. Mutual Mistake and "Good Neighbours": Pepper v Brooker. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177 Parker v British Airways Board (1982)

o Subinfeudation: a concept based on the understanding of feudalism as a ladder, each rung representing a step in the hierarchy, and the belief that rungs to the bottom and middle part of the ladder could be added infinitely  Essentially allowed tenants, holding land under the King or a Lord, to create new tenures by subletting or alienating a part of their land - kept dividing and subletting their lands to other lords further and further  Overuse of this would make the ladder too long and cumbersome, though  5. Prohibition of subinfeudation :  By the 13th century, a new concept of land as a freely alienable asset was developing  This culminated in the Quia Emptores o Quia Emptores  Expressed new preference for freedom of alienation as a principle of public policy  Guarantees the tenant the right to alienate land without the consent of his lord  Prohibited future alienation by subinfeudation  Only the Crown could grant new tenures, and existing network of tenures could only get smaller with the passage of time (no additional rungs)  The practical result of this was that every conveyance of land after this statute had the effect of substituting the grantee; no new relationship of lord and tenant was created by the transfer  6. The levelling of the feudal pyramid o The statute Quia Emptores still regulates fee simple transfers today o Each transfer of land is merely a substitution of the transferee (the tenant) (b) Reform of the Law of Tenures 205 Chapter 3, Section 2.b. | pages 205-206 B. REFORM OF THE LAW OF TENURES 205  Much of later history of tenure reflects the tumultuous history of England o Major landowners sought ways to avoid incidents (to avoid paying taxes, basically) o Monarchs sought to plug the conveyancing loopholes used to escape incidents of tenure  Developed into conflict between the Monarchs and Parliament (who at that time, mainly represented large landowners)  Wardship o Permitted the monarch to hold the lands of a tenant who died leaving an heir under the age of 21 o Monarch was entitled to the revenues of that land until the heir came of age o Also permitted monarch to arrange a marriage of the minor heir of the deceased tenant to a person of the monarch’s choice - when someone dies and doesn’t have an heir/ they aren’t of age, crown steps in until heir is of age or they sell it off to someone else.  Lead to marriage being a way to purchase incidents of tenure;  People would marry to acquire land  Escheat o Remains part of the tenurial relationship in the 21st century o Escheat for failure of heirs ( propter defectum sanguinis ) occurs when an owner of a fee simple (indefinite ownership) estate dies, leaving no intestate heirs  The doctrine of tenure then requires that the estate return to the feudal superior (now the Crown) o Escheat for treason or felony ( propter delictum tenentis ) by the holder also resulted in forfeiture of the estate to the feudal superior  Warship and escheat were relevant to English political history, contributed to the start of the English civil war (1642-1651), along with the establishment of the highly unpopular Court of Wards and Liveries  Tenures Abolition Act (AKA Statute of Tenures ) o Passed in 1660 o Title is misleading; Act did not abolish tenure, just converted all existing free lay tenures into socage tenures, which at that point had no onerous incidents attached to them o Act awarded compensation for the Crown of £100,000, raised from a new tax on alcohol

o Big meeting between First Nations chiefs assembled in Niagara to discuss relationship between the Crown and the Indigenous peoples o It was agreed here that, among other things, Aboriginals’ governance, free trade, open migration, land holdings, permission and consent in treaty matters, criminal justice protections, military assistance, respect for hunting and fishing rights, and peace and friendship were to be recognized o Served as a confirmation of the Royal Proclamation ii. Tenurial Title: Current Significance and Reform  Today, all land in Canada outside Quebec is nominally held in free and common socage o But in practice, this tenurial relationship is of no importance because it is an obsolete concept o However, escheat remains  Escheat resulting from failure of heirs is no governed by statute ( Escheat Act )  Escheat for treason or felony was abolished in the Criminal Code 1892  However, was recently readopted in a new form with the adoption of statutes providing for the forfeiture of property that can be shown to be derived from the proceeds of crime or unlawful activity ( Civil Remedies Act ) iii. Tenurial Title Versus Allodial Title  Allodial systems of land exist in civil law o US states, after the American revolution, also have allodial ownership; prohibited feudal tenures  Allodial title: encourages a holder to think in terms of "absolute" rights over land differs from tenurial idea of lords letting us use it, and common law where it is your land. o Also encourages a stark division between the "public" and "private spheres, with the private seen as a zone of minimal state interference  Tenurial systems: encourages/reflects a less dichotomous view of public and private, such that state regulation is not seen as an illegitimate incursion into a zone of individual privacy (e) Seisin Chapter 3, Section 2.e. | pages 215-216 E. SEISIN  Seisin acts as a bridge between the doctrine of tenure and the doctrine of estates (to be discussed)  Used to mean possession  Tenure relied on seisin in order to establish who was in possession and thus owed duties (and feudal incidents) to the person on the next highest rung of the hierarchy  Also helped determine relative rights to possession of land and arrangements for conveyance of interests in land  Developed into a more technical concept: limited to freehold estates o Was connected to “causes of action” called “real actions,” which are now obsolete o Real actions: technical legal litigation to regain possession of freeholds of land  Land became known as “real property” o By contrast, lessees of land and owners of personal property or chattels were no longer considered to be “seised” (in possession of the land, personal property, or chattels)  Meaning, in order to regain those things once dispossessed, they would rely on “personal actions” o Division between real and personal property remains  Seisin also played a role in conveyancing o “Feoffment with livery of seisin” was the method of transferring interest in land  although a transfer of land might be termed a "private" conveyance, the state of the title was rendered public through a public ceremony  Making land transfer dependant on a type of public performance rather than a document made sense in a time were literacy rates were low o Because leases did not involve seisin, and were dealt with through “personal actions,” transfers of personal property could be done in writing

 This had a potential to be misused/taken advantage of, but was eventually regulated by statute o Most provinces have abolished Feoffment with livery of seisin  A written deed of grant is a supplementary form of conveying estates in land Ill. The Doctrine of Estates (a) The Idea of "Ownership" and "Estates" Contrasted Chapter 3, Section 3 | pages 216-216 A. THE IDEA OF "OWNERSHIP" AND "ESTATES" CONTRASTED  As the doctrine of tenure became less important, doctrine of estates became more important  Doctrine of tenure sets out the general parameters for landholding  Doctrine of estates describes the nature of the interest held o Sets the rights that landholders could have o Did not identify an “owner” of land, but rather what “estate” in land an owner held o Individuals do not own the land itself, but rather they own estates in it  Estates are a bundle of rights held for the duration which the holder is entitled to possession  This use of the word estate is distinguished from other uses of the word such as:  "estate" as a large tract of land  the "estate" of a deceased person  "estate" as a type of personal status (including in the feudal period) Discussion Notes:  i. "Freehold" Versus "Leasehold" Estates and the "PEI Land Question" o Freehold estate:  Considered superior to leasehold  Freeholders had the vote and were entitled to sit on juries  Estate can be ended by his or her own act, or by death if they have what is called a “life estate” o Leasehold estates:  Inferior to freehold  Leaseholders could not vote or sit on juries  Seen as dependant on the will of others o Tension between freehold and leasehold estates was most evident in Canada during the century- long conflict known as the “land question” on PEI  Crown divided the land into 67 leasehold lots  Many of the lots remained unsettled by the tenants  Political campaign was waged to enable occupiers to gain title  Argued land belongs to those who make it productive, amongst other arguments o The campaign was settled by the Land Purchase Act which provided expropriation of titles with compensation paid and sales to occupiers  ii. "Modern" Distinctions between Freeholds and Leaseholds o Modern distinctions between the two are minor o Lessees do not have seisin o Lessees may be more economically vulnerable than those with freehold estates  Though freeholders with high mortgages may also be vulnerable Lecture 10: November 18, 2021 (p. 218-234) Topic: The Doctrine of Estates continued (Variation on Estates)

(b) Freehold Estates: Fee Simple, Life Estate, and Fee Tail Chapter 3, Section 3.b. | pages 218-234 B. FREEHOLD ESTATES: FEE SIMPLE, LIFE ESTATE, AND FEE TAIL 1. An Overview of Estates  Overview of Estates: o Estates were and are a feature of land law and the concept is not applicable to personal property  One exception in relation to personal property is the use of a trust o Freehold estates defined as “uncertain in duration” o Inheritance is also factored into the understanding of estates  Three main types of freehold estate in land: o Fee simple : lasts as long as there are heirs; inheritable  May be comparable to allodial ownership because it may last forever as long as there are heirs o Life estate : lasts for the the holder’s lifetime; not inheritable o Fee tail : shortened type of fee simple  Can only be inherited by a particular class of relatives; only those relatives count as heirs  Example: “heirs of the body” meaning only lineal descent; niece, nephew, and siblings to not apply  Fee tail estates can no longer be created in Ontario o Grantors can also make “consecutive” estates  Example: Grants estate to A for life, and once A dies, to B and his heirs  This creates two present interests; both A and B have an interest at the same time, it is just that B’s entitlement to possession is postponed  Discussion Note: o Estates in Land: The Role of the Lawyer  Property lawyer work is largely advisory rather than adversarial  Solicitor functions rather than barrister functions  Facilitative law: involves advising client about options available re transfers of property  Must strike a balance between trying to provide for every eventuality that may occur and simplicity  Many applications in land law are brought forth by trustees or executors of the estate of a deceased person  Standard of care for trustee/executor of estate is perfection  Can be held personally liable for mistakes 2. The Fee Simple  The fee simple is the largest estate known to the law – largest with regard to both its duration (potentially indefinite) and the nature and extent of the rights granted to the holder. Each of these qualities is examined in turn.  A. Duration of the Fee Simple o Fee simple holders assume right to transfer the bundle of rights to a land in question, including the right to direct how that title will pass on in the future o Transferring land by will only became possibly in the 16th century under the Statute of Wills in 1540  Before wills, estate of someone who died would automatically pass down to kin, usually the oldest son  Land could only pass down to daughter if there are no sons  If there was more than one daughter, they would have co-tenancy as coparceners  Spouses were not considered heirs; would only be given a life interest in the estate when the estate owner passed away  Only legitimate kin could inherit (those whose parents were married)

 If no blood relatives could be found, there would be an escheat to the Crown and fee simple would end o Formula used for fee simple: “To A and his heirs”  B. Rights conferred by the Fee Simple o Roman law, despite relying on allodial ownership, came up with ownership as entitling holders to:  Usus: right to use and possess the land, including right of management and control  Fructus: right to profit from the land, whether by exploiting it directly or leasing  Abusus: right to alter the land physically, even to the point of destruction. Example: Cutting down trees, pulling down buildings, levelling hills, opening mines.  This right remains, but is restricted by other areas of law such as tort nuisance  Roman law also recognized the right of alienation whether by sale or gift upon death  Alienation right includes with it the right to create lesser estates such as life estates or leases  As well as “incorporeal hereditaments” like easements, restrictive covenants, and profits a prendre o The rights associated with the freehold estate led to its being equated with freedom and virtue in early America  This ideal circulated in Canada too o Idea of stewardship and modern moral principles can arguably subject the holder of a fee simple to a responsibility to conserve the land for future generations, rather than exploiting it solely for personal short-term gain.  C. Freehold Estates and the Law of Succession o One of the most important rights attached to estates of inheritance is the right to transmit them by will  Without a will, the estates descend according to intestate succession  Law of succession shapes social order; helps define right and poor, upper and lower class o Modern rules for intestate succession are contained in the Succession Law Reform Act  Changes in the rules over time reflect changes in family relations and gender ideology, the nature of wealth, and the role of the state  Example: the enhanced position of the spouse compared to that of the children and other relatives, which reflects improvements in the social and legal status of women  Also, the equalization of children; adopted children and the children of unmarried parents are now recognized o Discussion Notes:  i) Common Law Principles of Succession and Statutory Reform  At common law, land descended upon intestacy to the "heir" according to one set of rules (primogeniture), while all other property descended to the surviving spouse and children or next of kin  Primogeniture refers to the state of being the first-born child  As primogeniture was being phased out and slowly abolished in Canadian provinces, there was still evidence of its having been the ruling principle in succession law  Example: Nova Scotia, PEI, and New Brunswick all followed what was thought to be Mosaic law, where the eldest son was entitled to a double share of the land  Abolition of primogeniture in Ontario did not happen until 1851  Shortly after, Ontario passed legislation allowing the property of the deceased, whether real or personal, to be vested in a personal representative (executors/administrators) for payment of deceased’s debts and distribution of entitlements  These changes reflect a view of property that was more appropriate for capitalism  Change in status of married women:  preferential share: widow is entitled to a certain sum “off the top” of the intestate’s net estate

 In Ontario, this is currently set at $200,000  If the estate is valued less than this, the widow gets all of it and the other heirs get nothing  These mechanical schemes of distribution can only be changed under Part V of the Succession Law Reforms Act  provides for the support of "dependants" in circumstances where a person has not made "adequate provision" by will or on intestacy  any fee simple (or other property) owned by the intestate at death may be subject to an order made under Part V, which may override the rights of those who would otherwise be entitled  Definition of spouse has expanded in recent years to include cohabitative relationships lasting three years or more and those who are the natural or adoptive parents of a child  If the surviving cohabitee was financially dependant on the deceased, they are eligible to make a claim under part V  ii) Primogeniture and Succession to the Crown  Until recently, British and Canadian Crown descended according to the rules of primogeniture  Now, for the British Crown, gender does not give a person of their descendants precedence over any other person  D. Creation of the Fee Simple o “To A and his heirs” formula  Not to be interpreted as gifting an estate to both A and his heirs  Grants A the right to alienate his property from the heirs if he so chooses to  Also, living people don’t have heirs; only upon death does one have heirs  Use of any other phrase than “To A and his heirs” was understood under common law as a life estate only  Therefore, the presumption of any grant of creating a freehold interest was for life estate only; life estate was default  In North America, this presumption was reversed for both grants and wills o Ontario provisions about conveyance: Conveyancing and Law of Property Act RSO 1990, c C.34 5(1) In a conveyance, it is not necessary, in the limitation of an estate in fee simple, to use the word "heirs." (2) For the purpose of such limitation, it is sufficient in a conveyance to use the words "in fee simple" or any other words sufficiently indicating the limitation intended. (3) Where no words of limitation are used, the conveyance passes all the estate, right, title, interest, claim and demand that the conveying parties have in, to or on the property conveyed, or expressed or intended so to be, or that they have power to convey in, to, or on the same. (4) Subsection (3) applies only if and as far as a contrary intention does not appear from the conveyance, and has effect subject to the terms of the conveyance and to the provisions therein contained. (5) This section applies only to conveyances made after the 1st day of July, 1886. Succession Law Reform Act RSO 1990, c S.26 26. Except where a contrary intention appears by the will. where real property is devised to a person without words of limitation, the devise passes the fee simple or the whole of any other estate or interest that the testator had power to dispose of by will in the real property. Note that "conveyance" ordinarily refers to an inter vivos transfer, and thus does not include a will.

The New Brunswick Property Act, RSNB 1973, c P-19 adopts the first two subsections of s 5 of the Conveyancing and Law of Property Act (CLPA), but not the rest. Thus, if neither "and his heirs" nor "in fee simple" is used, the common law presumption of a life estate is still intact and will prevail unless the granter can be shown affirmatively to have intended to pass the fee simple: Thomas v Murphy (1990). 107 NBR (2d) 165 (OB). What is the effect of using “and his heirs" in a province where it is not legally necessary? See Re Ottewell (1969), 7 DLR (3d) 358 (Alta SC (AD)), aff'd Tottrup v Patterson, (19701 SCR 318.  Note: conveyance ordinarily refers to an inter vivos (while alive) transfer o So it does not include a will  Basically, provisions say that fee simple is the default arrangement where no limitation words are used that would indicate another arrangement o But subsection (4) of the Conveyancing and Law of Property Act is a provision which says, if there is proof that the party intended the arrangement to be otherwise, it may be ruled to have been otherwise  New Brunswick still defaults as life estate rather than fee simple 3. The Life Estate  A. The Nature of the Life Estate o It is a limited interest where the grantor has either retained a “reversion” in fee simple (grantor gets the land back as fee simple once grantee dies) or the grantor transfers the reversion to a third party  Formulas:  “O grants A for life”  Grantor has fee simple reversion  “O grants to A for life, remainder to B in fee simple”  Grantor transfers fee simple reversion to B after O’s death  B is referred to as a “remainderperson” here o Life estate is an income interest and a remainder or reversion is a capital interest  Example: small apartment building is transferred to A for life, remainder to B in fee simple  A had right to possession, management, and net rents of the building each year for as long as she lives  B is entitled to no income while A is alive, but his remainder interest is the capital value of the property  Life estate can be seen as a revenue stream to the extent that the property in question produces income  Because of this, it has been historically used to maintain dependants  Life estates are often created in conjunction with a trust, where the power to manage/control the property is given to a trustee, who in turn will pay the net revenues to the holder of the life estate  Life estates can also be created in property that is to be enjoyed in kind (ex: family home)  Make family home conveyed to spouse for life, remainder interest to the children thereafter  B. Rights Conferred by the Life Estate o Holder of a life estate has the right to possess ( usus ) and enjoy its current income ( fructus ), but not the right to alter the land in a significant way ( abusus )  This is because, it life estate holder A were to significantly alter the land, it could seriously compromise B’s interest  In order to regulate conflicts between life tenants and remainderpersons, the law of waste is used:

 Common law “designed to protect those whose interests follow the life tenant and specifically the reversioner or holder of the remainder, from acts of the life tenant which tend to injure or despoil the land”  Life tenant cannot damage the capital value of the land  Four types of waste:  Voluntary: acts that damage capital value of the property in a non- trivial way  this kind is prohibited  Permissive: life tenant fails to maintain the property  Life tenant is not liable for this unless such an obligation was imposed upon them at the creation of the estate  Ameliorating: that which alters the property for the better  Unlikely that remainderperson could prove this type of waste caused sufficient harm to their interest  Equitable waste: occurs where the grantor permitted to create a life estate which would allow the life tenant to make waste as they see fit, thus depriving the remainderperson of the normal protections of the law of waste  Does not permit wanton, malicious, or conscientious destruction o Life tenant is responsible for expenses of a current and ongoing nature (taxes, mortgage interest, etc.) o Waste as a tort is not often required today because most successive interests in land are held in trust  Trustee has power to ensure property is maintained for the benefit of all parties o Life tenant can alienate by sale or gift, but cannot pass property down in will o Life tenant can lease; lease expires by operation of law when the life tenant dies o Life tenant may mortgage the interest o Discussion Notes:  i) Sharing expenses between life tenant and remainderperson  Estate of Peter P Ryan v Elizabeth Boulos-Ryan , 2007  Facts :  Deceased entered into marriage contract; promised his wife Elizabth would have right to use an occupy a property during her lifetime without charge  Trustees were to pay for any major expenses of the house while she occupies it  Both spouses had children from other marriages and independent assets  Elizabeth argued that the trustees should pay all expenses related to house including snow removal, lawn care, utilities, etc.  Trial judge: Without charge did not mean that Elizabeth could remain in the house without paying anything at all; only applies to rent  Thus, the default rules for sharing expenses between life tenant and remainderperson apply  Elizabeth is responsible for all periodic and current expenses; Mr. Ryan’s estate would be responsible for any expenses of a capital nature  MacDonald Estate (Re) , 2008  Facts : testator left life estate to family home to his widow  She vacated the property and it fell into disrepair, claiming poverty  The stepson, who was executor of the estate, argued that her acts terminated her life interest  He wanted to sell the property

 Held : Widow had no duty to repair the property or personally live in it  It was mere permissive waste  ii) Settled Estates  Problems re the unpredictability of the duration of life estates were settled in England with estates legislation  Legislation aimed to permit leasing, sale, or mortgaging of land to bind the fee simple  Even the life tenant was permitted to do these  Canadian legislation is more restrained  Unilateral powers to the life tenant are few other than the power to lease for 21 years  Such a lease binds the remainderperson even after life tenant dies  Court must approve of longer leases, selling, and mortgaging  All interested parties must consent unless court reasons otherwise  This regime is rather cumbersome though, so it is rarely used because most settlements are created in trust, and the trustee has the power to lease, sell, etc.  iii) Life Estates Pur Autre Vie  When a life estate is alienated, it creates a life estate pur autre vie (for the life of another)  If A grants life estate to B, B has the interest until A dies  If A survives B, A does not get the property back because A already alienated their rights to it  Modern law assumes that the right to the life estate during this period can be passed on by will or is included in the assets of a person dying intestate  C. Creation of the Life Estate o Sometimes the granting of property can be ambiguous and thus the court must try to determine the intent of the grantor  Re Walker (1925)  Testator appeared to be granting all real and personal property to his widow, the testator had granted the property “undisposed of” by the widow at her death to others  Held at appeal court: testator granted all real and personal property to his widow subject to only the specified exceptions  Thus, the final clause was not valid  The final clause stated that any of the remaining estate in the hands of his wife at the time of her death would be divided amongst others  Having given all the real and personal property to his wife, there was nothing remaining for the “gift over”  So, it seemed like he was trying to give her life estate, but the court felt his intention was that of granting her fee simple because he wanted her to have all the rights included with fee simple RE TAYLOR (1982), 12 ETR 177 (Sask Surr Ct) FACTS Executors of the estate of Kathleen Taylor seeking to understand what her husband, John Taylor, meant when he bequeathed all his real and personal estate to Kathleen to have and use during her lifetime - Included the power to encroach on capital that it was an absolute gift - Any estate possessed at the time of her death would be divided amongst the daughters

ISSUE Was it absolute interest or life interest? If it is absolute, her estate will be divided according to her will, not John’s CONCLUSIO N It was the grant of a life estate - Court rejected the argument that because the language of John’s will included the power to encroach on capital that it was an absolute gift o Court reasoned this because the same result can be achieved by either an absolute gift of the estate of by a gift of life interest with a power to encroach on capital, so it really could be either here - Words of limitation “during her lifetime” suggest the gift of a life interest, not fee simple Notes o Discussion Notes:  i) Creating Life Estates: The Importance of Discerning Intention  Do you think that the testators in Re Walker and Re Taylor had different intentions?  ii) Life Estate Versus Licence  Sometimes it is hard to distinguish between the two; testator may have intended one but it looks like the other o Re Waters (1978)  Facts :  Mr Walter gave estate to Mrs. Jones as long as she lives, or until she remarries, or gives his executors/trustees written notice that she no longer needs the estate  Residuary beneficiaries argued this was a license, and thus Mrs. Jones could not rent out the estate while she does not occupy it  Held : It was life estate  If the testator intended to introduce another provisos or exception such as personal occupation, he would have expressed it o Re Powell (1988)  Similar will to Walters was determined to be a license, not a life estate  Held : it was a license because the words of the will merely granted the daughter the “right to occupation, possession, and use of my house…”  Relied on the SCC decision in Moore et al v. Royal Trust et al (1956) 4. The Fee Tail  Formula is “to A and the heirs of his body” o Meaning, to A and only his lineal descendants o So A had a fee simple, meaning he can pass the estate down in will, but only to his children  Use of the fee tail made sense in a lineage-oriented society like England o It helped make estates effectively inalienable, keeping them in the family o Could be further refined to only include male heirs  This refinement could not be done to fee simples  Ensured that daughters would never inherit  Fee tail was never so popular in North America o Mostly abolished, but can in theory be created in PEI o Abolishment in other provinces were not retrospective; existing fee tails were not abolished and some still remain even in Ontario Lecture 11: November 25, 2021 Topic: The Doctrine of Estates continued (Limitations on Private Power over Land) Ill. The Doctrine of Estates

(c) Variations on Estates Chapter 1, Section 3.c. | pages 233-243 C. VARIATIONS ON ESTATES 1. Absolute Estates and Conditions  An absolute estate is one that has no conditions of any kind attached to it.  An important feature of estates, however is the ability to add conditions to them.  Conditions allow the creator of an estate to control how an estate will be used in the future  Grantors can add conditions to an estate to control how the estate will be used in the future and to provide for events that could happen in the future but are not known at the time of creation of the estate  Generally speaking, there are 2 kinds of conditions that can be added to an estate: o (1) Conditions of Forfeiture are those that specify that if a certain event happens, the grantee will lose the estate which he/she received by grant inter vivos or by will.  Grantee = party to whom the estate was granted  Grant inter vivos = gift during the grantor’s life o (2) Conditions of Eligibility, known as conditions precedent, are those that specify that a certain event must happen before the grantee becomes entitled to receive an estate.   Grantors can add these conditions to any estate   An essential requirement of any condition is that it must refer to an event or state of affairs that MAY or MAY NOT happen. If an event is certain, it cannot be the subject of a condition.  Example of event that is certain: Death o To A and upon his death to B  This is not a condition because A’s eventual death is certain.   This estate would be construed as a life estate to A with a remainder to B  A’s death simply marks the end of A’s life estate  A’s death does not amount to a condition of forfeiture  This correct interpretation also rebuts the presumption of a fee simple for A that would otherwise flow from the Conveyancing and Law of Property Act subsection 5(4) because the wording used shows a contrary intention to fee simple within the meaning of subsection 5(4).  Example: o “to A in fee simple is they survives B.” OR “To Anne in fee simple if she survives Betty”  Is this estate subject to a condition?  Gives Anne fee simple subject to a condition precedent  Anne’s death is a certainty but whether she will survive Betty is not a certainty. Therefore, this event can properly be the subject of a condition 2. Conditions of Forfeiture  Conditions of forfeiture can be created in 2 ways o 1. An estate defeasible on condition subsequent o 2. A determinable estate  A. An estate defeasible on condition subsequent o Trick: defeasible is similar to defeat o A condition subsequent is something that happens after the estate has been granted o “O grants Greenacre to C in fee simple, but if C ceases to farm the land, O may re-enter” o Does C have an absolute interest in fee simple?  C does not have absolute estate here  Why does C not have absolute estate? How can her fee simple end? o Because there is a condition which is to farm the land, if she stops farming the land, her fee simple can end. o Merely gives the grantor a right of re-entry to determine the estate

 § UNLESS and UNTIL the entry is made a fee simple continues (doesn’t end right away - opens up the opportunity that O may re-enter). o C is said to have a fee simple defeasible on condition subsequent.  Does O retain an interest, and if so, what?  Right of re-entry o A right of re-entry is not automatic. Therefore, if C stops farming, it is not automatic that C’s estate is terminated. O has to exercise that right of re-entry either by telling C that he regards her estate to be over with or if C doesn’t leave, O can start a lawsuit.  B. Determinable estate o “O grants Greenacre to C in fee simple until C ceases to farm the land” (as soon as C stops farming the land)  C takes a modified fee simple and the grantor retains an interest called a possibility of reverter  How is the possibility of reverter different from reentry? o The operation of the possibility of reverter is automatic unlike the right of reentry. So if C stops farming, C’s estate ends immediately. And the fee simple reverts back automatically to the grantor (or if the grantor is no longer alive, to the grantor’s estate) o The clause, “until she ceases to farm the land” is not a condition, the determinable limitation defines the estate itself o It is NOT subject to a condition o Automatically determines when the specified event occurs and the land revert to the grantor  C. Defeasible and Determinable Estates Contrasted o Different legal consequences flow from each o Right of re-entry vs possibility of reverter o One of the big differences between defeasible and determinable estates is the Impact of invalid condition/limitation on the estate depends on whether it is a defeasible or determinable estate  A defeasible limitation has an added condition and the condition itself can be struck out as void which would leave C, the grantee, a fee simple absolute. So if a court decided that a condition in a defeasible estate is void then it can leave C with this fee simple absolute. No right of re-entry.  In contrast, a limitation in a determinable estate is seen as an intrinsic definition of the estate. Therefore, the entire estate can be struck down if the limitation is void. (So C gets nothing) o The language MAY be indicative of what kind of limitation is being used  Defeasible estates use words of condition:  On condition that, but if, provided that  Determinable estates use words of duration:  So long as, until, during, and while o Closely related in functional terms but understood different interests in land o A significant difference between defeasible and determinable estates is the impact of an invalid condition or limitation.  Because a defeasible limitation is characterized in terms of an "added condition," the condition on its own may be struck out as void, leaving C with a fee simple absolute.  By contrast because the limitation in a determinable estate is regarded as an intrinsic definition of the estate, the entire estate will be struck down if the limitation is void. o Example of the Difference  Devise to a school in fee simple "until it ceases to publish its accounts" creates a determinable fee, whereas a devise to the school in fee simple "on condition that the accounts are published annually'' creates a fee simple defeasible by condition subsequent 3. Estates Subject to Conditions Precedent: Conditions of Eligibility  “O grants to B in fee simple upon being called to the bar.” o Being called to the bar is a condition precedent

o Becoming a lawyer is a condition precedent to B’s entitlement to his estate  B’s interest often called ‘contingent’ interest because B has possibility of acquiring estate ONLY if called to the bar o Condition precedent also known as contingent interest  If B dies before being called to the bar, there is nothing to go to B’s estate  Conditions precedent are associated with “future interests” rather than present interests.  For the purposes of interpretation, it may often be difficult in a given instrument to distinguish a condition precedent from a condition subsequent. Re Down (1968), 68DLR (Ont ca)  It can be difficult to determine whether a limitation is a condition precedent or a condition subsequent.  Re Down 1968 Ont. C.A. o “When my son, Harold… arrives at the age of thirty years, providing he stays on the farm… then all the testators property was to go to Harold and his brother Stanley in equal shares” = condition subsequent; void for uncertainty. o The court noted that the clause about staying on the farm could be interpreted as either a condition precedent or a condition subsequent  if interpreted as a condition precedent then when Harold reaches 30 years old and residing on the farm he and his brother are entitled to share their father's property absolutely  if it's interpreted as a condition subsequent, then on those same events happening, so Harold reaches 30 and still lives on the farm, Harold and his brother would immediately be entitled to the father's property but if Harold stops living on the farm, he and possibly his brother, would lose the property  what did the court rule?  the court ruled that this was a condition subsequent but that the condition was void for uncertainty o When we talked about it states defeasible on condition subsequent, if the condition is void the whole thing doesn't fail but the condition itself fails. o So what was the outcome for Harold and his brother? What were they entitled to because the condition failed?  Fee simple absolute because this is not a determinable estate. The court ruled that it's an estate defeasible on condition subsequent  the court said this is a defeasible limitation so a condition subsequent is basically another word for defeasible limitation  if the court rules that the condition is void it can leave the grantee with a fee simple absolute and that's what happened here.  However, hypothetically, if the court determined that this estate was a determinable estate, where the condition was intrinsic to the definition of the estate, and they found that the limitation was void, the entire estate could be struck down and Harold and his brother would have gotten nothing o 2 types of conditions (arrives at the age of thirty years is a condition of eligibility – aka Harold gets nothing until he’s 30) o “providing he stays on the farm” is condition subsequent, court focused on these words o There were 2 brothers and the other brother wanted the farm for himself, and Harold was not on the farm, so the other brother was arguing that when he turned 30 he would have to stay on the farm and if not his interest would be terminated o Court focused on the word “stays” and said they don’t know what that means so it was void for uncertainty, now Harold’s gift is a half interest in the farm, he doesn’t have to stay on the farm because that condition is void and he is free of it o When courts aren’t sure they apply the Conceptual Uncertainty Test o Condition subsequent is construed strictly. o Court must see precisely and distinctly what event will trigger the right of entry or the forfeiture of the estate (the potential termination of the estate) o Very strict test

4. Alienability  All of these interests are now alienable or transferrable in present day: determinable and defeasible estates, contingent interests, rights of re-entry, and possibilities of reverter. The latter three were not alienable at common law, but have been made alienable by statute: CLPA, s 10.  Although these interests are alienable in theory, in practice there may be few purchasers for these types of interests  The rule nemo dat quad non habet ensures that grantees of determinable or defeasible estates can convey only the interests that they hold. o In practice, an estate that could potentially be lost through an event that is beyond the control of the purchaser, no ones going to buy that, that's not likely to be purchased o Having an estate that is effectively subject to forfeiture through an event beyond the control of a purchaser is likely to render it inalienable in practice.  The legislation is probably most useful in cases where a third party wishes to purchase. o For example, the interests of both the holder of a fee simple defeasible on condition subsequent and the holder of the right of re-entry, in order to obtain a full fee simple absolute. 5. Distinguishing Between Defeasible and Determinable Estates  Because of the differences between defeasible and determinable estates, legal drafting requires great care to ensure that conditions that a testator or vendor wishes to impose will be implemented successfully. Re Tilbury West Public School Board and Hastie [1996] 2 OR 20 (H Ct J) FACTS  Mr. Hastie, on May 3 rd 1890, created a deed by grant when he was alive and he conveyed lands to the United School Sections  In the deed/grant, he says okay trustees, you can have this property for so long as it shall be used and needed for school purposes and no longer  The province expropriated the property in 64, so the land was no longer being used for school purposes, when it was expropriated the land was valued at $1500  It is important to classify this as a determinable limitation because if it was condition subsequent, the Right of Re-Entry would have been extinguished, and because of that the school board would get the money  This is Mr. Hastie’s heirs vs the school board getting $1500 Department of Highways expropriated for highway purposes certain lands that were used for the school A deed By Hastie, conveyed parties as trustees of the Township of Roschester a piece of land containing 85 perches “DOTH GRANT unto the said parties of the Third Part and their [heirs and assigns FOR EVER]: Successors as Trustees for so long as it shall be used and needed for school purposes and no longer.” From date of grant until 1961 lands were used for school purposes, in fall of 1961 school ceased to be used for teaching, and was made into a storage for furniture In 1964, Department of Highways for Ontario expropriated the whole property for highway purposes Compensation was agreed at 1500 by all parties ISSUE Question of the nature of the interest created under Mr Hastie's will, that is, whether the grant was a defeasible fee simple or a determinable fee simple.

IS Mr. Hasties son entitled to the expropriation funds or the school board? RATIO/RULE The words in deed directing the return of the lands are NOT consistent with the intention that the lands are to revert to someone as opposed to an intention that the owner of the land is to have the right of re-entr ANALYSIS  In a devise to a school in fee simple, until it ceases to publish its accounts, that is a determinable fee simple o They decide this on the basis of the word until, the magic word for determinable estate  They contrast this with “on condition that the accounts are published annually” creates a fee simple defeasible on condition subsequent o Here the magic words are “on condition that” – condition subsequent magic word IF grant was defeasible fee simple, the School Board would get expropriation funds IF grant was determinable, Mr. Hasties son would be entitled to expropriation funds. Words such as "while," "during," "as long as," "until" and so on are apt for the creation of a determinable fee, whereas words which form a separate clause of defeasance, such as "provided that," "on condition that," "but if," or "if it happen that," operate as a condition subsequent. The words, “so long as it shall be used and needed for school purposes and no longer,” lead court to determine that those are words denoting a determinable fee. CONCLUSIO N Fee simple determinable was created. Mr. Hasties son is entitled to expropriation funds. Held for the respondents Notes Re McColgan [1969] 2 OR 152, 4 DLR (3d) 572 (H Ct J) FACTS A man willed his property to a girlfriend until she was "not residing therein personally." After, another woman was to gain the estate. The first woman had to leave for four months to briefly return home following the death. Since the clause was to ambiguous, it was inapplicable, and the first woman received a life estate clear of any condition. A man willed his property to partner “until her death or until she is not residing therein personally, whichever shall first occur” Partner, Kovalchick, resided with McColgan at the time of his death and some time before that She remained in his home after this death but then returned to Pennsylvania to receive medical care. She wrote to solicitors letting them know she would be gone but does not surrender right to make the property her home

She returned later (not a long period of time), and remained in the home ISSUE 1. What estate or interest. if any, in 39 Arjay Crescent (hereinafter called the premises) passed to the said Mary Kovalchick under the provisions of the Will? Life Estate. 2. Has the estate or interest in the premises, if any, which passed to the said Mary Kovalchick then terminated by reason of the facts adduced in evidence in support of this application. specifically her absence from the premises? (was the estate terminated by her absence) NO. RATIO/RULE Conditions in a will can be void for uncertainty in some cases of a life estate. The words, “or until she is not residing therein personally, whichever shall first occur” are seen by the court as a subject to a condition. BUT, is this condition valid, OR void for uncertainty? Court found that the condition was void for uncertainty. “A condition subsequent which is void under the rules stated below or which becomes impossible of fulfilment by operation of law, is disregarded, and the gift takes effect as if the condition had not been imposed.” -The life estate was therefore seen without any conditions, the purported condition being void for uncertainty ANALYSIS Court looked at the words of the will to determine the interests that were passed down to Kovalchick In terms of question 1, court found that language, the will gives more than a mere license to K, and the wording created a life interest. NOW, they turned to look to see if estate was determinable or subject to a condition CONCLUSIO N Ms. K was entitled to rent out property and keep the rentals. Had a life interest in the property. Notes o Discussion Notes:  i) Characterizing Defeasible and Determinable Estates  Identify the judicial reasoning that supported the outcomes in Tilbury West Public School Board v Hastie and Re McColgan . To what extent did the court in Tilbury West rely on the theoretical distinctions between defeasible and determinable estates? o Or did the court place more significance on the use of "determinable" language?  Compare the language used in Re McColgan, especially in relation to the words "until she is no longer residing there personally": do these words import a defeasible or determinable life estate?  ii) Reform of the Law of Defeasible and Determinable Interests  The distinction between defeasible and determinable estates has often been criticized as con- fusing. overly refined, and unnecessary.  OLRC recommended in 1996 that "the continuing distinctions between a determinable interest and an interest subject to a condition subsequent should be abrogated ... by providing that language that at common law would create a

determinable interest will instead create an interest subject to a condition subsequent

NEXT SEMESTER WINTER 2022 Ill. The Doctrine of Estates (d) Limitations on "Private• Powers over Land: The Role of "Public" Interests Chapter 1, Section 4.a. | pages 244-252 D. LIMITATIONS ON "PRIVATE• POWERS OVER LAND: THE ROLE OF "PUBLIC" INTERESTS 1. Traditional Principles Limiting Private Powers over Land  A. Restraints on Alienation Blackburn v Mccallum (1903), 33 SCR 65 FACTS Chisholm died and left land to his two sons on the condition that they were not allowed to sell or transfer it for 25 years. Further, he states that they are not allowed to create a mortgage on the land, and that no other ordinary debts will allow creditors to seize the land. One of the sons mortgages his interest in the land, and defaults on his payments. The creditor seizes the property and sells it in an auction. Does this new purchaser take good title, or were the conditions in the will valid? ISSUE 1. Can conditions be placed on an absolute transfer of land? RATIO/RULE  One cannot place "substantial" restraints on an absolute transfer of property (alienation) that are contrary to the absolute character of the interest; partial restrictions are permissible.  Prohibition against incurring debt on the land is void for public policy; all of one's property is always liable for any debt incurred.  There are four things to look at to determine if a restraint is "substantial":  mode (types of transfer that have been limited);

 class of recipients;  time period; and  price. ANALYSIS Davies, writing for the majority, states that the general rule is that no substantial restraints can be annexed to an absolute gift of property (alienation) that are inconsistent with its absolute character, or "repugnant". Placing a time-restriction on when the absolute rights come into effect is not an exception to this rule. Therefore this condition is void and the sons are allowed to sell the land if they wish as they have the absolute title in it. CONCLUSIO N Appeal allowed, limiting conditions void. Notes o Discussion Notes:  i) Restraints on Alienation and the Numerus Clausus  ii) Substantial Versus Partial Restraints  B. (Un)Certainty Sifton v. Sifton (1938) AC 656 (JCPC) FACTS ISSUE RATIO/RULE ANALYSIS CONCLUSIO N Notes o Discussion Notes:  i) Uncertainty: The Effect of Invalidity  ii) Uncertainty and Conditions Precedent 2. Public Policy and Human Rights Discrimination Re Canada Trust Co and Ontario Human Rights Commission (1990), 69 DLR (4 th ) 321 (Ont CA) FACTS ISSUE RATIO/RULE ANALYSIS CONCLUSIO N Notes o Discussion Notes:  i) "Public Policy· and Human Rights Policies  ii) Royal Trust Corp v UWO  iii) Religious Freedom, Scholarships, and Public Policy  iv) Public Policy and the Public-Private Distinction  v) Public Policy and Traditional Restraints on Marriage

3. Balancing "Public Policy· and Testamentary Freedom:  Spence v BMO Trust o Discussion Notes:  i) Testamentary Freedom, Public Policy, and Discriminatory "Motives”  ii) Wills and the Legal Process of Probate: "Public" or "Private"?  iii) McCorkill v McCorkill Estate  iv) The Evolution of "Public Policy· Claims? Re McColgan [1969] 2 OR 152, 4 DLR (3d) 572 (H Ct J) FACTS ISSUE RATIO/RULE ANALYSIS CONCLUSIO N Notes

LECTURE 9 SLIDE NOTES Slide 1 Pages 201-217 of textbook The indigenous governed by their own laws and legal processes A central characteristic of the Indigenous peoples’ relationship with the land was the interdependence of human beings with the land, with nature. Indigenous peoples were generally willing to share the land with the new arrivals. Both France and England were active in establishing trade relationships in settlements in the 17th century, with support from various indigenous nations. By the mid 1700s France and England, along with some of their indigenous allies were involved in an ongoing war in North America, which ended with English supremacy and the Treaty of Paris in 1763. King George, the 3 rd also established guidelines for the settlement of Indigenous lands in the Royal Proclamation of 1763. In the decades that followed, England also recognized the continuation of French civil law with regard to land in the province of Quebec. SLIDE 2 Why is this history important? One of the reasons why it's important is because that there were three sets of laws regarding land law in Canada when the Europeans arrived. 1) first there were indigenous laws 2) Then came the common laws 3) Then there were civil law concepts introduced by settlers from France. Another reason why the history is significant is because of the divergences between indigenous views of the land and those of the settlers, including the crown regarding the impact of the Treaty on Paris with regard to land title and sovereignty. There were also other important treaties that were signed in the 1800s and the 1900s between the Crown and indigenous communities Issues about Indigenous land title represent a very important concern for property law in Canada. Particularly, noting the United Nations Declaration on the Rights of Indigenous Peoples as well as the recommendations of the more recent Truth and Reconciliation Commission of Canada. Civil Law: The civil law in Quebec provides a system of property law that is based on some simple concepts and your textbook notes that the Civil Code of Quebec reflects major reforms of the Napoleonic code of 1804  For example, your book notes that Article 947 of the Civil Code of Quebec defines ownership as: Ownership is the right to use, enjoy and dispose of property fully and freely, subject to the limits and conditions for doing so determined by law, ownership may be in various modes and dismemberments. By contrast, the common law of real property indeed recognizes the concept of ownership in practice, but its foundation in theory is very different from that of civil law.

SLIDE 3: Land law in Canada has very deep roots in English, social, economic, and political history. It was after the Norman conquest of England in 1066, by William the Conqueror, and then King William was regarded as the owner of all of the land in England. Therefore, private landholders held something called rights of the Crown. This arrangement was called feudalism and it reflected a system called tenure. Tenure : based on the Latin word tenure which means to hold. The Royal Courts that were created by King William and his royal successors dealt a lot with issues of protection and possession of land as well as the assertion of rights in land. It was these courts that were the courts that eventually created the common law by issuing decisions as disputes arose. Therefore, very early on, the common law developed a complicated and sophisticated structure of tenurial rights to make sure that all three orders, of what was called medieval society, could participate in the benefits of having land as a resource. SLIDE 4: The three orders of medieval society were the following: 1. Nobility 2. Clergy 3. Other (workers, but women generally excluded) - basically everyone else who were essentially workers This tenurial system was part of feudalism which developed in England after 1066, the Norman Conquest. However, the system was also later adapted to other needs of British society- including commercial needs, Imperial needs, and industrial needs. This tenurial system still has some relevance to the common law principles of land law today. Island of Sark, in the Channel Islands, which are off the northwest coast of France. - This island abandoned its feudal system as recently as 2008, when Queen Elizabeth II gave Royal assent to a change in their constitution. - It's noted that two wealthy businessmen who owned a castle on the island of Sark were very unhappy about having to pay dues to the Lord of Sark. SLIDE 5 - Tenure as a landholding relationship. o So essentially the doctrine of tenure means that individuals or corporations held interest in land of the crown and there was no outright ownership under the common law. o An article in your textbook at page 203 by Kevin Gray and Susan Francis Gray  provides a brief explanation of the feudal concept of tenure and the statutory reform in 1290 that replaced the feudal ladder with a system to create the free alienation of land.  Alienation means transfer.  Most of the historical aspects of tenure have disappeared, but the concept of Escheat remains SLIDE 6

- Escheat: The reversion of lands in English feudal law to the Lord of the fee when there are no heirs capable of inheriting under the original grant. o Basically, if someone died without any heirs, the land would revert back to the Lord of that particular land. o So in the article, it's explained that under this tenure system, all land in England was held in this pyramidal relationship of reciprocal obligation either immediately of a Lord, so under a Lord, or under the crown.  The exception to this was alienated crown land.  Land that had been essentially properly sold by the Crown, so the Crown would not have title over that. SLIDE 7 - This relationship of tenure was really about the relationship between the tenant and the Lord, with both parties having an interest in the land. - *Imagine a large estate in England, and the estate is held by a Lord. The Lord holds that land and doesn't outright own it. The King held the land and the Lor is under the king in this pyramid. The Lord is the Lord of the Manor or the estate. (almost like a little town or a village with farmland and a little village with a pub and a little store, and so on). All of the farmers and the shopkeeper would basically be referred to as tenants and they could derive income from running their businesses whether it was a farm, or a shop, a shopkeeper, or a pub, and they would pay their rent to the Lord. In turn, the Lord would pay money to the king. - When we read about the origins of tenure we returned to the Norman conquest of 1066, and the fact that the Normans did not bring a written law of land with them, but rather they initiated what was effectively this system of landholding in return for performance of services to a feudal superior. o Feudal Superior example would be a Lord. - Essentially, this system upheld this theory that all lands were ultimately held by the king and could be granted to subjects of the Crown only if they continued to fulfill certain conditions. - Therefore each landholder or tenant held his land in return for services to be performed for the king himself or to some intermediate Baron or Lord within this complex structure of Lordship, which had the king at the top of the pyramid. - When we're talking about the classification of tenures, we're not just talking about the complex system of services and duties that were owed within these feudal relationships but we're also referring to what's called valuable incidents or privileges which attached to tenure. - The services that were provided by tenants were very important and a very central part of early land law in England. Eventually, as time went on, they became standardized and identifiable by the type of service performed. - The different methods of landholding which were differentiated according to the type of service required were known as tenures, each one indicating the exact terms on which the land was held. SLIDE 8 - The tenures themselves were subdivided into those which were free, which formed part of this strict feudal framework and those which were unfree, and these were referred to as tenants of low status. - Free tenures -Some of the services provided by those tenants who enjoyed free tenures included providing armed horsemen for battle, and this would have been called the tenure of night's service or performance of a personal service such as this very fancy bearing of high office at the King's Court, and this was called the tenure of Grand Sergeant - These tenures were also known as tenures in chivalry and were different from the spiritual tenures of franklamoign and divine service, by which spiritual land was held in return for performing a sacred office. - Then there were the tenures in socage o These tenures involved the tenant providing agricultural services for his Lord or to his Lord, so farming, essentially. Over the course of time, military and socage tenures were commuted for money payments, but all tenures carried with them incidents, which is another word for privileges enjoyed by the Lord, which were often more valuable than the services themselves.

Slide 9 - Subdivision of a feudal estate by a vassal (holder of land by tenure) who in turn became a feudal lord over his tenants o *Imagine the estate/village- Subinfeudation would occur when one of those tenants in turn becomes a feudal Lord over his tenants. It's like a contractor, having subcontractors. Then the subcontractor hires their own subcontractor. - One of the disadvantages of this subinfeudation is that it made the feudal ladder long and complex SLIDE 10 - Statute of Quia Emportes was a statute passed by the Parliament of England in 1290, during the reign of King Edward the 1 st , which prevented tenants from alienating land through subinfeudation - Rather, required land to be alienated by substitution only o By the end of the 1200s, a new concept of land as freely transferable was starting to replace this restrictive Feudal system and this culminated in the enactment of the statute in 1290, Quia Emportes. - After this law was passed, only the Crown could grant new tenures o A tenant couldn't do it, and a Lord underneath the Crown couldn't do it either. o Therefore, every conveyance of land going forward had the effect of substituting the grantee, the party to whom the land was transferred, in the tenurial position formerly occupied by his Grantor. Therefore, no new relationship of Lord and Tenant was created by this transfer. o The statute still regulates fee simple transfers of land today. SLIDE 11 - Fee simple : “a permanent and absolute tenure in land with freedom to dispose of it at will, especially in full fee simple absolute in possession of freehold tenure which is the main type of land ownership o Fee simple is a term that is still used in real estate transaction documentation today. o Every transfer of land is simply a process of substituting the transferee into the shoes of the transferor. So, substituting the buyer into the shoes of the seller. o So, the operation of the Statute for the last 700 years has created a gradual leveling of this feudal pyramid. So that all tenants in fee simple today are presumed to hold the land directly.  So, I don't own my home or my property in the right of the crown. I own it absolutely and freely and can deal with it as I wish. SLIDE 12 - The history of the tenure system in England was tumultuous - Major land owners were always looking for a way to avoid these incidents (taxes) that were attached to tenures that they held which was which was their interest in the land. o The members of nobility who held land directly under the monarch were subject to the most onerous incidents. So, the king would have benefited from those incidents, but to the person having to pay those incidents it was a burden. But it was also a very important part of state revenue, so it was really an early form of the modern taxation system. - Monarchs tried to find ways to prevent loopholes in conveyancing that were used to avoid payments of these incidents of tenure or performance of these incidents of tenure (because it wasn't always just money). SLIDE 13 - Historically, the most important of all of the tenurial incidents were those which related to wardship and marriage and also Escheat. SLIDE 14

- Wardship allowed the monarch to hold the lands of a tenant who died, who had no heirs over the age of 21 - In cases such as these, the monarch was entitled to the revenues that were produced by that land until the heir or more than one air came of age (turned 21). SLIDE 15 - A related incident was the right of the monarch to arrange the marriage of the minor heir of a deceased tenant to a person of the monarch’s choice - This was during a time historically when marriage amongst nobility was very important politically and economically. - This was an incident or a right that could also be bought and sold itself, but these incidents no longer exist, the wardship and the marriage incidents. SLIDE 16 - Escheat- this concept still forms part of the territorial land system today. - Escheat for failure of heirs happens when the holder of a fee simple estate died without a will and there were no blood relatives and the technical term for that is “no intestate heirs” o When this happens, the doctrine of tenure requires that the estate return to the feudal superior who is now the crown. SLIDE 17 - There is another significant statute called the Tenures Abolition Act, also referred to as “the statute of tenures” - This law was passed in 1660, but the Statute because the statute did not abolish tenure but instead converted all existing freele tenures into socage tenures, which by 1660 had no onerous incidence attached to them - This act compensated the crown with an annual payment of 100,000 British pounds, which was to be raised by a new tax on alcohol. - The Act also got rid of the Court of wards and libraries, so it simplified this tenurial system and essentially converted all tenures into these agricultural tenures which didn't have these onerous and difficult and expensive incidents attached to them. SLIDE 18 - Your text then moves on to a discussion of tenure in Canada and explains that before the enactment of the Tenures Abolition Act in 1660, there were some early grants of feudal tenures in Newfoundland, which ultimately led to the ruling of part of Newfoundland in a quasi-feudal way until the 1700s - Then the Tenures Abolition Act Abolition Act was passed and all Crown grants in Canada were made, which was then called British North America, were made in free and common socage o Socage was an agricultural form of tenure - This type of Tenure and this was easily marketable because it was popular with people who were contemplating leaving England or France and settling in British North America. - The Constitution Act of 1791 divided the old province of Quebec into upper and Lower Canada. o With regard to Upper Canada, the Constitution Act specified, all lands shall be hereafter granted within the said province of Upper Canada shall be granted in free and common socage in that part of Great Britain called England. SLIDE 19 - Reception refers to how English laws were received and used in Canada - The Reception of English law in Canada, especially after the Treaty of Paris, is very important with regard to land law. - Much of this law includes statues from the medieval period in England.

- The doctrine of reception involves the question of what parts of English law became operational in all of England’s colonial possessions and not just in Canada. - In Canada, the issue of reception is determined at the provincial level as each province has a reception date, sometimes established by a law or sometimes by common law which declares the Law of England as of a particular date to be the law of each colonial jurisdiction, which are now all provinces or territories. - Reception of English common law principles continues on an ongoing basis as courts in Canada still today refer to decisions of English courts as being persuasive even if they are not binding and. o They look to them for guidance and certainly English cases, can be persuasive. o However, English statutes that were passed before the reception date are considered still to be enforced in the province in question, unless that particular statute has been repealed or changed amended after the reception date by the provincial or the territorial government. o All of the statutes which deal with the fundamental principles of land law, such as Quia Emportes of 1290 and the Tenures Abolition Act of 1660, are still considered to be suitable under this reception doctrine, and therefore still form part of Canadian law. o Some provinces, including Ontario reenacted some of these statutes in the 1800s. The statutes’ validity does not require such a re enactment or their validity does not require inclusion within a revised statute. o In Ontario, the first statute that was passed by the legislature after Upper Canada was created in 1791, specified its reception date in the property and Civil Rights Act of 1792. The statute states: in all matters of controversy relative to property and civil rights, resort shall be had to the laws of England as they stood on the 15th day of October, 1792 as the rule for the decision of the same and all matters relative to testimony and legal proof in the investigation of fact and the forms thereof in the courts of Ontario shall be regulated by the rules of evidence established in England as they existed on that day except so far as such laws and rules have since been repealed, altered, varied, modified or affected by any act of the Imperial Parliament still having the force of law in Ontario or by any act of the late Province of Upper Canada or of the Province of Canada or of the Province of Ontario still having the force of law in Ontario o The Prairie provinces adopted the date of July 15th, 1870 as their reception date, and this was done by creating a statute. o British Columbia Statute specifies November 19th, 1858 as their reception date. o The Atlantic provinces, however, have not enacted reception statutes o Nova Scotia and Newfoundland and Labrador rely on a common law doctrine that states the opening day of the first sitting of the local legislature as the reception date, and that was October 3rd 1758 for Nova Scotia and December 31st, 1832 for Newfoundland and Labrador. o Prince Edward Island has a reception date that is considered to have been set by the Royal proclamation of 1763 and that's October 7th, 1763 o The situation in New Brunswick is not settled, but there is authority for different dates in 1660, 1758, and 1784. o These reception dates may not be of particular importance with respect to the practice of law. However, the concept of reception has broader historical and cultural significance. o English Canada received not just the laws of England but also ideas and expectations and practices regarding the law, which is often referred to according to your textbook as legal culture o Legal culture might impact the application of formal law and legal culture may be especially important in cases where the law is not clear or there are inconsistent lines of authority or inconsistent decisions. SLIDE 20 - Prior to the reception of English law in Canada, Indigenous law and in some places French law existed before with the reception of English law. - With regard to French settlements, English law tended to recognize a principle called continuity

o Earlier legal traditions prevailed unless and until those earlier legal traditions were abolished or changed by competent authorities o The context for indigenous law was indeed very different. SLIDE 21 - Most of the land in French Canada, which was called New France prior to the. Conquest of 1760 was held of the French king in something called Seignorial tenure, which was a 10 year system similar to that recognized under English feudalism. - Neither the conquest nor the Treaty of Paris in 1763 changed this fact. Even though the Royal Proclamation of 1763 had the intent and the direction to introduce English, civil law and criminal law to the entire conquered territory, there was resistance by the French inhabitants, which led to a reversal of this policy later on. - The Quebec Act of 1774 extended the boundaries of Quebec into the Great Lakes region and the Ohio Valley, and declared that French civil law was to be used with regard to all property and civil rights matters - However, English criminal law was to supersede French criminal law and trial by jury was introduced o The Criminal Code of Canada applies to all of Canada and even though civil law, with respect to non-criminal matters, still exists in Quebec today. o The Criminal Code is the prevailing criminal law. - The effect of the British conquest of 1760 was that it vested in the British monarch, both sovereignty and ownership of the land but this ownership didn't invalidate the land titles of private parties that had been granted under the former regime. o So, for example, Section 8 of the Quebec Act of 1774 provided that the King's new subjects, the French Canadians, continued to hold their property and possession and their civil rights as if that Proclamation of 1763 had never been made. o There was a case in 1906 with a local connection called Drullard and Welch which considered the issue of validity of the French derived titles in Ontario or what is now Ontario.  The book explains that the French settlement at Detroit that was founded in 1701 straddled both sides of the Detroit River in a way that the descendants of many grantees of the French crown found themselves on the Canadian side of the International border when that border was fixed after the American Revolution. It was in this case that the court recognized the continuing validity of the French titles to their land.  Some titles were also confirmed by something called patents, which were essentially deeds from the crown. But the validity depended on the French titles. SLIDE 22 - Canadian courts have held that Aboriginal title is not tenurial but rather a sui generis interest based on long possession o sui generis : Latin, it means that which is the only one of its kind or class. - So Aboriginal title was recognized, though not always consistently, by the Imperial and colonial authorities, as well as by the Royal Proclamation of 1763. - The starting point is the Royal Proclamation. This was the constitutional document that explained how access to the land was to be governed between indigenous nations and settlers of North America. - The proclamation enshrined consent as the central principle governing the relations between the Aboriginal peoples and the settlers with regard to dealings with the land that were occupied by these several nations of indigenous people living under the Crown's protection. - There were also other treaties between individual First Nations and the governments of the various settler colonies prior to this world proclamation. - The proclamation can be regarded as the foundation of the treaty relationship that is often said to exist between indigenous and non-indigenous peoples in Canada. - By Slattery entitled The Hidden Constitution, Aboriginal Rights in Canada.

o The article explains that the Royal Proclamation had a central idea with respect to indigenous lands. o It was to ensure that no indigenous lands in America were taken by British subjects without their consent. o This objective was to be reached by three main measures.  Colonial governments were forbidden to grant any unceded indigenous lands.  British subjects to settle on them  Private individuals to purchase them with a system of public purchases by the Crown adopted as the official mode of extinguishing indigenous title o The British government was very concerned about White settlements spreading into the American interior, and so the proclamation temporarily sealed off much of that area to the settlers, designating it as exclusive indigenous territory.  But these measures were not simply confined to indigenous lands, but rather applied throughout British, North America. o While the King asserted ultimate sovereignty over the indigenous peoples, the article's author also acknowledges that their semi-autonomous status, as well as their entitlement to undisturbed possession of the lands that are reserved to them also defines these reserves as any lands that have not been ceded to or purchased by the crown. o Technically speaking, the interests of land belonging to indigenous peoples amounted to a legal burden on the crown in some way, ultimate title, until the land was surrendered. o The proclamation of 1763 had a profound impact for modern Canada, and that under the terms of the Proclamation, Aboriginal people held continuing rights to their lands except where those rights were extinguished by voluntary session. SLIDE 23 - i. Treaty of Niagara in 1764 o Indigenous peoples did not view the Treaty of Paris as being applicable to them regarding the transfer of title and sovereignty over the lands in North America o The indigenous peoples felt that England conquered France, but not the indigenous peoples. o In 1764, about 2000 chiefs and representatives of 24 First Nations assembled in Niagara to talk about the principles that would govern this relationship between the Crown and indigenous peoples. o Some of the principles that were agreed to at this meeting included the recognition of Aboriginal governance, free trade, open migration, respect for Aboriginal land holdings, affirmation of Aboriginal permission and consent in treaty matters, Criminal justice protections, Military assistance, Respect for hunting and fishing rights, and adherence to principles of peace and friendship.  Accordingly, the Treaty of Niagara, which was signed one year after the Royal Proclamation, confirmed Britain recognition of indigenous rights. SLIDE 24 - ii. Tenurial Title: current significance and reform o Except for Quebec, all land in Canada today is nominally held in free and common socage, but according to the Ontario Law Reform Commission, the tenurial relationship is really of no importance. o However, a report prepared by the Ontario Law Reform Commission recommended against statutory abrogation on the basis that the concept was obsolete.  Aggregation means abolishment o The possibility of Escheat is one aspect of the doctrine of tenure that still remains.  this is a situation where a fee simple holder dies with no errors and no will.  However, this situation is now governed by a statute, and that is called the Escheat Act of Ontario.

 In Ontario, the Escheats Act of 2015 sets out the procedure by which the public guardian and trustee in Ontario may take possession of unclaimed property that has become the property of the crown, by virtue of another law or statute. o For example: In Ontario, the succession Law Reform Act states that if a person dies without a will and without any heirs, all of their property, both real, land, and personal, all of their belongings, their chattels, becomes property of the crown to which the escheat act then applies. SLIDE 25 - iii. Tenurial Title vs. Allodial Title o Allodial lands are the absolute property of their owner and not subject to any rent, service, or acknowledgement to a superior. o So allodial title is therefore an alternative to feudal land tenure o Despite the views of the Ontario Law Reform Commission, Tenure based systems of land might have some general importance in comparison with allodial systems of land law and civil law o The Napoleonic Code of 1804 abolished existing feudal relations of tenure in civil law jurisdictions that adopted it. o After the American Revolution, the tenure system was rejected in the newly independent United States.  As a result, many state constitutions declared that all lands in the states were to be considered as owned outright in allodial ownership o The discussion note talks about the theoretical concepts of allodial title as contrasted with the theoretical notion of the tenure system  Allodial title arguably encourages a landholder to think in terms of absolute rights over the land along with the division between public and private sphere.  In this private sphere there is minimal state interference.  By contrast, a tenure system may not have such a division between the private and the public sphere  A land law based on tenure might also be more friendly to this practice of ideas of stewardship, where the landholder is viewed as a kind of trustee for future generations.  Stewardship may also reflect indigenous views about sharing the land in addition to concerns about the need to care for and provide stewardship for the land for future generations.  Therefore, it may be important to understand that these ideas about relationship are reflected not only in feudal times, but also now in modern relationships regarding title to land. Slide 26 - Tenure relied on this concept of Seisin to establish who was in possession and therefore, owed duties and feudal incidents to the person on the next higher rung of this feudal ladder or this feudal hierarchy. - Another reason why season was important was that it was used to determine rights to possession of land and for conveying interests of land - In the earlier common law, it was possible to talk about being seized or possessed of a freehold or a leasehold or a chattel. - This concept also recognized the relativity of title based on prior possession. o A person’s title was relative to who had better possession or first possession or ownership. - By the Middle Ages, however, Seisin had become a more technical concept. o It was limited to freehold estates o It was connected to complex but now obsolete Legal causes of action  These were actions in litigation to regain possession of land.  They were called real actions and because these actions resulted in regaining the land, the land became known as real property

 It was an action called a real action, which is a term that's no longer used but led to this concept when the land was repossessed or regained, the land became known as real property, and today that's still how we refer to land. As real. Property as opposed to let's say I'm talking about my personal possessions, my furniture and clothing, which would be chattels and personal property. Those items are not real property, only land is real property or buildings. - People who were leasing land and owners of personal properties or chattels were no longer considered to be seized of that property. o Therefore, they had to rely on personal actions if they were suddenly or not suddenly dispossessed, out of possession of their rented land or their own personal property o This division between real and personal property continues to the present day. o This distinction between real and personal property, in one way originates from the distinction between real and personal actions for the recovery of land in chattels. o So, there were different actions that an individual had to take in order to recover either land or their personal possessions which led to this distinction between real and personal property SLIDE 27 - Ownership and estates are different. - As the doctrine of tenure became less important or less significant, because it was really being phased getting rid of those different types of tenures and just ultimately replacing s ubinfeudation with substitution and transferring land as being freely alienable and transferable. - The doctrine of estates became more significant o While the law of tenure set out the parameters or the guidelines for land holding, holding an interest in land, the doctrine of estates sets out the nature of the interest that is held.  In other words, the set of rights that land holders could have, so those in possession of land, or those with a right to future possession o The common law then didn't identify the owner of land when it came to the doctrine of estates, but rather what is state in land the owner held.  So therefore, an individual did not own the land itself, but rather held an estate in land and the estate defined the bundle of rights which set out these parameters for the period during which the holder was entitled to possession.  It’s really important to distinguish the various uses of the word estate so as to avoid confusion. The word “estate” can be used in a few different ways:  Estate can be referred to as a large tract of land  Estate can also be the estate of a deceased. So, all of their property, investments, land, personal property, etc. that is to be distributed according to their will or if there is no will to revert back to the government.  Lastly, another example is that an estate can be a type of personal status, including during that fetal period.  We're talking about a state in land today, which again defines the interest held by a land holder.  The authors Gray and Gray note that this concept of a estate created a lot of flexibility in English law regarding arrangements for property interests to be held by different people at different times  Discussion note #1 Provides a discussion or provides a I guess a brief explanation of some differences between freehold estates versus leasehold estates o so estates were also divided into sub categories of leasehold estates and freehold estates. o Freehold estates were considered to be superior to leasehold estates

 an example of why this was true was that only freeholders were able to vote and allowed to sit on juries way back when o leaseholders were more dependent on the desires or the will of their land owner  an example being that at lessor, so the party who was leasing the property, had the option of not renewing the lease holders lease.  In contrast, a freeholders estate could only be ended by his or her own actions or by their death in a situation called a life estate.  The next discussion note refers to modern distinctions between Freeholds and leaseholds. o The distinctions of status of these two types of states are minor  From the Constitution Act of 1867, which essentially states that to be appointed as senator in a province, the senator has to have a freehold estate and not a lease hold  Therefore, if someone was just leasing property they would not be allowed to be appointed as a senator  Aside from certain distinctions, lessees can be more vulnerable economically than those with freehold estates.  Freeholders with large mortgages can also be very vulnerable economically. LECTURE 10 SLIDE NOTES SLIDE 2 - Estates are applicable only to land law and not personal property - With the exception of trusts, the main types of freehold estates in land were recognized at common law: o Fee simple o Life estate o Fee tail - Freehold estates were defined as being uncertain in durations o They didn't know how long a freehold estate would last as opposed to a leasehold estate which was created for a specific period of time.  A lease has a start date and an end date. o But with respect to the fee simple, the life estate, the fee tail, these are three types of freehold estates.  What makes them freehold estates is that the duration of how long this estate could last is not certain. That doesn't mean it's not going to end at some point or can't end, but the duration is uncertain. SLIDE 3 - A fee simple estate lasts as long as there are heirs who may inherit the estate. o Therefore the duration of a fee hold estate is uncertain because we don't know how many heirs there will be and how long that can continue, so it's a freehold estate. o Side note for clarification: These are different types of interests in property that were used to either convey during the Grantors lifetime or after their lifetime. The Grantour is the is the party, the person who's transferring the property. SLIDE 4

- A life estate is very different from fee simple because it only lasts for the holder's lifetime - Because the date of death of the holder is not certain, that makes the duration of the life estate uncertain, and therefore, the life estate is a freehold estate. - So again, on the other hand, a leasehold duration is certain because at lease for five years, has a specific duration because it will end five years after the date it started. SLIDE 5 - The common law distinguishes between these two types of estates. - The only estate that is not of inheritance is the life estate. - While the fee simple and the Fee tail are estates of inheritance. - Life estate only lasts for the lifetime of the holder. SLIDE 6 - In this example, Oscar grants a property to Anne for life. - The question is, when does an estate end? o It ends when Anne dies o It's for Anne. It’s Anne’s life estate. - So, if the possession of the property would then go back to Oscar if he's alive. That is if the phrase only said “to Anne for life” and didn't say anything else. It would revert back to Oscar if he is alive. - If Oscar has died before Anne, but she only has a life estate, what happens to the property? Where does it go? Who does it go to? o It depends on whether Oscar had a will. (Dying intestate) o Depending on where this is happening, most places in the Commonwealth world have rules of intestacy.  Intestacy is basically a piece of legislation wherein the property would revert back to the state and the rules of intestacy would apply  So, if there's no will, the state will look at it and say here's our rules, are there any spouses or next down the line children; it varies from legislation to legislation  If there is a will, Then the property goes back to the executor.  The executor is the person who is assigned the task in the will of distributing the estate. o The estate is made up of all of the property, it can be personal propert, it can be real property. o The executor essentially reads the will and distributes the estate according to the terms of the will. o Oscars could be giving the estate once it comes back from Anne after she died maybe to be split equally amongst his favorite nephew and his daughter or something to that effect. o Therefore, at the time of this grant, Anne has a life estate and Oscar has a reversion.  Grant : A grant, essentially means a transfer. It can be through a will or it can be a transfer during Oscar’s lifetime or during the Grantors lifetime.  Reversion : Reversion refers to how the property would revert back/go back to the grantor once the life estate has ended upon the death of the person.  In this case, Anne, who has the life estate interest. SLIDE 7 - By contrast, a fee simple could last indefinitely if Bob, the holder of the estate, had heirs to which the property would pass on Bob's death or if Bob had sold the property during his lifetime.

o So essentially, if Bob has fee simple, which essentially is absolute ownership. This fee simple could go on and on and on if Bob has heirs and then they become the heir and then the heir has an heir and it goes on and on and on. o Similarly, if Bob sold his property, the purchaser may have heirs forever.  So when they buy that property, they're going to get title in fee simple from Bob. o So the purchaser may have heirs forever o In either case, the fee simple estate may last a very long time, possibly forever o How could it end  A Fee simple could end if there are no more heirs. SLIDE 8 - At common law, his is how a fee simple property holding was created. o Oscar grants to Bob and his heirs o Fee simple was and it is the largest estate known in law o As long as there are heirs of Bob, the estate will pass on indefinitely. o If Bob dies without heirs or without a will, Bob’s interests will escheat o The word “and his heirs” essentially represent that he has a fee simple interest, which means he can really do what he wants with it. It doesn't necessarily have to be to his heirs. SLIDE 9 - A Fee tail is a shortened type of fee simple - The interest could only descend to a specific class of relatives as described in the formula in the document in the fee tail, but it was no longer used after the 1600s SLIDE 10 - Oscar grants to Charles and heirs of his body. An heir to this fee tail must be a lineal descent of Charles (So, child grandchild) - If Charles died with no children, Charles’ niece, nephew or sibling, could not inherit the estate. - So, if Charles died with lineal descendants, but then all of those lineal descendants end, possession will go back to Oscar, the original grantor, if Oscar is alive. - If Oscar is not alive, the estate would go to Oscar's executor to be dealt with by his will, to whatever his will said, or the rules of intestacy. - The reason this estate was so relevant and important a long time ago was when there were holders of large estates in England and they only wanted their lands to be passed on to heirs that were connected by blood. - But Fee tail estates can no longer be created in Ontario. - *Think of Fee tail in terms of, long ago in England, how estate holders kept the land in their family. Also there were a lot of times where fee tails specified that the property was only to transfer onto a male heir. So it was a way to kind of keep the property in the family o With fee simple, if somebody inherits property in fee simple or got an interest in property in fee simple they can do with it what they want was an absolute interest, they could sell it o If it was a fee tail, it could only pass down to members of whatever the formula was in the document, creating the fee tail SLIDE 11 - It's important to understand that a grantor could also create consecutive estates, this is where we bring in someone called a remainder person. - Oscar grants to Anne for life, remainder to Bob and his heirs. o What does this transfer do? What kind of interest does Ann have?

 The word life = life estate  Anne has life estate  When Anne dies the estate goes to Bob o What about Bob? What's his interest?  Fee simple you got it fee simple  So, this gives Bob a fee simple interest, which is also referred to as a remainder, but his interest  He's the remainder person and it is postponed though until Anne dies  This grant creates what's called present interests. There are two present interests.  Anne has a life estate. Bob has a fee simple interest. Those are two present interests.  So, while an is immediately entitled to possession of the property interest, Bob also has a present interest. It's just that his entitlement to possession is postponed. o Therefore, Bob's interest can be sold or devised, which means given away or distributed in some way. o Keep in mind though, the transferee to whom Bob gives this property or sells it cannot get possession, is not entitled to possession until Anne dies. o Will the value change if at the date of the grant, so the date Bob sold it or gave it away, if Anne was only 12 years old or if she was 82 years old?  It would probably be a little bit seemingly more valuable if she was 82 years old because she probably wouldn't live that much longer as compared to being 12.  But conversely, if she was only 12, then the property could increase in value, so there's no correct answer to that. It's just food for thought. SLIDE 12 - The cases that you read in this chapter started as applications to the court by trustees or executors of an estate, in other words a will of a deceased person, asking for advice or direction regarding the nature of the interests created under a trust deed or a will - These cases were generally not adversarial in nature, so they call them reference cases. o RE means reference, so it's not like parties were fighting necessarily o RE is usually a situation where a trustee or an executor has applied to the court for clarification, looking to understand. - All common law provinces, have in their rules of Civil Procedure, a section or sections that allow for this kind of proceeding - Executors administer the will and trustees administer trusts that are created by a will. - Trustees also administer trusts and other documents - Simply put, an executor is appointed o Often wills have more than one executor o Together, executors go through the will and make sure that the estate, which means the property in the estate, so it could be personal and or real property, is distributed according to the terms of the will. - A trustee is a little bit different sometimes o A trust can be created by a will. It doesn't have to be created by a will

o A person with a lot of Property, wealth, etc. sometimes will create a trust. o Maybe they don't want to give their children the money outright, they want to create a trust, which is basically a tool, a document that outlines how the money will be distributed during that child's life, and there can be tax advantages to setting things up a certain way so that maybe a gift doesn't trigger a huge tax burden for the recipient. o The trustee is in charge of administering this trust to be the person who's in charge of overseeing the trust and making sure things are distributed according to the trust. o Trustees and executors are held to a standard of care of perfection. They can be personally liable for mistakes o Trustees and executors don't have to be lawyers or accountants. Often, it's family, friends or family members o Oftentimes, lawyers will suggest to trustees or executors to apply to the court when there seems to be ambiguity in the will or the trust, and they go to the court for clarity and direction on something that is in there that seems ambiguous. o A will or a trust document needs to be drafted very precisely and carefully and clearly. SLIDE 13 - Why is this largest estate in law? o Duration is potentially indefinite  The duration, which is potentially indefinite, and the nature and the extent of the rights that are granted to the holder make this the most extensive type of estate in law  The fee simple holder can either pass on their property through a will or sell it to someone else  If they sell it, the buyer then gets the land in fee simple and can do either.  They can transfer the property via a will, or they can sell it, and this can continue indefinitely.  While Quia Emportes, a statute that guaranteed free alienation, but before that meet medieval times, land transfer was usually by inheritance and not sale. However, transfer of land by Will was not allowed at common law and only became allowed in the 16th century under a piece of legislation called the Statute of Wills, in 1540 in England  Under the common law, land was passed down by rules of primogeniture, which meant that the eldest son inherited all the parental land, and only if there were no male sons could daughters inherit. If there was more than one daughter who you know, and there were no male sons, then the daughters inherited the land in Co tenancy. Unlike today, spouses were not considered heirs of each other. Therefore, the surviving spouse only held a life interest in part or all of the deceased spouses freehold lands. If the holder of a fee simple left no children or issue (issue refers to children, grandchildren) or grant, then the fee/the property would pass on intestacy to the next closest relative.  Rules of intestacy usually look for next closest relatives. As long as there was genealogical evidence, no blood relative was too remote to inherit, but also only legitimate kin with married parents could inherit. If there were no blood relatives, there would be an escheat to the Crown, and the fee simple was considered ended and the crown added the land to all of its holdings or domain and could re grant it to someone else.  Primogeniture no longer exists in Canada. It's been replaced by equal sharing of the intestate  so if someone dies without a will, there are no rules of Primogeniture. There's equal sharing according to the legislation.  But the basic point remains that fee simple ended when the holder of the property died intestate without any known heirs.

o Rights conferred by fee simple: usus, fructus, and abusus  Roman law spoke of ownership as entitling the owner to uses, fructus and  these concepts applied to ownership in fee simple  Usus : Refers to the right to use and possess the land, and that includes management and control.  Fructus : refers to the right to profit from the land (so exploit the land directly, lease it out)  Abusus : right to alter the land physically, even to the point of destroying  These are the rights that are conferred today, even by fee simple, it's an absolute ownership in the land.  Roman law also recognized the right of full alienation (alienation means transfer either by selling or by gift inter vivos).  Gift inter vivos means gifts between the living, or upon death.  Roman law also recognized the full rate of alienation, either by selling gift between the living (In other words, gift inter vivos) or upon death.  With regard to destruction of land abusus included, cutting trees down, knocking down buildings, etc.  Fee simple holders have historically been able to physically do what they wish to alter their land, subject to legal restraints of nuisance in tort, so not causing harm to neighbors and other public regulations.  The Right to alter the landscape has also been a big part of exploiting Canada's natural resources.  The right of alienation Involves the right to transfer the fee simple itself but it also includes the right to create lesser estates.  that would include life estates or leases or other interests in land called incorporal hereditaments (easements, restrictive covenants, and profit a prendre) o Easements : essentially refer to right of way or right of access o Restrictive covenants : are basically putting limitations on how someone can use the property. o Profits a prendre: to take from the land such as farming a crop on land owned by someone. o Laws of succession  The right to transfer an estate by Will is viewed as one of the most important rights that are attached to estates of inheritance.  If the property holder does not have a will, the estate is distributed according to intestate succession laws.  Intestate, meaning the person did not have a Will  In Ontario, the law that governs this area is called the Succession Law Reform Act  Other than the abolition of Primogeniture, the most important change that has occurred over time has been the improved legal position of a spouse compared with children and other relatives. o This is reflected also in the improvements in the social and legal status of women.  Matrimonial home: o Example: Prof’s house is under her name. Let’s say that the prof wants to cut her husband out of her will when it comes to the matrimonial home. Even if her will said that when she dies her home will go to her best friend, the Family Law Act would supersede, and it directs that a matrimonial home is owned jointly. So the prof’s husband would get half of this share and it would not go to her best friend

 Another important change has been the equalization of the status of children. o Adopted children and children of unmarried parents are now recognized under the Succession Law Reform Act SLIDE 14 - So discussion note on page 222/223 - The status of married women began to improve with the implementation of the Preferential Share for a childless widow on the intestacy of a husband in Ontario in 1895. - The other provinces in Canada gradually implemented this concept as well - The concept was that the widow or the widower was entitled to a certain sum of money off the top of the intestate's net estate. o Right now in Ontario, th is amount is set at $200,000 (This is about situations where there is no will.) o If the intestate estate is less than $200,000, the surviving spouse will get all of the estate and nothing goes to any other heirs. o If there is a surplus that's over and above that, $200,000, the surviving spouse takes all i there are no surviving issue. o How are we defining issues?  Issue : (a) defined as a descendant conceived before and born alive after the person's death. (b) A descendant conceived and born alive after the person's death if the conditions in subsection ___. If the intestate is survived by a spouse and a child or children, the spouse shares the surplus with them. The surplus will be shared equally if there is a surviving Spouse and only one child. But if there is more than one child, the spouse will take 1/3 of the surplus and the children will share the remaining 2/3. When there is no surviving spouse or children, other relatives can then take according to the statute.  it's difficult to vary the directives of the legislation but it is possible in cases where a person has not made adequate provision by will or on an intestacy, for the support of dependents so.  The definition of spouse has been subject to review in the context of this intestate succession, so when there is no will.  The succession Law Reform Act currently defines a spouse in subsection 1(1) as including only formally married spouses. Therefore, people or cohabitees in a conjugal relationship are not considered heirs of each other and do not inherit each other property on intestacy.  However, under the succession Law Reform Act, part five, which talks about support of dependence, the definition of spouse is a lot more expansive, and it states that if either of two people who were not married to eachother, but they have lived together continuously for a period of not less than three years, or are in a relationship of some permanence, or if they are the natural or adoptive parents of a child, they will be considered spouses for the purposes of Part 5. (Part five has to do with Support of dependence and not inheritance)  Therefore, if a surviving cohabitee was financially dependent on the deceased cohabitee (cohabitee means people that were living together in like a married relationship), he or she is eligible to make a claim under part 5 of the succession Law Reform Act  The UK introduced a statute prior to the birth of the child of Prince William and Duchess Cambridge and Canada followed suit shortly thereafter  According to this change in the law in the UK now, if Prince George had been born a girl, she would not have been demoted in the line of succession had her next sibling that was born been a brother. So, if Charlotte was a the first born, then Charlotte would be in line for the throne, following her father.

SLIDE 15 - The old common law recognized only one way for the creation of a fee Simple, “To A and his heirs” o Example: “To my daughter Charlotte and her heirs.” - A Fee Simple had to have these words. SLIDE 16 - The words “To A” are “words of purchase” o The words of purchase tell us who is receiving an interest. o purchase has a technical meaning and it doesn't matter if the grant Is gratuitous or for value - The words look “and his heirs” are “words of limitation” o It describes what kind of estate A gets o it may appear that the words “to A and his heirs” appear to be a joint gift made to both A and his children, but it's important to note that this is not the case. The heirs do not take an interest in this disposition. They don't have a present interest in this disposition. A can do what he or she wants with the property without the consent or knowledge of his heirs  This is a fee  If a decides to sell that property, then it's the buyer who gets it, so A would have to sell it to C and his heirs.  A can transfer it C, b ut in order for it to be a fee simple transfer, the words have to be used “To C and his heirs” and whatever the conveyance document is. - At common law, prior to legislation that changed it, if any other wording was used other than “to A and his heirs”, there was a presumption that a life estate was created o presumptions mean that it's automatic o There was a presumption that any grant which created a freehold estate was for a life estate only then, and this reflected the fact that property (land / real property) was so valuable and crucial to a family's heritage and honor, that normally they would not want to sell it and convey it away o Therefore, a grantor would want to convey away the smallest freehold estate possible (when we're talking small, we're not talking size, we're talking about not expansive, like just limited in interest) which was a life estate as opposed to the complete fee simple ( this was a way to keep property In the family) SLIDE 17 - So in North America, where there was an abundance of available land and a very busy land market, this presumption was far less appropriate. - therefore legislation was introduced that reversed that presumption for both grants and wills. - almost all provinces have legislation which is similar to Ontario's conveyancing and law of Property Act. - Ontario’s Conveyancing and Law of Property Act (1886) states that in a conveyance, it’s not necessary in the limitation of an estate in fee simple to use the word “heirs” o After this piece of legislation was passed in Ontario, the words “and his errors” was no longer required, so that presumption was done away with. - The Ontario Succession Law Reform Act has similar language, in section 26 states that: where a contrary intention appears by the will where real property is devised to a person without words of limitation, the device passes the fee simple or the whole of any other estate or interest that the testator had power to dispose of by will in the real property o testator refers to the person whose will it is, who made the will. - Essentially, both pieces of legislation, the Ontario conveyancing and Law Property Act , as well as the Ontario Succession Laws Reform Act basically say: unless there's a contrary intention, when real property is devised without these words of limitation, there's a presumption that it is passed down or given or sold in fee simple. SLIDE 18

- Unlike a fee simple, a life estate does not have an infinite duration. o A life estate only lasts the length of 1 human life. - A holder of a life estate is called a life tenant. o the use of the word tenant does not mean we're talking about a leasehold estate. So it's not a tenant like in an apartment, or leasing a property. o the use of the word tenant is a reference to tenure. o A life estate is a limited interest o a life tenant means a person who has a life estate in a property o so the original Grantor (Oscar in our previous example) has either retained a reversion in fee simple (that's when the property reverts back to the grantor after the life estate ends on the death of the life of tenant) or the grantor has transferred the reversion to a third party (consecutive estates). When the grantor transfers the reversion to a third party, the third parties interest is called a remainder.  the holder of the remainder is called: “the remainder person” (Bob was the remainder in our previous example) SLIDE 19 - “O grants to A for life” o What kind of interest does Anne have?  life estate o What does Oscar (O) retain?  a reversion in fee simple SLIDE 20 - “O grants to A for life, remainder to B in fee simple” o Who's got the life estate?  Anne o Who's got the remainder? o Bob (B) o What does Oscar get? Does he retain anything?  Nothing o In this example, even if Bob dies intestate and without errors, the land would not revert back to Oscar. He's ended his interest by getting transferring the remainder in this original sentence to Bob. So it would as escheat to the crown if Bob died intestate and without errors way back when. Slide 21 - A remainder or reversion is a fee simple interest because it's absolute ownership - A life estate is essentially an income interest while a remainder or reversion is a Capital interest - So, your textbook uses an example of a small apartment building on a piece of land which produces rent of $50,000. Let's assume that the owner in fee simple died and left the property to Anne for life, as a life estate, with remainder to Bob in fee simple. o So, Anne is the life tenant and she's entitled to possess the building, to manage it, and to keep the rent each year for as long as she lives (this is probably according to the terms of a will). o Anne is also responsible for paying the municipal property taxes and for ongoing expenses for the property. o Bob is not entitled to any of the income while Anne is alive. But Bob's remainder interest comprises the capital value of the property  therefore, Bob can still sell or mortgage the property even before and dies during her life estate. But any mortgaging or selling or transferring is subject to Anne's life estate.  In other words, Anne is entitled to continue to possess the building, to manage it, to keep the income, and she's got to keep paying the ongoing expenses for as long as she lives.

 While Bob may have the power to alienate or transfer the property in some fashion that does not extinguish an life estate, that has to be respected. It continues, it doesn't end just because Bob who has the capital interest sells it.  A life estate can therefore be looked at as a revenue stream, so a way of pulling out income. Because of this, historically life estates have been used to maintain dependence, such as widows, younger children, minor children or other people, f amily members, usually who are not capable of supporting them.  Life estates are often created in conjunction with a trust  Life Estates can also be created in property that is to be enjoyed such as a family home.  It was a common situation when husbands were the primary breadwinners, for the husband to make a will leaving the family home to the widow for her life with the remainder to the children, along with other income that would go to the widow to allow her to pay the expenses of the home during her lifetime.  So now, even in modern times where women are most often also income earners, spouses still often make wills where they leave a life estate in the family home to the surviving spouse and the remainder interest for their children in fee simple.  The Family Law Act requires that both spouses have an equal share in the home. If a spouse makes a will leaving a life estate in the family home to their surviving spouse, it's only that spouse’s share. The surviving spouse would still have a share in the family home SLIDE 22 - With fee simple, all three rights (usus, fructus abusus) were conferred in a fee simple freehold estate. - The holder of a life estate only has the usus and the fructus - so the right to possess the land and enjoy its current income but not the full right to alter or destroy the property. - So if the life tenant was allowed to physically change the land in a significant way, this could impact and seriously compromise the interests of either a remainder person (if there is a consecutive estate) or sometimes the original grantor (where there's a right of reversion) o Because that's that fee simple interest, whether it's a remainder or a reversion, is a capital interest so. o It wouldn't be good if the life tenant could physically change the land and decrease its value in such a significant way that it really compromises the interests of the remainder person or the person with their reversion, the original grantor. SLIDE 23 - The law of waste regulates a potential conflict or potential conflicts between a life tenant and a remainder person. - T his law is there to protect the interests of the party whose interests follow the life tenant. o So, either the person, the original grantor, with the right of reversion, or the remainder person. o So, to protect them from the acts of a life tenant which could devalue the land or despoil the land. o In other words, the life tenant can't do things that will directly damage the capital value of the land such as knocking down a building or doing things that alter the land in a very physically significant way. o Then there is this talk of waste and it's a type of tort that provides the holder of the remainder or the reversioner, the remedy of injunction, if the party with the life estate is threatening such actions.  Injunction is in a type. Of order that a party can go to the court and get an injunction to stop somebody from doing something o The law of waste also governs the way in which expenses for the maintenance of the property are shared between the life tenant and the remainder person.

 3 different types of waste: voluntary, permissive and ameliorating (then there's a fourth = equitable)  1. Voluntary waste : is the prohibited kind of waste, and it covers actions that seriously damage the capital value of the property.  2. Permissive waste : happens when the life tenant fails to maintain the property in a passive way.  Examples: failing to repair a roof that's leaking or failing to maintain a valuable orchard because they didn't care for it.  Surprisingly, a life tenant is not liable for permissive waste unless the instrument document that created the estate states that such an obligation exists  So, if someone wants to provide a life estate to someone and says: “here you can live in my apartment building for the duration of your life. But you need to repair the roof and maintain” o Then that permissive waste shouldn't happen, not be allowed to happen because the instrument document (the document that laid out that interest) stated that that obligation existed  Even though a life tenant isn't liable for permissive waste, he or she is responsible for expenses related to his or her occupation such as property management, municipal taxes, paying mortgage interest, utilities, etc. o It's always best that whatever document provides this kind of interest, it needs to be detailed with respect to what types of expenses the life tenant or the person with the life estate needs to be responsible for.  Life tenant is a person with a life estate, (Same person). o Capital expenses refers to expenses that increase or maintain the capital value of the property  Ex. new roof, new furnace  Those capital expenses are the responsibility of the remainder person but it can also apply to the original grantor if there was no remainder person, and the property was going to revert back to the original grantor.  3. Ameliorating waste: that's when the property is altered for the better.  So even though it is technically waste, it's not likely that a remainder person would be able to show sufficient harm in order to get an injunction or award of damages  They would likely benefit from ameliorating waste.  4. Equitable waste : so extreme acts of Despoilation (wrecking the property) that were actually allowed by the grantor.  I n England, the Court of Chancery put a stop to these types of clauses in a grant because it really didn't make any sense and it really wasn't equitable, and it wasn't fair. - Waste is a common law tort - Common law tort of waste is not often used today in modern times - The reason that this tort is not really used today is because of successive interests in land are usually held in trust. o A successive interest in land would be that someone's got a life estate, and then it goes to remainder person o A trust document would govern how this is all going to work o the trustee who administers the trust is given the authority to make sure that the property is maintained for all of the parties who have an interest in it, as well as the authority to assign responsibility for expenses between the life tenant and the remainder person, however, that creator of the trust intended.

o So, the rules about waste and sharing expenses are therefore default rules that can be changed by the individual creating the interest. o A life tenant can also alienate their interest by sale or by gift but they cannot pass that on in a will, generally speaking, because the interest terminates on the original life estate holder’s death except for a life estate Pur Autre Vie.  alienate means transfer  Anne, with her life estate interest, can actually sell her interest or gift it, but she can't pass it on in a will, because the interest terminates on her death.  So, whoever she sold this interest to or gifted it to also that interest ends on her death.  So, a life tenant can also lease the property, but that lease will expire upon the life tenant’s death.  A life tenant can also mortgage their interest but it would be prudent for a lender to ensure that the life of the life tenant is insured to guard against premature deaths (in other words before the mortgage is paid) SLIDE 24 - Discussion note 1 on page 227 - Estate of Peter P Ryan v Elizabeth Boulos Ryan o Talks about sharing of expenses between life tenant and remainderperson o A 2007 case where the deceased Peter Ryan had entered into a marriage contract with his wife Elizabeth, which is kind of like a prenup. o This contract stated that she had the right to use an Occupy 104 Newtown road during her lifetime, without charge. o In other words, he's giving her a life estate. o In his will, it said that his trustees were to pay any major expenses of the house during the time that Elizabeth lived there  So, the payment would come from his estate. So whatever funds were in his estate, the trustees will pay for major expenses. o So, the case notes that this was a second marriage for both parties, Peter and Elizabeth, and each of them had significant independent assets and kids from prior marriages o After Peter died, Elizabeth argued that the words “without charge” meant that all expenses related to the house, including snow removal, utilities, lawn care, should be paid by the trustee  So, it really came down to an analysis of what these words without charge meant  The trial judge concluded that without charge didn't mean that the wife was entitled to remain in the house without paying for any expenses at all. It meant that she did not have to pay any rent. The default rules for sharing expenses between life tenant and remainder person would apply.  So the wife would be responsible for the maintenance for the period periodic and current expenses for the property. And the trustees, or in other words, the estate would be responsible for the capital expenses.  In this case, the estate is the remainder person.  How could this litigation have been avoided?  In his will, the husband could have defined major expenses of the house and given more clarity ecause “without charge” was vague so maintenance and capital expenses could have also been clarified SLIDE 25 - MacDonald Estate (Re) o it's a reference case  a trustee or executor went to court to get some clarification.

o Law of waste o A 2008 case where the testator (person who makes the will) left his widow, a life estate in the family home with the remainder to his stepson. o So she gets the life estate for the duration of her life and when she dies, the home would go to his stepson in fee simple presumably. o In this case, the widow vacated the property and she left it in disrepair and claimed that she was experiencing poverty o The step son, who was also an executor, argued that her actions terminated her life interest, and he sought a court order allowing him to sell the home, so ending her life estate.  *Life interest is the same thing as life estate. o The court in this case ordered that the wife had no duty to repair the property or live in it personally, and that her actions were of permissive waste, and therefore did not enter entitlement to her life interest. o A life tenant is not liable for permissive waste, unless the document, in this case a will that created the estate, clearly stated that such an obligation existed. SLIDE 26 - Discussion notes - Settled estate's litigation, which began in 1856, settled problems and issues with the sometimes unpredictability of the duration of life estates. So, a settlement is a disposition creating successive interest in land. o sometimes it's really simple: “To A for life, remainder to B in fee simple”  it can also be more complicated. o the English settled Land Act of 1882 accorded the holder of a life estate wide powers to lease mortgage and sell. The monies received had to be held under a trust for the benefit of the life tenant as well as for those entitled to the remainder.  legislation often serves to clarify common law principles and to do away with some archaic notions and just to make things a little bit more black and white.  Canadian legislation is different, The Ontario settled Estates Act 1990 gives few unilateral powers to the life tenant, except for power to lease for 21 years.  This statute says that a lease would bind the remainder person, even in the event, the life tenant dies before the 21 years is over  This regime is largely unused in Canada because trust documents, give trustees the power to sell, lease, and mortgage. SLIDE 27 - Life Estate Pur Autre Vie o This means life estate for another life in French o A life estate can be alienated (transferred)  Transferred in another word for alienated but this creates a variant of the life estate, so a change of the life estate SLIDE 28 - Example: o if A holds life estate and grants it to B, B has an estate that is limited by the length of A’s life (it is still a life estate). If A dies before B, B’s estate ends when A dies. o If A survives B, what happens to the property in the time period between B’s death and A’s death?  A can't get that property back because she has already transferred all of her rights to B

 An assumption would be made that the right to the life estate during this period can be passed on by B’s will or it's included in these assets if B dies intestate (dying intestate means dying without a will)  Prince Edward Island is the only province to refer explicitly to estates for the life of another as being properly capable of being willed o we can assume that in the rest of the provinces and territories that there is a common law assumption of this can happen o even if it's one of these estates pur autre vie, the life estate will end when A dies and then the property will revert back to the grantor just like in a regular life estate or a named remainder person, and that will be a fee simple interest  Remainder person: “O grants to A for life and the remainder to C in fee simple”  If A who has the life estate grants to B, and B dies before A, B’s will can transfer the interest or if he dies intestate the rules of intense intestacy apply, and then when A dies the estate goes to C in fee simple SLIDE 29 - Creation of a Life Estate o Words of limitation must be used to create a life estate, otherwise there is a presumption that an interest is in fee simple, so, fee simple is an absolute interest. o when the language that is used in a grant is straightforward and simple. For example: “to A for her life” it's very easy to see that this is a life estate o When there's a lot more language, and a lot of parties, there's potential for ambiguity regarding the intent of the grantor or the testator. o In cases where there's ambiguity, the court is the final decision maker as to what the intent was always against this lens or this backdrop of the statutory presumption of default to fee simple. SLIDE 30 - Re Walker (1925) o The court was looking at the will of John Walker after he died in 1903 o Clause at issue with something like this, “I give and devise unto my said wife, all my real and personal property saving and accepting as follows:  he went on to name some jewelry that he was giving to a nephew.  The end said: “should any portion of my estate still remain in the hands of my said wife at the time of her deceased, at the time for death, undisposed of by her such remainder shall be divided as follows:”  Then the will outlined who would get this leftover essentially, and we call that a remainder.  that piece of the will or the clause was called a gift over o The testator had granted all real and personal property absolutely to his wife, subject to the exceptions noted  Since the grant was absolute, and no limiting language used, the final part of the clause regarding undisposed of property was not valid  The trial court concluded that the clause meant that even though the testator appeared first to grant all real and personal property to his except for the jewelry as noted. the testator then granted any property that was undisposed of by the widow at her death to others, and that part is called The Gift over.

 But on appeal, the appeals court concluded that the clause meant that the testator had granted all real and personal property to his widow subject to the specified exceptions. And they ruled that the final part of the clause was not valid, the gift over part  real property=land and buildings  personal property=chattels and personal effects  So in other words, the testator, Mr. Walker gave all real and personal property to his widow, including what would have been distributed in the gift over  the court found that this was intention and that this was the intention of Mr. Walker and that this was an absolute gift, and that he did not use any limiting language in the sentence. o So they the court determined that the gift over has to be declared repugnant and void. o So in this case, they found that there were no words of limitation. So they found the gift over to be repugnant and void. SLIDE 31 - Re Taylor (1982) - This case involved an action by the executors of the estate of Kathleen Taylor, to determine the meaning, intent, and effect of a portion of the will of John Taylor o “I give, devise, and bequeath all my real and personal estate of which I made, I possess to my wife, Kathleen Augusta, Edith Taylor, to have in use during her lifetime. Any estate of which she may be possessed at the time of her death is to be divided equally between my daughters.”  So John Taylor died in 1965, and was survived by his widow, Kathleen, and she did use portions of his state of his estate until she died.  So when Kathleen died in 1981, she had left her will, which directed that her assets be converted into cash, and divided into two portions with one half going to charity, and the other half going to 25 named individuals.  Issue : Whether this is a life estate or an absolute interest for the widow Kathleen?  If she has an absolute interest, what happens to any property she acquired under her late husband's will? o It would be divided in accordance with her will. She had wanted things converted into money and then divided equally half to charity and half to 25 named individuals.  If her interest is a life estate only than any part of the estate of John, which stayed with her on her death passes to the daughters, according to John's will. o So the court ruled that the clauses in John's will were very clear. He intended to give his wife Kathleen a life interest, along with the power to encroach on capital for her own maintenance.  Encroach: means to use, to take up money essentially from the estate, to pay bills for the property for her own maintenance so that she can she can live and have an income flow.  Issue: Does power to encroach on capital of a life estate turn that interest into an absolute interest (fee simple)?  The court rejected this argument and stated that the initial premise on which the argument rests cannot be supported.  The initial argument is the assumption, that because the same result can be achieved by a gift of an absolute interest, and by a gift of a life interest with the power to encroach on capital, that the two interests are identical.  If somebody has a life estate, with the power to encroach on capital, and that power isn't really limited in any way, they truly could deplete the estate so that there's nothing left.

 Explain that the words by John Taylor shoe a clear intention to give his wife a life interest, and the words “during her lifetime” o The words during her lifetime, are words of limitation o Therefore, they define the size of the estate which the wife was to take. o size of the estate = is it a life estate or is it a fee simple?  Remember, fee simple is the largest kind of estate  Life estate is a smaller estate which is just for the lifetime of the grantee who was given the life estate. o So accordingly, the court determined that Kathleen's interest was, in fact, a life estate, and that any property remaining after her death was in fact, to be divided among the daughters, according to Mr. Taylor's will.  In this case, the court did not equate a life estate with the ability to encroach on capital with a fee simple, absolute interest, they rejected that argument. And then secondly, the importance of the words during her lifetime, as clearly signifying Mr. Taylor's intention to give his widow a life estate. - What is the difference between these two cases” Re Walker and Re Taylor? o the “for her life” language being used was the difference between the two cases o the Re Taylor case had less ambiguity. It was very clear that this was for her life. o Re Walker was a little bit more confusing and ambiguous of course, because there was this gift over at the end. Had the gift over not been there, then likely no ambiguity, it's pretty clear that it is a fee simple, absolute interest. SLIDE 32 - The second discussion point - This note explains that in some cases, it can be difficult to determine whether a testator intended to create a license o A license is really permission to be there or to do something it's not the same size. If you will have a life estate it doesn't grant the same types of interest. o A case that was noted is this case of reference or Re Waters 1978 out of Ontario, where the will stated: “I give the use of 48 Walker Ave in the city of Toronto to Mrs. Ellen Jones, for as long as she lives or until she remarries or gives to my executors and trustees a written notice that she no longer needs and desires the use of the property. Taxes, insurance repairs, and other upkeep expenses shall be paid by Mrs. Ellen Jones. Upon the death, remarriage or notice being given by Mrs. Jones that she no longer needs or desires the property, it shall become part of the residue of my estate.” o So the residuary beneficiaries would be the parties who would become entitled to the residue of this the estate.  So the residuary beneficiaries under the will argued that the will only created a license or personal permission for Mrs. Jones to occupy the premises, so that she could not rent out the property if she chose not to occupy it personally.  So the judge stated that it is such an important rule, a cardinal rule, to place oneself as the decision maker in the position of the testator at the time, the will was made to try to figure out the intention of the testator, having regard thinking of the language used and the context in which the language is used, and the circumstances under which the will was made.  So the judge explains that this will, was made in contemplation of the testator’s marriage to Ellen Jones, but also states that the will would be applicable.

 the judge states that there is a clear interest given to Ellen Jones for life and life interest, “I give the use of 48 Walker ave for as long as she lives.”  So the judge explains that if the clause had ended there, it would clearly be a life estate  The judge asks the question as to whether there's anything in the will that is sufficient to prevent these words from having their ordinary meaning, or effect.  the judge made the observation that there is no gift over, except if Ellen Jones remarried, or provides the executors with written notice that she no longer needs or wants the use of the property.  the judge explains that when he read the will as a whole, he did not see any conditions attached to her requiring personal occupation and he also notes that the clause in which the testator gives Ellen Jones the furniture and other household effects, which are in that property in Toronto, is totally consistent with a life estate of the real property.  Accordingly, the judge finds the ln Jones was given a life estate subject to the proviso contained in the will.  So he rejected the argument that this was simply a license. He found by looking at all of the circumstances and the context that this in fact, was not a license or personal permission, merely that it was a life estate. o Re Powell 1988  A will with a similar clause was determined to create a license as opposed to a life estate.  So the testator directed that his daughter Verna “shall have the right to the occupation, possession and use of my house for as long as she remains in possession of the said premises, and that in the event my said daughter ceases to remain in possession of the said premises or married or upon her death, the said premises shall be held in trust for my four children, Marie, William Verna and James.”  When Mr. Powell died, Verna, his daughter was 42 years old, unmarried and suffering from a mental illness from schizophrenia. And she lived in her father's house until 1986, when she suffered a severe stroke and was taken to hospital. And the expectation was that she would have to have constant care for the remainder of her life.  So the trustees went to court to try to get direction on the question of whether Verna’s interest had ended. And the judge decided, indeed, that it had ended,  The judge was satisfied that the language in the will created a license to occupy the premises for a limited time, rather than a life estate. o So the judge looked to the language from a Supreme Court of Canada decision called More Attell and world trust at all 1956 where this language was used, and the language was, quote, to permit my son and his wife, as long as either of them shall occupy the same to have use and enjoyment of my property known as carry on.  In Re Powell, the judge stated that the language does not demonstrate an intent to create a vested estate in land, but rather an intent to give a license to use, possess, and occupy the property for a limited time, he found that the license terminated when Verna was no longer in possession. Slide 33 - Fee tail fee tail is a shortened version of fee simple. o So in a grant “to A and the heirs of his body”, only lineal descendants of A could even inherit the property so therefore, no collateral relatives such as an aunt or an uncle could inherit the property.

o So an advantage in England, in early modern times, was this that the state was effectively inalieble, so it effectively couldn't be transferred. There were few grantees who would want to purchase an estate that would last only as long as A had lineal descendants. o It was likely then that the estate would descend into the grantees family indefinitely. o the fee tail could be drafted in such a way as to limit the inheritance to males only, so to A and the heirs male of his body.  This could not be done with fee simple. o It was also possible to create a fee tail with female heirs only. o fee tail male ensured that no daughters inherited.  the progenitor rules directed that if no male heirs, there were no male heirs, the daughters would share the land equally. o some legal and history scholars say that land law functioned to exclude females from land ownership. o So fee tail was not used widely in North America.  It doesn't have any significance in modern times. SLIDE 34 - As noted above the common law presumption of a life estate in grants was altered by legislation and in Ontario this alteration is found in the conveyancing law property act section subsection 55 effective July 1 1886 so analyze the effect of the following grants before and after the effective date of the legislation and as the grandeur retain an interest in any of the following disposition if So what is it so I'm probably helpful to go back to page 224 we've already done it OK so let's go into the exercise OK so number one the first example S grants to A and his errors so essentially they're asking you what this looks like under the common law and then what this looks like after the statutory reform so does anybody want to even though the question asks you I think just about whether or not the grantor retains an interest in any of the following dispositions I think it would be helpful to ask you what a gas so under the common law so X grants to A and his heirs so under the common law what does a get and you can just type it in the chat or you can reach me yeah peaceable OK that seems to be straightforward it gets a fee simple interest and what about the grant or tax does X retain an interest correct no now what about after the statutory reform after the CLP a subsection 55 what kind of interest is a yet does it does it stay with the same fee simple yes a still gets a few simple interest and the Grand Tour acts without grantor acts does grantor retained an interest correct I just wanna go back to page 224 for one moment here so here for anything that might be struggling with this and I don't know if there is anybody who is maybe this is pretty straightforward but remember at common law and I taken this great out of page 224 the effect and tored the top before the statutes that are coded there so add common Robbie affected any phrase other than two A and his errors in a convenience even wanna seemingly obvious in intent as to Aiden fee simple was to create a life estate only so under the common law if it said anything other to A and his heirs there was a presumption that it was a life estate OK so if somebody common law before the statutory reform wanted to convey a fee simple that language and his ears had to be used OK so that changed and this is just a review from last week OK so that changed with the statutory reform the conveyancing and law of property act and successful Reform Act OK so these presumptions were just not suitable here OK so the so just to kinda clear crap so the conveyancing alot property act deals with conveyances or transfers that are not part of a will OK and then the succession lager format deals with wills so essentially both pieces of legislation OK say that it's not necessary to use the word errors OK to transfer a fee simple OK and then it says so if you look at the conveyancing and law of property act where no words of limitation or used the conveyance conveyance passes all the estate right title interest claim demand OK so if no words of limitation are used under these pieces of legislation there's a presumption that its fee simple OK so does everybody understand the distinction'cause if you do that's going to make the exercise I have a lot easier so let's move on to the second question grants to a infe simple the hopefully this is really crystallising now so I need a common law what would a get so before the statutory reforms under the common law X grants to

anv simple what kind of interest is a get excellent a get a life estate because the words and his heirs were not used and