Chapter One: Property As Rights, Not Things

COMMON LAW PROPERTY
Prepared by Andrew Carvajal
Instructor: Prof. Kirsten Anker
Fall 2007

Note: Most of this material is a reproduction of a summary from a previous year with a few additions here and there. Regrettably, I am unaware of the name of the author of the previous summary so as to provide the due credit, but to this person I am immensely thankful for the success in this class. Many thanks also to Runa D for providing me with the summary in the first place

Table of Contents

CHAPTER ONE: PROPERTY AS RIGHTS, NOT THINGS

Introduction

The Categorization of Property in the Common Law

Real property

Personal property

Jeanne L. Schroeder “Chix nix bundle-o-stix”

Lecture Notes

C.B. Macpherson, “The meaning of Property”, Introduction to Property: Mainstream and Critical Perspectives

Thomas W. Merrill, “Property and the Right to Exclude”

Harrison v. Carswell (1975), 62 D.L.R. (3d) 68 (S.C.C.)

Lecture Notes

CHAPTER TWO: WHICH RIGHTS IN WHICH THINGS?

Introduction

Theories of Property

International News Services v. Associated Press, 248 U.S. 215 (1918)

Noted on other Cases

Victoria Park Racing and Recreation Grounds Ltd. v. Taylor and Others (1937), 58 C.L.R.

Kevin Anderson - Climate changes on carbon trading

Moore v. Regents of the University of California et al., 51 Cal.3d 120 (S.C. Cal., 1990)

Diamond v. Chakrabarty (1980) 447 U.S. 303, 100 S.Ct. 2204

Subjects and Objects of Property Law

Patricia J. Williams, “Alchemical Notes: Reconstructing Ideals from Deconstructed Rights”

Dred Scott v. John F.A. Sandford (1856), 60 U.S. 393

Henry Clay, Speech on abolitionist petitions in the United States Senate

CHAPTER THREE: POSSESSION AND TITLE AT COMMON LAW

What is Possession and Why Does it Confer Rights?

Pierson v. Post, Caines Reports 175 (N.Y. Supreme Court, 1805)

The Tubantia, [1924] All ER 615 (Pr. & Ad. Div.)

Finders

Keron v. Cashman et al., 33 A. 1055, Court of Chancery of New Jersey, 1896

Bird v. Fort Frances, [1949] 2 D.L.R. 791 (Ont. H.C.)

Parker v. British Airways Board, [1982] 1 QB 1004 (C.A.)

Lecture Notes – Summary of possession cases

Adverse Possession

Introductory Note

Lecture Notes

T. W. Merrill, “Property Rules, Liability Rules, and Adverse Possession”

Adverse Possession: The Quality of Possession

Introductory Note

Re St. Clair Beach Estates Ltd. v. McDonald et al. (1974), 50 D.L.R. (3d) 650 (Ont. Div.

D. Mendes Da Costa and R. Balfour, Property Law: Cases, Text and Materials

Lundrigans Ltd. v. Prosper (1981), 132 D.L.R. (3d) 727

Adverse Possession and the Inconsistent Use Test: Judicial Repeal

Introductory Note

Masidon Investments v. Ham (1984), 45 O.R. (2d) 563 (C.A.)

Notes

Notes from other cases (from lecture notes)

Teis v Ancaster (Town) (1997) 152 DLR (4th) 304

Notes

Quick Quiz

CHAPTER FOUR: THE RIGHT TO EXCLUDE

Introductory Note

Quasi-Public Space

Cadillac Fairview Corp. Ltd. v. R.W.D.S.U. (1989), 71 O.R. (2d) 206 (C.A.)

The Right to Free Speech

Marsh v. State of Alabama, 326 U.S. 501 (1946)

Notes

Lecture notes on C.C.C. v. Canada

Kevin Gray, Susan Francis Gray, “Civil Rights, Civil Wrongs and Quasi-Public Space”

Rawlins/Anderson

London Borough of Southwark v. Williams and Another, London Borough of Southwark v.

Notes

The Right to Participate

Local 1330, United Steel Workers of America v. United States Steel Corporation (1980)

J.W. Singer, “The Reliance Interest in Property” (1988)

CHAPTER FIVE: TENURE AND ESTATES

Introduction to Tenure and Estates

K. Gray, Elements of Land Law

nemo dat quod non habet

Types of Estates

K. Gray, Elements of Land Law

R. Scane, “Notes on Life Estates and Estates in Fee Tail”

The Creation of Estates: Presumptions and Words of Limitation

Lecture Notes

Present and Future Interests

Introductory Notes

Reversion

Remainder

K. Gray, Elements of Land Law

Notes

Introduction to Conditional Estates

Introductory Notes

Conditions Precedent

Conditions Subsequent

Defeasible

Determinable

Megarry and Wade, The Law of Real Property

Lecture Notes

Defeasible v. determinable interests

Remainder rules of the common law

Summary

The rule against perpetuities

Re McColgan, [1969] 2 O:R. 152 (H.C.J.)

Notes

Conditions and Uncertainty

Introductory Notes

Sifton v. Sifton, [1938] 3 All E.R. 435 (P.C. - Ont. )

Notes

Clayton v. Ramsden, [1943] A.C. 320 (H.L.)

Notes

Conditions and Public Policy

Introductory Notes

Re Noble and Wolf, [1949] 4 D.L.R. 375 (Ont. C.A.)

Legal Updates after Re Noble and Wolf

Re Canada Trust Co. and Ontario Human Rights Commission (1990), 69 D.L.R. (4th) 321

Notes

CHAPTER SIX: EQUITABLE INTERESTS

Trusts

Introductory Notes

Lecture Notes

Common law and equity

Inwards v. Baker [1965] 2 QB 29 (CA)

John Bulun Bulun v. R&T Textiles (1998) 157 ALR 193 (Federal Court)

Wife’s Equity and Women’s Property Rights

Introductory Notes

Gissing v Gissing

Murdoch v Murdoch

Pettkus v Becker

Sorochan v Sorochan

Lecture Notes

Peter v Beblow [1993] 1 SCR 980

Priorities

Introductory Notes

Northern Counties of England Fire Insurance Co v Whipp (1884) 26 Ch.D.482

Pilcher v Rawlins [1872] LR 7 Ch App 259

Chippewas of Sarnia Band v Canada (AG) (2000) 41 RPR (3d) 1

CHAPTER SEVEN: PROOF AND REGISTRATION

Title, Proof and Registration

Introductory Notes

Land Titles Act (RSO 1990)

T. G. Youdan, “The Length of a Title Search in Ontario”

Alain Pottage, ‘The Measure of Land’ (1994)

Marcia Neave, “Indefeasibility of Title in the Canadian Context” (1976)

Lecture Notes

Different types of indefeasibility

United Trust Co. v. Dominion Stores Ltd. Supreme Court of Canada 1976 CarswellOnt 383

Holt Renfrew & Co, v, Henry Singer Ltd. [1982] 4 W.W.R. 481, 1982 CarswellAlta

Notes

CHAPTER EIGHT: SERVITUDES (EASEMENTS AND COVENANTS)

Introductory Notes

Characteristics of Easements

Re Ellenborough Park, [1956] 1 Ch. 131 (C.A.)

Notes

Lecture Notes

Positive and Negative Easements

Introductory Notes

Phipps v. Pears, [1965] 1 Q.B. 76 (C.A.)

Creation by Express or Implied Grant

Introductory Notes

Lecture Notes

Wong v. Beaumont Property Trust Ltd., [1965] 1 Q.B. 173 (C.A. )

Sandom v. Webb, [1951] 1 Ch. 808 (C.A.)

Barton v. Raine (1980), 114 D.L.R. (3d) 702 (Ont. C.A.)

Creation by Presumed Grant

Introductory Notes

User as of Right

Introductory Notes

Garfinkel v. Kleinberg, [1955] 2 D.L.R. 844 (Ont. C.A.)

Caldwell v. Elia, (2000) 129 O.A.C. 379

The Scope of Easements

Notes

Termination of Easements

Notes

Covenants

Introductory Notes

Lecture Notes

Easements vs. Covenants

Bruce Ziff, “Restrictive Covenants: The Basic Ingredients” in Real Property Law: Conquering the Complexities

CHAPTER NINE: LEASEHOLD ESTATES

Introduction

Introductory Notes

Lecture Notes

British American Oil Co. Ltd. and Depass (1959), 21 D.L.R. (2d) 110 (Ont. C.A.)

Metro-Matic Services Ltd. v. Hulmann (1973), 48 D.L.R. (3d) 326 (Ont. C.A.)

Notes

The Independence of Covenants

Notes

From Property to Contract? The Law Relating to Abandonment

Introductory Notes

Lecture Notes

Goldhar v. Universal Sections and Mouldings Ltd. (1962), 36 D.L.R. (2d) 450 (Ont. C.A.)

Highway Properties Ltd. v. Kelly, Douglas & Co. Ltd. (1971), 17 D.L.R. (3d) 710 (S.C.C.)

Notes

Landlord’s Remedies and Duties Following Abandonment: Developments from Highway Properties

Introductory Notes

Notes on an appeal

On mitigation

Notes

CHAPTER TEN: PROPERTY, SOVEREIGNTY AND ABORIGINAL TITLE

Introductory Notes

Delgamuukw et al. v. The Queen in Right of British Columbia et al. (1997), 153 D.L.R. 4th) 193 S.C.C.

R. v. Marshall; R. v. Bernard, 2005 SCC 43

William F. Flanagan, “Piercing the Veil of Real Property Law: Delgamuukw v. British Columbia” (1998)

CHAPTER ELEVEN: PROPERTY IN OTHER SETTINGS

Degrees and Regulatory Licences

Introductory Notes

Lecture Notes

Caratun v. Caratun (1992), 10 O.R. (3d) 385 (Ont.C.A.)

Woodworth v. Woodworth, 337 N.W.2d 332 (Mich. C.A., 1982)

Notes on Caratun v. Caratun

Lecture Notes

Re National Trust Co. and Bouckhuyt et al. (1987), 61 O.R. (2d) 640 (Ont.C.A.)

Canadian Imperial Bank of Commerce v. Hallahan (1990), 69 D.L.R. (4th) 449 (Ont. C.A.)

Re Foster (1992), 89 D.L.R. (4th) 555 (Ont. Gen. Div.)

Criminal Law

Stewart v. The Queen (1988), 50 D.L.R. (4th) 1 (S.C.C.)

Constitutional Law and Socio-Economic Rights as Property

Introductory notes

Goldberg v. Kelly (1970) 397 U.S. 254, 90 S.Ct. 101

R. Lee, "Twenty-Five Years After Goldberg v. Kelly: Traveling From the Right Spot on

Gosselin v. Quebec (Attorney General) 2002 S.C.C. 84

Notes

CHAPTER TWELVE: TAKINGS

Introductory Notes

The United States Constitution

The Line Between Regulation and Taking

Lecture Notes

Pennsylvania Coal Company v. Mahon et al., 260 U.S. 393 (1922)

Keystone Bituminous Coal Association et al. v. DeBenedictis (Pennsylvania Department

British and Canadian Constitutions

Introductory Notes

Manitoba Fisheries Ltd. v. Canada, [1979] 1 S.C.R. 101

The Queen in Right of British Columbia v. Tener et al. (1985), 17 D.L.R. (4th) 1 (S.C.C.)

Re Haddock et al. and Attorney-General of Ontario (1990), 70 D.L.R. (4th) 644 (Ont. H.C.)

A and L Investments Ltd et al v. Ontario (1997), 152 D.L.R. (4th) 692 (Ont. C.A.)

Notes

CHAPTER THIRTEEN: MISAPPROPRIATION OF PERSONALITY

Lecture Notes

Krouse v. Chrysler Canada Ltd. et al. (1974) 1 O.R. (2d) 225 (C.A.)

Gould Estate v. Stoddart Publishing Co. (1996), 30 O.R. (3d) 520 (Gen.Div.)

White v. Samsung Electronics America, Inc., 989 F.2d 1512 (9th Cir., 1993)

Aubry v. Éditions Vice-Versa Inc., [1998] 1 S.C.R. 591

Notes

CHAPTER FOURTEEN: THE ONLINE ENVIRONMENT

Intel Corporation v. Hamidi 30 Cal.4th 1342 (2003, Cal.S.C.)

Ticketmaster, Corp. v. Tickets.com, Inc., 2000 WL 1887522 (C.D. Cal.)

Notes

CHAPTER FIFTEEN: OWNING LIFE

Davis v. Davis, 842 S.W.2d 588 (Penn., 1992)

Miles, Inc. v. Scripps Clinic and Research Foundation, 810 F.Supp. 1091 (S.D. Cal., 1993)

E. Richard Gold, “Owning our Bodies: An Examination of Property Law and Biotechnology” (1995)

REVISION

Lecture Notes

POSSIBLE ESSAY TOPICS

CHAPTER ONE: PROPERTY AS RIGHTS, NOT THINGS

Introduction

Some aspects of property rules

Property is a "set of rules". Property does not consist of the "things" or resources which are the objects of property law, but in the rules which govern how those resources are to be used
Property rules govern "relations among people"
Property rules govern "control, use and transfer".
Property rules concern "valued resources". But this is somewhat tautological as for themost part a resource is not valued until property rules are applied to it
Property rules are not static nor absolute

Lecture Notes

The idea of “thingness” is an essential requirement for property

Property has a characteristic of exclusion
Could also be about regulating a legal relationship (rights and responsibilities) with regards to a thing
Three important elements of property as rights
Who?  Who is going to get the rights?
What rights?
Over what things?

Where do we look for law in the Common Law?

Court decisions
Based on pragmatism and the instant case

Property is a set of rules

Depends on the meanings attributed to words
These depend on social practices and customs
Based on the reification of rights
Ownership as distinct from possession
But possession gives rise to rights
Property entitlements are not absolute

The Categorization of Property in the Common Law

Principal distinction is between real and personal property

Real property (land)

Corporeal hereditaments- Estates system
Freehold estates
Leasehold estates
Two estates that give you possession
Incorporeal hereditaments- Interests less than title (easements, covenants)
Not an interest in the right itself
Easements – like a right of way
Covenants: an undertaking with respect to land
E.g. limiting what you can do with land through contract or statute

Personal property (all other forms of property).

Choses in possession (tangibles)
Choses in action (intangibles)
Intellectual property: copyright, patent, etc
Shares
Contractual rights

Aboriginal title seems to be in a category of its own

Very sui generis

Jeanne L. Schroeder “Chix nix bundle-o-stix”

The concept of realty as a specific plot of land occupied and exploited by a single owner is a relatively modern development in Angloamerican culture

Historically, real property consisted of the system of estates

Numerous persons held different property rights with respect to a given piece of realty
Indeed, the traditional dichotomy between real and personal property may originally havebeen in large part jurisdictional rather than substantive
Real property rights referred not to property interests relating to land per se but to those causes of action for specific relief thatcould be brought in the king's court

Although many of these medieval estates exist only as vestigial organs in late-20thcentury

America, other partial estates have taken their place

Lecture Notes

Dimensions of property in land

The two-dimensional plot of land
The third dimensional land
Up to the sky and down to the core of the earth
Fourth dimension: Time
E.g. a lease
Life estate: ownership of land while a person lives
Fee simple
Fifth dimension: Equity
Legal interest
Equitable interest
A second layer of estate and interests (in addition to legal interests)

Feudal tenure

Land, as part of a feudal society, was important for society survival
Lord/Vassals
Vassals gave land to the Lord in exchange for protection
The person at the top (the Lord) was the ultimate owner of the land
The next person in the chain held the land for the Lord (tenure)
System of tenure
Sub-infudation: creating more links in the chain
The Tenant-in-Chief was in top, followed by Mesne Lords and then by the Tenant in Demesne who actually held the land
Tenure would arise in the following examples
Free tenure: Knight service, serjeantry, frankalmoine, socage
Wouldn’t usually hold the land
Unfree tenure: copyhold (villeins/surfs under domain of the manor)
People who usually worked the land
While our system is nothing like this, we hold some of the elements of property devised then
1290 – Quia Emptores
Eliminated this ability to sub-infudate
In Feudal times there was no freedom of disposition of the land
When you died, it would go to the next person in the chain
Land was very symbolic, and was an important symbol of power
1540 – Statute of Wills
You could then give your land away when you die
1660 – Statute of Tenures

In general terms, there is the understanding that British common law would be applicable to the colonies unless there was a law stating otherwise

C.B. Macpherson, “The meaning of Property”, Introduction to Property: Mainstream and Critical Perspectives

Property law, as a man-made institution is assumed to serve some purpose:

essential human need

meet the need of the class that set up the institution

In common usage:

-property = thing  true meaning is “right in or to things”

-property is confined to private property  also incorrect

Property a Right not a Thing

Without concept of property as right rather thing, physical possession would be sufficient to create ownership.

Property is to have a right in the sense of an enforceable claim to some use or benefit of something, whether it is a right to a share in some common resource or an individual right in some particular things.

 It is not force that establishes proprietary right. A proprietary right is protected by force. It can only be enforced so long as property is viewed as a right- a necessary human right.

- Property is an enforceable claim and therefore a political relation between persons.

Common Property. Private Property. State Property

The State created proprietary rights and enforces them.

Common property: individual property rights for all people (natural persons) in a thing. Guarantee that none shall be excluded. It is not the property of the state. Common property is the most unadulterated kind of property because it is always a right of the natural individual person, whereas private property may be a right of either a natural or an artificial person, and state property is always a right of an artificial person

Private property: guarantee that one (or corporation / legal person) can exclude other.

State property: private property right held by the state (akin to a corporation, albeit one to which the people have delegated power). It is not common property. It is a corporate right to exclude. It is corporate property.

[se also J.W. Singer, “The Reliance Interest in Property” – Chapter 4]

The misconception of Property as a Thing

17th century: property seen as right (limited rights over land, or right to a revenue- this was logical since many different people could have rights in the land- feudal).

 Capitalist economy meant more absolute rights over land, and things were exchangeable in the market. It was simpler to think of property as being things. Virtually everything became saleable

Today: property becoming right again as it becomes “expectation of revenue” (property of shareholders). Property = right to an income.

Change is twofold:

Rise of the corporation as the dominant form of business enterprise…expectation of revenue.
Increasing role of the government in society- the old idea of property as things becomes increasingly unrealistic.

The Misconception of Property as Private Property

Modern property rights are absolute: although there are limits (nuisance, etc.)

-right to dispose of, alienate, use

-right not conditional on owner’s performance of a social function

However, concept of common property is present as the state reallocates property. Environmentalism  conception of air and water as common property that should be available to all.

Lecture Notes

Two misconceptions about property

That property is a thing
Property is tied up in a system of rights and obligations
Rights are transferable and do not necessarily come along with the thing itself
What actually generates the most wealth today is not necessarily a good
E.g. intellectual property, intellectual capital or workers
In feudal times most wealth was generated by land and during the industrial revolution, it was goods, so the idea of property as a thing was more appropriate
During the 20th century, property is more about the rights to revenue and income
That property is private
There is a distinction between exclusive and non-exclusive rights
Property can also be public or commonly held
Though the factual basis of common property has disappeared with the conversion to capitalism and privatisation

Thomas W. Merrill, “Property and the Right to Exclude”

The right to exclude is the sine qua non of property. It is a necessary and sufficient condition of identifying the existence of property.

Right to exclude is the essence of property:

-without no property

-with it comes control over property

Points of Consensus

property is concerned with right, not things
concept of property includes rights over tangibles and intangibles
property ≠ mere possession (possession-fact, property-norm)
property requires an institutional structure to enforce it (i.e. the state)
concept of property regroups: private, common and public property

Schools of Thought Regarding Right to Exclude

(a)Single-variable essentialism: right to exclude others = irreducible core of property

(b)Multiple-variable essentialism: property is made up of rights of

possession (exclude)
use
disposition (transfer)

(c)Nominalism: property is a concept with no fixed meaning. Its elements depend on the choices of the legal system and social convention. Bundle of rights.

3 Arguments in favour of essentialism:

1. The Logical Primacy of the Right to Exclude

One can deduce all the attributes of property from the right to exclude, but the latter does not follow from any of the attributes of property.

-right to exclude  right to determine the use of property

-right to exclude  right to include others and exclude oneself, thereby operating the transfer of property