1
Common Law Property– Fall 2005
Professor: Dennis R. Klinck
Notes: Laurence Bich-Carrière
Of notionally being in Peterborough, of the YouthFountain and Fertile
Octogenarians,Unborn Widowsand Precocious Toddlers, of
Springing Interestsand Heads-spinning-counter-clockwise
Table of Contents.
A. Introduction
I. Aspects of the Idea of Property: Questions and Background Issues
1. What is property? – Definitions.
2. What are the justifications of private property?
3. What "things" Are (or can be) Object of property?
4. Who "owns" something? Why?......
II. The Cultural Relativity of “Property”
III. Classification/Characterization of Property (Common Law)......
1. Introduction
2. Real vs. Personal Property: The Traditional Categories
3. Issues of Identity: Which Category?
B. POSSESSION AND PROPERTY
I. What's possession and what's possession for?
II. Personal Property
1. Concepts of Ownership and Possession
1.1. Elements of Possession
a. Physical Control
b. Intent to Appropriate
1.2. Possession in Relation to Ownership (“ius tertii”)
2. Possession and Finding Lost Property
3 Bailment: Separation of Title and Possession......
3.1. The Nature of Bailment
3.2. Rights and Duties of Bailor and Bailee and Obligations of Possessor to True Owner.
3.3. Rights of Bailee and Bailor Against Third Parties 380-81
III. Real Property
1. Rights of possessors vis-à-vis subsequent title owners
2. Rights of possessors vis-à-vis true owners: adverse possession.
C. ACQUISITION OF PROPERTY INTERESTS
I. “Original” Acquisition.
II. Aspects of Derivative Acquisition
1. Gifts of Personal Property
1.1 Basic Requirements for Inter Vivos Gifts: Delivery & Donative Intent
1.2 Problems of Delivery
1.2.1 Choses in possession
1.2.2. Choses in action
1.3 The Intention Requirement
2. Transfers of Interests in Land(real property)
2. 1. History: Feoffement with Livery of Seisin, Deed, and Stuff
2. 2. Beneficial Ownership of Purchaser after Validity of Contract is Found: Equity
2. 3 Registry Systems.
3. The Intervention of Equity
D. PROPERTY INTERESTS IN LAND
I. Basic Concepts of Land “Ownership”
1. Definition of “land” (handout)
2. Doctrine of Tenure
2. 1. Introduction
2. 2. History: Feudal Pyramid and Subinfeudation.
3. Doctrine of Estates
II. Interests in Land
1. Absolute (Unqualified) Estates
1. 1. Estates of Inheritance
a. Fee Simple
b. Fee Tail
c. The Rule in Shelley’s Case
i) What is the rule?
ii) Why the rule?
iii) Explaining Re Rynard
1. 2. The Life Estate
a. General rules
b. Types of life estates
c. Estate pur sa vie
d. Estate pur autre vie
2. Qualified Estates
2. 1. General Nature
2. 2. Problematic Qualifications and Their Consequences
3. Future Interests: Sequential Ownership
3.1. Common Law Future Interests
a. Basic Concepts, 296-302
b. The Remainder Rules at Common Law, 302-06......
3. 2. Equity
a. Pre-Statute of Uses Equity, 306-312
b. Effect of the Statute of Uses (1535)
c. The Modern Trust: Avoidance and Exhaustion
3.3. Future Interests and Wills, 319-20, 323
3.4. The Rule against Perpetuities
a. Common Law Rule
b. Statutory Reform
III. Concurrent Ownership
1. Types of Co-ownership and Their Creation
1. 2. Joint Tenancy
1.3 Tenancy in common
2. Creation.
3. Severance of a Joint Tenancy
3.0 Introduction
3.1. Alienation by one of the tenants of this person's share
3.2. Mutuality of Acts and Mutual Agreements
4. Partition or Sale
4.1. The benefit analysis of severance
4.2. The physical separation of land.
4.2.1. How do you decide? Which remedy do you apply?
4.2.2. What are the criterions?
IV. Rights in the Land of Another
1. “Natural Rights” (brief characterization only)
2. Granted Rights: Incorporeal Hereditaments: Easements
a. Basic Characteristics
b. Creation of Easements
i) Express Grant
ii) Implied Grant or Reservation.
APPENDIX WITH EXTRA READINGS circa p. 57.
A. Introduction
I.Aspects of the Idea of Property: Questions and Background Issues[1]
«[T]here is nothing which so generally strikes the imagination and engages the affections of mankind, as the right of property.»
"[Property is] that sole and despotic dominion which one man claims and exercises over the external things of this world, in total exclusion of the right of any other individual in the universe".
-William Blackstone, Commentaries, 1765-1769
1. What is property? – Definitions.
Mossman [1-5]:
Contrary to what everyday discussions would make us think, "property" is a relationship, not as thing. It is a dynamic notion of the relationship among people (subjects) with respect to objects, , a legal recognition that the law attributes to the people with regard to things. The notion of "subject" has also tremendously changed historically (serfs, black people, women were traditionally excluded from being "subject" of property). Property is also a social concept, and thus its definition has a lot of social rationales.
Property is a bundle of rights linking people to thingsFrom this definition, we see that property is not the thing (rather the dominion). Also problems with what is an "external thing" (slave, wives, things undefined). Note that this rule excludes God. But most importantly, it excludes the fact that man lives in society: or, if we all lived on a deserted island, there would be no need for property laws; such laws are necessary because there are many individuals, each seeking property. This definitions doesn't explain the limits of ownership (say, you can destroy your own property for rebuilding purposes, but you can't arson it down).
2. What are the justifications of private property?
We have a tendency to assume this exists, because (1) we'll always have this model, (2) anyways, we don't think there any other models (of course, civil law property exists, but it's not dramatically different: to be different, we'd need something that is not dividing things up and attributing them to individuals) and (3) this helps us determine specific rules.
Now, here are some underlying rationales for such division-and-attribution:
- Optimal in se(egotistic incentive, pure economics, tragedy of the commons, mechanical application of the optimal law);Social order (knowing boundaries, for fear of chaos and looting, having something to lose and to protect); Basic right (like the right to freedom): it's a tangible right, a practical one, that insures a certain autonomy, perhaps, it's an expression of the personhood; Desert[2]: what someone put his energy into, he deserves; Human nature: if there is one at all, one could argue that it characterised by an acquisitive instinct; is greed inherent or socially constructed?; Given by God (says a text dating back to 1654, but there is also the "Thou shall not steal" of the Ten Commandments).
3. What "things" Are (or can be) Object of property?
"Love is not a thing; you don't take it off like a ring"
-Taff Russ, Love Is Not A Thing [country song]
What are the limits of property? Are there things that are beyond the reach of this concept? Why can't love be the subject of property? Because it's intangible? No, that can't be (most of our economy is intangible). Because it's subjective and spontaneous? Two kinds of entities are problematic with respect to this notion of "property".
- The things that suffer from an inherent inaptness to property: are there certain features of things that are essential before they can be treated in law as property?
- Some things not inherently intractable to the notion of property, might be so because of social or ethicalconcerns (ex.: a kidney).
Are there characteristics that make something appropriable?
- Intl New Services v. American Press: after voluntary sending to others, if you cannot exclude them, you do not have property rights.
- Caratun v. Caratun: In order for something to be property, you have to be able to negotiate/transfer it, it's not because it has value to someone else that it should have property-wise for you.
- Victoria Park and Recreation Ground v. Taylor: There is no right of property in spectacle.
- Moore v. Regents of the University of California: one has no property on his cells and body, but the scientists, for the effort they put and what they did to modify it, have property.
4. Who "owns" something? Why?
What are the considerations for stating someone owns something? Example: John Dellinger, a Robin Hood of the Depression. After he was shot by the FBI (and on a trap set by his girlfriend), people dipped their handkerchiefs in his blood. Whose property is the blood?
a)Nobody (it is an affront to human dignity to treat bodily substances as property, whether illegal or merely un-appropriable);
b)Given that is something that is not property might be of value, to preserve social order, one might create some sort of recourse:
c)Can you own the handkerchief only (not the blood, which is an "accident")? Owners of the handkerchiefs: doctrine of desert (they exercised the initiative), accession (the blood has become a part of something that they unquestionably own).
d)Person who owns the blood: Dellinger (or estate of) –but this means bodily substances are the subject of property rights.
e)FBI (State agency), for it created the availability of the blood (lien Pierson v. Post). This is all state property and subject to confiscation.
Of course, each answer comes with a bunch of concepts: where does property derive (source, capture, derivate product, assimilation)?
Case where a guy discovers the mouth of a cave system: he explores it, but it turns out some of the caves might be on somebody else's land. The owner of the surface seeks an injunction to prevent the cave-guy from deriving commercial activity, on the basis of from the sky to hell. But the judge says: no, it's all about initiative (right of discovery, conquest and exploration). The rhetoric is delighting.
II. The Cultural Relativity of “Property”
Mossman 80-84:
Law of social property is a social construction. The aboriginal ("every part of the earth is sacred to my people" and all generations, past and future, for time is a cycle, see Delgammukw) and the European (right of discovery, conquest, individual, singular and "despotic" dominion) conceptions of property are discussed here.
III. Classification/Characterization of Property (Common Law)
1. Introduction
Classification of Common law Property
______
*Intangible, that is non-possessory, often right with respect to other people's property (equivalent des servitudes en droit civil)
**Physical substance somewhere, so possessory right.
***Hereditaments: because it used to descend immediately to the first-born son.
† You can sure hold the certificate but not the actual right, money
2. Real vs. Personal Property:The Traditional Categories
Historically, the distinction between the categories of property has its origins in the difference between procedure in action. A successful action for real property grants the right to the return of the object; this is an action in rem(usually land, close to immovables in civil law).Personal property represents an action in personam because even if the action is successful, the individual would not have the right to the return of the property, just damages (usually the equivalent of movables).However, today, the rule doesn't apply anymore and you can bring an action in rem for a watch.
The historical characterization stuck, though in practice, it only has one application left: you cannot own land, only the Crown does (what you own in the estate in land) but you canown personal property.
Note that there can be two concurrent proprietors, one with legal title, the other with equitableownership, lien p. 23.
3. Issues of Identity: Which Category?
Chattel = piece of personal property
Fixture = chattel annexed to real property and, as such, has become real property.
Of course, it is not always easy to say what given objects are: all building materials are chattels but houses are fixtures; or if you are selling turf, it's probably a fixture when it's growing, a chattel when it's rolled up, whether on the seller's grass, the buyer's or on the truck, and probably a fixture again when it takes. The grass can thus have various manifestations/nature by result of the operations on it. Bottom line: the things are not static, what starts off as personal property might end up being real property.This makes a difference for real estate mortgages[3]: calculating the value or having (or not) the turf part of the mortgage.
Biss v. Saskatchewan Government Insurance Officetakes the test from Holland v. Hodgson (1872) [para 5] and refines it [para 6.]
1. Is the thing attached?
- YES (even if very slight, simply something more than gravity): presumption that they are part of the land.
- NO: presumption that they are not attached to the land
2. Can this prima facie character be altered by the degree and purpose of the annexation (objective test)? Consider affixation and affinity. Is the "annexed" things used for the better fulfillment of the land or of its nature as a chattel?
The concrete reality of the thing must be taken into account (you can't fix the nature of something by contract (Biss), as well at the intention of the owner (Biss). However, concerning that last point, the owner's own intention (subjective) should be taken into account, possibly to an extent where it outweighs the circumstances and conditions (Royal Bank of Canada v. Beyak, where the owners thought of their moho as a fixture but the Court decided to say it was a chattel; Chelsea Yatchpara. 22), degree of non permanence and removal without damages to land are indicators of a chattel (Chelsea Yatch & Boat Co)
Royal Bank of Canada v. Beyak et al. (1981), 119 DLR (3d) 505 (Sask. QB) [hdA p.2]
Reasoning.There are a few attachments (the pole, the septic tank –but one could argue it's simply hook-up of services), but the rest is mostly resting: the degree is slight. Now, the object: one could argue that the moho has the features of a permanent residence (landscape, deck, patio): the Beyaks testified they had always thought of this as their house, on their land. The judge decides that no.
Ratio. The owner's own intention (subjective) should be taken into account, possibly to an extent where it outweighs the circumstances and conditions.
Chelsea Yatch & Boat Co. Ltd. v. Pope [2001] 2 All ER 409 (CA) [hdA p. 4]
Ratio. Degree of non permanence and removal without damage to the land are two elements of a chattel. + Original parties can treat anything as they want, but third parties can only be expected to treat it objectively [Ziff].Of course, there's a problem when the originals parties are in litigation [Chelsea Yatch = UK and North York = Ontario, whichever's more authoritative in the country will win]
NorthYorkGeneralHospital Foundation v. Armstrong (2004) 69 O.R. (3d) 603 [hdA p. 7]
Facts.Foundation leases property to GCA who builds houses. Armstrong buys a land.
Issue.Is the complex a “land lease community”, in which case the respondents have the right to sell or lease homes without the consent of the Foundation?
Holding.Yes. Respondents are owners of the homes.
Reasoning.Usually, they should have but there are exceptions: a express agreement to the contrary, b where the contractual arrangements give tenant complete control of the house (landlord is no better than dead) or c agreement must proved that the tenant has the right to remove the house at the end of the term.
Ratio.Some building may be owned separately from the ownership of the lands (a) (b, and c not clear).
Comments.That means by agreement a fixture can be treated as a chattel. Chelsea?
Though, like in Chealsea, as soon as a third party is involved, private agreements do not hold.
B. POSSESSION AND PROPERTY
I. What's possession and what's possession for?
"Possession is very strong on the law"
"Possession is nine-tenths of the law"
"It is possible to write a whole treaty on property without mentioning or defining ownership. It's all about possession"[4]
Ziff quotes Lord Mansfield[5] (1774): “Possession is very strong; rather more than 9 points of the law.”
Pierson v. Post [C. 97]
Facts.Hunter 1 was chasing the fox, which Hunter 2 took down. They both claim the fox, which until then was a res nullius.
Issue.Whose fox is it?
Holding.Hunter 2's (2:1)
Reasoning.Majority. Hunter 2's killing of the fox was a clear mark of his taking possession of it. This act was clear and thus good. Dissent. All sportsmen would agree that the fox is Hunter 1's for he put the effort in it. Otherwise, all "saucy intruders" could use the product of other people's hard work by being apostles of the last hour.
Ratio.Two principles for defining possession (1) there must be notice to the world through a clear act and (2) reward to useful labour.
Comments.In this case, principle one and two are contradictory but this is not always the case: usually, "the useful labour is the very act of speaking clearly and distinctly about one's claim to property". Here, principle (1) was stronger because the rule it sets is easier to apply.
After Popov v. Hayashi, could you talk about a pre-possessory right for Hunter 1?
Possession can be the origin of property; if things are abandoned (bona vacantia) or have never had an ownerres nullius), or acquisitive prescription or, in common law, adverse position, where you can displace the title owner if you display certain possession characteristics).Lien p. 12. Also, very often, the disputes will not involve the true owner. The law recognises that someone who has possessory rights do have rights that can be vindicated at law.
But why give this recognition to this mere possession? There's no ownership! Why?
- Efficiency (efficient user, if the true owner is not paying attention to his or her property).
- Public order: country of law, not group force, no free for all [Popov v. Hayashi?], otherwise, unless you're an owner, anybody can come and stay on your land
- Way of representing to the world how things stand (a notice, perhaps even evidence of ownership [Carol Rose?]).
- Carol Rose fox and "saucy intruders".
II. Personal Property
1. Concepts of Ownership and Possession
1.1. Elements of Possession
Two elements: physical control and intention (animus possidendi)[6]
a. Physical Control
The physical aspect of possession, that is the degree of control required, can prove to be relative, depending on the nature of the object at issue.
- Re Tubantia show that the physical control requirement is satisfied when the maximum degree of control of which it is susceptible is attained.
- Popov v. Hayashi: You need unequivocal control by a clear act for possession. However, pre-possessory rights may change things: "Where an actor undertakes significant but incomplete steps to achieve possession of a piece of abandoned personal property and the effort is interrupted by the unlawful acts of others, the actor has a legally recognisable pre-possessory interest in the property [which] constitutes a qualified right to possession which can support a cause of action for conversion [p.3 of the hd.]".
b. Intent to Appropriate
Keron v. Cashman (1829) High Court of New Jersey [C. 124-25]