Table of Contents
Issues of Indefeasibility 3
Land Title Act 3
Additional Notes 3
Creelman v. Hudson Bay Insurance Company (1920, PC) 3
Exceptions to Indefeasibility, S.23(2) is subject to: 4
Fraud and Forgery 4
Gibbs v. Messer (1891, Australia) 4
Frazer v. Walker and Radomski (NZ PC) 4
Pacific Savings and Principal Savings v. Can-Corp, etc. (1982, BCCA) 5
Notice of Unregistered Interests 5
Central Station Enterprises Ltd. v. Shangri-La Estates Ltd. (BCSC, 1979) 5
Me-N-Eds Pizza Parlour Ltd. v. Franterra Development Ltd. (1975, BCSC) 5
Nicholson v. Riach (1997, BCSC) 6
Fee Simple 6
5 Types of Estates 6
Fee Simple: Granting Phrase 6
Statute 6
RE: Ottewell (1969, SCC) 7
The Life Estate 7
Repugnancy 7
RE: Walker (1925, Ont) 7
RE: Richer (1919, Ont SC) 7
RE: Shamas (1967, Ont CA) 8
Creation 8
Waste 9
Hiltz v. Langille (NSSC, 1959) 9
Vane v. Lord Barnard (1716) 10
City of New Westminster v. Kennedy (1918) 10
Mayo v. Leitovski (1928, Man KB) 10
Morris v. Howe (1982, Ont HC) 10
Co-Ownership – Concurrent Estates 11
Types of Co-Ownership 11
Creation of Concurrent Interests 11
RE: Bancroft Eastern Trust Co v. Calder (1936, NSSC) 12
Winchester v. McCullough (2000, NBQB) 13
Bull v. Bull (1955, QBCA) 13
Robb v. Robb (1994, BCSC) 13
Relations Between the Co-Owners 14
Share of Profits 14
Spelman v. Spelman (1994, BCCA) 14
Share of Expenses 14
Leigh v. Dickeson (1881) 15
Bernard v. Bernard (1997) 15
BCLI Recommendations 16
Severance of Joint Tenancies 16
Sheldon Stonehouse v. AG BC (1962, SCC) 16
Mortgages 17
North Vancouver v. Carlisle (1922, BCCA) 17
Trusts 18
Public Trustee v. Mee (1972, BCCA) 18
Foort v. Chapman (1973, BCSC) 18
RE: Sorensen and Sorensen (1997, AB App. Div) 18
Agreement between the parties 19
Flannigan v. Wotherspoon (1953, BCSC) 19
Walker v. Dubord (1992, BCCA) 19
Partition and Sale 19
Morrow v. Eakin and Eakin (1953, BCSC) 20
Rayner v. Rayner (1956, BCSC) 20
Bradwell v. Scott (2000, BCCA) 20
Mowat (2012) 21
Sahlin (2011) 21
Future Interests 21
Review – Fee Simple + Transfer 21
“Vested” and “Contingent” Interests 21
Vested Interests 22
Contingent Interests 22
Vested vs. Contingent Interests 22
Classification 23
Browne v. Moody (1936, PC) 23
RE: Squire (1962, Ont HC) 24
RE: Carlson (1975, BCSC) 24
Phipps v. Ackers (1842, HL) 25
Barton Estate 25
Festing v. Allen (1843, Exch) 25
Types of Future Interests 25
Reversions 26
Rights of Entry 26
Possibilities of Reverter 26
Remainders 26
Validity of Conditions and Qualifications 27
Uncertainty 28
Restraints on Alienation 29
Incorporeal Interests 29
Nature of Incorporeal Interests 30
Easements 30
Phipps v. Pear (1965, CA) 30
What constitutes a valid easement? 30
RE: Ellenborough Park (1956, Eng. CA) 31
Covenants 32
Tulk v. Moxhay (1848) 32
Development of Doctrine 33
Modification/Cancellation 33
Personal Property 33
Finders 33
Parker v. British Airways Board (1982, Eng. CA) 34
Marital Property 35
Fundamental Change in Division of Property 35
Aboriginal Property 37
Delgamuukw (SCC) 37
Tsilhqot’in (2014, SCC) 37
Issues of Indefeasibility
Land Title Act
· S.23(2) à “An indefeasible title, as long as it remains in force and uncancelled, is conclusive evidence at law and in equity, as against the Crown and all other persons, that the person named in the title is indefeasibly entitled to an estate in fee simple to the land described in the indefeasible title, subject to the following:
o (i) àThe right of a person deprived of land to show fraud, including forgery, in which the registered owner has participated in any degree.
o This section, 23(2), is guaranteeing title. There is a clear desire to make title indefeasible once it is registered (curtain between the register and anything before).
· S. 25.1(1) à Subject to this section, a person who purports to acquire land or an estate or interest in land by registration of a void instrument does not acquire any estate or interest in the land on registration of the instrument.
o S.25.1(2) à Even though an instrument purporting to transfer a fee simple is void, a transferee who (a) is named in the instrument, and (b) in good faith and for valuable consideration, purports to acquire the estate, is deemed to have acquired that estate on registration of that instrument.
o S.25(1) is not applicable to a gift/will, only available to bona fide purchasers.
· Note s. 297(3) à A person taking under a void instrument is not a purchaser and acquires no interest in the land by registration of the instrument.
o This section was repealed in 2005
· Insurance fund à exists to compensate persons injured by this land title act. If a person is deprived of their title in land and under common law they would have been able to bring a suit but can’t now because of indefeasibility, they could be compensated out of this fund
o If there was a mistake
o Under s.296(2)
o Deprivation must have been because of fraud or a wrongful act for which they did not participate.
Additional Notes
· The owner of any other interest in that property, anything other than a fee simple (such as a mortgage), is entitled to register that charge in the registry.
o This is an incumbrance
o In this system, the state is guaranteeing the indefeasibility of the fee simple
· When a title is registered for the first time, the applicant must satisfy the register that there is good marketable title in fee simple
o Once satisfied, the register will issue a duplicate copy of the certificate of title.
o The role of the registrar is to look at all of the documentation and make sure that it is a registerable interest.
Creelman v. Hudson Bay Insurance Company (1920, PC)
· Appellants are bound to accept HBC’s certificate and consequently comply with all their obligations under the contract.
· The fact that HBC acquired title in a way that did not comply with their own statute was irrelevant, all the matters is that they had title.
Exceptions to Indefeasibility, S.23(2) is subject to:
· The certificate of title mirrors the exact state of the title, even those exceptions which are not listed on the title continue to have validity.
· Indefeasible title is subject to the terms of the original crown grant – any conditions that applied to that land under the original crown grant would be an exception.
o Outlined in s.50 of the Land Act.
· (D) à A lease or an agreement for a lease for a term not exceeding 3 years if there is occupation. If a lease is less than 3 years, it doesn’t need to be registered but it still stands (you should ask if there are any tenants/if they are in possession)
o Any lease over 3 years is required to be registered by law
· (E) à Public highways, etc.
· (G) à Various charges such as pending applications for a charge on the property, if there is anyone making a claim that is likely to be pending litigation, etc.
o Charges that are in motion but not yet on the certificate
· (I) à Fraud and forgery, the right of a person deprived of land to show fraud, including forgery, in which the registered owner has participated in any degree
Fraud and Forgery
· No indefeasibility if the registrar or the person has acted fraudulently.
· Under common law the principle is nemo dat à you can’t transfer what you don’t have.
o It is a nullity and the transaction is void
o Think of an innocent third party – what would happen to them?? Reason why s.25.1 was enacted – to protect bona fide purchasers for value and allow them to hold valid title.
· Torrens system puts indefeasibility front and centre
o Immediate indefeasibility à once the purchaser, regardless of what has happened, if there is no fraud, had registered their title, they have indefeasibility.
§ Needs to be one away from fraud
o Deferred indefeasibility à Principle means that the “curtain” here does not fall at the first registration, but at the second
§ Needs to be two away from fraud
Gibbs v. Messer (1891, Australia)
· This case deals with fraud and forgery. There is a transfer created fraudulently to a fake person. There is then a subsequent transfer to an innocent third party.
· Follows the deferred indefeasibility principle
· HOWEVER, this is an anomalous case and courts are trying to move away from this decision.
Frazer v. Walker and Radomski (NZ PC)
· Follows immediate indefeasibility
o The fact that the forged mortgage is registered means that indefeasibility applies (Torrens System)
· General principle à registration under the Land Transfer Act, 1952, confers upon a registered proprietor a title to the interest in respect of which he is registered which is immune from adverse claims, other that those specifically expected.
o Once a person’s name is registered in the register, even though it came from a void instrument, that person gets immediate indefeasibility
§ Except for it they fall under the exceptions listed in s.23(2)
§ Protection is limited to fee simple, no other interests will be protected.
Pacific Savings and Principal Savings v. Can-Corp, etc. (1982, BCCA)
· Facts à The financial corporation was issued a certificate of title since the owners defaulted on their mortgage. After, the mortgagors filed a lis pendens (so that they could redeem their mortgage – this was registered).
· Mortgagors argued that any indefeasibility is subject to s.23(2)(g) – a caveat charge claim or a pending court proceedings.
· Conclusion à Even though a certificate of title has been issued, somebody else may be properly entitled to that title.
o The mortgagee’s (financial corporation) title had not claimed indefeasibility until their dispute had been finally resolved.
Notice of Unregistered Interests
· S.29(2) à A person dealing with a registered owner is not, despite any rule of law to the contrary, affected by notice of unregistered interests affecting land (title is not affected)
o This provision is an attempt to get rid of a rule in equity, the doctrine of notice
o Idea is that you don’t have to look behind the register
o Effect à All interests must be registered and if they are not registered, they will not affect title.
o Exceptions à 29(2)(c), (d), and (e)
§ (c) à An interest, the registration of which is pending
§ (d) àA lease or agreement for lease for a period not exceeding 3 years if there is actual occupation under the lease or agreement, or
§ (e) à The title of a person against which the indefeasible title is void under s.23(4)
Central Station Enterprises Ltd. v. Shangri-La Estates Ltd. (BCSC, 1979)
· Facts à There was a 5 year lease, not registered on the property. There is a default on a mortgage and the property goes into foreclosure, Shangri-La buys it.
· Shangri-la finds out about the lease after the purchase has been executed, but before the title is registered and before the redemption period is up.
o Plaintiffs argue that since SL found out about the lease before they became registered, SL is unable to rely on s.29
· Conclusion à It is from the date that you have entered into a binding contract, not the date that you registered title.
o At the time SL entered into a binding contract, they did not know about the lease therefore they can rely on s.29. (Their title is not affected by the unregistered lease)
· Under special circumstances only can a person become disentitled from relying on s.29
o Had SL known about the lease they might not have been protected.
Me-N-Eds Pizza Parlour Ltd. v. Franterra Development Ltd. (1975, BCSC)
· Facts àPizza had a 20 year lease with Franterra. Pizza had thought the lease was registered, but due to an incompetent lawyer it wasn’t. Meanwhile F sold the property to Hanson. Pizza now pays rent to Hanson, Hanson even assigns the lease to RBC. Pizza then tries to register their lease and Hanson disagrees, claims s.29 protection.
· Court à Doesn’t accept Hanson’s argument. H acknowledged the lease, acted upon it, and benefitted from it as if it were a charge. They were estopped from relying on s.29 protection.
· Take Away à S.29 protects against an unregistered interest unless it is acknowledged and acted on, then you can’t claim protection of s.29.
Nicholson v. Riach (1997, BCSC)
· Facts à Riach and his mother each owned 50% of a property. Riach had a judgment against him to the petitioner. The petitioner registered the judgment she received against his half-interest in the property. She then made an order for partition and sale of the property. The mother is arguing that the property was never her son’s to give, since she was pressured into adding his name to the certificate.
o The mom had a potential claim against her son
· Conclusion à Even though the son obtained her title by fraud, this will not subject the subsequent purchaser/register unless that person participated in that fraud.
o To prove fraud there must be an element of dishonesty combined with constructive knowledge or notice.
o The petitioner did not participate in any fraud, no dishonesty.
· Take Away à If there is notice and dishonesty, you can’t rely on s.29
Fee Simple
5 Types of Estates
· Fee Simple à Potentially without end
o “Fee” indicates inheritability
o “Simple” indicates heirs may be of any type
· Fee Tail à As long as there are descendants
· Life Estate à An interest for one’s lifetime
· Estate Pur Autre Vie à An interest for the life of another
· Estate for a fixed period of time
Fee Simple: Granting Phrase
· To A and his/her heirs
o Word of purchase
· To A and his/her heirs
o Words of limitation, a measuring device (does not indicate that anything is going to the heirs)