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Adil Khan

Property Law – Midterm Study Guide

Exam – Basic four-step guide to Fact Set questions:

1. What is the issue?

2. What is the law?

3. Apply the law to the facts.

4. Persuade the examiner. Argue both sides, show why yours is more compelling.

  1. The Nature of Property
  1. Property and Culture

Calder v. BC AG (SCC, 1973)

-Landmark case: SCC decided that aboriginal title is part of the law of Canada, thus validating native claims on traditional territory

-Court divided on whether or not Nishga still had title to contested lands

  • 3 J in favor: No one took it away, if they had it before they still have it
  • 3 J oppose: lost due to colonial ordinances that extinguished title deed
  • 1 J said Nishga not properly before the court because they needed Crown approval to bring action (sovereign immunity)

-Result: 6 judges thought title part of law, 3 said that title is still applicable

-Judgment reverse course of policy and restart land claim process

  • Nishga got treaty from BC in the 1990’s

-Excerpt an example of a trial judge trying to come to terms with meaning of property across cultures in terms of ownership and possession

  • Courtimpliedthat Nishga notions of property too unlike CL
  • In retrospect, however, they appear basically similar
  • Could be inherited, transferred, and destroyed
  1. The ‘properties’ of property: defining the beast

‘Dialogue on Private Property’ by Cohen (1954)

-Reaction to legal realism (tended to be nominalist in their thought) that had obscured the notion of property

  • Essentialism: looks at essence of property
  • Multivariable essentialists: assign multiple traits
  • Honore’sbundle involves duties as well as rights
  • Single variable essentialists (like Cohen): property can be described by a single adjective that works most of the time
  • Cohen:exclusion at the essence of property
  • Requires that the state enforcement (stateless society?)

-Attempted to set aside the idea that property is a physical thing or object

  • Usually a set of relationships more than something absolute
  • There is both valueless property and property-less value
  • We can have use without ownership, and ownership without use

-Philosophy

  • Attacks nominalists who believe law is simply what the courts and legislators say and make it.
  • Materialism negated because property needs not be a thing
  • And b/c essential to property is relations with others
  • Economic concepts of value trivial and a reflection of capitalist logic rather than actually describing the concept of property
  • Realistic definition looks at property in terms of exclusion, which people can impose or withdraw with state backing.

-Three main property regimes: Private v Public v Common Property

  • Common property is a misleading:owned by everyone and no one
  • Debatable whether property rights exist at all
  • Public property is also a gradation
  • Charter limits how the state right to exclude can be exercised
  • Charter complicates who can be admitted and excluded

Private Property / Owned by a private person (corporations). Owner has rights and some obligations and, in particular, the right to exclude.
Public ownership / Government or public entity holds title and has right to exclude, but must do so in public’s interest.
Common Property / Refers to property over which we all have title from which no one can be excluded: air, rain, sun…
Collective/Communal / Community or group has title and can exclude non-members from use. (e.g. aboriginal title and non-aboriginals.)

-Andrew Bell’s functional analysis of how property law works:

  • Beneficial rights: right usually associated with ownership
  • Trustee cannot enjoy the benefit of property
  • Difference b/w equity and ownership
  • Security rights: right to own a property as security for debt
  • Designed to ensure that some financial obligation is performed
  • Managerial: holder has control but not entitlement
  • Remedial right: a power to apply to the court for some form of relief

Yanner v. Eaton (Australian H.C., 1999)

-Facts: Aboriginals found in contravention of the Fauna Act when in a traditional practice crocodiles were hunted and stored for food and hide. The question revolves around competing ownership claims. If all Fauna belongs to the Crown then the tradition violates the property rights of the Crown.

-Arguments:

  • Appellant: Constitutionality of law is questionable as it restricts aboriginal rights protected by the Native Title Act
  • Respondent: Appeals to the absolute notion of property to make the court hold the charge against the aboriginal practice.

-Decision: Appeal successful and charges dropped

-Reasoning:

  • Majority: Property rights are notoriously difficult to establish over wild game. And exclusive rights can hardly be applied to nature, as it is held in common.
  • Minority (DISSENTING): notion of property is clear and allows the state exclusive rights. Aboriginal rights were extinguished by Act.

International News Service v. Associated Press (US SC, 1918)

-Facts: INS is blatantly copying AP new stories. A significant case for intellectual property rights (the extension of property beyond simply copyrighted material). AP chose not to file claim under tort to induce a breach of contract because the burden of proof made this simpler to establish. Argument for theft of property creates broader solutions.

-Arguments:

  • Complainant: News stories qualify as property and the use of such property by a competing firm cannot be justified in law.
  • Respondent: As no copyright laws apply, the material is open to common use following its publication.

-Decision: Upholds AP rights over published material.

-Reasoning:

  • Majority: Even if explicit property rights don’t extend over the news material published by AP. Fair business practices demands that the court enforce exclusive rights over news materials.
  • Quasi-propertyright established: has some econ value
  • Grants new rights on logic of functionalist labor theory concerned with ‘people reaping where they have not sown’
  • Seen in Montesanto and Moore, but NOT in Victoria Park
  • Dissent:
  • Holmes: does not agree that exclusive property rights can apply to news material. Insists on time-limited exclusive use and then opening up the material to common use.
  • Brandies: courts cannot legislate what is protected property.
  1. The case for private property

-The basic law and economics stand

  • Three features that law must uphold for an efficient market order
  • 1) Exclusivity of ownership
  • 2) Entitlements must be transferable
  • 3) Law should make a broad array of items available for exchange (universality)

-The tragedy of the commons

  • Myopic, self-interested, wealth-maximizing preference-seekers are the root causes behind the tragic parable
  • Private property reduces social costs and negative externalities because it limits one’s ability to shunt off costs onto others
  • Internalizes beneficial and harmful effects

-The tragedy of the anti-commons

  • Looks at the destructive consequences of too much privatization and how that fractures and stifles economic growth
  • Patents and copyrights (intellectual property law) are examples of where overlapping ownership rights complicate development
  • Even the ardent libertarians must concede that some infrastructure must be held in common or public hands lest risk an anti-commons

-The flourishing of freedom

  • Freedom from… negative freedom is inherent to private property
  • Private prop is supposed to promote autonomy, independence, dignity, and pluralism (because without it ones ability to participate in democracy and exercise his rights is diminished)
  • Property and power
  • Empowers one to be non-reliant & counterbalance the state
  • Ownership rights not widely dispersed promotes freedom for the few (and thus creates an economic oligarchy)?

-Theories on personhood, moral development, and human nature

  • Core concepts
  • Hegel: allows the potential to develop and thrive, bestowing the capacity to demonstrate individuality and self-expression.
  • Psychological perspective: innate primordial need for property
  • Personhood theory stresses importance of security and privacy associated with ownership

-Natural law, labour, desert, and consent

  • Natural law and labour
  • Locke’s argument behind a natural right to property
  • From positive commonality in the state of nature, a natural and divinely sanctioned transition to place property in private
  • Lockean ‘mixing metaphor’ states that since we own our labour we gain title to what we labour upon
  • Prospect of economic productivity and political emancipation
  • Desert and consent
  • Desert is a complicated philosophical notion meaning that action requires a deserving response
  • Thus,labour must be compensated by property rights
  • Entitlement derived from occupancy
  • Means of distributing property to settlers in the British Empire

Harrison v. Carswell (SCC, 1976) --- pre-charter case

-Facts: Carswell is charged with trespassing by the appellant, Harrison, who owns the shopping center where respondent was attempting to protest a labour dispute with her former employer. A question of whether property rights trump one’s right to picket in labour disputes.

-Arguments:

  • Appellant: Recognizing charges are the only way to ensure property rights of the owner are protected and maintained by the state.
  • Respondent: Right to picket trumps those of the property owner.

-Decision: Appeal heard. Original trial judgment of guilt restored.

-Reasoning

  • Majority (Dixon): Case history shows a clear insistence that the owners can exclude picketers on private property.
  • Dissenting: This is an action against the labour rights of Carswell. Allowing propertied interests to trump those trying to exercise their democratic rights is an abusive restriction by property owner.

-Notable Mentions

  • Trespass: in property it is the unjustified entry upon private land
  • Peters clarified the rights of a shopping mall owner:Sufficient possession of sidewalks to restrict those picketing for a boycott.
  • Two laws competing:Manitoba statute v. CL precedent saying that private property owners can eject who they please
  1. The functions of modern property law

-General Functions

  • Allocates entitlements
  • Regulates exchange
  • Balances conflicting claims of owners
  • Main duty: promote economic efficiency
  • Ex: land registration systems

-Resolving novel claims

  • Understanding of property is not a static, state of flux
  • Moved from physical possessionto notion of a bundle of rights
  • Prompted by scientific and technological progress

-Two styles of analysis for innovative property claims

1) Attributes approach: looks for a resemblance to the traits and features associated with property

2) Functional approach: driven by policy contextual implications

  • The university degree example: initially not seen as property inGraham v. Graham under the attributes approach (earned not bought or of any intrinsic value), later in Woodworth v. Woodworth the functional approach used to say it was property

Attributes Approach
Does it look like property? / Functional Approach:
Do we want it to be property?
  1. Can it be possessed (Graham = No; Harvard = comp/matter))?
  2. Can you exclude others from its use (Graham v. AP; Harvard Patent)?
  3. Does it have value (AP – bought and sold)?
  4. Is it alienable or transferable (Graham = no)
/
  1. Value Lockean Labour – Reward Labour (AP: Reap what you sow; VP racing – build higher fence)
  2. Floodgates (Harvard: Human dignity; AP diss: news should be free access)
  3. Institutional Roles (Harvard: Parliament should decide)
  4. Fairness (Woodworth)
  5. Promotion of Economic value (Harvard diss )

-The numerus clausus principle limits the kinds of property rights. Justified by two efficiency-based arguments

  • Reduces information costs
  • Minimizes the anti-commons problem

Victoria Park Racing v. Taylor (Australian HC, 1937)

-Facts: Plaintiff, owns racetrack, brings action against neighboring owner who has erected an elevated platform from which the spectacle can be viewed. Another defendant, Angles, broadcasts commentary from that platform.

-Decision: Action dismissed.

-Reasoning:

  • Majority by Latham C.J.: It is not unlawful to look over another’s fence and see with one’s own eyes what is occurring and to tell others about it. The law can in no way erect fences to prevent this. The notion of ‘property in spectacle’ is vague and has no basis for legal remedy.
  • DISSENT by Rich J.: A decision that notes the obvious copyright issues that could arise in the future from this case. Property ownership allows one the right to the exclusion of others. Regardless of a lack of precedent as the common law is meant to adapt to such changes.
  • Concurring by Dixon J.: Agrees with the verdict of the majority, but not its rationale. Cites INS case in saying that English Law protects against the interference with the profitable use of one’s own property.

Moore v. The Regents of the University of Cali (Cali SC, 1990)

-Facts: Moore was treated for cancer at the defendant’s hospital. During treatment, the doctors used materials extracted from Moore to develop a profitable product.Wants a property interest in the patented technology.

-Decision: Appeal in favor of the defendant, the hospital, upheld.

-Reasoning

  • Majority by Panelli J.: Moore has a cause of action for breach of fiduciary duty or lack of informed consent, but not for tort of conversion, which would mean that he had ownership of his cells after they left his body. No precedent for this. Besides, the doctors patent means Moore can have no interest in the work. Concern over how assigning property rights over body sample could affect R&D.
  • Institutional competence argument: court has limited capacity to adjudicate on subject. Call for legislative action.
  • DISSENT by Mosk J.: Recognizes the economic interests in the growth of biotech. Healthcare legislation quoted by the majority does not negate all property rights. Biz interests should not trump the ethical ownership of our bodies.

Monsanto Canada Inc v Schmeiser (SCC, 2004)

-Facts: Schmeiser’s farm was found to have Canola plants from a patented Monsanto seed. The GM seed probably collected from neighboring farmers who pay fee. Schmeiser owns the plants, but the seeds from which they grew are under patent protection.

-Decision: Action successful, defendant found liable

-Reasoning:

  • Majority by CJ and Fish J.: Conclude that the patent’s extent is valid. And then follow to the conclusion that Schmeiser’s use of the crop violated the Patent Act.
  1. Property in Perspective
  1. The sources of Canadian property law

Terms

-Allodial ownership means you own land outright

  • Foreign concept to the CLb/c the only allodial owner is the Crown
  • Functionally, however, we own land as if we own it allodially
  • In reality we own title in an estate in free and common socage

-Escheat: in a system of inheritance, if there are no heirs, the land escheats to the lord. Still applicable today, where the land escheats to the Crown.

-Incidents of tenure: obligations owed to the lord that crystallized at the death of the tenant

  • Free tenure: meant your services were stated and known
  • Unfree tenure is one who is liable to the whims of the lord

Ziff’s History of Property Law in Medieval England

-Following the Norman Conquest of 1066, William the Conqueror absorbed tracts of land from Anglo-Saxon nobles and granted it to his loyal followers called tenants-in-chief (TIC)

  • These tracts were granted by the TIC to other tenants who in turn could grant further tenants in a process called subinfudation.

-These vertical transactions created the relationship of lord and tenants

  • Today’s property transactions are horizontal

-Purchase of service by land grants was the backbone of the tenurial system

  • Arrangements created complex economic and social network
  • Created bonds of reciprocal obligations between tenant and lord

-This is a managerial/contractual arrangement rather than a property system

  • There were customary expectations to the hereditary rights of tenant’s family.At core:a relationship defined by service for property
  • At the bottom of the pyramid, free and common socage meaning peasants owed agricultural produce to the lord for protection
  • At the top, military service was expected

-Expectations that the heir will get the land on the death of the ancestor became so great that the king’s court enforced these customs

  • The development of inheritance was first stage in slowly transforming the tenants contractual interest into something we call property
  • One reason was because services started being useless

-By the end of the 12 century, the complexity of the feudal system upset lords

-Statute of Quia Emptores (1290): allowed tenant to sell land by guaranteeing the right to alienation (i.e. substitution no longerrequires the consent of the lord).

  • Over time the effect is that the feudal pyramid contracts
  • Transactions become horizontal and not vertical
  • End of classical feudalism in the sense that the pyramid ceased growing and started broadening

-Right to make a will in English law granted in 1540

  • Common law till then did not allow one to control inheritance
  • Law and custom dictated it went to the heir
  • When this law is passed you have introduction of modern property laws and the ability to disinherit the heir.

-All come crashing down: Tenures Abolition Act of 1660

  • Abolish all forms of tenure except one and all incidents aside from two
  • Incidents remaining: escheat (crown still inherits what no one else gets), and forfeiture (doesn’t exist because of Criminal Code, but it means the loss of tenure upon criminal offence)

-The evolving relations introduce estates

  • Estate: the time for which you own the land (time in the land)
  • Doctrine of estates slowly evolves and relations get commodified:
  • Fee simple (absolute): own it as long as long as you want and can descend by inheritance to anyone
  • Fee tail: grant of land but with restrictions on who can inherit
  • Life estate: granted an estate for life, not inheritable
  1. Reception of English law in Canada

-In the age of imperialism, no judicial basis for territorial acquirement

  • Some issues did arise: for instance, what laws applied to the territory?
  • Distinction between imperium [sovereignty over territory] vs. dominion [ownership of land]
  • Conquered or ceded territories: where law of that people or territory continues in force until the Crown says otherwise
  • When the Brits took over Quebec they unusually declared that English law would apply, the resulting discord forced Britain to back off in the Quebec Act, which restored French law - except in criminal matters.
  • Settled colonies: the idea that settlers brought their law with them to empty land (terra nulis)
  • British colonial logicof vacant lands– did not accommodate indigenous tribal inhabitants

-When English law applies what court meant was English statute law