Greg Koenderman – Common Law Property – Prof. Piper - 2010
Chapter 1: Property as rights, not things.
Introduction - Property is the set of rules that govern the relations among people; 2
C. B. Macpherson, The meaning of Property (1978) p. 4: Property is rights in things or to things – Straw Man versions of other property; Left Wing; property is a right not a thing
Bradley Bryan, Property as Ontology (2000) p.13– ABORIGINAL; IMPORTANCE OF RELATIONSHIPS
Walter v. Attorney General of Alberta, 1969, SCC, p15; COMMUNITY V. PRIVATE PROPERTY
Thomas W. Merrill, Property and the Right to Exclude, p. 20. RIGHT TO EXCLUDE IS THE NECESSARY AND SUFFICIENT condition to identify the existance property. RIGHT WING; CONTRAST WITH MACPHERSON
Harrison v Carswell, 1975, SCC, p. 30. The owner has the right to exclude others.
Chapter 2: Which Rights in Which Things?
Theories of Property Why do we get certain Right?
John Locke, Quoted in: Property mainstream and critical positions. (1978) p. 45 – Justification of private property. Common property + Labour = Private Property.
James Tully, Rediscovering America, in Locke in Context. (1993) p. 46 – Indian forms of Property disregarded in Locke’s concepts.
M.J. Radin, property and personhood. (1982) p. 50 – What is a Person?
Cohen, Property and Sovereignty. (1978) p. 55– Dominion over things is also imperium over human beings
M. Mauss, The Gift(Maori). (1967) p. 59 – Things have spirits/souls which pass b/w giver and receiver
L. Hyde, The Gift (The Girl and the Dead Man) (2007) p. 61;
Michael Thompson, Rubbish Theory: The creation and Destruction of Value. (1979) 64 – Value in the way that you say it, not in what you say
International News Service v. Associated Press, USA (1918), 80– Intangibles as Property; quasi-property rights;
Victoria Park v. Taylor, Aust, 1937, 98– Intangible is not property; Property rights are limited by relations with other people
Subjects and Objects of Property Law
Subjects and Objects of Property Law : The Deed of a Sale of a Slave Sold at Winder, N. S. in 1779. P109
K. J. Gray and P. D. Symes: “A Brief History of the Doctrine of Conjugal Unity” p. 110 – Women made objects after marriage
Moore v Regents of the UCLA, California, 1990; 113 – Rights in excised body tissue denied (when modified)
Breathing life into dead capital, The Economist, 2004, p128 – importance of property rights; possession v title
New frontiers: Chinese gamer sentenced to life, 132 – Value is all that is required for some to want property right.
Virtual theft leads to arrest, p.133-134
From lowly orcs to Grand Wizards of the Dark Realm, China’s online gamers are storming castles and expanding their domain. The government however, is playing too. P134
Chapter 3: Possession and Title at Common Law?
Casner & Leach, Cases and Text on Property (1984) p.135 – PURPOSE OF READING CML PROPERTY CASES
Pierson v. Post, 1805, p.136 (NY SC) – POSSESSION – Rights in abandoned things; killing/wounding = possession; pursuit does not equal possession
Clift v. Kane., Year, p.140 Nfld– Possession – rights in abandoned property; killing AND seizing =possession
The Tabantia, 1924, UK, p. 141 – Elements of Possession – how to possess something that is hard to possess.
Gimmelmann, Virtual Worlds as Comparative Law. (2004) p.144 – context and disparity of property rules
Popov v. Hayashi, 2002, p. 149 – POSSESSION – Balancing of competing rights
R. Sloot, Taking the Least of You. (2006) p.152. – Ownership of tissue before/after extraction (cf. Moore)
Finders
Armory v. Delmiri, 1722, UK; 162– Right of Finder superior to everyone except True Owner.
Keron v. Cashman, 1896, US; 163– Simultaneous Finders all retain an equally divisible property right; Possession requires physical control & intent.
Bird v. Fort Frances, 1949, 165; ON H.C.; Rules for Possession in Wrongful Taker Situation (Trespasser is finder)
Hanna v. Piel; 166 & 169
Moffatt v. Kazana., 1969, 171; UK; The duration of an Owner’s Title; forgotten property is not abandoned
Parker v. British Airways Board, 1982, UK CoA 175 Rights and Obligations of Finders and Rights & Obligations of Occupiers
Bridges v. Hawksworth (From within Parker Case) – finder inside an owned location, finders rule still holds
Senecal v. The Queen, QC, 1984, Fed Crt; p184; Legislation modifies common law rules on Finders
Adverse Possession
Introduction to Adverse Possession. P186
Ontario Limitations Act, R.S.O. 1990, c. L-15 (example of a statute of limitations dealing with possession) p.187
T.W. Merrill : “Property rules, liability rules, and adverse possession” 1985. P189; Justification of AP
Patricia Seed, “Ceremonies of Possession in Europe’s conquest of the New World, 1492-1640. Houses, Gardens and Fences. 192 - Adverse possession: The quality of Possession.
K. Green, “Citizens and Squatters: Under the Surfaces of Land Law”. p195; Justification of possession for title
Quality of possession
Introduction to St. Clair Beach Estates Ltd case p197
Re: St. Clair Beach Estates Ltd. v. McDonald, ON Gen Div, 1974. P198; No Possessory title; 3 requirements of possession
D. Mendes Da Costa and R. Balfour, “Property law: Cases, Text and Materials”. P203; examples of establishment and failure of AP
Beaudoin v. Aubin, 1981, ON HC, p. 205 Adverse Possession does not require intent; possession is certain and unequivocal
Lundrigans v. Prosper, NL, 1981, p. 210 Adverse possession must be exclusive, uninterrupted, open, and notorious,
Wood v. Leblane., SCC, 1981, p. 212 Doctrine of Colour of Title, misinformation leads to entire property
Ocean Harvesters v. Quianlan Brothers, SCC 1975, p. 213 Importance of Intent for adverse possession
Masidon Investments v. Ham, ON CA, 1984, p. 216 A trespasser’s use must be inconsistent w title holder intent for true adverse possession.
Teis v. Ancaster Town, ON CoA, 1997, p. 225 Mutual mistake does not require proof of inconsistent use – claimants can be inferred as having land title.
Gorman v. Gorman, O.A.C., 1998, p. 233 In marriage splits, animus possedendi is not established without cogent evidence of intention
Chapter 4: Which Rights for Whom?
Right to Exclude: Public/Private Uses of Property
Cadillac Fairview v. RWDSU,ON CoA, 1989, p.218 – Right to Exclude: Property Rights v. Labour Rights
Queen’s v. CUPE, 1994, p.224 – Right to Exclude: Unions excluded from picketing on/near private property; analysis to identify private property
Right to Exclude: State Expropriation and Regulation
Right to Exclude: State Expropriation and Regulation, p.230 – Constitutional Protection for Property Rights
B. Ziff, Taking Liberties: Protections for Private Property in Canada (2005) p.232 – Many constitutional and quasi-C protections for property in Canada
Manitoba Fisheries Ltd. v. Canada., SCC, 1979, 235–242 Goodwill is PROPERTY; expropriation must be compensated
British Columbia v. Tener, 1985, 243-247– Example of the Crown acquiring an intangible interest in a property right; Taking and getting not the same thing
Haddock v. Attorney General of ON, 1990, 248–s. 7 & 15 of the Charter do not provide protection for income earned from rental property
A & L Investments v. Ontario, 1997, ON CoA, 252– COMPONENTS OF EXPROPRIATION REQUIRED FOR COMPENSATION
Canadian Pacific Railway v. Vancouver , 2006, SCC, 256–REQUIREMENT of de facto taking in the CML; limited by Statute; CML presumption of compensation inapplicable
Bell v. Toronto City, 1996, 261– Intra Vires By-Law / Charter Violation
Marianna Valverde, The Ethic of Diversity: Local Law and the Negotiation of Urban Norms. (2008) 268 – Controlled diversity of front yards.
Reglement sur le civisme, le respect et la propreté. P272-278
Notes. P279-282
Rights to be Included
London Borough of Southwark v Williams and Another, London Borough of Southwark v Anderson and Another. UKHL. 1971. P.284 (includes note of page 288). Right to Include; Right to Participate
Nicholas Blomley, Unsettling the City: Urban Land and the Politics of Property. P289-293 – Private property is relational and threatens collective ownership
Local 1330, United Steel Workers of America v United States Steel Corporation. 1980. Ohio. P294 – Private property claim by non-owners
Notes. P300
J. W. Singer, The Reliance Interest in Property. P303-315
Gosselin v Quebec, SCC, 2002. P316 – No property right to social assistance.
The courts can enforce rights to basic means of subsistence without being drawn out of their proper judicial role and into the realm of policy:
This is not an issue of resource allocation: it is a question about what kind of claims an individual can assert against a state
The role of the courts under the Charter is to adjudicate rights-based claims
The SCC can answer to the question whether the Charter right exists without addressing how much expenditure by the state is necessary to secure the right.
Chapter 5 - Tenures & Estate
Aboriginal Land Holdings
Native – Dawn Mills, Gitxsan property, ownership, and Governance. (2008) p.339 – Ownership of land is based on history
Delgamuukw et al v. The Queen in Right of BC, 1997, SCC 347 Attempt to reconcile pre-existing Aboriginal concepts of Property with CML concepts of Property
R v. Marshall & R v Bernard. SCC 2005 367 Exclusion is still key; no exclusion no right.
A. Neil, Classless Britain? (1996) p.321 – Last Feudal system in Europe
S. Morris, Stark Realities for last Bastion of Feudalism (2002) p.324 – Change is coming to Feudal Sark
S. Morris, Stak faces battle with 21st Century Kinghts (2008) p.327 –
Introduction to Tenure and Estates
K. & S. Gray, Elements of Land Law. (2005) p.329 – Tenure and Estates EXPLAINED
K. & S. Gray, Elements of Land Law. (2005) p.333 – FREEHOLD ESTATES EXPLAINED
Ziff, Warm Reception in a Cold Climate. (2005) p.337 – Why English Property law was received in Canada
The Creation of Estates: Presumptions and Words of Limitation p 376-377
Present and Future interests p. 378
Kevin and Susan Gray: Elements of Land Law, 4th ed - WASTE
Introduction to Conditional estates p. 380
Sir Robert MeGarry and Sir William Wade, Q.C. The Law of Real Property, 6th ed. P383; Defeasible v. Determinable estates
Re. McColgan, 1969, O.R. p. 384 – Conditional Estate; SUBSEQUENT
Conditions and uncertainty, p. 389
Sifton v Sifton, 1938, P.C. Ontario p. 390; Condition void for UNCERTAINTY; FAVOURS LIVING
Clayton v Ramsden, 1943, HL; 396 – Condition (Defeasance) void for UNCERTAINTY
Conditions and Public Policy
Re Noble and Wolf Ont. C.A. 1949; 401; Condition NOT VOID for PUBLIC POLICY (racism).
Re Canada Trust Co. and Ontario Human Rights Commission; Ont. C.A. 1990; 401 - condition VOID for PUBLIC POLICY: (Racist requirements of a charity trust) DEFITION OF “PUBLIC POLICY”
Re Rattray 1973 Ont. Sup; 421; Condition for for uncertainty; Socialist requirements from trust banned.
Restraints on Alienation
Laurin v. Iron Ore Company of Canada;1977 NFLD. Sup; 427; Restraint on Alienation; Conditions that are unreasonable in price and time are void
Title Proof and registration
Jeanne L Schroeder, Chix nix bundle o stix: a feminist critique of the disaggregation of property. 1994. P437.
Chapter 6 - Easements
Characteristics of Easements
Re Ellenborough Park., 1956, 440– Test for Enforceable Easements
Positive and Negative Easements
Phillips v. Pears, UK CoA; 1965, 452– Limits ofNegative Easements
Creation by Express of Implied Grant [454]
Wong v. Beaumont Property (BPT), UK CoA 1965, p. 460 – IMPLIED GRANT for necessity
Sandom v. Webb, 1951, UK CoA, p. 464 – IMPLIED Reservation denied; Common intention of parties
Barton v. Raine, 1980, ON CoA, p. 470 – IMPLIED Reservation; Not Necessity
Creation by Presumed/prescribed Grant [475]
User as of Right [478] (Creation of Prescribed Grant)
Garfinkel v Kleinberg 1955, ON CoA; 480 - User as a Right - Permission
Caldwell v Elia; 2000; OAC; 484; Easement through PRESCRIPTION;
The Scope of Easements [489]
Termination of Easements [490]
Volume 3: Dividing Title and Possession – Bailment, Leases and Licenses
Chapter Seven: Bailment
Mary Jane Mossman and William F. Flanagan “Property Law: Cases and Commentary(2000) p. 484
Martin v. Town N’ Country Delicatessen, 1963, MB CoA, p. 485 – Definition of Bailment & Licence
Heffron v. Imperial Parking Co. et al., 1974, Ont. CoA, p. 496 – Failure to return bailment = burden of proof on bailee to prove 1 – loss was not his fault, or 2 – fault excused by an exemption clause in K
Punch v. Savoy’s Jewellers Ltd. 1986, ON CoA, 505 – Definition of Bailment & Licence; 3rd party responsibility
Chapter 8 – Leasehold Estates
Introduction
Leases and Licenses
British American Oil and DePass, 1959, ON CoA, p. 519 – Indicators of a Lease; EXCLUSIVE POSSESSION creates Lease
Metro-matic v. Hulmann, 1973, ON CoA, p.523 – INTENTION TO CREATE LEASE; Looks like commercial lease, but held as lease
Notes p. 529
The Independence of Covenants [531]
From Property to Contract? The Law Relating to Abandonment [532]
Goldhar v. Universal Sections and Moundlings, 1962, ON CoA; p. 534 – Property law governs Leasehold; Surrender by Operation of Law; Steps landlord can take to protect interests. Overrules by Highway
Highway Properties Ltd. v. Kelley, Douglas, 1971, SCC p. 541– The Four options given to a landlord when a tenant repudiates a lease; Contract & property law
Landlord Remedies and Duties Following Abandonment: Development from Highway Properties
North Bay T.V and Audio Ltd v. Nova Electronics Ltd., 1983, ON HC; 552-555– Fourth Category & Notice not requiring contemporaneous
Mitigation
Toronto Housing Co Ltd v. Postal Promotions, 1981, p. 558– Mitigation Duty
Toronto Housing Co v. Postal Promotion, ON CoA; 1982, 562-563– Mitigation
CMN – Windmill Place v. Apeco of Canada., 1976, 565-568– Mitigation in a multi unit building; release of fungible space’ K law applies prior to occupancy
Chapter 9 The Use of the Term Property
Wendy Ann Adams: “Meaning and metaphor: Associative thinking and the unacknowledged images of ‘use’ in intellectual property”(2009) Property things p569,
Family Property (Marital)
Caratun v Caratun (1992), ON COA; 571; Dental licence is not matrimonial property
Woodworth v Woodworth, Mich CoA, 1982. 577; Law degree is property
Storey- Bishoff v Storey-Bishoff, 1994, Saskatchewan, Queen’s Bench; 579; M.ed degree not property
Regulatory Licences
Re National Trust Co and Bouckhuyt, 1987, ON CoA p 583; Tobacco quota is not personal property; absolute and unfettered licence is not property
CIBC v Hallahan (1990) ON CoA; 589; Bouckhuyt upheld; Milk Quota is not property
Re Foster (1992), (Ont. Gen. Div.), 591; Taxi licence is intangible personal;
Saulnier v Royal Bank, 2008, SCC p599; Fishing License is Property for bankruptcy; broad definition of property
Criminal Law
R. v. MacEwan R v. Bell (1947); 647 – Alcohol is not Property; To fall into penal prohibitions (quasi-crim) – something must be recognized as property.
Stewart v. The Queen (1988), SCC; 617; Information is not Property; A “chose” in CML Prop does not make it property in criminal law – no one “owns” confidentiality.
R. v. Roberts – Animal carcass a theft, opposite of MacEwan and Stewart, animal carcass chattle and property.
Defamation (misappropriation of personality)
Krouse v. Chrysler Canada Ltd. (1974), 626; ON CoA; Creates Tort of Misappropriation of personality or “passing off”: Only when a common trade, and a link between the ad and the harm to the claimant
Athans v. Canadian Adventure Camps Ltd. (1977), (ON. H.C.J.) Using someone’s personality for commercial gain = misappropriation of personality; NO wrongful appropriation of image
Gould Estate v. Stoddart Publishing Co. (1996); ON Gen Div; Distinction between sales v. subject = subject publicity not protected.
Gould Estate v. Stoddart Publishing (1998); 650; ON CoA; No misappropriation of personality; decided upon principles copyright not tort.
White v. Samsung (1991); 657; US; Vanna White’s indentity used, wide extension of personality rights.
White v. Samsung; US; 1993; 667 Dissent on White appeal on extension of IP rights.
Aubry v. Vice Versa; SCC - CVL; 675; CVL law application of personality rights under QC charter
Joseph v. Daniels (1986) (BCSC); 678; A torso only is not an identity, must have an essential element identity.
Bogajewicz v Sony, CVL 1995; 679;
REVIEW (Framing the Course):
Chapter 1: Property as rights, not things.
Using the Property Wheel, this explains the entire course.
Property:
- What Rights?
- What things?
- In relation to whom?
- Why Rights?
- How to get Rights?
Most property law exists from court decisions and is not statutory.
What is value? It is relational and relative to a certain people.
Does the word “owner” mean anything in the Cml Law?
- Social/cultural meaning, but not legal meaning. There is no legal definition of “owner” in Cml Law.
- Word “owner” is used in relation to other people and no meaning on its own.
What does the word owner mean?
- The person with most rights in the bundle of sticks.
- An enforceable claim, protected…by the state.
- The right to exclude others.
- The right to control, use, transfer and dispose.
- Owning something of value, but value is subjective to the person.
- Full-blooded owner v. Interest Claim.
Singer:
(a) Property is a "set of rules".MacPherson. 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.
(b) Property rules govern "relations among people".Hutterite; rules allocate rights in things to and among people. These property entitlements are never absolute. The rules vary depending on the thing being regulated, the type of entitlement (see "c" below), and the relationship involved.
(c) Property rules govern "control, use and transfer". Harrison v Carswell; Merrill; Property rules therefore deal with various kinds of entitlements. Principally they involve rights to use (and limits on those rights), rights to exclude others from using, and rights to transfer.
(d) Property rules concern "valued resources". MacPherson; Property law concerns itself with which things should be the subject of property.
(**) Property is not absolute, property rules are not static, they vary according to time, place, and context.
1st Questions / 2nd Questions- Nature of thing (what is the thing)
- Person against whom it is claimed
- Actions of the owner (what has the owner done to look like an owner)
- Nature of the acquisition; and
- Type of rights that make sense given all these circumstances. (Summary)
- Right to exclude?
- What is an owner (absolute ownership)?
- When does someone stop being an owner?
- When should reliance interest be protected?
- What are limits of CMN property?
- Distributional outcomes result from CMN property rules?
- What actions/behaviours lead to prop ownership?
- Which justifications are more meaningful for what kinds of property?
- Does “property” mean anything?
- Consequences of calling something property?
- How does the nature of a thing change its ownership?
Introduction - Property is the set of rules that govern the relations among people; 2
Property is the set of rules that govern the relations among people regarding the control, use and transfer of valued resources.
- Property rules vary depending on time/place/context.Not things, rules.
- Allocation of rights (right, duties, liabilities, powers, immunities)
- Governs the control, use and transfer of valued resources (scarce things)
- See Singer 4 constituent parts of property above
- Real property (ie. land)
- Incorporeal hereditament
- Incorporeal: cannot be sense
- Hereditament: can be heritable, bequeathable
- Easement (right of way, a privilege to use something that is not your own)
- Covenant (a binding agreement)
- Interests less than title
- Rent; Franchises; Pension; Annuity
- Corporeal hereditament:
- Can be sensed: Estate systems
- Chose in possession (tangibles): an item of tangible personal property that can be physically possessed and transferred.
- Chose in action (intangible): a right: to sue, an intangible personal property right for example, the right to enforce the payment of a debt, to receive money by way of damages under contract.
- Legal or equitable(fair) rights