PROPERTY LAW – Professor Ramsay aka: “DPRQC”
2007/08 – (Robert Kiesman)
CHAPTER 1: The Legal Concept of Land.
Common Law: Whoever owns the soil holds title all the way up to the heavens and down to the depths of the earth.
2 methods describing dimensions: (a) Description by a plan - sets out dimensions of the property; (b) A metes and bounds description: a starting point (not a plan).
Kelsen v. Imperial Tobacco Co: It is a trespass to interfere with the column of air above real property. It is trespass to erect an object which overhangs or intrudes into the immediately superincumbent airspace of another.
Kelsen is the assignee (sub-lesee) of a lease...but is really a lesee.
The owner consented to the sign being put up.
Imperial, the defendant, put up the sign - a physical object in airspace - and have to get in their to maintain the sign.
Cause of action: trespassing. P must prove D came on their land... and in a sense must prove the air is part of their land.
The lesee doesn’t care about the sign, but wants another guy’s sign there who is willing to pay more. Underlying interest. Laches: a defense that people who get sued can rely on. If P unduly delays in enforcing their rights, D can argue the delay as a defense. There are time limits in commencing a lawsuit.
Bernstein v. Sky: An owner has a right in airspace above his land only to such height as is necessary for ordinary use and enjoyment of his land and the structures on it. The specific use of the property will dictate what height is necessary for the use and enjoyment of the land and structures.
Skyviews flew over Bernstein’s land and photographed it.
Bernstein claimed trespass. Argument was that he must have trespassed in order to take the photo. If he wanted to establish trespass, he had to establish that the D came onto his land. What is his land?
Manitoba v. Air Canada: An owner has a right in the airspace above his land only in the enjoyment of that land, and in preventing anyone else from acquiring a right in that airspace. The owner has no property right or legislative jurisdiction in relations to the airspace above his land.
Manitoba tried to tax Air Canada on planes landed in, flew over province.
Court said maxim could go no further “so as to limit a person to whatever proper use he can make of his land.”
STATUTES: AIR SPACE
Aeronautics Act
Under certain circumstances (specifically in vicinity of airports) the common law position on rights to airspace does not apply.
Strata Property Act (formerly Condominium Act)
Sets up statutory scheme under which a person may acquire fee simple ownership in a multi-unit building situation on land that (s)he doesn’t own. Under this scheme to accomadate that, a unit gets the benefit and burden of a series of rights (eg: access services and support). There is ability to subdivide the building.
TWO types of stratas: (a) Bare Land Strata Plan: allows subdivision into strata lots on horizontal plane ( subdivision with special rules. (b) Building Strata Plan:
Strata Lot: individually owns units. In addition to getting the unit, you also get proportionate share in the common property (and assets) as well. Common property (hall, elevator).
Balconies are generally limited common property: it isn’t really yours in the same way your unit is - because they want rules of what you can do on your balconies (eg: no BBQ’s). Governance structure: bylaws govern how people get along. Strata corporation: corporate body that governs development. Strata council: board of directors.
Unit entitlement: necessary to divide up expenses; deal with apportioned loss. = Your square footage divided by overall square footage. However, bigger units don’t get more votes - all only get 1.
Land Title Act: Airspace Parcels
You can grant the right to an air space parcel over your land without it affecting your ownership of the rest of the air parcel.
s. 136 states that; "Airspace constitutes land and lies in grant"; problem: statutory interpretation (ie. Land Title Act has no definition of "airspace"; turn to common law to determine meaning of airspace.
An “airspace parcel” within a building - these can be underground.
Condominium Act
s. 6(2) states that owner of a strata lot (plan) may deal w/ his individual space in the same manner as conventional land-owner, but he may not deal separately w/ jointly owned facilities.
AD INFEROS - below surface
Common law: gold and silver belonged to the Crown - all minerals and mines belong to land owner.
1858: you didn’t get gold or silver either in BC. 1897 onward you didn’t get base metals other than coal. 1899 Crown stopped giving coal and petroleum. 1951: Crown stopped giving out natural gas with original grant. You have to ask: when was original grant given?
Government got nasty with grant owners that got minerals because their grants were given early enough (eg: Nanaimo Esquimalt Railway, p.10). Gov’t starting taxing the grant owner on base of minerals and if they didn’t pay tax the minerals reverted back to the government.
Mineral Tenures Act (1996): you can get a free miners license that gives you right to go on private property and look for gold and silver and minerals that the Crown owns. If you find them you have certain rights to access them.
Accuracy: Land Title Act 23(h): “the mere fact that you have this plan and are a registered owner is no guarantee that it is accurate.” Have had it surveyed.
Road allowances are 66 feet because the chains used by surveyors were/are that long. Also, every 666 feet, you have to set aside 66 feet for road allowance.
Cadastral surveying: contrasting with topograpic surveying (features): (1) District (province divided into districts; (2) within District, various measurements are used: (a) Township was 6 miles by 6 miles = 36 square miles; (b) Section 1 mile by 1 mile (640 acres); (c) District Lots - vary in size - between 50 - 500 acres; (d) Block - various sizes; (e) Lots occur when the blocks are subdivided.
Parcel identifier: Each parcel of land has been assigned a parcel identifier (PID)#.
Winrub v. Street: An issue over the dimensions of the land and purchaser purchased land which was fenced. Purchaser’s lawyer did title search but did not order copy of plan. It turned out what was inside the fence did not all belong to the purchaser. Purchaser (P) sought to hold lawyer responsible - couldn’t hold Land Title responsible as they don’t guarantee correctness. Court concluded the lawyer did nothing wrong and followed practice that was generally acceptable.
What should a lawyer do? Order a copy of the plan, and have client initial the plan as part of the paperwork. Often the bank will ask for a survey---> they want to see any buildings on the plan---> to make sure your house is located within the four corners of the plan.
Horizontal boundaries: are fixed at a point in time by the plan.
FIXTURES
Common law: A transfer of an interest in land by a sale, gift, mortgage or lease, includes all the fixtures on the land - defined as “a chattel which is so fashioned or connected to the land that n law it forms part of the land.” Common law said transfer (sold, given, leased) of interest in land included all the fixtures on (eg: Blackacre). Somewhere between resting on the land and becoming attached it becomes land. Fixture = part of land.
Four situations it becomes an issue when something becomes a fixture: (a) What does one get when one buys property with a house? (b) What does tenant get at end of his tenancy? (c) Mortgage or other security interest that has been taken by a lender: What can they take here? (d) When someone dies: Who gets the appliances in the house and machinery in workshop?
Starting point: Has the chattel/item become a fixture? Has it been transformed? Ask: What is the objective/intention of the parties? --> What would an outsider looking at this was the intention?
FIRST STEP: What is the degree of annexation - to what extent is it attached to the land? You turn to two rebuttable presumptions: (a) If a chattel rests on its own weight presumed it stays a chattel; (b) If the chattel is attached even slightly it is presumed to be a fixture. You end up now with it either being a fixture or a chattel. ONUS now shifts to defendant to rebut it.
STEP TWO: Object of annexation: What is purpose of annexation? Would a reasonable personal familiar with customs of time and place conclude the parties: (a) intended item to remain chattel; (b) intended item to become part of real estate? Bathtub 200 years ago a chattel...now it is a fixture.
Haggert v. Brampton: Approach - looks first at degree of annexation - then second at object of annexation. This approach underlies most of the case law. Also considered permanence. As for object of annexation: “the question is whether the goods were affixed to building, though slightly, for the better use of the goods as goods, or for the better use of the building as a hotel building.” Answer: carpet meant to enhance the building.
Re Davis: If object is attached for the better enjoyment of the building as a building, it is a fixture. If it is for the better enjoyment of the chattel as a chattel, it is a chattel.
A widow’s downer lays claim to real estate. Is bowling alley fixture or chattel?
While the assumption based on the degree of annexation is that bowling alley would be a fixture, it fails on the second test - because the purpose of the annexation was for the better enjoyment of the chattel, not the building.
Found that the bowling alleys weren't affixed for the better use of the building, but in order that bowling might be more efficiently carried on.
LaSalle Recreations v. Canadian Camdex Investment: Notice the discussion of the famous case Stack v. Eaton: Settled law: (1) Articles not otherwise attached to the land than by their own weight are not considered part of the land; (2) The slightest affixing enough to raise presumption they become fixture; (3) The degree of annexation; (4) The intention of the person who affixes the object is only material to the extent that you can determine from that the degree and object of the annexation - it is not what person says their intention was; (5) Where tenant affixed fixtures, a separate set of rules. **Important***
LaSalle Discussion: A chattel becomes a fixture when it is affixed to the land by more than its own weight and the purpose of the attachment is for the better use of the building as a building, and not for the better use of the chattels as chattels.
Villa is owner of property. Camdex is financier and mortgage holder. LaSalle is supplier of chattel (carpet).
LaSalle sold the carpet but financed it - it was not a cash sale. They took a Conditional Sales Agreement. Ownership of carpet remains with LaSalle until it is paid in full - BUT they do not have possession of it. It then appears to an outsider that the owner of property is owner of the carpet. A scheme developed: where LaSalle was to give notice to world that they were true owner: registering sales agreement in Land Title Office. LaSalle got into problem because NEGLECTED to register. If they had, there would not have been a case. LaSalle argued that it had never become part of the land.
Decision: carpet was a fixture and LaSalle loses.
Royal Bank v. Maple Ridge Farmers Market: Chattels and fixtures can be distinguished as follows: (1) If object on its own weight and can be removed without damage or alterations to the fixtures or land that will need repair is a chattel - removal of door jamb or window is NOT damage; (2) Any item plugged in and can be removed without damage or alteration is a chattel; (3) Any item attached even minimally (it cannot be unplugged) is a fixture - screws, nails, bolts, detachment of plumbing are fixtures; (4) Item is a fixture if it loses its essential character because it is of no use unless attached to a permanent and substantial improvement to the premises of which it formed a part; (5) A tenant’s fixture may be removed from the premises during the currency of the tenancy; (6) In exceptional circumstances not covered, the court should have resort to the purpose test.
Dispute between trustee in bankruptcy and mortgagee as to whether restaurant equip should be fixtures or chattels.
Evaluate degree of annexation and object of annexation.
TENANT: When tenant takes object, cannot be material damage: (a) Trade fixture (shelving, hangings, mirrors - linked to tenant’s use of the structure; (b) Ornamental fixtures; (c) Articles of domestic convenience and utility - cupboards and stoves (residential); (d) Articles annexed for purpose of enjoying them as articles.
It is tenant’s fixture if it is affixed by tenant and can be removed with no material damage.
Elitestone v. Morris: There are three possibilities: chattel, fixture improvement to real property (part and parcel of land itself), determined by examining the degree and object of annexation. The object of annexation can be inferred whether annexation was intended to be permanent or temporary.
Dealing with situation with house being put on a premesis. Bungalow resting on concrete pillars for 50 years- is it a fixture or a chattel?
Court’s categorization: Chattels, Fixtures, and part and parcel of the land.
Diamond Neon: A person not privy to a contract cannot be bound by that contract. The contract was not valid and therefore the sign became a fixture and passed with the sale of land.
There was a pole with a sign on it. Pole set in concrete and held a business signn- sign supplied by a company (not owned by owner of the land).
Agreement between supplier of sign and owner was the ownership remained with supplier: contract said “even if sign becomes fixture” it is still ours.
Then someone bought the property without knowledge of contract. Became contest between purchaser and sign company. Purchaser could have argued: I am not privy to contract because I didn’t know about it. Contract between A and B does not define relationship between A and C. There is responsbility for seller to notify the purchaser. If purchaser loses out, there would be a claim towards the vendor. **They could have registered it (LaSalle) in order to avoid this problem.
(Case in Nanaimo in 1910: Two storey building rested on rocks and was held by Supreme Court to be a chattel - there was no degree of attachment.)
Mobile Homes have become more of a contention. Burlington Administration Company. Home set on concrete blocks - wheels removed - plywood skirting - wooden addition to mobile - hitch removed - connected to utilities. Court applied LaSalle and concluded that it was NOT a fixture. Plaza Equities: steel frame removed - concrete steps to front and rear - decided that it was a fixture.
***Possible exam question/theme: Floating House*** You have leased land...could it become a fixture...it is fastened down. You are a tenant (you argue tenant’s fixture...I can remove before end of lease). Other setups: they have strata-ed title...suspects that it would become a fixture.
RIPARIAN RIGHTS
Common law: (a) Right to the bed of the water. Rights extend out to the middle of the water. (b) Rivers: As long as it was fresh water on non tidal it did not matter if it was navigable or not in England. In BC, if local circumstances make it inapplicable, won’t follow - If the river is navigable, riparian rights not extended.
Water Act: Flowing water is unregulated, percolating water is not (s.3). s.2 takes away riparian owners’ right to the use, flow, and quality of water flowing by his land - requires all users of water to get a permit to take water (unless it is considered unrecorded which is usable for domestic purposes).
Along comes Land Act... (Section 55; p.56). “No part of bed belongs to riparian owners.” Essentially they have TAKEN it away in 1961.
Salt Water Issues: Is the boundary at high tide or low tide? The boundary becomes the HIGH water mark. Choosing High Water mark based on: where there is a distinct line; change in vegetation. Different surveyors come up with different boundaries. Who owns seabed (foreshore)? The provincial Crown - result in dealings between feds and provinces. Not true everywhere in BC - reserves (feds own) - certain harbours (Victoria, Eqs, Burrard, New West) federal govt land.
There are 2 kinds of water:
(a) Flowing - as in a stream or river.
Common law: coming with ownership of riparian land a proprietory right to have water flow to him in its natural state in flow, quality, quantity - and entitled to make certain uses of it. Also, “whether he has made use of it or not.” Rights do not depend on prescription or grant you only get it because you own the land. However, the guy downstream is also entitled to non diminished stream contingent on the other guy’s domestic use. Owner can’t cause injury to other riparian owners unless injury results from dom use.
Water Act: (a) The original right to use water vested in Crown; (b) Right to use water dependent on licence; (c) Unused licenses subject to cancellation; (d) Date of licences a priority; (e) Not an offence to divert unrecorded water to extinguish fire; (f) Not an offence to divert unrecorded water for domestic purpose or for prospecting mineral.