Property - Fall

Contents

Introduction to Property

What is property?

A.M. Honoré

Hohfeld’s Jural Correlatives

Yanner v. Eaton (1999) 166 ALR 258 (HC - Australia)

Harrison v. Carswell (1976) 2 SCR 200

Justifications for Property

Public and Common Property

Classifications of Property

Real property

oA - Corporeal hereditaments:

oB – Incorporeal hereditaments

Lease of land – fits somewhere between the two main types of property (chattel real)

Personal property

oChoses (things) in possession

oChoses in action

Novel claims of property

Attributes Approach vs. Functional Approach (Judicial Analysis)

Numerus Clausus Principle

International News Service v. Associated Press (1918) 248 US 215

Victoria Park Racing v. Taylor (1937) 58 CLR 479 (HC)

JCM v. ANA (2012) SCBC

Saulnier v. Royal Bank of Canada (2008) SCC

SCC Approaches to Property – Traditional/Regulatory/Commercial Realities

Intellectual Property Introduction

Intellectual Property Law

Intangible property in the common law

Copyright

Purpose of Copyright

Requirements for Subsistence (Existence as a Legal Phenomenon) of Copyright

Assigning Copyright s. 13(4)

Théberge v. Galerie d’Art du Petit Champlain 2002 SCC 34

CCH Canadian Ltd v. Law Society of Upper Canada (2004) SCC

Canadian originality test set out in CCH v. LSUC

Fair Dealing Defence

Terms of Copyright

Copyright Infringement

Defences to Copyright infringement

Patents

Patentable subject matter

Criteria of patentability

Monsanto Canada v. Schmeiser (2004) SCC

Trademarks

Trademark Confusion Test

Trademark infringement

Mattel Inc v. 3894207 Canada Inc (2006) SCC

Personality of Property

Misappropriation of Personality

Krouse v. Chrysler Canada (1973) ONCA

Athans v. Canadian Adventure Camp (1977) ONHC

Gould Estate v. Stoddard Publishing Co (1996) ONCA

Privacy

Personal Property

Forms of Action Trespass

Conversion

Detinue

Limitation Periods

Hollins v. Fowler (1875)

Possession

Legal test for possession

Pierson v. Post (1805) 3 Cai R 175, NY

Clift v. Kane (1870) 5 Nfld. L.R. 327 SC

Keeble v. Hickeringill (1707) KB

The Tubantia (Ship) (1924) HC

Popov v. Hayashi (2002) Cal SC

BC Wildlife Act 1996

The Law of Finders

Armory v. Delamirie (1722)

Bridges v. Hawkesworth (1851)

South Staffordshire v. Sharman (1896) QB

Hannah v. Peel (1945) KB

Bird v. Town of Fort Frances (1949)

Grafstein v. Holme and Freeman (1958) ONCA

Parker v. British Airways Board (1982) QB

Thomas v. Canada (AG) (2006)

Bailment

Distinctions

Bailment vs license

Liability: Duties of bailee

Bailee’s duty of care: Three levels

Onus of proof

Gobeil v. Elliott (1996) SK QB

Doctrine of res ipsa loquitur

Sub-Bailments

Mason v. Westside Cemeteries Ltd (1996) ONSC

Morris v. C.W. Martin & Sons (1966) QB

Blumenthal v. Tidewater Automotive Industries (1978)

Taylor Estate v. Wong Aviation (1969) SCC

Gifts

Gifts inter vivos

Four types of delivery

Irons v Smallpiece (1819) KB

Re Cole (1963)

Watt v Watt Estate (1987) MBCA

Thomas v the Times Book Co Ltd (1966)

Donatio Mortis Causa

Re Zachariuc; Chevrier v Public Trustee

Nemo Dat Rule and its exceptions

Hollins v Fowler

Sale of Goods Act – General rule

Exceptions

Battle River Dodge Chrysler v Vulcan Chev Olds Geo

The law of fixtures

Determining a fixture

Tenant’s fixture

Arctic Transit Mix & Concrete Products v Rolling Mix Concrete

La Salle Recreations v Canadian Camdex Investments (1969)

Royal Bank of Canada v Maple Ridge Farmers

Diamond Neon v Toronto Dominion Realty Co (1976) BCCA

Real Property – property rights in land and introduction to doctrine of tenure and estates

Doctrine of Tenure

The Tenurial System

Subinfeudation (as opposed to substitution)

Transfer of Land (Feoffment)

Doctrine of Tenures in Land Law in Canada Today (c/l provinces)

Doctrine of estates

Introduction to Property

What is property?

  • Relationship and bundle of rights over things
  • Right to be protected by the law
  • Right to enjoyment
  • Right to give it to someone else
  • Right to use, right to exclusion
  • Right to sell
  • Right to destroy
  • Right to alter
  • Right to exploit
  • Right to possess (physical)
  • Liability to seizure
  • Prohibits harmful use (you’re responsible for damaged caused by it)
  • Rights can be established over different things
  • Real property (land and buildings)
  • Personal property (over all other things)
  • A right cannot subsist as property unless it is
  • Definable
  • Identifiable by third parties
  • Capable in its nature of assumption by third parties
  • Degree of permanence or stability

A.M. Honoré

  • Ownership comprises
  • Right to possess
  • Right to use
  • Right to manage
  • Right to right to income of the thing
  • Right to the capital
  • Right to security
  • Rights or incidents of transmissibility and absence of term
  • Duty to prevent harm
  • Liability to execution
  • Incident of residuarity
  • Describes rights to – possess, use, dispose
  • Possession
  • Use (or non-use)
  • Management and control
  • Income and capital
  • Transfer inter vivos and on death
  • Protection under law
  • Objects of property – things over which we can have property rights
  • Tangible/corporeal chattels – land, buildings, goods
  • Intangible/incorporeal chattels – claims on revenue, mortgages, patents, copyrights
  • Subjects of property – those who may acquire property rights
  • Individuals
  • Corporations
  • State
  • Persons
  • Natural persons
  • Legal persons – organizations that acquired juridicial personality
  • Bundle of rights – ownership in its complete form encompasses eleven elements (Honore)
  • Possession, management and control – exclusive use
  • Income and capital – to alienate, consume, waste or destroy the whole or part of it
  • Transfer – inter vivos and on death
  • Protection under law
  • Security against expropriation
  • Might be indefinitely (indeterminate insofar as one’s lifespan will be indeterminate)
  • Ownership duties
  • Duty to prevent harm
  • Prohibition against harmful use or acting maliciously, against using property carelessly to harm others
  • Liability to seizure (to execution)
  • Exact compensation for debts one may incur
  • Incident of residuarity
  • Original owner retains property right when lesser rights, such as contractual rights expire
  • Prohibitions on harmful use
  • Against acting maliciously or carelessly to harm others
  • Not criminal harm rather, harm to persons via harm to the things they own (eg nuisance, endanger lives)
  • Liability and prohibitions are subtractions from, not element of ownership
  • Property refers to state enforced right of exclusion
  • Exclusiveness – rights that you have on your property (power to include)
  • Excludability – right to prevent anyone from accessing your property (power to exclude)
  • Characteristics of property
  • Transferability
  • Market value
  • Exclusivity

Hohfeld’s Jural Correlatives

Claim(right) / Privilege(liberty) / Power / Immunity
Duty / No-claim / Liability / Disability
  • Claim or a right –you can require that another person do something or not do something and they must do it – they have a duty
  • Privilege or a liberty –you can do something and no one has the right to tell you not to, and if you do it no one has a claim against you (i.e. a gas meter reader has the liberty to enter your property without your consent)
  • Power –you are in the position to change the legal relationship between parties (i.e. options – you have the right but not the duty to buy something). Property owner the state has the power you have the liability
  • Immunity – someone can’t change the relationship you have – you are immune to the state taking your property

Yanner v. Eaton (1999) 166 ALR 258 (HC - Australia)

Rule: property is a fluid concept which may be augmented and re-defined, based on social expectations, current legislation, past legislation and current governing law. Facts and all relevant circumstances are equally crucial.
Facts
  • Yanner – Aboriginal
  • Caught two juvenile crocodiles in Australia for ritual purposes
  • Claimed he had rights to hunt under Native Title Act
  • Eaton argued rights extinguished by Fauna Act

Issue
  • Whether court will recognize narrow definition of property under Fauna Act
  • Whether hunter’s aboriginal right to hunt was extinguished by Fauna Act

Analysis
  • Crown does not hold absolute property rights in the fauna
  • There is no possession, thus not absolute property, they are migratory
  • There can only be qualified property fire, light, air, water, wild animals

Dissent
  • It is necessary to view the Fauna Act as an exclusive relationship between the state and the fauna. Crown has exclusive rights and can allow those with proper licenses to hunt during appropriate times

Harrison v. Carswell (1976) 2 SCR 200
Rule: Demonstrates a right to exclude under what is considered “private property” – it is CRUCIAL that it is considered private property. Owner has rights over the property.
Facts
  • Defendant, employee of a store in a mall was protesting on mall’s parking lot sidewalk
  • Owner told her picketing was not permitted and if she didn’t leave she would be charged with trespass
  • She continued to picket on shopping centre sidewalk
  • Was charged with trespass

Issue
  • Does a shopping centre owner have sufficient possession of a sidewalk to support a charge of trespass?
  • To what extent should law recognize private property?
  • Values of society vs right to private property

Analysis
  • Petty Trespass Act – any person who trespasses upon land, the property of another, upon or through which he has been requested by the owner not to enter is guilty of an offence
  • It’s not the role of the courts to say anything other than this Act
  • Owner of shopping centre had sufficient control or possession of common areas to enable it to invoke the remedy of trespass
  • Right to picket was not accepted
  • Used R v. Peters – regular consumer wanted to boycott against a grocery store. This was not a labour dispute it was a public protest (about exploitation of grape workers in Mexico)
  • Right to exclude public from private property

Dissent
  • Framed issue as being a conflict of rights
  • Peters was a public protestor (does not have statute right) and Carswell was a picketing employee (does have statute right to picket in certain circumstances)

Justifications for Property

  • Social values and property rights: The Heinz Dilemma (wife dying, husband stole drug to help her)
  • Law is concerned with long-term societal impact of protecting private property
  • State sees significant value in protection of private property
  • Three Questions in justifying private property: Should, what and who?
  • Should Private Property Prevail Over Others (Common Property Regimes)?
  • If so, in what circumstances? Allocation
  • 1. Economic prosperity
  • Private property is responsible for wealth and development around us
  • Conventional economic position principles governing property will tend towards efficiency and wealth maximization if several features are in place
  • Law should enforce exclusivity of ownership
  • Law should allow entitlements to be transferable so that they can circulate the market
  • The law should make a broad array of items available for exchange. Ownership rights should be tenable to as many as possible
  • 2. The tragedy of the commons
  • If everyone has access to the commons then each individual person is motivated to get the most from it so it is not utilized to it optimum
  • In the commons the loss is spread, diffused over all users
  • Each farmer acts on the basis of personal self-interest which means there is a tendency to look only to the short term
  • Tragedy of the anti-commons
  • There is so much private ownership that still property is not used to its optimum
  • Stifling of creativity; patent blocking
  • 3. Labour/desert theories
  • Initially everything is held in common
  • Individuals have natural right over whatever they laboured over
  • Benefit emerges from contribution of labour
  • If each individual takes something from the common while leaving enough then there would be societal benefits from contribution of each labourer
  • Law should regulate manner in which individuals acquire property
  • Mixed your own labour with the common, you reap the benefits
  • 4. First occupancy (first possession)
  • First in time, first in right: first person to take occupancy or possession has property rights on it
  • Eg Aboriginal rights, finder’s law
  • 5. Utilitarian and related justifications
  • What will bring the most happiness/pleasure to the most people?
  • Connected to efficiency
  • 6. Flourishing of freedom
  • Private property promotes autonomy, guarantee of every other freedom
  • A means of exercising power and control
  • A check on totalitarian tendencies: rise of economic oligarchy, abuse of power, testamentary conditions
  • 7. Theories based on personhood, moral development, human nature
  • Private property satisfies a basic need for development of the person, moral growth, human nature
  • Property as a representation of self (eg moral rights in copyright law)
  • 8. Pluralist approaches
  • Various approaches/theories combined, each reinforcing each other
  • Utility and efficiency
  • Justice and equality
  • Labour and desert

Public and Common Property

  • Jurisdiction
  • Provincial governments have jurisdiction over property (real property)
  • Federal government has jurisdiction over copyright, intellectual property and other property interests
  • Common property
  • At the core, is the right not to be excluded; no rights
  • Communal or collective
  • Can be distinguished by determining whether a party would lose property rights once they leave the group
  • More restrictive than open access
  • Indigenous peoples and local communities
  • Public domain
  • Fully open access
  • No property rights at all
  • Light, air, water
  • Domain of property where everyone can have access

Classifications of Property

  • Real property(realty) – various interests in land eg mineral rights, easements, water rights
  • Rights to horizontal plane of area + above and below the surface
  • Rights permanently attached to soil:
  • Whatever attached to the soil becomes part of it
  • Fixtures: Movables attached to, not merely placed on, the land , with a purpose to making part of it
  • A - Corporeal hereditaments:actual physical things over which rights of ownership can be exercised
  • Freehold interest: distinguished from leasehold interest; estates for indefinite duration
  • Emblements: growing crops annually produced , until severed from the land
  • Appurtenances: That which belongs to something else; accessories Eg. a barn; garden/storage sheds
  • B – Incorporeal hereditaments: intangible, non-physical, rights affecting the land
  • Easements: eg. Aright of way enjoyed over another person’s land
  • Profit a prendre: the entitlement to go onto someone’s land and to remove material like timber, gravel etc.
  • Restrictive covenants: apromise by a landowner not to engage in certain activities on the property in question; limits permissible uses of land
  • Personal property: choses in possession
  • Tangible property: which may be felt or touched, and is necessarily corporeal; can only use it exclusively or dispose of it
  • Methods to dispose of chose in possession (ie gift, sale, bailment)
  • Inheritance
  • Technical method of transfer: physical transfer or deed
  • Lease of land – fits somewhere between the two main types of property (chattel real)
  • Personal property (personalty, chattels personal, movable property)
  • Choses (things) in possession – enjoyed by taking physical possession
  • Fungible – something that can be replaced by something that is of equal value or quantity
  • Infungible – something of aesthetic value (antique coins vs. currency)
  • Choses in action – enjoyed only by bringing action for legal proceedings (intellectual property)
  • An abstract entity in intangible things
  • Can only be enforceable legal action in the courts
  • Rights arising out of personal dealings
  • Promises that are:
  • Legally enforceable
  • Assignable (transferable): Today,choses in action are assignable
  • Must be capable of being assigned to a third party.
  • If the promise changes its nature or content upon transfer, it remains in the realm of contract, not property; eg. fixed sum of money/quantity of good
  • EG. Debt: Promise to pay
  • Property right in the debt (right to sue debtor) can be transferred to another person
  • Goodwill
  • Intangible reputation attached to commercial establishment
  • Intellectual property
  • Stocks & shares
  • Stock – issued by government or public authorities as an acknowledgement of debt and as a promise to pay interest at a fixed rate
  • Share – shareholder has a share in the company proportionate to the value he contributed to it
  • Commercial paper
  • Contract for sale of goods between merchants
  • Each merchant owns benefit of promise and can transfer it
  • Seller (S) promises to deliver
  • Buyer (B) promises to pay
  • Negotiable instruments
  • Document of title to money
  • Negotiable at common law
  • Seller owns document of promise to pay money
  • Cheque (payable to order or bearer)
  • Bill of exchange (payable at a future date)
  • Promissory note (IOU) (undertaking to pay)

Novel claims of property

  • No definitive description of what counts as property
  • “Property” is in a state of flux: the idea of property changes over time
  • Feudal society: property rights tied to social and familial relationships
  • Age of commercialism: value of property rights tied to marketability
  • Age of social welfare: new property – should entitlements from employment, welfare, pensions, have same legal protection as traditional objects of property?
  • Factors
  • Conception of property as “bundle of rights”
  • Advances in science and technology eg biotechnology

Attributes Approach vs. Functional Approach (Judicial Analysis)

  • Attributes
  • Does the proposed object of property have the same characteristics as traditional objects of property?
  • Market value
  • Transferable
  • Inheritance, gift, sale, etc.
  • If it looks like property, it is property
  • Functional
  • The law recognizes the thing as property for social or economic goals
  • Property tied to social values
  • What societal functions would be served by labeling a particular object as property

Numerus Clausus Principle

  • Concept of property law which limits the number of types of right that the courts will acknowledge as having the character of "property"
  • One should be careful about introduction of new property rights because it is difficult to reverse that process
  • Courts are prevented from recognizing property interests that fall outside of the “closed set”
  • New claims must fit within categories
  • University degree example
  • Is a degree marital property (Graham v. Graham – US case)
  • Court rejected the property-based claim – in Canada, university degrees are not regarded as property
  • Held no conventional forms of property
  • No market value
  • Personal to the holder
  • Earned but not bought
  • Intellectual achievement that may assist in the future acquisition of property