Notes de cours - Property Law I PDF

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DTN 723 – Biens/Property LawUnit I: An Introduction to the Concept of Property Law1. Property relationships (Mossman, pp. 1-20)a. The “holder: rights: res: enforceability” paradigm ( Victoria Park Racing and Recreation Grounds Co. Ltd. v. Taylor ***)**Property is not legally a thing (not a person, n...

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DTN 723 – Biens/Property Law Unit I: An Introduction to the Concept of Property Law 1. Property relationships (Mossman, pp. 1-20) a. The “holder: rights: res: enforceability” paradigm (Victoria Park Racing and Recreation Grounds Co. Ltd. v. Taylor*) Property is not legally a thing (not a person, nor a place, nor a thing). The study of property law is the study of relationships. Property is the study of the relationship you have with your things, the relationship others have with your things, and the relationship you have with those other people. Property law is meant to uncover those relationships and, where there is a conflict with those relationships, resolve those conflicts. Res is a latin term for “thing”, which has come to represent anything that has a property interest attached to it. The word “thing” is a noun, but there are res that are not physical objects such as IP, FB friends, etc.  Property interest: at some point, either a court or the legislature has decided that that thing, that res is legally considered property. o For example, there was a time where children were considered a res (objects of property relationships). o The concept of property is dynamic. Ideas about property reflect the needs of society (or at least some of its members), and thus these ideas may change over time.  Historically, property interests were community held. They were held by an entire community. Reservation are property that is community held. More and more, property is held individually. The problem with property however is that if one has a right to cumulate however property as he wants, somebody will be missing out. Property is not a thing but rather a relationship which one has with a thing (res). (Mossman, p. 1) “Who Owns Your Facebook Friends?”  The court had to figured out whether Facebook friends are subject to a property interest, whether Facebook friends were a res. Victoria Park Racing and Recreation Grounds Co. Ltd. v. Taylor (1937 – Australia) Facts  Descriptions of races taking place on the plaintiff's racecourse were contemporaneously broadcast without the plaintiff's permission through a wireless station by an observer stationed on a platform erected on adjoining land. As a result of such broadcasting, attendances at the racecourse decreased, with consequent loss to the plaintiff. The plaintiff claimed, against the broadcasting 1

company, the observer, and the owner of the adjoining land, an injunction to restrain such broadcasting as amounting to a nuisance, an unnatural use of such adjoining land and an interference with the plaintiff's proprietary right in the spectacle conducted on his land. Issue  Are there property rights in a spectacle? Held  There can be no property rights in a spectacle.  “In this case, however, in my opinion, the defendants have not interfered in any way with the use and enjoyment of the plaintiff's land. The effect of their actions is to make the business carried on by the plaintiff less profitable, and they do so by providing a competitive entertainment.” (p. 15)  “The defendant does no wrong to the plaintiff by looking at what takes place on the plaintiff’s land. Further, he does no wrong to the plaintiff by describing to other persons, to as wide an audience as he can obtain, what takes place on the plaintiff's ground. The court has not been referred to any principle of law which prevents any man from describing anything which he sees anywhere if he does not make defamatory statements, infringe the law as to offensive language, etc., break a contract, or wrongfully reveal confidential information. The defendants did not infringe the law in any of these respects.” (p. 16)  “With regard to the question of privacy, no doubt the owner of a house would prefer that a neighbour should not have the right of looking into his windows or yard, but neither this court nor a court of law will interfere on the mere ground of invasion of privacy.” (p. 18)  “A ‘spectacle’ cannot be ‘owned’ in any ordinary sense of that word.” (p. 18) Model of columns helpful to identify property (relationships): What rights are they Who are the What res are they advancing/claiming holders? fighting for? ? Example with a lotto ticket: Holders Rights - The person who bought the - Ownership ticket rights - The person who physically holds - Possessory rights the ticks - The person who - Title rights picked the numbers

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Issue around enforceability

Res

Enforceability

Jackpot Numbers Lotto ticket

Who has the better claim?

2. Categories of property and property interests Those categories are a result from the writ system. a. Real versus personal property “Real property” generally refers to land. This is historically linked to the old writ system. In rem action: one is technically suing the actual res (the item itself) to get it back. In rem action became known as a “real action” and was used to get back land (one was not satisfied just getting money for the land and wanted it back).  In property law, “real” means “in rem”.  Real property refers to “lands, tenements, and hereditaments; in other words, land and buildings erected upon it. Generally, all interests in land are real property, except for leaseholds for a term of years, which are personalty or chattels. The difference between real property and personal property is that real property (immovable property) can always be recovered by a real action (action in rem) and personal property (movable property, e.g., chattels) can be recovered by an action in personam.” (Barron's Canadian Law Dictionary) In personom action: to get damages from someone – to sue someone personally. This became known as personal property. In personom actions became known as personal actions, which became known as personal property.  Back in the old days, the item that people lost the most and accepted damages was cattle (cows, sheep, etc.). Cattle became known in law as chattel. “Chattel” was historically the world used instead of a res.  A personal action is “an action brought by an injured party for the recovery of property or for damages done to his or her person or property” (Barron's Canadian Law Dictionary). Personal property is “the class of property that deals with the right in chattels”. (Barron's Canadian Law Dictionary). Real Property

Personal Property

Immovable property (land) Recovered by an in rem action (real action) - To sue the res to get it back

Movable property (chattels) Recovered by an in personom action - To sue a person for damages

b. Tangible versus intangible (International News Service v. Associated Press*) International News Service v. Associated Press (1918 – USA) Issue 3

 Is the news subject to a property interest? Is it a res? Held  There is no property in the news. o News is not copyrightable. Brandeis, J., dissenting  “An essential element of individual property is the legal right to exclude others from enjoying it. If the property is private, the right of exclusion may be absolute; if the property is affected with a public interest, the right of exclusion is qualified. But the fact that a product of the mind has cost its producer money and labor, and has a value for which others are willing to pay, is not sufficient to ensure to it this legal attribute of property. The general rule of law is, that the noblest of human productions – knowledge, truths ascertained, conceptions, and ideas – become, after voluntary communication to others, free as the air to common use. Upon these incorporeal productions the attribute of property is continued after such communication only in certain classes of cases where public policy has seemed to demand it. These exceptions are confined to productions which, in some degree, involve creation, invention, or discovery. But by no means all such are endowed with this attribute of property.” (p. 36)  “The knowledge for which protection is sought in the case at bar is not of a kind upon which the law has heretofore conferred the attributes of property; nor is the manner of its acquisition or use nor the purpose to which it is applied, such as has heretofore been recognized as entitling a plaintiff to relief.” (p. 37)  “Courts are ill-equipped to make the investigations which should precede a determination of the limitations which should be set upon any property right in news or of the circumstances under which news gathered by a private agency should be deemed affected with a public interest.” o Brandeis, J considered that the legislature was better suited to the task of finding an appropriate solution in this case. (Mossman, p. 19) Historically, property was only tangible. This changed with the Norman conquest. Two doctrines were invented for the Norman king to have a right for things he never touched: the doctrine of estate and the doctrine of tenure. This started a trend of being able to claim a property interest (res) that one has never actually touched. c. Legal versus equitable Courts of common law are strict courts, with a formal process, and which follow to letter of the law. By opposition courts of equity concentrate on what would be fair in the circumstances. Equity refers primarily to justice or fairness. Courts may use their discretionary power to do justice in particular cases where strict rules of common law would cause hardship. Originally, equity mitigated the rigours of the early common law courts which were committed to a strict adherence to writs and forms of action.

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The common-law and equity courts are now fused and administered through one body by the judicature acts of the various provinces. Property law seams more and more on the side of equity. 3. Transformation in terms a. In rem and in personom In rem action: to sue the res to have it back – usually land. It was a real action because the party was litigating against the property itself. That in rem action became known as real action, which became known as real property. In personom action: to sue a person for damages. For example, my grandmother’s watch gets stolen. I want it back because it has sentimental value. I would not be satisfied with damages. This would technically be an in rem action. b. Chose in action and chose in possession Chose in possession: The res, the object of property interest, is possessed or possessable.  Tangible property is always chose in possession.  There are some chose in possessions which are intangibles: the courts or the legislature have determined that you could possess them. o A patent is such example: the legislation (such as the Patent Act) has created a possessory right in an intangible. Chose in action: The res only exists when you take action on it. A chose in action is potentially a res, potentially a property interest, but only if someone takes action on it. There is only a res if one takes action on it.  Such example is a debt. The fact that the person owes you money is not a res until you take action on it, until you litigate.  If your grandmother gives you a cheque for Christmas, is that a res? It can be argued that it is a chose in possession because you can hold it, it is tangible, but how much is that cheque worth if you do not depose it in the bank? The only reason the cheque has value is because when I depose it to the bank, I get $100. When dealing with what the cheque represents, which is the possibility of having $100 once you take action to get the $100, it is a chose in action. It becomes a chose in possession only upon successful completion of a lawsuit. The chose in action is a concept often related to the concept of assignability. Assignability is an area of the common law which allows somebody to transfer a chose in action to someone else.  If I want to give you my bicycle, I can just hand it over to you. However, how do I give you my debt? For example, A owes $100 from B. B barrowed $100 from C. 5

C demands the $100 back. B gives permission to C to go after A to collect the money. Assignability resolves the question.

c. Relationship of property to other legal rights Property law should not be perceived as one area of law. It is a foundational course. In tort law, there are property actions such as detinue and conversion. There is also a connection between property and contract law, as well as between property and criminal law. Property is very much included in other areas of law. The primary ones being tort and contract law. Property could be a source of contract rights, or contract can be a source of property rights.  For example, I have a piano in my basement that I do not play. I have a friend who is a pianoplayer and has no piano. We strike a deal so that I allow you to come to my house to play the piano for a fee. Here, a property interest, the piano, has been made subject to contract rights. The opposite can also be true: a situation where the contract creates the property rights. For example, I let you come into to my house to use my piano, without a contract, I do not charge you, and you damage my piano. I sue you for the damages. Here, the property interest has been made into a contractual issue, which is the fact that you have to pay me damages – the court forces us into a contract where you have to pay me damages. The contract is a source of property rights, the property being a chose in action.  It is similar for torts. For example, if you play the piano very loudly and it bothers the neighbors that you play the piano at 4am at full volume, and you disagree and continue to play the piano, they could sue you for nuisance. Therefore, the piano has created a tort action. Similarly, a tort action could create a property interest. Instead of claiming damages, the neighbors could request an injunction to stop you from playing the piano. The court grants an injunction. That injunction is a property interest. 4. Sources of Property Law in Canada (Mossman, pp. 34-36) a. Common law There is practically no legislation in property law. Property law relies heavily on the common law. We inherited two systems from England: the court of common law’s jurisprudence and the court of equity’s jurisprudence. They sometimes conflict. b. Received law By received law is meant the law that was handed to us, mostly from England, that was not the common law: Royal Proclamation (1763), Quebec Act (1774), Constitution Act (1791), Union Act (1840), British North America Act (1867). 6

Some of these various acts refer to property rights but are rather historic and not relevant anymore with the exception of the BNA Act. c. Jurisdiction According to the BNA Act, property is generally the responsibility of provinces. S. 92(13) of the Constitution Act puts property and civil rights in the hand of provincial governments with some exceptions. Some of these exceptions include:  S. 91(1A): Public debt and property  S. 91(2): Trade and commerce  S. 91(3): Taxation  S. 91(12): Fishing  S. 91(21): Bankruptcy and insolvency  S. 91(24): “Indians” and reserves for “Indians”  S. 91(26): Marriage and divorce According to s. 15, property rights are not included in the Charter.

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Unit II: Personal Property Law 1. Review: The building blocks of personal property = Ownership, possession and title (Mossman, pp. 93-104) The concept of building blocks is that all of property is based on these three ideas (any problem/configuration will fit into these three areas): ownership rights, possessory rights, and title rights. Ownership rights. This is the best right one can have. It means that you can do anything you want with it. With the term “ownership”, nobody can have a better right than you. The problem with that thinking is that you never know who will make a claim later on and might have a superior right. For example, you own a house, and find out that it is sitting on ancestorial Indigenous property, or you fail to pay your mortgage and the bank takes back the house. To say that you have ownership rights is always questionable. It is very difficult to prove ownership.  Ownership rights means that the owner could sell, loan, etc.  “The right of enjoying and disposing of things in the most absolute manner.” (Barron's Canadian Law Dictionary) Possessory rights. Possession is the next best thing to ownership. We usually assume that people who have possession have ownership. Possessory rights make a suggestion that you have ownership rights.  “Possession is nine-tenths of the law.” This old adage reflects the traditional importance of the concept of possession in the law of property. (Mossman, p. 93)  For the common law, possession is the origin of property. (Mossman, p. 95)  Possession means a clear act, whereby all the world understands that the pursuer has an unequivocal intention of appropriating the res. (Mossman, p. 95) Title rights. Easy to get and easy to lose. Two types: moral rights and legislative rights. Moral titles rights are rights that exist when you create something. Moral title rights are inferior to possession and ownership. Legislative rights are the rights legislation gives you. If you write a story and do not copyright it, you have moral rights. If you copyright it, you get the rights from the Copyright Act. For instance, a bank’s security interest (a bank loan) is a title right. In the perfect world, the same person has all three rights. The complication is what happens if three different entities are making claims to a same res.  Example with the lottery ticket. One person says he has possessory rights because he is holding the lottery ticket in his hands. Another claims ownership rights because he paid for the ticket. A third person says that he came up with the numbers, so he has some kind of tittle right. You can only give the rights you have. You cannot get ownership rights if you buy something from someone who has only possessory rights – for example, a person who buys a stolen laptop will not have ownership rights. 8

2. “Lost” property (Mossman pp. 104-132) Lost property is an example of what problems could arrive when one person claims ownership rights and someone else claims possessory rights. The presumption is that whoever has ownership rights has title rights. a. General principle (Armory v. Delamirie; Mossman p. 104) Lost property is a concept adopted by courts. Lawyers then tried to challenge that principle. In some instances, courts have held that the principle stands whereas in other instances courts have modified the principle. The general principle comes from Armory v. Delamirie: “Finders keepers”. According to that principle, if somebody finds something, they have very good rights to what they find. The exception is that their rights can never be better than the rights of the true owner. If someone finds something, the law basically says that their rights are better than anybody else’s rights, with the exception of the true owner.  A finder does not acquire absolute ownership, but he has a “property right” that is better than all but the rightful owner. (Mossman, p. 104) Armory v. Delamirie (1722) (p. 104) – finders keepers  A chimney-sweeper’s boy found a jewel and carried it to a goldsmith. The goldsmith kept the jewel, saying that the jewel did not belong to the boy who found it, the argument being that the boy did not have more rights to the jewel than the goldsmith. The court disagreed. If the true owner cannot be located, then the person who found it gets to keep it.  A precision is made in Parker, so that one who finds a lost chattel in the sense of becoming aware of its presence, but who does no more, is not a finder for this purpose and does not, as such, acquire any rights. The general principle is finders keepers. This principle has been challenged many times. b. Employee as the finder (White v. Alton-Lewis*; Mossman, p. 115) White v. Alton-Lewis (1975) Facts  The plaintiff, an employee of the corporate defendant, found a jewel on the floor of her employer's store while in the course of her employment. She turned over the jewel to her manageress. It was delivered to the police and the true owner did not come forward to claim it.  The court had to decide whether an employee, who finds property while working, gets to keep it. ...