Property (Mossman) - 2020 PDF

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Very detailed and organized course notes, include notes from class and assigned readings. Important notes for exams are included....

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Property Law Summary Part 1: Major Case briefs w/ context for Question 1 Quote identification Part 2: Material for answering fact patterns

PART 1 Case Briefs and Statutes Chapter I: Property as the right to exclude (Public/Private) Case Name: Harrison v Carswell 1976 SCC Finding: Shopping malls are private property and therefore owners have a right to exclude whoever they want, including picketers. There is no distinction between that and a private dwelling.An owner who has granted the right of entry to a particular class of people has not relinquished his legal right otwithdraw this invitation to the general public or any particular member. If your invite has been withdrawn and you refuse to leave, you are a trespasser. Application: in this case, Carswell was picketing a store that was the tenant in a shopping centre and the owner of the shopping centre wanted to ban her from doing so. Keep her on the sidewalk outside the perimeter of the mall. Policy consideration: Malls were new at the time and people didn’t really know how to deal with them. Influenced by the way the judges felt about labour. Current status/significance (what implications for law today): Laskin (diss.): Shopping malls are quasi-public spaces like markets, as opposed to private dwellings; b/c of the public aspect of the property, the owner does not have an unqualified right to exclude. This plus the statutory right to protest means the mall owner cannot exclude the picketers. He viewed different kinds of property on a spectrum of public and private, Contrast:Laskins dissent has influenced later cases, which understand property more fluidly. For example, later cases like RWDSU v Eatons Centre held that they could only exclude people where their activities were interfering with commercial interests Case Name: Committee for the Commonwealth of Canada v Canada Finding: Airports are contemporary crossroads/modern thoroughfares and theerefore people should not be excluded (security zones or VIP lounges might have different criteria), Should be accessible to people seeing to communicate with passing crowds Rule: We need to find balance. State owned property is not necessarily public or necessarily private. Look to the use of the space and analogous spaces to determine whether it is public or private. Application: Airports are more like parks and streets than private dwellings. Policy consideration: Concerned about the policy implications of understanding state owned property as Contrast: took up Laskin’s dissent in Harrison to understand Property more broadly. Current status/significance (what implications for law today):  Now, the rules have become more nuanced and guided by statute and the Charter.  Protestors in the legislature cannot be excluded unless their demos interfere with the functioning 1

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Leafletting on streets cannot be excluded unless they are not peaceful (Layton) Panhandling can be excluded because it is found to be more like a commercial activity than an expressive activity. (Banks) Use of public space must “share common space in a fair way” (Batty)

Chapter II: Possessory Title, Chattels and Land Finders of lost Objects Case Name: Pierson v Post Finding: the saucy intruder was found to have better title to the fox than the person who organized the hunt for its capture. Rule: If neither A nor B has title, then if A can establish a right based on possession that is prior to B’s, A will succeed. To demonstrate possession, A must show a clear act to “demonstrate possession to the world”. Application: The clear act of the physical possession was better clear act to the world. The act itself is the useful labour. Argument to the contrary: even though the organizer had put so much work into organizing the hunt. Dissent: reward should be for useful labour Policy consideration: In capitalist society, the useful labour IS the sending a clear message to your community, amalgamating the two traditional philosophical approaches to property. Traditional law places strong emphasis on physical possession. Because Courts gravitate to what is workable/easy to apply given their machinery Current status/significance (what implications for law today) Still the foundation for law of first possession Critique: P. Williams, black people and women were at one point not owners and were owned. Critique: This is a very western notion of possession and ownership, and has historically been used to deny claim of indigenous groups to land, because they often on principle do not make “clear acts” of ownership legible to colonial courts (Johnson v. McIntosh)

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Case Name: Perry v Gregory Finding: The breastplate was awarded to the person who first detected it and dug 2/3 of the hole. Rule 1: Expert testimony based on a custom in a given area can help determine who had first possession: Application: Testimony about finding etiquette in metal detecting communities attested that the first person to detect it has a right to it Rule 2: After-the-fact evidence that demonstrates intention of the two parties Application: Perry later “borrowed” the breastplate from Gregory and then gave it back, suggesting he accepted it was Perry’s. Current status/significance (what implications for law today): We now have a much more contextual approach to determining what a clear act requires in a given context (sealing) some clear acts have been outlined in statute (Bees Act) Critique: This is a very western notion of possession and ownership, and has historically been used to deny claim of indigenous groups to land, because they often on principle do not make “clear acts” of ownership legible to colonial courts (Johnson v. McIntosh) Case Name: Armory v Delamirie Finding: the Chimney sweep was found to have a better title to the jewel than the jewler who took it from him. Rule: the finder, although he doesn’t have an absolute interest, has a property right (based on possession) against anyone who interferes except the original owner. Someone who subsequently tries to interfere with that will not succeed. Argument to the contrary: In spite of the fact that it might seem counterintuitive for someone other than the true owner to have claim to title Policy consideration: we need to have a way of distributing property when the true owner cannot be found Contrast Current status/significance (what implications for law today) This is still the law in Canada.

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Case Name: Parker v British Airways Board Finding: Parker, the finder, was found to have superior title of a gold bracelet over the airport, the occupier who did not have knowledge of the bracelet. Rule: In order for an occupier to demonstrate prior possession (and therefore better title than the finder), they must demonstrate a manifest intent to exercise control (animus possedendi) (Laskin’s spectrum approach to property: the higher the level of control the occupier has over the space in general, the less will be required to demonstrate intent to exercise control) Application: The space was more private than the main airport thoroughfares, but still public. The airport had a policy that employees were to return lost items to the airport, but they did not meet the test of a “physical expression of that policy” by having a clear sign up to notify the public. Nor did they have a policy of regular searching. Policy Consideration: the law should not discourage people from returning lost property. Law wants to facilitate and not hinder the reunion of lost chattels with true owners. Current status/significance (what implications for law today) - Consolidates (if a bit disingenuously) the - Lays out the rights and obligations of finders and rights and liabilities of occupieres Contrast  The court tries to distinguish the BA lounge as private, so that bridges v hawkesworth decision as interpreted by south staffordshire (places the public has access to, you need to manifest intent to control) will not apply. o If it’s public, you have to manifest intent to control o If it’s private, like a home, the privacy means that you are not inviting finders to come in  The court in BA holds distinguishes South Staffordshire (which distinguished Bridges, saying that the important part of that case was that it was found in a public part of the store)  If it is attached to or under the land then the occupier will have better title than the finder (South Staffordshire) o Backed up by Kowal v Ellis  Moffatt v Kazana

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Joint Finders cases Case Name: Keron v Cashman Finding: Little boys had possession of the stocking but he didn’t have possession of money until the moment that the finding of the money took place, which was the moment that the stocking broke open. Rule: Moment of knowledge of object required for possession Application: All the boys were playing with it when it broke open so all the boys were jointly entitled to the money inside. Argument to the contrary Policy consideration: Contrast: Inconsistent with Edmonds v Ronella, which held that intention of the finders to take some action with the object (clear act was necessary for possession) Current status/significance (what implications for law today) Case Name: Edmonds v Ronella Finding: Held that an envelope of money was possessed jointly by the two boys who found it and the older girl who took control of it. Rule: “clear act” of the finders to demonstrate possession requires manifested intent to take some action with the object Application: it only was recognized possession once the older girl Argument to the contrary Policy consideration Contrast: Inconsistent with Keron v Cashman, which held that knowledge of object requied for possession Current status/significance (what implications for law today) True owner has 2 years to bring action to recover possession- Limitations Act in Relation to Chattels (s15) Posessory title and Land Case Name: Perry v Clissold Finding: Clissold did have title based on his possessory interest in the land and was therefore entitled to compensation for his expropriation by the government. Rule: a person in possession of land has perfectly good title against all but the rightful owner. If the owner doesn’t come forward in time, his right is forever extinguished and possessor acquires absolute title. Application: He demonstrated possession by fencing it in in 1881, leasing the land to a tenant and regularly paying municipal taxes. In 1891 the government expropriated it. His estate was entitled to compensation. Argument to the contrary: He is not the true owner, but it doesn’t matter, because neither is the government and the dispute does not involve the just tertii Policy consideration: Policy reasons for recognizing possessory interest in land: At the time, courts were keen to encourage the use and development of land (might hold less sway now) On the other hand, there has been a resistance to giving squatters too many rights, lest they take advantage of people. - The courts also discourage self-help remedies (Kicking out a squatter instead of 5

bringing an action through the courts) to minimize the potential for violence Current status/significance (what implications for law today) Later cases expand upon these principles (and make a distinction between cases of trespass and cases of mutual mistake), and are backed up by the Real Property Limitations Act. Real Proprety Limitations Act s. 15, 4, 5 s. 15: At the determination of a period of the period limited by this Act ot any person for making an entry or distress or bringing any action, the rights and title of such person to the land or rent, for the recovery whereof such entry, distress or action, respectively might have been made or brought within such period, is extinguished. *** does not transfer title to the possessor!! They must prove possessory interest. s. 4: Limitation period is 10 years s. 5: 10 years starts at the time of dispossession OR at the time the itile holder discontinues possession. Expanded upon in St. Clair beach, Keefer v Arilotta, Wood v Gateway, and Bradford Investments 3 Underlying Justifications for Statute of Limitations  The law is punishing the owner for neglect in relation to land o For not being aware of what is happening on the land o Not generally used. Punishment is left to criminal law  Thought to encourage the use of land by rewarding the possessor o *begs the question of whether we still want to be encouraging land use o In the 19th C when north America was less settled, this might have made sense  The administrative reason: “clearing title to the land”  Trying to make the title coextensive with possession Case Name: Piper v Stevenson Finding: Piper’s fence constituted a clear act of possession, and therefore dispossession to satisfy the s. 5 of the limitations act Rule: Possession must be continuous and exclusive for the purposes of the Limitations Act s. 5. Application: Piper put up a fence around two extra lots of property that she (mistakenly) thought were her’s, her posession was unchallenged for the limitations period Argument to the contrary Policy consideration: At the time, courts were keen to encourage the use and development of land (might hold less sway now) Contrast: Leichner v Canada, where the court held that simply having a fence is not itself sufficient to demonstrate dispossession, and intention to exclude. The purpose of the fence must be to exclude (Fence to keep cows in doesn’t count) Current status/significance (what implications for law today) Since Piper, the court has refined the test and made a distinction between trespassers (Keefer v Arrilotta), cases of mutual mistake (Wood v Gateway), and cases of unilateral mistake (Bradford v Fama) Case Name: Re St. Clair Beach Finding: The limitation period had never started running, and the right of action had not yet begun to accrue, because the title holder never discontinued the use of land. 6

Rule: For possessory title, possessor must: 1. actual possession PTH for the statutory period, 2. intention to exclude true owners AND 3. Discontinuance AND dispossession on part of PTH (privileged the title holder) - changed the statutory language, which said dispossession OR discontinuance) Application: In this case, right of action did not accrue because there was no discontinuane of possession beause the Grants still picked cherries from time to time on the property. They also demonstrated that they knew it wasn’t their land Argument to the contrary: The Appellants tried to argue that they had build all these structures on the property and made use of it for several years, but their exclusion was insufficient Policy consideration: Don’t want to reward neighbours who are trying to do unneighbourly things and basically stealing from their neighbours. Also punish them for using self help remedy of putting up a fence. Contrast: Current status/significance (what implications for law today) Since St. Clair Beach, the court has refined the test and made a distinction between trespassers (Keefer v Arrilotta), cases of mutual mistake (Wood v Gateway), and cases of unilateral mistake (Bradford v Fama) Case Name: Keefer v Arillotta (Adverse Possession) Finding: Court found that the use that the Keefers put the property to was not inconsistent with the intended use of the title holder, and therefore insufficient for the right of action to begin to accrue. Rule: Court adds “inconsistent user test” so in addition to the other factors (listed in st clair beach), the use that constitutes the possession must be inconsistent with the intended use of the title holder. Application: The previous title holders were very generous with the laneway. They only drove into it sometimes to unload things, and they went to FLA every winter when the keefer’s built a skating rink. The garage they build was the only part of the encroachment that satisfied the inconsistent user test. Policy consideration: The courts don’t want to punish people for being neighbourly and letting their neighbours use their land for stuff. And they don’t want to reward “land grabbing”. Contrast Since then, it became clear that developers who have no intended use of the land are effectively immune from adverse possession. In Masidon v Ham, the courts used the inconsistent user test to prevent a land grab. Current status/significance (what implications for law today) This was the first case that held the inconsistent user test and since then, courts have narrowed the test so that it only applies to situations of trespass, not cases of mutual mistake (Wood v Gateway) or cases of unilateral mistake (Bradford v Fama) Case Name: Wood v Gateway (Mutual Mistake) Finding: Court distinguished Keefer from cases of mutual mistake Rule: The inconsistent user test (which holds that the acts of dispossession must be inconsistent with the intended use of the title holder) does not apply to cases of mutual mistake but only cases of trespass. 7

- Evidence of mutual mistake can lead to an inference that the party seeking possessory title intended to exclude (intention to exclude is inferred unless there is evidence to the contrary). Application: Woods openly/mistakenly enjoyed continuous use of the property for 18 years. They met the common law test of the Real Property Limitations Act, (For possessory title, possessor must: 1.have dispossessed PTH for the statutory period, 2. intention to exclude true owners (inferred from acts of dispossession) AND 3. Discontinuance of possession on part of PTH). SO They get to keep the land that they possessed. Argument to the contrary Policy consideration: Where there is intentional trespassing, court should not reward such “land grabbing” (e.g. Giouroukos) Purpose of the inconsistent user test is to punish trespassers and is therefore inappropriate in cases where both parties are mistaken. Contrast: The SCC applied the reasoning from Gateway in Teis v town of ancaster even though the town had some suspicion it was theirs. Current status/significance (what implications for law today) This case effectively narrowed the inconsistent user test so that it only applies to situations of trespass, not cases of mutual mistake. SCC adopted this reasoning in Teis v Town of Ancaster. This was later expanded to cases of unilateral mistake (Bradford) Case Name: Bradford Investments (Unilateral Mistake) Finding: court found that the Famas had successfully met the test for possessory title and Rule: The Inconsistent User test does not apply to cases of unilateral mistake. Application: The Famas met the common law test of the Real Property Limitations Act, (For possessory title, possessor must: 1.have dispossessed PTH for the statutory period 2. intention to exclude true owners (inferred from acts of dispossession like fence and garden) AND 3. Discontinuance of possession on part of PTH). SO They get to keep the land that they possessed. - The judge made a finding of credibility in favour of the possessors Argument to the contrary: Bradford argued that they were paying taxes that whole time, and the judge held that paying taxes is consistent with ownership, not possession Policy consideration: The court didn’t want to reward investment companies that don’t care about their property for 30 years. Contrast: Court distinguishes Masidon v Ham (Also a case where title-holder holding for future development and possessor using that land for several decades) bc Hamm was a trespasser and therefore . - Court also considers Pye (recent UK decision) and concludes that the approach would not work in Ontario because Current status/significance (what implications for law today) As it stands the court has refined the test and made a distinction between trespassers (Keefer v Arrilotta) where the inconsistent user test does apply, cases of mutual mistake (Wood v Gateway), and cases of unilateral mistake (Bradford v Fama) where it does not UK reforms: Electronic conveyancing where people have to register in order to get possessory title pursuant to (Land Registration Act 2002) US reforms: Proposal of statute that financially punishes bad faith possession, rather than leaving it to the courts to manipulate it 8

Chapter III: Estates Tenures Abolition Act The only remaining tenure is “free and common socage;” the only remaining “incident” of tenure is “escheat”: I...