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bora laskin lawlibrary 



UNIVERSITY OF 

TORONTO 


FACULTY OF LAW 



Property Law 
2009-2010 


Volume One 


Professor Abraham Drassinower 
and Professor Jim Phillips 


Storage 


KE 

618 

.A7D73 

2009 













BORA M LAW LIBRARY] 

SEP 1 0 2009 

faculty of law 
UNIVERSITY OF TORONTO 






Property Law 
2009-2010 

Volume One 


Professor Abraham Drassinower 
and Professor Jim Phillips 


Digitized by the Internet Archive 
in 2018 with funding from 
University of Toronto 


https://archive.org/details/propertylaw01dras_0 


Table of Contents 


Volume One 

CHAPTER ONE: INTRODUCTION: 

Harrison v. Carswell ...1 

Notes .12 

CHAPTER TWO: POSSESSION AND TITLE AT COMMON LAW 

(a) Introduction: What is Possession?.15 

Pierson v. Post .16 

Clift et al. v. Kane et al ...20 

The Tub ant ia .28 

Popov v. Hayashi .32 

Rose, “Possession as the Origin of Property”.33 

(b) Finders: General Principles .49 

Armory v. Del amir ie . 50 

Keron v. Cashman .51 

Note .53 

(c) Finders and Occupiers .54 

Parker v. British Airways Board .54 

(d) Finders and Illegality.62 

(e) Adverse Possession of Land: Introduction.65 

Merrill, "Property Rules .... and Adverse Possession".66 


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(f) Adverse Possession: The “Quality” of Possession .72 

Re St. Clair Beach Estates v. MacDonald .74 

Mendes da Costa and Balfour, Property Law .79 

Re Lundrigans Ltd. and Prosper .81 

Notes.83 

Beaudoin v. Aubin .84 

(g) Adverse Possession and the Inconsistent Use Test: Judicial Repeal?.89 

Masidon Investments v. Ham .89 

Notes .98 

(h) Retreat from the Inconsistent Use Test .101 

Buckinghamshire County Council v. Moran .101 

Teis v. Ancaster Town .105 

Mutual Mistake or Unilateral Mistake. 112 

CHAPTER THREE: BAILMENT 

Heffron v. Imperial Parking Co. et al .114 

Fairley & Stevens (1966) Ltd. v. Goldsworthy .123 

Punch v. Savoy's Jewellers Ltd. et al .....136 

Taylor Estate v. Wong Aviation Ltd. .148 




















CHAPTER FOUR: GIFTS 

Cochrane v. Moore .156 

In re COLE, A BANKRUPT. Ex parte THE TRUSTEE OF THE PROPERTY 

OF THE BANKRUPT [No. 486 of 1961 ] .168 

Kooner v. Kooner ....176 

Brown v. Rotenberg et al .180 

Re Zacharinc; Chevrier v. Public Trustee .188 

Pennington and another v Waine and others .194 

CHAPTER FIVE: NOVEL CLAIMS 

International News Seiwices v. Associated Press .224 

Notes .243 

Victoria Park Racing and Recreation Grounds Ltd. v. Taylor and Others .246 

R. v. Stewart .270 

Notes.284 

Caratun v. Caratun .285 

Notes.294 

Royal Bank of Canada v. Saulnier .295 

T.W. Merrill, “Property and the Right to Exclude”.313 

CHAPTER SIX: THEORETICAL CONSIDERATIONS 

John Locke, “On Property”, Second Treatise of Government .318 

C.B. Macpherson, “The Meaning of Property”, introduction to Property: Mainstream and 
Critical Perspectives .326 

Michael J. Trebilcock, “An Introduction to Law and Economics” (1997) 23 
Monash University Law’ Review 123 at 135-141.334 

Ernest J. Weinrib, “Poverty and Property in Kant’s System of Rights” (2003) 78 Notre 
Dame Law Review’ 795 at 801-810, footnotes omitted.341 


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CHAPTER SEVEN: INTRODUCTION TO THE COMMON LAW OF REAL 

PROPERTY - THE DOCTRINES OF TENURE AND OF ESTATES 

(a) Introduction to Tenure and Estates.....351 

Gray, Elements of Land Law ...351 

(b) Types of Estates: Gray, Elements of Land Law .354 

R. Scane, Notes on Life Estates and Estates in Fee Tail.355 

Note on Presumptions and Words of Limitation .358 

(c) Present and Future Interests.360 

(d) Introduction to Conditional Estates.362 

(e) Conditions and Uncertainty..364 

Sifton v. Sift on ...364 

Clayton v. Ramsden .370 

Notes .373 

(f) Conditions and Public Policy.374 

Re Noble and Wolf .375 

Notes .381 

Re Canada Trust Co. and Ontario Human Rights Commission .383 

Notes .391 

Restraints on Alienation: General.398 

Laurin v. Iron Ore Company of Canada .399 

Stephens v. Gulf Oil Canada Ltd. et. al .405 

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Volume Two 


CHAPTER 8: EASEMENTS 

(a) Introduction .1 

(b) Characteristics of Easements.2 

In Re Ellenborough Park ...2 

Notes .10 

Positive and Negative Easements .11 

Phipps v. Pears .12 

(c) Creation by Express or Implied Grant 

Express Grants and Reservations.14 

Implied Grants and Reservations . 14 

Exceptions to the General Rules.17 

Wong v. Beaumont Property Trust .20 

Sandom v. Webb .23 

Barton v. Raine .28 

Problems .32 

(d) Creation by Presumed Grant ..34 

User as of Right .36 

Garfinkel v. Kleinberg .38 

(e) The Scope of Easements and Termination .41 


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CHAPTER NINE: APPROPRIATION OF PERSONALITY 

Krouse v. Chrysler Canada Ltd. .43 

Athans v. Canadian Adventure Camps Ltd. .51 

Goidd Estate v. Stoddart Publishing Co .60 

Notes.64 

CHAPTER TEN: DEFAMATION 

WIC Radio Ltd. V. Simpson .66 

CHAPTER ELEVEN: COPYRIGHT 

Walter v. Lane .92 

CCH Canadian Ltd. And. Others v. The Law Society of Upper Canada (SCC) .104 

CHAPTER TWELVE: TRADEMARKS 

Mattel, Inc. v. 3894207 Canada Inc .129 

CHAPTER THIRTEEN: PATENTS 


Diversified Products Corp. v. Tye-Sil Corp. (1991), 35 C.P.R. (3d) 350 (F.C.A.)... 152 


































































































































NOTES 

(from Jim Phillips, Property Law: 2008-2009) 


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1) Dickson J. states at one point that: There is nothing in the evidence supporting the view that in the 
5 present case the owner of the centre was acting out of caprice or whimsy or mala fides. Do you think his 

decision would have been different if the owner had acted so? In Russo v. Ontario Jockey Club , (1987), 62 
O.R. (2d) 731 (H.C.J.) Russo argued that she could not be excluded from pari-mutuel betting facilities 
otherwise open to the public. The Jockey Club had banned her because she was a very skilled bettor and 
won too much. Boland J. simply followed Harrison, noting that if the Supreme Court refused to balance 
10 private property rights with picketing, there was even less of a case to be made for balancing property 
against a Aright to bet.@ Could it be argued that barring a person from facilities otherwise open to the 
public for betting because they won too often is certainly capricious and could well amount to bad faith. 

2) In Cadillac Fairview Corp. Ltd. v. R. W.D.S. V (1989), 71 O.R. (2d) 206 (C.A.) Cadillac Fairview, the 
owner of the Easton=s Centre in Toronto, sought to exclude union members from its property. The union 
was seeking to organise the workers at the Eaton=s department store, located wholly within the Eaton=s 
Centre. All access points to the store were within the Eaton Centre itself. The union stationed its organizers 
outside the entrance to Eaton's and within the Eaton=s Centre. Cadillac Fairview told them to leave. 

One might think this case is exactly the same as Harrison v. Carswell , but the Court of Appeal allowed the 
union organisers access. It did so by applying the provincial Labour Relations Act. Robins J.A., having 
found that Cadillac Fairview was acting on behalf of the employer (a necessary finding under the Act to 
bring in a third party), also held that it had contravened s. 64 of the Act, which prohibited an employer or a 
person "acting on behalf of an employer" from participating in or interfering with the formation, selection 
or administration of a trade union. In doing so Cadillac Fairview had committed an Aunfair labour 
practice@ (a term of art under the Act .) 

Cadillac Fairview argued that the Labour Relations Board, which had made the initial determination, had 
made an error in law. Robins J.A. summarised its arguments thus: 

[The Labour Relations Board] had no jurisdiction to abrogate or interfere with its private property rights. 
Those rights.... are absolute and cannot be impaired by the Board.... Cadillac Fairview... is entitled (apart 
from leasehold arrangements with tenants) to exclude anyone it wishes from the shopping centre for any 
reason it deems appropriate.... Being in lawful possession of the premises, Cadillac Fairview was free to 
deny entry to persons engaged in union organizing activity. Any subsequent intrusion on the premises for 
this purpose would be an act of trespass in violation of the o wner and occupant's private property rights. 
The reasons motivating the prohibition of this activity are irrelevant to the issue.... Cadillac Fairview 
argues that these decisions [Peters and Harrison ] establish its right to exclude those engaged in the union 
organizational activity without any need to justify its action in so doing.... [0]n the law as articulated by 
the majority in Harrison v. Carswell , it has, vis-a-vis the union, an absolute right to control the use of the 
Eaton Centre.... Cadillac Fairview takes the further position that the Board would, in any event, have 
jurisdiction to abrogate property rights only if it were given express statutory authority to do so.@ 







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Robins J.A. dealt with this argument by holding that the labour relations scheme statutorily enacted had 
impliedly, not expressly, limited Harrison v. Carswell. He stated: 

A proper resolution of the property rights issue depends on an analysis of the statutory provisions 
applicable to the unfair labour practices complaint to be determined by the Board. The union's complaint 
was brought under s. 64 of the Act. This section, like similar provisions in other labour relations statutes in 
Canada and elsewhere, uses broad language in prohibiting employers, employers' organizations and 
persons acting on behalf of an employer or employers' organization from participating in or interfering with 
the formation, selection or administration of a trade union. The conduct that may be violative of s. 64 and 
thus constitute an unfair labour practice is not specifically proscribed in the Act. The prohibition is cast in 
general terms so as to provide employees with wide protection from interference with the rights and 
freedoms granted them under the Act. It is fundamental to the policy underlying the Labour Relations Act 
that employees have a right of self-organization and participation in lawful union activity. Section 3 
guarantees that: AEvery person is free to join a trade union of his own choice and participate in its lawful 
activities. @ 

For those rights to be meaningful, it is manifest that employees must have access to union communications 
and opportunities for organizational activity. Having given employees the right to decide for themselves 
whether or not to join a union, the legislature can be assumed to have intended that they be permitted to 
make a free and reasoned choice. Such a choice necessarily implies that employees have access to union 
information free from restrictions that unduly interfere with the flow of information or their freedom of 
choice. The legislature can also be assumed to have recognized that the organizational rights guaranteed by 

s. 3 may come into conflict with traditional property and commercial rights in a variety of situations.If 

the employees are to exercise the rights contemplated by s. 3 it follows, as I said earlier, that they must 
have reasonable access to the union and opportunities for organizational activity. The obvious forum for 
such activity is the work place. It is there, after all, where employees share common interests and discuss 
matters of concern to their employment status; and it is there, and frequently only there, where employees 
whose support is sought by a union are reasonably accessible. 

In this case, the Board was faced with a clear conflict of rights - the private property rights of Cadillac 
Fairview on the one hand, and the statutory organizing rights of the employees on the other. In weighing 
those conflicting rights to determine whether s. 64 had been contravened, the Board, in my opinion, was 
not obliged as a matter of law to treat Cadillac Fairview property rights as absolute. Its responsibility was 
to apply the general prohibitory language of s. 64 to the circumstances which formed the basis of the 
complaint. In other words, the Board was to decide whether Cadillac Fairview's conduct in prohibiting all 
organizing activity on its property in the circumstances of this case interfered with the employees' s. 3 
rights in such a manner as to constitute an unfair labour practice. Section 64, as I noted earlier, is cast in 
broad terms and the conduct that might constitute an interference with the formation, selection or 
administration of a trade union is unspecified. Whether a particular form of conduct violates the section 
has been left to the judgment, discretion and expertise of the Board. 

The relationship between the conduct proscribed by s. 64 and the rights protected by s. 3 mandates that the 
Board, in the exercise of its jurisdiction, resolve conflicts between property rights and organizational 


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rights. The resolution of the conflict will turn upon a balancing of those rights with a view to arriving at a 
fair accommodation between the interests sought to be vindicated by the assertion of the rights. The , 
enforcement of s. 64 must contemplate incursions into the domain of private property rights and, as the 
complaint against Eaton's illustrates, into the domain of commercial and business rights as well. In my 
opinion, notions of absolutism have no place in the determination of issues arising under a statute designed | 
to further harmonious labour relations and to foster the freedom of employees to join a trade union of their 
choice. In this area of the law, as in so many others, a balance must be struck between competing interests 
which endeavours to recognize the purposes underlying the interests and seeks to reconcile them in a 
manner consistent with the aims of the legislation. 

3) Harrison v. Carswell has been cited in more than thirty subsequent cases, generally for the principle that 
a property owner may exclude whoever he or she wishes. The most unusual assertion of this principle is 
probably Michelin & Cie v. C.A.W. [1997] 2F.C. 306 (T.D.). As part of a campaign to organise workers at 
Michelin plants in Nova Scotia the union distributed pictures of the AMichelin Man@ showing it with a 
foot raised to crush a Michelin worker. The court first decided that Michelin had copyright in the Michelin 
Man and then, having rejected a constitutional defence based on freedom of expression, used Harrison as 
support for the principle that Aprivate property [in this case a copyrighted image] cannot be used as a 
location or forum for expression. @ 


4) In Committee for the Commonwealth of Canada v. Canada (1991), 77 D.L.R. (4th) 385 (S.C.C.) the 
Supreme Court of Canada dealt with the issue of whether the federal government could bar people from 
distributing political propaganda and soliciting membership at an airport. As this was an action against 
government regulation the case turned on the freedom of expression guarantee in the Charter of Rights. 

The Court held that the Charter protects the right to expressive activity in public airports. The judges did 
not agree, however, on much else, and six separate opinions were given. For current purposes the 
judgments of Lamer C.J.C., L'Heureux-Dube J. and McLachlin J. are important. L'Heureux-Dube J. held 
that there was a prima facie right to expression on all government property, and that any limitations must 
be justified under section 1 of the Charter, the limitation provision. 

Lamer C.J.C. and McLachlin J. both held that there was an "internal" limitation within the freedom of 
expression guarantee. Lamer C.J.C. found that while government property was not like private property, 
and was presumptively a place where an individual had a right to express opinions, he or she could do so 
only if the form of the expression was compatible with the function of the place and did not interfere with 
the ordinary workings of the airport and the interests of the airport authorities and passengers. McLachlin J. 
focused both on the nature of the expression and on the forum. Some government property was 
traditionally "private", some traditionally "public". Once it was established that the property in question 
was the latter, and that the expression promoted one of the purposes for having a guarantee of freedom of 
expression, there was prima facie a breach, and any limitation had to be justified under section 1. 





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CHAPTER TWO: 

POSSESSION AND TITLE AT COMMON LAW 


(This chapter taken, with some alterations, from Jim Phillips, Property Law: 2008-2009) 


A) INTRODUCTION: WHAT IS POSSESSION? 

The famous Canadian political theorist, C.B. Macpherson, observed that “[a]s soon as 
any society ... makes a distinction between property and mere physical possession it has 
in effect defined property as a right”. This fundamental observation does not mean, of 
course, that possession is not a crucial concept in the common law of property. In fact, 
possession can be the origin of the property right. It is partly so in the law of transfer of 
title in personal property law, for example. Title is transferred if there is a sufficient 
combination of intention to do so and “delivery,” and delivery, where appropriate, is a 
transfer of physical possession. 

More importantly, and this is what this chapter is about, in a number of contexts 
possession can lead to the acquisition of title/right without a transfer from another. At 
common law objects not previously owned (wild animals, minerals for example) become 
the property of those who first possess them. This is what the first and second cases 
below, Pierson v. Post and Clift v. Kane, are about. In addition, objects owned but “lost” 
can become the property of those who find and possess them. This is the context for the 
second case, The Tubantia, and for the section on “finders.” 

Further, the law of adverse possession, which is detailed in the second half of this 
chapter, not only permits someone to acquire title to land, but to do so in a way that is 
“adverse” to the rights of another, the owner. Put more simply, one person can take land 
away from another. 

Underlying the issue of what amounts to sufficient possession are, of course, some deeper 
questions. When a court holds that certain acts amount to sufficient possession in fact to 
award title in law, it does so for a reason (or reasons). Look for those underlying reasons 
in the judgments. They show us values which inform, indeed at times produce, the rules. 

























































































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B) FINDERS: GENERAL PRINCIPLES 

The law relating to finders of “lost” objects demonstrates both the importance of 
possession and the relative nature of title to chattels. The cases here show that the finder 
of an object can claim title to that object. This principle is often supported by reference 
to a classic English case, Armory v. Delamirie (1722) 93 E.R. 664, in which a chimney 
sweep found a jewel and carried it to a goldsmith to have it valued. The goldsmith kept 
the precious stones, and the chimney sweep sued successfully for their return. The court 
promulgated the following rule: ‘'That the finder of a jewel, though he does not by such 
finding acquire an absolute property or ownership, yet he has such a property as will 
enable him to keep it against all but the owner.” 

Note that the last phrase tells us that the chimney sweep had “a” title, not “the “title. His 
title was not as good as the original owner’s, because the latter was a prior title. The 
common law has a hierarchy of title according to chronology. 

The statement from Armory is not quite correct, in two senses. First, although the 
owner’s title usually survives a loss and a finding by another, it does not do so if the 
owner is considered to have abandoned his or her interest in the property. Abandonment 
is hard to establish and thus rare. It requires an intention to give up title, and mere loss 
does not convey such an intention. In Simpson v. Gowers, (1981), 121 D.L.R. (3d) 709 
(Ont. C.A.) the Ontario Court of Appeal said: “Abandonment occurs when there is a 
giving up, a total desertion, and absolute relinquishment of private goods by the former 
owner.” Abandonment can be inferred from the circumstances, with the best examples 
being sporting ones - baseballs being hit into the crowd during major league games are 
abandoned, as are golf balls hit into the water or trees (or the many other places I have 
lost golf balls). 

Second, and conversely to the point about abandonment, the true owner may not be the 
only person with another claim to the property claimed by the finder. A prior finder might 
have such a claim, and prior title is better. Or the person on whose land the property was 
found may have a prior claim also, an issue discussed below. 

These two additions to the Armory statement mean that the rule is the one stated by Ziff, 
Principles of Property Law, fourth edition, p. 134: “a finder acquires title good against the 
world, except for those with a continuing antecedent claim”. That is, the finder’s claim 
must be antecedent to other claims (true owner, prior finder, occupier) which must also 
be continuing claims (not abandoned). 



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it is a case of "finders keepers." I would therefore dismiss the appeal. 
[Eveleigh LJ. and Sir David Cairns also wrote brief concurring judgments.] 


(D) FINDERS AND ILLEGALITY 

In Parker Donaldson L.J. states both that a trespassing finder always loses to the occupier, 
and that a “dishonest taker” has only a “frail” title. Both these assertions raise the issue 
of what effect an illegal act should have on property law’s rules for the allocation of title. 
Should the law simply apply the rule that possession of the right kind makes a person a 
finder and therefore gives him or her a finder’s title? Or should property law give way to 
other considerations. 

The leading case on both trespassers and “dishonest takers” from the Ontario courts is 
still Bird v. Fort Frances, [1949] 2 D.L.R. 791 (Ont. H.C.), although many people think 
the reasoning in Parker should now prevail. In Bird a 12-year-old boy was crawling 
around in the basement of a pool-hall when he found a can with a large number of 
banknotes in it - c. $1,500. His “generous spending” alerted his mother to the windfall, 
and she gave it to the police. The owner was not traced, and the occupier of the pool hall 
did not make a claim. The issue was thus whether the money belonged to the boy or to 
the town. McRuer C.J.H.C. found for the boy. His judgment is long and confusing, but it 
did include an extensive canvassing of many older authorities, including: 

’’The consequences attached to possession are substantially those attached to ownership, 
subject to the question of the continuance of possessory rights ... Even a wrongful 
possessor of a chattel may have full damages for its conversion by a stranger to the title, 
or a return of the specific thing.” Oliver Wendell Holmes 

“The possessor need not have the further qualification of a title to possess. The facts of 
exclusive and exclusory control may be as true of a finder, borrower, pawnbroker, an 
honest non-owner who believes he is the owner, a trespasser, or even a thief, as they are 
of a true owner.” Goodeve on Personal Property, 8th ed., pp. 38-9 

“If a finder has reason to believe that the thing is abandoned by its owner, then, whether 
or not it is so abandoned and whether or not a civil trespass is committed, there can be no 
theft at the first because there does not exist the belief that the appropriation will be invito 
domino which is essential for animus furandi. And a subsequent appropriation, even after 
discovery that the owner had no intention of abandonment, would seem to be within the 
principle of the immunity accorded by the modern decision to the pure finder. A taker 
upon a loss and finding may, like any other possessor, maintain trespass and theft... 
against a stranger.” Pollock & Wright on Possession, 1888, p. 187 

McRuer C. J. also stated that Bird was not a "true finder," that is, “the money was not 
found in a public highway or public conveyance or in any place to which the public had 
access by leave or licence.... It was not lost in the sense that a wallet is lost if dropped in 


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the street/’ Thus: “The plaintiff had no right to remove it from the property of another, 
and undoubtedly was a wrongful taker.’* But. he continued, “it is not necessary for me to 
decide whether the taking was with felonious intent or not.’' This was because whether 
Bird was a “mere wrongful taker** (trespasser), or whether he had “felonious intent,” - 
“in this case the same result flows.” That is: “In my view the authorities with which I 
have dealt justify the conclusion that where A enters upon the land of B and takes 
possession of and removes chattels to which B asserts no legal rights, and A is 
wrongfully dispossessed of those chattels, he may bring an action to recover the same.” 

Bird certainly says that the trespass makes no difference as such, although note the 
qualification in the above statement in the words “to which B asserts no legal rights.” He 
is probably referring to any claim B might make as the occupier. The quotation in 
context also seems to suggest that an intent to steal, or a theft, makes no difference either. 

The question of what kinds of illegality, if any, vitiate finders’ title probably remains 
unresolved as a matter of common law, although criminal statutes, including the 
Canadian Criminal Code, resolve the problem in some cases by requiring the confiscation 
of the proceeds of certain crimes when the possessor has been convicted. 

A more general, common law, principle was enunciated in Baird v. Queen in Right of 
British Columbia (1992), 77 C.C.C. (3d) 365 (B.C.C.A.), where the court had no such 
statute to rely on because there was no conviction. A search of Baird’s hotel room 
revealed some $16,000 in cash and travellers’ cheques which were identified as part of 
the proceeds of a robbery, and which Baird admitted were so. For reasons that do not 
concern us Baird was not prosecuted, and nor did the robbery victim want the money 
back. Baird thus applied for the return of the money from the crown. His lawyer relied on 
Bird, and argued that Baird “is entitled to retain possession against anyone, save the 
person from whom he may have wrongfully trespassed in acquiring them and save any 
person who can prove a superior title”. The court distinguished Bird “as a kind of finders 
keepers case where there was not that degree of criminality or culpable immorality 
necessary to support” a claim that illegality should be a bar to recovery. It said that 
despite the lack of a conviction, “the conduct of Mr Baird giving rise to his claim is so 
tainted with criminality or culpable immorality that as a matter of public policy the court 
should not assist him to recover”. 

Did the court find a valid ground for distinguishing Bird from Baird? Is not a case like 
Armory also one in which the finder knew the property was not his? In Baird the crown 
had the money in its possession, and made a claim for bona vacantia - literally “vacant 
goods”, and a doctrine that holds that unclaimed property belongs ultimately to the 
crown. What if Baird had somehow got possession of the money again, and the court 
would thus not have been asked to “assist him to recover”? What if a third party, not the 
true owner, and not the original “finder”, had had possession? 

The English Court of Appeal appears to have taken the opposite approach to the Baird 
court in Webb v. Chief Constable of Merseyside Police, [2000] Q.B. 427 (C.A.), and in 
doing so to have cast doubt on aspects of Parker. Webb had been in possession of money 



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that the police believed was the proceeds of drug trafficking, but he was not convicted. 
Conviction would have triggered confiscation of the money, but in its absence the police 
claimed that they could keep it if they could establish, on the civil standard, that it was 
the proceeds of crime. The court disagreed, holding that a conviction was required and 
that “[t]he illegality of the means of acquisition of the money gave rise to no public 
policy defence to the claimants"’ claim"". It continued: “if goods are in the possession of a 
person, on the face of it he has the right to that possession. His right to possession may be 
suspended or temporarily divested if the goods are seized by the police under lawful 
authority. If the police right to retain the goods comes to an end, the right to possession of 
the person from whom they were seized revives. In the absence of any evidence that 
anybody else is the true owner, once the police right of retention comes to an end, the 
person from whom they were compulsorily taken is entitled to possession”. 

A distinction between Baird and Webb is that in the latter case the claimant did not admit 
to having acquired the property illegally. But Webb seems to enunciate a broader 
principle, and was read that way in Costelo v. Chief Constable of Derbyshire 
Constabulary, [2001] 1 W.L.R. 1437 (C.A.). Costelo was found in a stolen car, and it was 
established that he knew it was stolen. However, another man, also in the car at the time, 
was convicted of the theft, and the true owner was never traced. The court applied Webb, 
concluding that it stood for the proposition that at common law “possession means the 
same thing and is entitled to the same legal protection, whether or not it has been 
obtained lawfully or by theft or by other unlawful means”. 

A recent case which clearly involved a “tinge” of illegality is Thomas v. Attorney- 
General of Canada (2006), 64 Alta. L.R. (4th) 184 (Q.B.). Burton Thomas of Edmonton 
went one day to his rented Post Office box and discovered in it a Canada Post Express 
envelope containing $18,000 in cash in 18 separate envelopes. He had opened it without 
looking at the addressee, and when he then did so he found that it was addressed to 
another Post Office box. He took the money to the police. To cut a long story short, the 
named recipient denied any knowledge of where the money had come from or why it had 
been sent to him, and the sender could not be located. Canada Post made no claim. 

The attorney-general argued that the government should keep the money, but the court 
rejected that. While the money may well have been the proceeds of crime, Thomas had 
committed no offence. And “even if [his] actions [in opening the envelope] could be 
viewed as wrong ... this should not disentitle him.” Trussler J. acknowledged that “the 
case law is not clear about the effect of acquiring possession of an item by a 
wrongdoing,” he was “inclined to follow” Bird. He cited Baird, but for the proposition 
that any wrongdoing in the current case “was inadvertent and not tainted by a high level 
of criminality.” The crown’s final argument was that public policy should operate to 
deny Thomas, in that “members of the public should be prevented from making claims on 
other peoples’ mail and it is important to encourage due care of recipients when opening 
the mail.” Trussler J. accepted that these were valid concerns, but they were “not 
pressing and substantial enough to disentitle Thomas.” 


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(E) ADVERSE POSSESSION OF LAND: INTRODUCTION 

As we will see in a subsequent chapter, the common law maintains the fiction that the 
ultimate ownership of all real property lies in the Crown, and no individual can "own" 
land. Instead, individuals have "title"to land. Nowadays title is invariably asserted 
through a document - a conveyance or a will. But historically possession was a very 
significant part of the law of title. First, in and of itself it provided a method of acquiring 
title to unoccupied lands. At common law factual possession, including possession which 
has no obvious rightful origin, gave a title to the possessor. Second, possession also 
provided a method of proving title against other claimants, of reinforcing title. In the 
medieval period possession was called seisin, and seisin was "fact not right". It 
"expressed the organic element in the relationship between man and land and as such 
provided presumptive evidence of ownership": Gray, Elements of Land Law, p. 53. 
Possession, it is often said, was the root of title. 

This initial description of title at common law would not be complete without also noting 
an important corollary of it - that title to land at common law is relative, just as we saw 
that it is with personal property, in the finders section. Title to land also cannot be 
absolute because the Crown owns all land, and therefore it was, and is, pointless to ask a 
court to decide who owns the land. Instead, one asks the court - of the two disputants 
before you, who has the better title? This can be illustrated by a simple example: 

A owned land and sold it to B, who never occupied it; C occupied the land as vacant land; 
C was then forcibly dispossessed by D. 

B, C, and D ail have a title, but some titles are better than others. B r s is best because it is 
first. But C also has a title by possession, could sue D for recovery of the land, and if C 
did so the court would not inquire into whether there was somebody out there with a 
better title than C. B must take an action on his or her own account. C may have had no 
"right" to occupy the land, but "a wrongful possessor will be able to defend his 
possession against trespassers and adverse claimants who have no better right": McNeil, 
Common Law Aboriginal Title, p. 15. 

While it fulfills nothing like as important a role as it once did, possession remains 
important in the common law of title to real property. Conceptually in registry systems 
"modem conveyancing rests to some degree on the assumption that proof of continued de 
facto enjoyment of land by the vendor and his predecessors provides a good root of title 
for the purchaser": Gray, Elements of Land Law, p. 59. More importantly for current 
purposes, it remains possible to acquire title to land at connnon law, good against all the 
world, through long possession. But it can also be done through the law of adverse 
possession. 

Briefly, since the requirements for adverse possession are what the rest of this chapter is 
about, adverse possession means that uninterrupted enjoyment of land of the correct 
nature over a period of time stipulated by law by a squatter (non-owner) deprives the 



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owner of his or her title and effectively gives to the squatter a title to the land, a title 
better than all others. 

There are therefore two principal aspects of adverse possession law. The first is that of 
time. All jurisdictions in which it is possible to obtain title by adverse possession provide 
a statutory period during which a person claiming a title to land must act to recover the 
land from a wrongful possessor. That is why the rules relating to adverse possession are 
in the Real Property Limitations Act. which came into force in 2004. (It replaced Part 1 
of the old Limitations Act, which is the statute referred to in the cases, but did not alter 
any of the provisions.) A claim of title by adverse possession is thus a defence to an 
action by someone with "paper title." Not all jurisdictions have the same time period. The 
following provisions tell you, inter alia, what the time period is in Ontario, and what 
"starts the clock running": 

4) No person shall make an entry or distress, or bring an action to recover any land or 
rent, but within ten years next after the time at which the right to make such entry or 
distress, or to bring such action, first accrued to some person through whom the person 
making or bringing it claims, or if the right did not accrue to any person through whom 
that person claims, then within ten years next after the time at which the right to make 
such entry or distress, or to bring such action, first accrued to the person making or 
bringing it. 

5) (1) Where the person claiming such land or rent, or some person through whom that 
person claims, has, in respect of the estate or interest claimed, been in possession or in 
receipt of the profits of the land, or in receipt of the rent, and has, while entitled thereto, 
been dispossessed, or has discontinued such possession or receipt, the right to make an 
entry or distress or bring an action to recover the land or rent shall be deemed to have 
first accrued at the time of the dispossession or discontinuance of possession or at the last 
time at which any such profits or rent were so received. 

5) (9) Where the person claiming such land or rent, or the person through whom that 
person claims, has become entitled by reason of any forfeiture or breach of condition, 
such right shall be deemed to have first accrued when the forfeiture was incurred or the 
condition broken. 

13) Where any acknowledgement in writing of the title of the person entitled to any land 
or rent has been given to him or to his agent, signed by the person in possession or in 
receipt of the profits of the land, or in the receipt of the rent, such possession or receipt of 
or by the person by whom the acknowledgment was given shall be deemed, according to 
the meaning of this Act, to have been the possession or receipt of or by the person to 
whom or to whose agent the acknowledgment was given at the time of giving it, and the 
right of the last-mentioned person, or of any person claiming through him, to make an 
entry or distress or bring an action to recover the land or rent, shall be deemed to have 
first accrued at and not before the time at which the acknowledgment, or the last of the 
acknowledgments, if more than one, was given. 


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15) At the determination of the period limited by this Act to any person for making an 
entry or distress or bringing any action the right 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. 

16) Nothing in sections 1 to 15 applies to any waste or vacant land of the Crown whether 
surveyed or not, nor to lands included in any road allowance heretofore or hereafter 
surveyed and laid out or to any lands reserved or set apart or laid out as a public highway 
where the freehold in any such road allowance or highway is vested in the Crown or in a 
municipal corporation, commission or other public body, but nothing in this section shall 
be deemed to affect or prejudice any right, title or interest acquired by any person before 
the 13th day of June, 1922. 

36) If at the time at which the right of a person to make an entry or distress, or to bring an 
action to recover any land or rent, first accrues, as herein mentioned, such person is under 
the disability of minority, mental deficiency, mental incompetency or unsoundness of 
mind, such person, or the person claiming through him or her, even if the period of ten 
years or five years, as the case may be. hereinbefore limited has expired, may make an 
entry or distress, or bring an action, to recover the land or rent at any time within five 
years next after the time at which the person to whom the right first accrued ceased to be 
under any such disability, or died, whichever of those two events first happened. 

Note that while possession by the adverse possessor must be continuous for the period of 
time, this does not mean that the same person must possess the land for all of that time. 
Provided there is no gap in possession, the rights acquired by the potential adverse 
possessor, the "inchoate possessory title," can pass from one person to another so that at 
the expiry of the limitation period "the last successor being then in possession will 
acquire a title in fee simple good against all the world including the true owner": per 
Bowen C.J. in Mulcahy v. Curramore Ply. Ltd. [1974] 2 N.S.W.L.R. 464 (C.A.). See 
also McRuer C.J.H.C. in Fleet v. Silverstein (1963), 36 D.L.R. (2d) 305 (Ont. H.C.): 
"[TJhere is abundance of authority that is binding on me that where there has been 
adverse possession by 'A' as against 'B' which is surrendered to 'C' and 'C' immediately 
enters into possession of a right which has been handed over to him by 'A' the Statute of 
Limitations continues to run against the true owner". 

The converse to this is also well established: that is, that if a squatter abandons the land 
before the expiry of the limitation period the title holder "regains" full rights. He or she 
does not have to bring an action for recovery (there being no one in possession against 
whom to bring such action), nor will a later adverse possessor get the advantage of the 
previous possession unless his or her entry was substantially continuous with the previous 
squatter's departure: see The Trustees, Executors and Agency Co. Ltd. v. Short (1888), 13 
App. Cas. 793 (P.C. - N.S.W.). 


You might think about how these points help to illustrate the introductory comments 
above about possession being the root of title and about the relativity of title. The 
"trespasser" who has not stayed the correct amount of time has still acquired something, 



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even if it is not a title that can be passed on other than by the successor immediately 
possessing the land. 

The existence, and indeed the value, of an "inchoate possessory title" is illustrated by 
Perry v. Clissold, [1907] A.C. 73 (P.C -N.S.W.). Under New South Wales expropriation 
legislation the government issued a notice of expropriation to one Frederick Clissold in 
1891. Nothing further was actually done with the land, although the legislation provided 
that publication of the notice was sufficient to convey all rights in the land to the 
government, and Clissold died in 1892. In 1902 Clissold's heirs demanded compensation, 
but the Minister refused wLen it turned out that Clissold had entered the land in 1881. 
Although he fenced it and treated it as his own. and likely had sufficient "quality of 
possession" to obtain full title, he clearly did not have sufficient "quantity of possession" 
under the applicable statute. The case went to the Privy Council on the narrow question 
of whether a prima facie case for compensation was disclosed on the facts, and the court 
held that it was. "It cannot be disputed", Lord MacNaghten said, "that a person in 
possession of land in the assumed character of owner and exercising peaceably the 
ordinary rights of ownership has a perfectly good title against all the world but the 
rightful owner". The expropriation legislation provided for compensation "to every 
person deprived of the land" and "it could hardly have been intended ... that the Act 
should have the effect of shaking titles which ... would in process of time have become 
absolute ... or that... Ministers ... should take advantage of the infirmity of anybody's title 
in order to acquire his land for nothing". 

The following extract canvasses and critiques the arguments usually made for why we 
have adverse possession. 

T. W. Merrill. "Property Rules. Liability Rules, and Adverse Possession" (1985) 79 

Northwestern University Law Review 1122 

The first justification is one that is commonly invoked in support of statutes of limitations 
generally - the difficulty of proving stale claims. As time passes, witnesses die, memories 
fade, and evidence gets lost or destroyed. The statute of limitations recognizes this 
problem by adopting a conclusive presumption against attempting to prove claims after a 
certain period of time has elapsed. 

The concern about lost evidence is common-sensical. As the quality and quantity of 
evidentiary material deteriorates over time, the process of fact-gathering and proof 
becomes more difficult. Surrogate witnesses and documents generally are not as 
accessible or as reliable as originals; consequently, more resources must be expended in 
finding them and corroborating their veracity. A rule requiring prompt resolution of 
claims is thus efficient in that it helps to minimize the costs of litigation and trial. There is 
also a fairness concern underlying the lost evidence rationale. Requiring that disputes be 
resolved promptly prevents the plaintiff from unfairly surprising the defendant with a 
claim that may be difficult or impossible to refute because evidence that would allow the 
defendant to defeat the claim no longer exists. 







































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F) ADVERSE POSSESSION: THE “QUALITY” OF POSSESSION 

The next three sections explore what "quality" of possession is needed to establish an 
adverse possession claim. Generally, to make out the defense of adverse possession the 
squatter must show not only that he or she has been in continuous possession of the land 
for the requisite period of time, but also that the possession had been "actual possession” 
in the manner of an ordinary owner. “Actual possession,” the first part of the test in the 
first case, Re St Clair Beach, is usually broken down into a number of discrete but 
related elements: actual, continuous, exclusive, peaceful, adverse (without permission of 
the other or acknowledgment of the owner's title, and open or notorious). The word 
actual appears twice here - as the general requirement and as one of the specific elements 
of that requirement. When used in the latter instance it means “acts of possession” - did 
the trespasser do the kinds of acts on the land that an ordinary owner would do. It is like 
factum in personal property, and like factum is contextual. 

Although the court does not come to a conclusion on the matter, it is likely that, if the 
title holder had gone out of possession, the MacDonalds would have been held to have 
sufficient “acts of possession.” What arguments would you make that the McDonalds did 
physically possess the land as an ordinary owner would do? 

The court finds that the defence cannot succeed because the McDonalds did not have 
exclusive possession. Why not? And what does this tell you about what the owner needs 
to do to remain in possession? 

Even if the McDonalds had been in possession in a physical sense, and even if the title 
holders had discontinued possession, the McDonalds would probably still not have won. 
Why not? See s. 13 of the Act. 

One final point of introduction is necessary here. It was stated above that adverse 
possession doctrine serves as a defence, specifically as a defence to an action by a title 
owner to recover land occupied by a squatter. However, in Re St Clair Beach the claim 
for possessory title is made affirmatively. In fact, there are many cases in which an 
affirmative claim is brought by a squatter, and even though there is very little direct 
authority on the point it is reasonable to say that there is no procedural difficulty in doing 
so. In any event, the affirmative claim is made in this case as a direct result of the 
operation of the land titles system. A few explanatory sentences on systems of recording 
title are therefore necessary here. 

There are two such systems in common law Canada. Briefly, the registry system permits 
registration of all documents pertaining to land in the local registry office, but it does not 
require registration nor does it guarantee title. Prospective purchasers must therefore 
"search" the title by checking all the documents registered against a particular piece of 
land. By registering an owner protects title against all unregistered documents but not 
against unwritten unregistered claims such as title acquired by adverse possession. This 
system was historically in effect in the Maritime Provinces, southern Ontario (generally), 
and parts of Manitoba. It is being converted, with the aid of computerisation, into a Land 


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Titles system in many places. 

In the other system, known as Land Titles or the Torrens system, the government 
guarantees title as shown on the record. When title to a particular piece of land is first 
5 recorded all outstanding interests in it are investigated and a certificate of title is issued. 
An insurance fund provides compensation for official errors. There is no need to search 
title in a Land Titles system: one merely obtains the official certificate of title. Land 
Titles is used exclusively in British Columbia, Alberta and Saskatchewan, in.parts of 
Manitoba and in northern Ontario. 

10 

Many areas of the country that at one time used only the registry system now have both 
systems, with owners having an option. And this is the context for Re St Clair Beach. As 
stated in the opening paragraph, St Clair Beach Estates Limited applied for "first 
registration" under the Land Titles Act. The McDonalds objected, arguing that as a result 
15 of their long possession they, and not St Clair Beach Estates Limited, owned the disputed 
parcel. 



























































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NOTES 

1) The judgment in Lundrigans states that not only did the trial judge hold that the 
squatters had the right quality of possession, he also gave them title to "a considerably 
larger parcel of land" than just the cabin. This was incorrect. x4n adverse possessor will 
normally gain title only to the land occupied, not to other land covered by the real 
owner's title. 

However, if a person enters land under a defective title (a title deed that wrongly shows 
the trespasser to ow the land), and adversely possesses only part of the land for the 
requisite period, he or she will be considered to have been in constructive possession of 
the whole. This is called the doctrine of colour of title. See Wood v. Leblanc (1904), 34 
S.C.R. 627 per Davies J. at 644: "the possession necessary under a colourable title to oust 
the title of the true owner must be just as open, actual, exclusive, continuous and 
notorious as when claimed without such colour, the only difference being that the actual 
possession of part is extended by construction to all the lands within the boundaries of the 
deed but only when and while there is that part occupation." The doctrine effectively 
recognises there are two types of trespassers - those who know they are trespassing and 
those who do not. We will return to that distinction in the following section on 
inconsistent use. 


2) Had the adverse possessors won in Lundrigan’s, they would probably not have been 
able to get to their land without trespassing. The successful adverse possessor acquires 
only the land itself and not any rights appurtenant to it. The leading case is Wilkes v. 
Greenway (1890), 6 T.L.R. 449 (C.A.). Greenway had acquired land previously 
belonging to Wilkes by adverse possession, but needed to use a private road belonging to 
Wilkes in order to reach that land. He argued that he had also acquired an easement of 
necessity consisting of a right of way via the road. (We will deal with easements in a later 
chapter). The Court rejected Greenway's argument, noting that "there is nothing in the 
Statute of Limitations to create ways of necessity. The statute does not expressly convey 
any title to the possessor. Its provisions are negative only. We cannot impart into such 
negative provisions doctrines of implication [of easements of necessity]". 


































































$ ■ >t *?yi t • - •• •, . Ante 










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G) ADVERSE POSSESSION AND THE INCONSISTENT USE TEST: JUDICIAL 
REPEAL? 

In recent years a series of cases, in England and Canada, have appeared to restrict the 
ambit of adverse possession doctrine by giving a new meaning to what makes possession 
"adverse". The traditional position can be summarised simply as a restatement of the 
principles outlined above: exclusive possession as an ordinary owner would possess for 
the statutory period of time is adverse to the title holder. Or, as it was put in Treloar v. 
Nute [1976] 1 W.L.R. 1295 (C.A.), "if a squatter takes possession of land belonging to 
another and remains in possession for ... [the statutory period] to the exclusion of the 
owner that represents adverse possession". 

The new approach of requiring that the squatter’s use be “inconsistent” with that of the 
title holder is illustrated by Masidon Investments, one of a series of cases from the 1970s 
and 1980s in which the Ontario Court of Appeal effectively made it extremely difficult 
for adverse possessors to win. 


MASIDON INVESTMENTS V. HAM (1984), 45 O.R. (2d) 563 (C.A.) 

The judgment of the court was delivered by Blair J.A.: This appeal concerns a claim for 
possessory title to land. Specifically, the issues are whether the use made of the land by 
the appellant, the trespasser, was inconsistent with the use of the respondents, the legal 
owners, and whether the appellant had the required animus possidendi, the intention to 
exclude the respondents from possession. The Honourable Mr. Justice Carruthers rejected 
the appellant's claim and this appeal is taken from his decision.... 

The relevant facts, as found by Carruthers J. in his full and careful discussion of the 
evidence, can be briefly set out. The appellant, in 1956, became the tenant of an 
approximate 100-acre parcel of land owned by Louis Mayzel, located on the north side of 
the Queen Elizabeth Highway near Oakville. The land was mortgaged by Mayzel to a 
mortgagee who was a trustee for a group of investors consisting of the respondents or 
their predecessors in title. On September 26, 1967, the mortgagee registered a final order 
of foreclosure against the parcel. As a result of subsequent negotiations between the 
mortgagee and Mayzel, title to the west half of the 100-acre parcel was conveyed to a 
company controlled by Mayzel. Title to the east half, the lands in dispute in this appeal, 
remained in the mortgagee and in 1968 was conveyed to the respondents. The appellant 
continued as a tenant of Mayzel. The residence he occupied throughout is located on the 
west half but most of the other farm buildings and the access road leading to the 
residence are located on the disputed east half. 

The appellant operated an airport consisting of two grass runways on the disputed 
property. The first runway was laid out in the late 1950s and early 1960s; the second 
runway was constructed between 1966 and 1972 and required extensive ditching, grading 
and the addition of dozens of large truckloads of fill. The appellant maintained the 
rumvays by regular cutting and the addition of fertilizer, loam and seed. A wind-sock, 


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NOTES 

1) In Gorman v. Gorman [1998] O.J. No. 1471 (C.A.) the inconsistent use test prevented 
a spouse from establishing title by adverse possession to the other spouse’s interest. The 
Gormans had married in 1948 and separated in 1971. The wife stayed in the house with 
the children, the husband visited from time to time. They never divorced and despite 
occasional negotiations never came to an agreement whereby one party would buy out the 
other. The husband did propose moving back in in 1986, but his wife “rebuffed him.” In 
1996 the husband, then living in a senior citizen’s home, applied for an order to sell the 
house and the wife defended the action by arguing that his interest was extinguished by 
the Limitations Act. The trial judge found that she had had actual possession for over 
twenty years, and that she effectively excluded her husband from the use he wanted to 
make of the property, which was to live in it. However, she failed to establish that she 
had the intention to exclude the husband from possession; as evidence of that the trial 
judge cited the various communications between the two over the years over selling the 
house or her buying him out. Those communications showed that she accepted that he 
had an interest in the house, and thus she was not intending to exclude him. The wife 
appealed on the question of whether such an intention needed to be proved, and the Court 
of Appeal held that it did in cases other than mistake cases. 


2) One might wonder whether an adverse possessor can ever meet the inconsistent use 
test. Occasionally they have succeeded, but always in unusual circumstances. In Keil v. 
762098 Ontario Inc et al (1992), 91 D.L.R. (4th) 752 (Ont. C.A.) one party bought a lot 
of residential land and applied for a severance of part of it, for development purposes. In 
litigation over this severance it turned out that a neighbour was using part of the lot as a 
driveway, and had done so for over 20 years before the title owner bought the land. The 
Court of Appeal agreed with the title holder's argument that recent cases, especially 
Masidon Investments, had made it necessary "to demonstrate that use of the land by the 
occupant in possession is inconsistent with the form of use and enjoyment that the titled 
owner intended to make of it". The court summarised the title owner's argument thus: 

"the intended use was ... retention of the land in its present form until eventual 
development as a separate residential parcel. This use ... is not interfered with by the 
laying of gravel and the passage of vehicles". But the court also stressed that the owner's 
intention must relate to the time during which the limitation period was running. In this 
case the title owner had no intention when the period was running, because it did not own 
the land then. It was the prior owner's intention that mattered, and no evidence had been 
led on that. 

Does this mean that the inconsistent use test actually helps adverse possessors when the 
title changes hands? 

Another rare case of success for the adverse possessor is Georgco Diversified Inc. v. 
Lakebum Land Capital Corp. (1993), 31 R.P.R. (2d) 185 (Ont. G.-D.) the plaintiff 
Georgco owned five contiguous plots of land on Hayden Street in Toronto, a street 
parallel to and south of Bloor Street East. The defendant Lakebum owned land 


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immediately to the north, on Bloor. Since 1953 the plaintiff and its predecessors in title 
had effectively occupied a strip 81 feet long and between two and a half and four and a 
half feet wide which according to registered surveys belonged to the defendant and its 
predecessors in title. Counsel for the defendant conceded that "the disputed lands have for 
a period of more than ten years been occupied by the plaintiffs and incorporated as part of 
the backyards of the plaintiffs' houses, have been landscaped as part of such backyards, 
and appear to have been boarded by fences". The trial judge held that the plaintiffs had 
had actual possession. Counsel for the defendant relied on Masidon Investments, arguing 
that "in order to establish that the claimant to adverse possession has effectively excluded 
the true owner from possession, the use by the claimant must be inconsistent with the 
intended use of the property by the true owner" and that "if the true owner had no 
intended use of the disputed land, the claimant cannot satisfy the test of effective 
exclusion". Ground J. (really!) accepted that Masidon Investments was the case to be 
followed, and said this about the owner's intended use: "The evidence before this court 
would seem to indicate that, if [the defendant] ... had any intention at all with respect to 
the disputed lands, its intention as to use, at the highest, would be that no one should 
make use of the lands". 

Given this conclusion, and assuming that “no one” included the owner, the plaintiff had 
established adverse possession because by any use of the land by anybody would be 
inconsistent with the intention that nobody use the land. 

A recent case of a successful claimant is Corporation of the Township of Lake of Bays v. 
456758 Ontario Ltd (2006) O.A.C. 85 (C.A.). From the 1940s the municipality had used 
land as a public park. In 1990 the president of the defendant corporation asserted 
ownership of the land which led to a verbal dispute with the municipality’s officers, the 
latter denying the company’s claim. Shortly thereafter the township erected a fence to 
keep the company out. The Court of Appeal found that the Masidon test had been met - 
the owner had been effectively excluded and the fence erected with the intention of 
excluding it. 


3) There is language in Masidon Investments deprecating the fact that Ham deliberately 
tried to get the land via adverse possession. Is it appropriate to introduce notions of 
“fault” into this area of the law? In Lehal v. Murray (2001), 48 R.P.R. (3d) 304 (Ont. 
S.C.) Van Melle J., having found that the possessors’ predecessor in title did not have 
exclusive possession and that therefore there had not been ten years of possession of the 
requisite quality, went on to say that the claimants would not have been entitled even if 
they had been there ten years. The judge's reasons on this point rely heavily on the fact 
that the Murrays knew it was not their land, but they nonetheless used it. This fact 
“disturbed” the judge, who believed that “once the Murrays understood the concept of 
adverse possession”, they set out to establish it and to enlarge their claim. The judge said: 
“Adverse possession is not a mechanism whereby someone can convert to his or her own 
use property belonging to his or her neighbour. This is not a case of mutual mistake or 
inadvertence. There is a course of conduct by the Defendant and her husband apparently 
designed to appropriate property belonging to someone else.... [Their actions were] 



100 


entirely consistent with a course of conduct designed to ‘take over’ someone else’s 
property, but not consistent with a legitimate claim for adverse possession”. An appeal to 
the Court of Appeal was dismissed, although without reference to these issues: (2002), 5 
R.P.R. (4th) 34 (Ont. C.A.). 


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(H) RETREAT FROM THE INCONSISTENT USE TEST 

The biggest problem with the inconsistent use test is revealed by thinking about the 
discussion of intention in Beaudoin, a case decided before Masidon Investments. In 
Beaudoin the court held that the adverse possessor could not be required to intend to 
exclude the true owner specifically, since he mistakenly believed that he was the owner. 

It is similarly true that the possessor cannot effectively exclude the owner if the parties 
are mistaken about title, because the true owner cannot have a use for the land if he or she 
does not believe that he or she is the owner. 

BUCKINGHAMSHIRE COUNTY COUNCIL V. MORAN [1989] 2 ALL ER 225 C.A. 
Facts in brief: 


In 1955 the plaintiff council acquired a plot of land with the intention of using it for a 
road diversion in the future. The piece of land was adjacent to the garden of the 
defendant's predecessor in title who maintained the plot as if it were part of his own land. 
In 1971, the defendant purchased the house on the neighbouring property and continued 
to treat the land in question as his own although he knew it belonged to the county 
council. In 1975 the council wrote to the defendant and asked him to explain on what 
grounds he was exercising rights over the plot. The defendant replied that he understood 
that he was allowed to use th land until the proposed road diversion was built. The 
council refuted this right but made no attempt to assert physical ownership until 1985 
when it issued a writ claiming possession of the property. At trial, the judge upheld the 
defendant’s claim of adverse possession and the plaintiff council appealed. 

SLADE LJ. 


Section 15(1) of the 1980 Act provides: 

No action shall be brought by any person to recover any land after the expiration of 
twelve years from the date on which the right of action accrued to him or, if it first 
accrued to some person through whom he claims, to that person. 

... As is stated in s 15(6), Pt I of Sch 1 o the 1980 Act... 

Where the person bringing an action to recover land, or some person through whom 
he claims, has been in possession of the land, and has while entitled to the land 
been dispossessed or discontinued his possession, the right of action shall be treated 
as having accrued on the date of the dispossession or discontinuance. 

... The origin of the suggested ‘special rule’ is said to be the often-cited statement of 
Bramwell LJ in Leigh v Jack 5 Ex D 264 at 273: 

... in order to defeat a title by dispossessing the former owner, acts must be done 
which are inconsistent with his enjoyment of the soil for the purposes for which he 





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MUTUAL MISTAKE OR UNILATERAL MISTAKE? 

Teis clearly stands for the proposition that the inconsistent use test does not apply in 
cases of mutual mistake. Yet its underlying policy reasoning suggests that what matters is 
the honest mistake of the trespasser, not the fact that both parties were mistaken. Laskin 
J.A. stated: “The law should protect good faith reliance on boundary errors or at least the 
settled expectations of innocent adverse possessors who have acted on the assumption 
that their occupation will not be disturbed. Conversely, the law has always been less 
generous when a knowing trespasser seeks its aid to dispossess the rightful owner.... The 
test of inconsistent use furthers this policy by strengthening the hand of the true owner in 
the face of an adverse possession claim by a knowing trespasser. Applying the test to 
claims by persons who honestly, though mistakenly, use land not their own, defeats this 
policy.” 

There have been a few reported cases involving unilteral mistake on the part of the 
trespasser, but as yet no clear statement from the courts that inconsistent use does not 
apply in such circumstances. In Bradford Investments 1963 Ltd v. Fama , (2005), 77 
O.R. (3rd) 127 (S.C.) Cullity J made it clear that he did not agree with the use of the 
inconstant use test at all, and he noted that recent English decisions had “thoroughly 
rejected” the test because it “tends to revive the concept of adverse possession that was 
thought to be abolished by the English legislation of 1833.” But he was bound by the 
Court of Appeal’s adoption of the doctrine. Rather than directly fashion a further 
exception for unilateral mistake, he argued that the Court of Appeal cases were 
inconsistent, that whereas Masidon applied the inconsistent use test to the issue of 
effective exclusion, earlier cases (Keefer and Fletcher cited in Masidon) had referred it to 
the trespassers intention to exclude the true owner. If that was the case, he argued, then 
“the absence of an inconsistent use would appear to do no more than give rise to a strong 
presumption that there was no intention to exclude the owner.” And in cases of unilateral 
mistake that presumption could be overturned: “I see no difficulty in inferring that 
persons - such as the defendants - who believe that they are the owners of property, and 
exercise all the possessory rights of owners over it, intend to exclude all uses of the 
property by any other person who may claim to be entitled to such user by reason of a 
claim to ownership.” He thus enunciated the following three-part test which in effect 
meant that a trespasser who was mistaken could “pass” the inconsistent use test: 

I do not believe I am compelled by the decision in Masidon to find that Bradford was not 
excluded from possession in this case where: 

(1) the disputed lands adjoined, and were not physically separated from, residential 
properties purchased by the defendants; 

(2) the defendants enclosed the disputed lands and exercised the full possessory rights of 
owners of them for the statutory period under a bona fide belief that they owned them 
and, in consequence, with the intention to exclude the whole world; and 


(3) the owner of the disputed lands made no claim to them during the period and had no 


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recovery at law, it might, with a view to making the remedy more certain and adequate, 
provide a fixed measure of damages, as in the case of copyright infringement. 

Or again, a Legislature might conclude that it was unwise to recognize even so limited 
a property right in published news as that above indicated; but that a news agency should, 
on some conditions, be given full protection of its business; and to that end a remedy by 
injunction as well as one for damages should be granted, where news collected by it is 
gainfully used without permission. If a Legislature concluded (as at least one court has 
held, New York and Chicago Grain and Stock Exchange v. Board of Trade, 127 Ill. 153, 
19 N. E. 855, 2 L. R. A. 411, 11 Am. St. Rep. 107) that under certain circumstances 
news-gathering is a business affected with a public interest; it might declare that, in such 
cases, news should be protected against appropriation, only if the gatherer assumed the 
obligation of supplying it at reasonable rates and without discrimination, to all papers 
which applied therefor. If legislators reached that conclusion, they would probably go 
further, and prescribe the conditions under which and the extent to which the protection 
should be afforded; and they might also provide the administrative machinery necessary 
for insuring to the public, the press, and the news agencies, full enjoyment of the rights so 
conferred. 

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. Courts would be powerless to prescribe the detailed 
regulations essential to full enjoyment of the rights conferred or to introduce the 
machinery required for enforcement of such regulations. Considerations such as these 
should lead us to decline to establish a new rule of law in the effort to redress a newly 
disclosed wrong, although the propriety of some remedy appears to be clear. 


NOTES 

(from Jim Phillips, Property Law: 2008-2009 ) 


1) In Pittsburgh Athletic Co. et al v. KQV Broadcasting Co. 24 F. Supp. 490 (U.S. Dist. 
Ct., Penn, 1938) the Pittsburgh Pirates obtained an injunction to prevent the defendants 
from making unauthorized broadcasts of their games from nearby leased premises which 
, overlooked the stadium. The Pirates had given exclusive broadcasting rights to two other 
radio stations, rights which Schoonmaker J. described as property. He said at p. 492 that 
KQV's action: “amounts to unfair competition and is a violation of the property rights of 
the plaintiffs. For it is our opinion that the Pittsburgh Athletic Company by reason of its 
creation of the game, its control of the park, and its restriction of the dissemination of 
news therefrom, has a property right in such news and the right to control the use thereof 
for a reasonable time following the games.” 


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2) In Canadian Admiral Corporation Ltd. v. Rediffusion Inc., [1954] Exch. 382 the 
defendant cable company intercepted C.B.C. transmissions of Montreal Alouette games 
and broadcast them to its subscribers. The court held that "no matter how piratical, the 
taking by one person of the work of another may be, such taking cannot be an 
infringement of the rights of the latter unless copyright exists in the work." It then held 
that such copyright did exist under the provisions of the Copyright Act. 


3) One commentator, while noting that the misappropriation doctrine enunciated in INS 
v. AP has had limited application, nonetheless approves of this decision as one dealing 
with "certain types of services of a fragile character, rather than products, whose 
commercial exploitation without destruction by immediate imitation is difficult": J.A. 
Rahl, "The Right to 'Appropriate' Trade Values" (1962) 23 Ohio State L. J. 56 at 57. Rahl 
argues that the misappropriation doctrine should not be employed against competition 
generally, but only against competition "where the result would be to destroy either the 
value created by plaintiff or the market for it". That is, "the protection ...[should] 
safeguard the plaintiffs opportunity to market his trade value" at all; it should not protect 
opportunities to increase profitability. He states: "the court's protection ... [should be] 
reserved for situations in which defendant's conduct threatens to destroy the opportunity 
to market the trade value, the prospect of which has induced plaintiff to bring it forth" (p. 
63). 


4) In two cases involving the Boston Marathon the Boston Athletic Association (BAA) 
sought to invoke the misappropriation principle. Boston Athletic Association v. Sullivan 
867 F.2d 22 (1st Cir. 1989) concerned a company selling t-shirts with "Boston Marathon" 
written on them. The BAA was successful in enjoining this. In WCVB-TV v. Boston 
Athletic Association 926 F.2d 42 (1st Cir. 1991) the BAA had sold "exclusive" TV rights 
to one local TV station, but another one planned to broadcast the marathon simply by 
setting up cameras on the streets. The BAA failed in an attempt to obtain an injunction to 
prevent this. In the course of its decision the court stated: 

As a general matter, the law sometimes protects investors from the 'free riding' of others; 
and sometimes it does not. The law, for example, gives inventors a 'property right' in 
certain inventions for a limited period of time; ... it provides copyright protection for 
authors;... it offers certain protections to trade secrets.... But, the man who clears a 
swamp, the developer of a neighbourhood, the academic scientist, the school teacher, and 
millions of others, each day create 'value' (over and above what they are paid) that the 
law permits others to receive without charge. Just how, when and where the law should 
protect investments in 'intangible' benefits or goods is a matter that legislators typically 
debate, embodying the results in specific statutes, or that common law courts, carefully 
weighing relevant competing interests, gradually work out over time", [emphasis in 
original] 


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What distinguishes the two Boston Marathon cases? What distinguishes the latter Boston 
Marathon case from the case cited above involving the Pittsburgh Pirates? 

5) Two recent applications of INS v. AP are National Basketball Association v. Motorola 
Inc 105 F. 3d 841 (2nd Cir. 1997), and Morris Communications Corp v. PGA Tour, Inc. 
235 F, Supp. 2d 1269 (M.D. Fla 2002); affd. 70 U.S.P.Q. 2d 1446 (C.A.). In the former 
case Motorola produced a hand-held pager device that provided real-time scores of NBA 
games, as well as an on-line service provider which did the same thing. Motorola took 
the information from radio and TV broadcasts. Among other claims the NBA said that 
this was misappropriation. 

The U.S. Court of Appeals for the Second Circuit dismissed the claim, and its decision is 
complicated for our purposes by the US Copyright Act of 1976. This Act, in line with 
general copyright principles, effectively made such information not copyrightable. More 
importantly, it also pre-empts many claims for the legal protection of information through 
other legal causes of action. There are exemptions to pre-emption, and in this case the 
court held that only a narrow exception existed - the so-called “hot news” claim. For a 
“hot news” claim to succeed in a misappropriation suit five elements must be present: (i) 
the plaintiff must incur some cost in generating the information; (ii) the value of the 
information must be very ‘time-sensitive'; (iii) the defendant must be ‘free-riding*; (iv) 
the defendant must use the information in direct competition with the plaintiff; and (v) 
there must be a substantial threat to the financial viability of the plaintiffs production of 
the information. The court held that while some of these elements were made out, not all 
were: The information was time-sensitive, and the NBA had a product, which it was 
expanding, which competed. But the NBA’s primary business was putting on the games 
and transmitting live broadcasts of them, and thus Motorola was only competing with a 
part of the league’s business, the transmission of factual information. And it was not free¬ 
riding on that - it did not get its information from the NBA’s own real-time news service. 
Motorola expended its own resources on gathering the information which it then 
transmitted to subscribers. 

In the PGA Tour case a news service was not permitted to have employees attend PGA 
tournaments unless they agreed not to transmit over the internet real time golf scores 
obtained from the media centre, such information being collected from all 18 holes by the 
PGA’s own system. Morris Communications said this was tantamount to exercising a 
property right over the information, and that according to the Motorla case it should be 
allowed to disseminate the information it picked up in the media centre. The court found 
for the PGA, distinguishing Motorola on, inter alia, the ground that the PGA was within 
its rights to deny access to the course unless the observer agreed not to disseminate the 
information. 


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NOTES 


(from Jim Phillips, Property Law: 2008-2009 ) 

1) For a comment on the Stewart case which discusses also the other cases we have 
looked at, see A. Weinrib, "Information and Property", (1988) 38 University of Toronto 
Law Journal 117. See also D. Doherty, "When is a Thief Not a Thief? When he Steals the 
Candy but Leaves the Wrapper", (1988) 63 C.R. (3d) 322. Both authors disagree with the 
Supreme Court's ruling. Doherty writes that the result "seems ludicrous" because criminal 
liability is made to depend "on whether [Stewart] ... took the package (a worthless item) 
along with the contents (a valuable item)". He further argues that "a consideration of the 
language of s.283 of the Criminal Code ..., along with the applicable policy 
considerations, yields the conclusion dictated by common sense: Mr. Stewart should have 
been convicted". 


2) In American Heart Association at al v. County of Greenville, 331 S.C. 498, the 
plaintiffs, the beneficiaries under the will of one Katie Jackson, argued that she, and 
ultimately they as well, owned the original will of (Shoeless) Joe Jackson. They wanted 
it, of course, because his signature was worth a lot on the collectables market; in his case 
the value was enhanced by the fact that a Jackson signature was extremely rare. The 
plaintiffs argument was based on the fact that before death a person clearly owned his or 
her will and could do whatever he or she wanted with it. The Supreme Court of South 
Carolina rejected the claim, on the grounds that state law required the will to be filed with 
the Probate Court by the executor, and that as a result it became a public record and thus 
the property of the state. 















































































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consideration in arriving at the amount of $30,000, which she considered an appropriate 
amount to reflect the respondent's contribution to the obtaining of the appellant's dental 
licence, and awarded that amount in a lump sum. I see no reason to disturb that decision. 

Cross-Appeal 

34 The respondent argues in her cross-appeal that, given the trial judge's finding that 
the licence constituted property within the terms of the F.L.A., the full value of the 
licence should have been included in net family assets for the purpose of determining the 
equalization payment. I think that result logically follows. However, given the trial 
judge's reasons as a whole, had she proceeded in that manner, it would have been 
appropriate to then order an unequal distribution pursuant to s. 5(6) of the F.L.A., and the 
result would have been the same. 

Disposition 

35 I would not interfere with any other provisions of the trial judgment. In result, I 
would dismiss the appeal and the cross-appeal, with costs to the respondent in the appeal 
and no costs in the cross-appeal. 

Appeal and cross-appeal dismissed. 

NOTES 

(from Jim Phillips, Property Law: 2008-2009 ) 

1) Despite its conclusion on whether the licence was property, the court in Caratun 
employed the support provisions of the federal Divorce Act to award Mrs Caratun a lump 
sum payment of $30,000. This decision was refused leave to appeal by the Supreme 
Court of Canada: (1993), 46 R.F.L. (3d) 314 (S.C.C.). 

2) Most Canadian decisions, and commentators, have come to the same conclusion as the 
Ontario Court of Appeal on this issue. For a review see N. Bala, "Recognizing Spousal 
Contributions to the Acquisition of Degrees, Licences and Other Career Assets: Towards 
Compensatory Support", (1989) 8 Canadian Journal of Family Law 23. 

3) A dental practice is considered to be property for the purposes of the FLA in Ontario, 
and its value is usually calculated as assets plus goodwill minus liabilities. Is this 
inconsistent with the holding in Caratun? Pension entitlements, which will be paid in the 
future, are also considered to be property; is that inconsistent? 


351 

CHAPTER SEVEN: 


INTRODUCTION TO THE COMMON LAW OF REAL PROPERTY 
' - THE DOCTRINES OF TENURE AND ESTATES 

(This chapter taken from Jim Phillips, Property Law: 2008-2009) 

A) INTRODUCTION TO TENURE AND ESTATES 

Although much of the system of tenure explained below is obsolete, a basic understanding of 
the historical origins of the English law of real property is indispensable to an understanding 
of the conceptual bases of that law in common law Canada. As in England, land "owners" in 
Canada are still not true owners, but are tenants in fee simple of the crown. 

K. Gray, Elements of Land Law 

It is not easy to imagine, tabula rasa± how best to construct a coherent and systematic body of rules 
governing rights in and over land. During the course of eight centuries, English law has developed a 
framework of mles which functions today with admirable success, but it is far from obvious that, if the 
task of construction were begun again, the end result would necessarily resemble the law of real 
property in its present form. The conceptual points of departure which lie at the back of the law of real 
property contain little, if anything, of a particularly compelling or a priori nature. There is indeed 
nothing inevitable about the eventual shape of modern land law, but it remains true that the law of today 
is still heavily impressed with the form of ancient legal and intellectual constructs .... From its earliest 
origins land law has comprised a highly artificial field of concepts, defined with meticulous precision, 
with the result that the inter-relation of these concepts is not unlike a form of mathematical calculus. 
The intellectual constructs of land law move, as Professor Lawson once said,' in a world of pure ideas 
from which everything physical or material is entirely excluded'. The law of land is logical and highly 
ordered, consisting almost wholly of systematic abstractions which 'seem to move among themselves 
according to the rules of a game which exists for its own purposes.' It is from this interplay of naked 
concepts that the creature of modem land law ultimately derives. English law cannot be properly 
understood except in the light of its history, and it is in the doctrines relating to tenures and estates that 
the historical roots of English land law are to be found. 

The Doctrine of Tenures The origin of the medieval theory of English land law was the Norman 
invasion of England in 1066. From this point onwards the King considered himself to be the owner of 
all land in England. Since the Normans brought with them no written law of land, they initiated in their 
newly conquered territory what was effectively a system of landholding in return for the performance of 
services. According to this feudal theory, all land was owned by the Crown and was granted to subjects 
of the Crown only upon the continued fulfillment of certain conditions. Land was never granted by way 
of an actual transfer of ownership, and the notion of absolute ownership other than in the Crown was 
therefore inconceivable. Pollock and Maitland were later to explain quite simply that all land in England 
'must be held of the king of England, otherwise he would not be the king of all England'. In their view, 






352 

to have wished in medieval times for an ownership of land which was not subject to royal rights was 'to 
wish for the state of nature'. 

It was a direct consequence of this theory that all occupiers of land were at best regarded as 'tenants', i.e. 
as holders of the land who in return for their respective grants rendered services of some specified kind 
either to the King himself or to some immediate overlord who, in his turn, owed services ultimately to 
the Crown. In this way there emerged a feudal pyramid, with the King at its apex and it was the doctrine 
of tenures which defined the terms of the grant on which each tenant enjoyed his occupation of'his' 
land. 

The feudal services rendered by ’tenants' were an integral part of early English land law, and in time 
became standardized and identifiable by the type of service exacted and performed. The different 
methods of landholding (differentiated according to the form of service required) were known as 
'tenures', each tenure indicating the precise terms on which the land was held. The tenures were 
themselves subdivided into those tenures which were 'free' (and therefore formed part of the strict feudal 
framework ) and those tenures which were 'unfree' (and appertained to tenants of lowly status who were 
... effectively little better than slaves). 

The common labourer or 'villein tenant' originally had no place on the feudal ladder at all. He merely 
occupied land on behalf of his lord, and it was the latter who was deemed by the common law to have 
'seisin' of the land thus occupied. Villeinage (later called 'copyhold tenure'), although of an unfree 
nature, came in practice to enjoy increasing protection. 

The kinds of service provided by those who enjoyed free tenure included, for instance, the provision of 
armed horsemen for battle (the tenure of'knight's service') or the performance of some personal service 
such as the bearing of high office at the King's court (the tenure of'grand sergeanty'). These tenures 
were known as 'tenures in chivalry', and were distinct from the 'spiritual tenures' of frankalmoign and 
divine service (by which ecclesiastical lands were held in return for the perfonnance of some sacred 
office) and the somewhat humbler 'tenures in socage' (which obliged the tenant to render agricultural 
service to his lord). With the passage of time, the military and socage tenures were commuted for money 
payments, but all tenures carried with them 'incidents' (or privileges enjoyed by the lord) which were 
often more valuable than the services themselves. 

The consequence of medieval theory was the emergence of a kind of feudal pyramid of free tenants, 
with the actual occupiers of the land (the 'tenants in demesne') forming the base, their overlords ('mesne 
lords') standing in the middle - both receiving services and rendering services in their turn - and with the 
King at the apex receiving services from his immediate tenants ('tenants in chief). Pollock and Maitland 
described the system of tenures in terms of a series of'feudal ladders', noting that 'theoretically there is 
no limit to the possible number of rungs, and ... men have enjoyed a large power, not merely of adding 
new rungs to the bottom of the ladder, but of inserting new rungs in the middle of it.' This process of 
potentially infinite extension of the feudal ladder was known as subinfeudation. However, 
subinfeudation earned the disadvantage that it tended to make the feudal ladder long and cumbersome, 
and in time the process of alienating land by substitution became more common. Under the latter device 
the alienee of land simply assumed the rung on the feudal ladder previously occupied by the alienor, and 
the creation of a new and inferior rung was no longer necessary. 


353 

By the end of the 13th century a more modem concept of land as freely alienable property was 
beginning to displace the restrictive feudal order, and this evolution culminated in the enactment of 
Quia Emptores in 1290. The Statute Quia Emptores constituted a pre-eminent expression of a new 
preference for freedom of alienability as a principle of public policy. The major innovation contained in 
the Statute, w as the prohibition for the future of alienation by subinfeudation. Following the enactment 
of 1290 only the Crown could grant new tenures, and the existing network of tenures could only 
contract with the passage of time. Every conveyance of land henceforth had the effect of substituting the 
grantee in the tenurial position formerly occupied by his grantor: no new relationship of lord and tenant 
was created by the transfer. It is the Statute Quia Emptores which - quite unnoticed - still regulates 
every conveyance of land in fee simple today. Every such conveyance is merely a process of substitution 
of the purchaser in the shoes of the vendor, and the effect of the Statute during the last seven centuries 
has tended towards a gradual levelling of the Feudal pyramid so that all tenants in fee simple today are 
presumed (in the absence of contrary evidence) to hold directly of the Crown as 'tenants in chief. 

The dismantling of the old feudal order was later accelerated by more direct measures aimed at a 
reduction of the forms of tenure. Under the Tenures Abolition Act 1660 , almost all free tenures were 
converted into 'free and common socage' or 'freehold tenure'. There is therefore only one surviving form 
of tenure today - freehold tenure in socage - but the conceptual vestiges of the doctrine of tenures live 
on. It is still true that every parcel of land in England and Wales is held of some lord - almost invariably 
the Crown. It is still technically the case that no one owns land except the Crown, and that all occupiers 
of land are merely - in the feudal sense tenants. However, for all practical purposes the doctrine of 
tenures is now obsolete. Tenure of land for an estate in fee simple is now tantamount to absolute 
ownership of the land - or as close to total control of land as is nowadays possible. The doctrine of 
tenures has long been overtaken in importance by that other doctrine which explains much of English 
land law - the 'doctrine of estates'. 

The Doctrine of Estates Whereas the doctrine of tenures served within the framework of medieval 
theory to indicate the conditions on which a grant of land was held, the doctrine of estates defined the 
effective duration of that grant. The doctrine still plays a fundamental role today in the classification of 
interests in land law. 

Since it was intrinsic to the structure of medieval land law that the only owner of land was the King, it 
followed that his subjects - be they ever so great - were merely 'tenants', occupying the land on the terms 
of some grant derived ultimately from the largesse of the Crown. It was not initially clear what (if 
anything at all) the individual tenant could say he 'owned' .... The answer to the conundrum was 
provided by the 'doctrine of estates'. As Professor F.H. Lawson pointed out, the solution arrived at in 
English law was 'to create an abstract entity called the estate in land and to interpose it between the 
tenant and the land.' The object of the ownership enjoyed by each 'tenant' was not the land itself but a 
conceptual 'estate' in the land, each 'estate' differing from the others in temporal extent. Thus by 
resorting to an ingenious compromise, English law resolved at a stroke the apparent contradiction of 
theory and reality in the ownership of land. Although at one level the 'estate' in the land merely 
demarcated the temporal extent of the grant to the 'tenant', in practice it provided a functional (and 
theoretically acceptable) substitute form of ownership in respect of land. The doctrine of estates 
survives to the present day. Like the medieval 'tenant', the modem proprietor of land owns in some strict 
sense not the land, but rather an 'estate' in the land which confers specific rights and powers according to 
the nature of the 'estate'. 




354 


The terminology of'estates' introduced a fourth dimension of time into the description of the terms of 
grant enjoyed by the 'tenant'. Each ’estate' recognised by the common law simply represented a temporal 
'slice' of the bundle of rights and powers exercisable in respect of land, and in the doctrine of estates 
there was developed a coherent set or rules classifying the diverse ways in which rights in land might be 
carved up in this dimension of time. It was the concentration on the rights and powers appurtenant to 
differing kinds of'estate' which so sharply distinguished the common law view of real property from the 
continental emphasis on full ownership in the abstract sense { dominium }. An 'estate' denoted the 
duration of a grant of land from a superior owner within the vertical power structure which emanated 
from the Crown; and no man could grant another any greater 'estate' than that which he himself owned 
{nemo dat quod non habefy. 


v|/ ^ ^ ^ vj^ vj* v|* ^ vj. tj* ^ ^ ^ ^ \|/ ^ 


B) TYPES OF ESTATES: K. Gray. Elements of Land Law 

The freehold estates The three freehold 'estates’ known to the common law were the fee simple, the fee 
tail and the life estate, and each must now be examined in turn .... The key to the distinctions between 
them lies in the notion of time. The essence of the doctrine of estates has never been more elegantly 
captured than in the argument presented before the Court of Exchequer in the 16th century in 
Walsingham's Case. Here it was said that: "the land itself is one thing, and the estate in the land is 
another thing, for an estate in the land is a time in the land, or land for a time, and there are diversities of 
estates, which are no more than diversities of time". 

The estate in fee simple has always been the primary estate in land. It represents the amplest 'estate' 
which a 'tenant' can have in or over land. As was said in Walsingham's Case , 'he who has a fee-simple in 
land has a time in the land without end, or the land for time without end'. In so far as real property 
represents a 'bundle of rights' exercisable with respect to the land, 'the tenant of an unencumbered estate 
in fee simple has the largest possible bundle .... Although in theory each tenant in fee simple is still 
merely a tenant in chief of the Crown, the estate in fee simple is nowadays tantamount to absolute 
ownership of land. In terms of the feudal fiction, an estate in fee simple denotes a grant of land from the 
Crown in perpetuity - a right of tenure which endures for ever and which is capable, more or less 
indefinitely, of transfer inter vivos or of devolution on death. The owners of the fee simple estate may 
come and go but the estate remains, since it is of infinite duration. Each new owner steps into the shoes 
of his predecessor as a tenant in chief of the Crown - the modem effect of the Statute Ouia Emptores of 
1290. 

The owner of an estate in fee simple is sometimes called a 'freeholder' - the owner of a freehold estate. 
Although modern legislation often curtails the fee simple owner's rights of use and enjoyment (for 
environmental and planning purposes), there are relatively few limitations on his power to dispose of an 
estate in the land whether by will or by alienation inter vivos . 



























































358 

Note on Presumptions and Words of Limitation 


An individual owning a fee simple estate can obviously choose, when divesting hirn or herself 
of it, to simply give the full fee simple estate to the grantee. Or he or she could choose to give 
some lesser estate, such as a life estate, to the grantee. And if the‘words used in the will or 
conveyance (deed) are clear as to what is being transferred, there will be no problem in 
determining what was intended. 

But what if the terms of any instrument - an inter vivos deed (a transfer from a living person) 
or a will - leave uncertain what was intended? Because of the importance of land in the 
medieval world the common law required strict adherence to conveyancing formulae if a 
person wished to transfer inter vivos an estate in fee simple. The grant had to say: "to A and his 
heirs." Any other form of words - "to A in fee simple, to A forever, to A and his successors" - 
would create only a life estate. 

Note that in the phrase "to A and his heirs" the words to "to A" are known technically as 
words of purchase, words that designate the person to whom the interest is granted. The 
words "and his heirs" are called words of limitation, words that designate the nature of the 
interest granted. 

The strict common law rule on conveyancing has long been altered by statute. The 
Conveyancing and Law of Property Act , R.S.0.1990, c. C-34, s. 5 states: 

5 (1) In a conveyance, it is not necessary, in the limitation of an estate in fee simple, to use the word 
"heirs". 

(2) For the purpose of such limitation, it is sufficient in a conveyance to use the words "in fee simple" or 
any other words sufficiently indicating the limitation intended. 

(3) Where no words of limitation are used, the conveyance passes all the estate, right, title, interest, 
claim and demand that the conveying parties have in, to, or on the property conveyed, or expressed or 
intended so to be, or that they have power to convey in, to, or on the same. 

(4) Subsection (3) applies only if and as far as a contrary intention does not appear from the conveyance, 
and has effect subject to the terms of the conveyance and to the provisions therein contained. 

(5) This section applies only to conveyances made after the 1st day of July, 1886. 

NOTE. This statute was not passed in 1990. As the note says, this has long been the rule. 
Every so often provincial and federal statutes are consolidated and re-passed so that the 
original statute and all is amendments are in place. These are called 'Revised Statutes', hence 
RSO stands for Revised Statutes of Ontario. 



359 

The alienation of realty by will was treated differently at common law. Land was not 
devisable at all until the passage of the Statute of Wills, 1540, and thereafter the courts took a 
more lenient view of the need for correct words of limitation, a view based on the rule that 
wills are to be construed in an attempt to find the true intention of the testator or testatrix. A 
similar provision to the one cited above is now to be found in the Succession Law Reform Act, 
R.S.0.1990, c. S-26, s. 26, which states: 

26. Except where a contrary intention appears by the will, where real property is devised to a person 
without words of limitation, the devise passes the fee simple or the whole of any other estate or interest 
that the testator had power to dispose of by will in the real property. 










360 


(C) PRESENT AND FUTURE INTERESTS 

The preceding pages demonstrate that the estates system recognizes a variety of different 
interests in land. The next sections will show that the common law also allows for conditional 
estates, interests in land which may either not arise until the happening of a certain event or 
which may be terminated in the future by the occurrence of a certain event. Once we know 
that it is possible to have an interest in land less than the fee simple absolute (life estate, fee 
tail, conditional fee simple), the next question is - what happens to the rest of the fee simple 
absolute, that is, the rest of the time, in any given piece of realty? The answer is that the law 
recognizes future interests in land, interests held by persons other than those in possession in 
the present. 

Gray's Elements of Land Law puts it this way: "Through the doctrine of estates the common 
law was able to organise the allocation of certain powers of management, enjoyment and 
disposition over land in respect of particular periods or 'slices' of time. Moreover, as the law 
of real property became distanced from the physical reality of land and entered a world of 
almost mathematical abstraction, it was possible to accord an immediate conceptual reality to 
each 'slice' of time represented by an 'estate'. In other words, any particular 'slice' of 
entitlement in the land could be viewed as having a present existence, notwithstanding that 
its owner was not entitled to possession of the land until some future date. In a world of 
concepts it was quite easy to conceive of rights to successive holdings of the land as 'present 
estates coexisting at the same time'. It was ultimately this feature of the time-related aspect of 
the 'estate' in land which made it possible for the common lawyer to comprehend the notional 
reality of immediate dispositions of, and dealings with, future interests in land." 

In fact, the common law recognizes two types of future interests: a reversion and a remainder. 

A reversion is any interest retained by the grantor: for example, in the grant "to A for life" the 
grantor, assuming that he or she holds the fee simple absolute, has not disposed of his or her 
full interest. The grantor has a reversion in fee simple. A reversion does not need to be 
specified, it arises by operation of law from the failure by the grantor to alienate the entire 
interest. 

A remainder is an interest created in a third party which follows the granting of an estate less 
than the fee simple absolute. For example, in the grant "to A for life, then to B", B has a 
remainder in fee simple but no right to possess the land until A dies. Note that in this 
example the grantor has no reversion — he or she has given away the full fee simple. 

Note that the above is a very cursory discussion of future interests. The area is a lot more 
complicated and technical than this, but given that this is an introductory course I do not 
think it necessary or useful to go into all of the details. Those who like to use Ziff's Principles 
of Property Law will find a good review of the area in chapter 7 of the fourth edition. 



PROBLEMS 


361 

**************************** 


"In answering these questions consider both what kind of estate a person has, and whether it is 
one of present or future possession. 

1) A has a fee simple estate and executes a deed stating: "I give my land to B". What estate 
does B have, and why? 

2) A has a fee simple estate and makes a will stating: "to B for life, and on the expiry of B's life 
to C for life". What interests do A, B and C have? 

3) A has a fee simple estate and makes a will stating: "I give my land to B for the life of C, then 
to D for life, then to E. What interests do A, B, C, D and E have? What happens if B dies 
before C? 




362 

P) INTRODUCTION TO CONDITIONAL ESTATES 

We have seen that estates in land are temporal 'slices' of the rights to the possession, use and 
enjoyment thereof. So far we have considered these estates as 'absolute', as belonging 
unconditionally to someone. Estates may, however, be granted subject to conditions. 
Conditions can be of two kinds. 

Conditions Precedent . First, there can be conditions of eligibility, or what are known 
technically as conditions precedent. These must be satisfied before the grantee has any right 
of enjoyment at all. For example: 'to A at 21', or 'to B for life if she should marry Y 7 . Until A 
turns 21, or until B marries Y, they have only what are called contingent interests. If either die 
before the condition is met, or if the condition becomes impossible of performance (for 
example, if Y dies before B marries him) the interest will be extinguished and there is nothing 
that can pass to heirs. Conversely, if A becomes 21, or if B marries Y, then the condition is 
satisfied and the interest becomes a vested interest. 

This does not mean that the owner of a vested interest has an immediate right to possession. 
That is the case in the two examples given above, but it is not so in the grant "to A for life, 
then to B for life if she reaches 21". At the time of the grant, assuming B is not 21, her interest 
is contingent. If she reaches 21 while A is still alive, her estate becomes vested in interest , but 
she has no right to possession until A dies. 

It should be noted here that the common law generally favours early vesting where there is 
any doubt about whether a grantor or testator/testatrix intended to create a vested or 
contingent interest. Mackay v. Nagle et al (1988), 30 E.T.R. 191 (N.B.Q.B.) illustrates this point. 
The testator left his property to his wife for life "and thereafter to my living children in equal 
shares". His four children were alive when the will took effect, but one died during his 
widow's lifetime. Did the word "living" mean children alive at the time the will took effect, in 
which case the now-deceased child's interest would be vested and would descend to his 
heirs? Or did it mean living at the time the widow's life estate expired, in which case it would 
be a contingent interest, the condition precedent being surviving the widow? In coming to the 
conclusion that the interest was vested, the court considered extrinsic evidence of the 
testator's intention when the will was made. But it relied largely on a series of cases 
establishing the principle that, in ambiguous cases, "the courts generally follow a rule of 
construction favouring early vesting". 


Conditions Subsequent . The second kind of condition, the one that will principally concern us 
here, is a condition of defeasance, known as a condition subsequent. These operate to defeat 
an estate which has already vested. For example: 'to C in fee simple, but if he ever becomes a 
member of the Law Society of Upper Canada, to D in fee simple'. If C acquired the land in 
1960 with this condition attached, the estate was vested at that time but was liable to be 
divested at a future date if C became a lawyer. 





363 


These conditions of defeasance are personal if they relate to the person; if C died in 
possession and never having joined the legal profession, his heirs will inherit a fee simple 
absolute. But they are not personal, will go with the land, if the condition relates to use of the 
land itself. . .. - - 

While I have used the term 'Tee simple" here, any estate can be made subject to conditions. 

There are two kinds of conditions subsequent, which are conceptually distinct and which 
have different consequences if the condition is breached or found invalid. This is an area of 
excessive technicality which, as with future interests generally, I choose to skip over. More 
about it can be found in Ziff, Principles of Property Law, fourth edition, pp. 222-225. For current 
purposes you need only to know the distinction between a condition precedent and a 
condition subsequent. 



E) CONDITIONS AND UNCERTAINTY 


364 


This section and the next consider why the courts will intervene and declare a condition to be 
void. Broadly speaking one can delineate two reasons why courts will strike down 
conditions: the condition is either uncertain, or it is contrary to public policy. 

In addition to considering the formal rules on these criteria, you should read the cases 
bearing in mind that conditional estates provide an excellent illustration of the relationship 
between property and power. If the law were to allow grantors to impose any conditions they 
wished, that would have the effect of increasing the number of strands in every land owner's 
bundle of rights. But that would also give those land owners substantial power over 
subsequent land owners (successors-in-title). Often conditions are imposed by one 
generation on the next, and this issue of controlling the next generation in this way is often 
referred to "dead hand from the grave" problem - the dead person's hand is permitted to 
reach out from the grave and control the life of his or her beneficiary. See here the testator's 
desire to limit his daughter's choice of marriage partner in Clayton v. Ramsden. Moreover, it is 
also the case that a legal regime which did not restrict the content of conditions would permit 
private power to advance ends that are unacceptable if pursued in the public sphere: Re Noble 
and Wolf and Re Canada Trust and Ontario Human Rights Commission both raise this problem. 

The next two cases deal with uncertainty. Consider what degree of "uncertainty" appears to 
be required, and why? Neither case is about land, but the rules on uncertainty are the same 
whether realty or personalty is involved. 


SIFTON v. SIFTON , [1938] 3 All E.R. 435 (P.C. - Ont.) 

Lord Romer: This is an appeal from a judgment of the Court of Appeal for the province of Ontario, 
which varied a judgment of Middleton, J.A., given upon an application by way of originating motion 
brought by the respondents, Clifford Sifton and Wilfred Victor Sifton, the surviving trustees of the will 
of Clifford Winfield Burrows Sifton, deceased. By the motion the trustees sought the opinion, advice 
and direction of the court on certain questions arising in the administration of that testator's estate. The 
testator died on June 13, 1928, leaving him surviving his widow, the respondent Mabel Gable Sifton, 
and his daughter and only child, the appellant, who was then of the age of 13 years. The will (dated July 
12, 1926), after bequeathing the testator's furniture and effects to the appellant, continued as follows: 

I give devise and bequeath all other property real and personal to my executors upon the following 
trusts namely to manage the corpus of the estate in accordance with their best judgment continuing any 
investments that exist at the time of my death if they see fit and to pay to or for my said daughter a sum 
sufficient in their judgment to maintain her suitably until she is 40 years of age after which the whole 
income of the estate shall be paid to her annually. 

The will then proceeded as follows: “The payments to my said daughter shall be made only so long as 
she shall continue to reside in Canada.” 







373 

tenets and observed the rules. I cannot avoid the conclusion that the question whether a man is of the 
Jewish faith is a question of degree. The testator has, however, failed to give any indication what degree 
of faith in the daughter's husband will avoid, and what degree will bring about, a forfeiture of her 
interest in his estate. In these circumstances the condition requiring that a husband shall be of the 
Jewish faith would, even if standing alone, be void for uncertainty. I would allow this appeal. 




NOTES 

1) In Re Down (1968), 2 O.R. 16 (C.A.) the testator's will provided in part: 

When my said son, Harold Russell Down, arrives at the age of thirty years, providing he 
stays on the farm, then I give, devise and bequeath all of my estate both real and personal of 
every nature and kind whatsoever and wherever situate unto my said sons Stanley Linton 
Down and Harold Russell Down to be divided between them equally share and share alike. 

Harold Down, 26 years old and not farming, applied for construction of the will in order to 
ascertain his rights to his father's estate. The trial judge held that the will created a condition 
precedent not void for uncertainty. Harold Down appealed, arguing that he had a contingent 
interest which would vest when he reached 30, attached to which was a condition subsequent 
which was void for uncertainty. 

Do you think the appeal should succeed? 


2) In Blathwayt v. Lord Cawley and Others, [1975] 3 All E.R. 625 (H.L.) the court considered the 
validity of a condition which prohibited future heirs of the testator from inheriting, or 
divested the estate once inherited, if any of them should "Be or become a Roman Catholic". 
Following Clayton v. Ramsden, is this uncertain? 







F) CONDITIONS AND PUBLIC POLICY 


374 


The next two cases deal with the meaning of "contrary to public policy". This is a difficult 
notion to define. It includes conditions contrary to law - which means both conditions 
mandating an illegal act and conditions which seek to subvert the course of law. An example 
of the latter is a condition providing for divestment if the grantee becomes a bankrupt. The 
bankruptcy law of the jurisdiction, not the grantor, provides for the disposition of property 
on bankruptcy: see Re Machu (1882), 21 Ch. D. 838. 

Beyond this category, it is difficult to say why the content of certain kinds of conditions 
attracts judicial disapprobation as contrary to "public policy" and others do not. The best one 
can do is to describe categories and ascribe the choices traditionally made to the values of the 
English judiciary. Looking at the cases as a whole, most conditions traditionally held to be 
invalid as against public policy were considered so because they represented restraints on 
marriage, conditions encouraging divorce or separation, conditions affecting parental duties, 
or restraints on alienation. We will not discuss the first three categories any further, and the 
latter is dealt with at the end of this chapter. 

The issue of concern here is the relationship between private property, public policy, and 
what we now call unacceptable discrimination. As you will have gathered from Clayton v. 
Ramsden, "discrimination" has not traditionally been a reason for voiding conditions. The 
racial and religious distinctions made in the will in that case attracted little comment. Re Noble 
and Wolf deals explicitly with the validity of discriminatory terms - consider in particular the 
line drawn by the court between private choice and public policy and the concern expressed, 
especially by Hogg J. A., about not inventing new grounds of public policy. Consider also, by 
way of contrast, how both concerns are dealt with by the court in the much more recent Re 
Canada Trust case. 

You should note that neither of these two cases involves a condition attached to land. Noble 
and Wolf is about a restrictive covenant, a topic we will cover in a later chapter. Re Canada 
Trust is about a charitable foundation and personal property. Do not concern yourselves with 
these distinctions; the purpose of the cases is to consider what should be the scope of "public 
policy". 




381 

Canada, the population and the classification of that population, under various heads, including 
nationality and race. The information from which such classification is made is obtained through the 
inquiries made by census commissioners, enumerators or agents .... It would not be possible for those 
whose duty it is to obtain information in taking a census of the population to ascertain the precise 
degree or percentage of any race or blood in an individual. The classification must necessarily be made 
having regard to the word "race" in its ordinary and popular sense. If the language of cl. (f) of the 
covenant is regarded in its ordinary and popular sense, this clause cannot be said to be void for 
uncertainty because the exact degree of race or blood in any person among those set out in the aforesaid 
clause can not be ascertained .... For the reasons I have given, I think the appeal should be dismissed, 
with costs against the appellants. 


»|/ vj/ v|y ^ v|^ v|/ fcjy v|« vj. 

NOTES 

1) Following the Court of Appeal's decision in Re Noble and Wolf the Ontario legislature 
amended the Conveyancing and Lazo of Property Act by adding the following section [now s. 
22]: "Every covenant made after the 24th day of March, 1950, that but for this section would 
be annexed to and run with land and that restricts the sale, ownership, occupation or use of 
land because of the race, creed, colour, nationality, ancestry or place or origin of any person is 
void and of no effect." Consider precisely how this would affect the covenant in Re Noble and 
Wolf? 

2) An appeal of the Ontario Court of Appeal decision was allowed by the Supreme Court of 
Canada, but principally on the ground that the covenant did not satisfy the requirements of 
an enforceable restrictive covenant: see Noble v. Alley , [1951] S.C.R. 64. (Note that we will deal 
with restrictive covenants later in the course). Four of the seven judges also stated, as an 
alternative ground of invalidity, that the covenant was uncertain. 

3) For a full discussion of this case and its context, see J. Walker," Race ". Rights and the Lazo in 
the Supreme Court of Canada: Historical Case Studies (Toronto: Osgoode Society for Canadian 
Legal History 1997), chapter four. 


































































' 

































































NOTES 


391 


1) A number of Canadian cases have dealt with conditions and public policy in the context of 
inherent characteristics or beliefs. Consider whether the following would have been decided 
differently had the courts had the reasoning of the Ontario Court of Appeal in Re Canada 
Trust and Ontario Human Rights Commission before them? 

a) In Re Rattray 119731, 38 D.L.R. (3d) 321 (Ont. H.C.), affd. (1974), 44 D.L.R. (3d) 533 (C.A.) 
approximately $13M was left to Queen's University to provide scholarships or bursaries. One 
of the conditions was that they should not be awarded "to any student who is a communist, 
socialist or a fellow traveller". On an application by the University the condition was struck 
down for uncertainty. The case generated some publicity and a letter writer to the Globe and 
Mail, 17 September 1973, said in part: "The university ... had no qualms about accepting the 
money on this basis. Now that... Rattray is ... dead they apparently find it morally proper to 
alter his conditions, without the acceptance of which the money would not have been given 

to them in the first place .[H]is money will henceforth be made available to persons whose 

political philosophy he deplored, even though he took pains to develop the point that it 
should not. I believe this court's decision should be appealed, not only to safeguard the 
intents of the deceased person who has given so generously, but to safeguard the inviolability 
of trust funds in general and the intents that gave them birth". 

On the issue of uncertainty, the letter writer agreed that there "is ... no precise definition" of 
terms like socialist, communist, or fellow traveller. But the problem could be dealt with by 
asking each student who applied to the fund: "can you in conscience subscribe to its intent in 
accepting this scholarship"? .-. .. - .— 

b) In Re Hurshman (1956), 6 D.L.R. (2d) 615 (B.C.S.C.) the testator left property which his 
daughter would inherit "provided she is not at that time [the time when the will took effect] 
the wife of a Jew". This will was made a month after Mr. Hurshman's daughter married Ivan 
Mindlin, who all parties to the case agreed was by "lay definition" Jewish. Mclnnes J. held 
that the condition "is directly contrary to public policy" because "in order for the daughter to 
inherit she must divest herself of her husband". 

c) Re Metcalfe (1972), 29 D.L.R. (3d) 60 (Ont. H.C.) involved a testator who provided for a 
scholarship fund in his will. McGill was to provide a scholarship for a male medical student 
unable to finance his own studies, who was a Protestant of good moral character, had 
received a high school education in Ontario, and had shown athletic ability. When the 
university was informed of this it disclaimed the gift, stating in a letter that "our Scholarship 
Committee ... will not recommend acceptance of discriminatory gifts such as this for ' a 
Protestant of good moral character, educated in Ontario and who possesses athletic ability'" 













398 

RESTRAINTS ON ALIENATION: GENERAL 


The final case here deals with a particular type of condition contrary to public policy - a 
restraint on alienation, a condition that limits the ability of the grantee to alienate the land. 
This is a rather complex area, and we will only look at one part of it. As necessary background, 
however, something should be said about the typical traditional restraint on alienation case. 
This would be an interest in land given in a will, attached to which would be a condition that 
if the land is sold to certain persons, or used for a certain purpose, or not first offered to 
certain persons, then the estate ends. This is sometimes called a "forfeiture restraint" - the 
estate is forfeit if the condition is broken. There is a long line of cases to the effect that if such a 
restraint is substantial (which you can take to mean that it would substantially affect the 
selling price) then it will be voided. A recent example is an attempt to prevent the grantee 
from conveying to anyone but the grantee's son: Thibodeau v. Thibodeau (1989), 100 N.B.R. (2d) 
156 (Q.B.). 

It is often said that restraints on alienation are invalid because they are repugnant to the fee 
simple. That is, the right to freely alienate is a crucial part of the fee simple and you cannot 
limit it. This is a circular argument, for there is nothing inherent in the fee simple which 
requires a full power to alienate. The argument is not only circular, it is also wrong, for two 
reasons. First, so-called "partial" restraints on alienation are permitted. Using the example just 
given, had the condition been that the grantee could sell to anyone but the son, it would have 
been considered only partial. But if some notion of repugnancy is really at the root of judicial 
policy here, a condition eliminating just one possible purchaser is as repugnant as one 
eliminating all purchasers. As in so many other areas, the difference is one of degree, not 
principle. 

The second reason why the repugnancy argument does not hold water is that very substantial 
(but not total) restraints survive court scrutiny if they have been bargained for. The leading 
case is Stephens v. Gulf Oil Canada Ltd (1975), 65 D.L.R. (3d) 193 (Ont. C.A.). A three-party 
agreement for sale of lands contained a clause that if two of the parties wanted to sell they had 
to offer the properties first to each other, at agreed prices. The agreement stated that if the 
offeree did not take up this right, the property could be sold to anybody at any price. The 
requirement to first offer the land to another at a fixed price was challenged as a restraint on 
alienation. The Court first considered whether this was a condition imposed on the grantee as 
a necessary pre-requisite to get title, or a contractual provision agreed to by the parties. It was 
held to be the latter, and thus valid. That is, it is possible to agree to a substantial restraint. 
Here freedom of contract prevails over "repugnancy". Had the pre-emptive right been a 
condition imposed, then it would have been void, because the parties would not be able to sell 
the property at market value. 

Laurin deals with circumstances not dissimilar to Stephens , yet the court comes to a different 
conclusion. Try to assess how and why it does so, both as a matter of doctrine and as a matter 
of policy.