Real Property with Professor Irvine Compiled by Melanie Rempel

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Real Property with Professor Irvine


Compiled by Melanie Rempel

A General Introduction

Good Textbooks:

- English texts: Megarry & Wade; Cheshire on Land Law

- Canadian texts: Ziff, Anger & Honsberger, Laskin, Sinclair.

- English tried to revamp/simplify their land law in the 1920s. Passed many statutes in that regard.

- Manitoba largely ignored these legislative initiatives. Stuck with unreformed, ancient accumulation prior to these statutes.

- certain local amendments (ex. abolition of rule against perpetuities)
What is Real Property?

- land, soil, plants rooted in the ground, buildings of a permanent nature, fixtures (chattels incorporated into the land)

- laws governing rights & interests in land & things deemed to be land

- we will not be dealing with conveyances

Consists of Two Doctrines:

1. Tenures

2. Estates

- tenures were initially very important (15th & 16th centuries)

- now, merely academic

- estates is thus the most important

The Doctrine of Tenures (NOT EXAMINABLE)

- very ancient

- let us start with 1066 A.D., invasion of England by William

- created a complete feudal system to please the barons

- had to divide-up England among his chief followers

- instead of giving them flat-out ownership, he gave them land to hold in return for certain military services, obligations, etc.

- not ownership; a kind of dependent land-holding

- everybody who got land from the kind did so in return for some service, obligation, etc. No one owned land outright.

- this was their tenure; labelled by type of service provided.

- this was their feudal services

- Feudal Incidences: popped-up on special occasions; irregularly.

- payment of reliefs (to secure one’s right of succession)

- payment of aids

- parcelled-out land to almost 1000 people; held it on a variety of tenures

- tenure = from tenir (to hold)

The Feudal Pyramid

- tenants = ‘those who hold land’

- each considers the next-level-up as their feudal lord

- governs land-holding as well as social organisation & social system

- this dividing-up is known as the process of subinfeudation

- feudal system = tenure system

- England’s was the most complete feudal system; every acre was accounted for

- 1290: Statute Quia Emptores passed

- basically stopped the process of subinfeudation; was becoming too complicated

- now, instead of subinfeudating, landholders must sell-out their position; would be replaced by new landholders who bought him out.

- feudal pyramid would not grow anymore; only changed by substitution, not subinfeudation

- also meant that the pyramid would be destined to shrink, because of: escheat propter defectum sanguinis.

- upon death of landholder who had no one to inherit, escheat meant that the land would revert to the next-level lord.

- as escheat took effect, the pyramid flattened

- nowadays, nearly every landholder owns their land directly from the Crown (tenants in fee simple). A few exceptions in England.

- basically no feudal services are owed. A few exceptions.


Present-day Consequences of Tenures

1. Terminological

- we are truly only tenants

2. Practical

- if a person dies intestate, with no heir capable of inheriting, the land goes back to his feudal lord ~ the Crown ~ by way of escheats

- all are governed by statute, nowadays


Doctrine of Estates

- landholding is a four-dimensional concept:


- length; breadth; vertical dimension (height); time

- Accursius’s maxim “Cuius est solem, eius est usque ab caelos usque ad infernos”

- He who has the soil, also has to the vaults of heaven to the roof of hell

- when you acquire the surface, you acquire the strata beneath it & the airspace above it. Does this truly reflect the common law today? It is at least, in part, true.

- Strata below you: sometimes you get mineral rights, sometimes you don’t. Depends when the land first passed from the Crown.


First Phase: Crown granted land to settlers; no mention of mineral rights, so they were deemed to be included.

Second Phase: after the 1930s, the Crown reserved mineral rights in land which it granted.

- Mineral Acreage Tax: many people signed over their mineral rights to avoid this small tax

- More applicable when someone interferes with the land beneath you.

- Austin v. Rescon Construction (1986) 45 CCLT



- steel reinforcements required to stabilise the concrete foundation would interfere with Austin’s land. Austin won.

- Airspace Above: more likely; cases re: signs, wires, cables overlapping their neighbour’s property. Usually an injunction is issued.

- Pickering v. Rudd (1819)

- would there be an exception for air travel? Yes.

- Accursius’s maxim doesn’t really apply to modern aviation. No longer considered trespass, except where the aviation is not conducted reasonably (buzzing your property; taking aerial photographs, etc.)

- what about transient, low-level interference (ex. raising material via skycrane over your property)?

- this is also trespass

- Accursius’s maxim applies generally, minus the air travel exception.

Fourth Dimension: Time

- if you buy a house outright, that is called a ‘freehold’. Everlasting, perpetual title.

- can have life-tenancy, interests that last a week, a month, a year, etc. It is the time period which determines its title. The duration of your interest defines its nature. Estates are dependent on time.

Fees Simple Absolute

- buying a house outright = estate in fee simple absolute

- closest to actual ownership; the biggest & the best

- in the eyes of the law, it is perpetual/everlasting

- infinite duration; outlasts its owner

- can be broken by one’s will = a settlement

- the process whereby a fee simple absolute is broken-up

- it does not destroy the fee simple absolute, it just partitions it for awhile


Life Estates

- can assign a life estate ~ inferior to a fee simple absolute

- mainly because of its duration

- cannot affect the land by will

- if sold, the buyer can only hold it as long as the vendor lives.

- doesn’t acquire all the rights intendant on a fee simple absolute

- cannot milk it for all it’s worth, since others will depend on it after you die.

- this is called the Doctrine of Waste

- others are dependant on that land
Remainder in Fee Simple

- after this life estate expires, the next interest in time is known as a remainder in fee simple. However, the law does not see these as consecutive, but concurrent.

- life estate & remainder in fee simple operate together

- that is how the remainder man can enforce the doctrine of waste

- life estate is simply vested in possession. That’s its only real advantage.

Review

- the greatest estate in land: estate in fee simple absolute.

- virtually indestructible

- goes on into eternity

- the estate out of which all others are carved

- nearest thing you can have to absolute ownership under our legal system

- life estate/tenant-for-life: much more limited

- only lasts for as long as the tenant lives

- quite restrained: cannot ravage the property

- this is the Doctrine of Waste

- he can sell his life estate, but few people would want to buy it.

- he could lease it, too

- Remainder in fee simple: what is left of a fee simple absolute aside from the life-estate. The whole thing minus the life-estate. This is inherited at the time of the will, at the same time as the life estate begins, though it does not allow him to enter upon or live on the land. A present right to future enjoyment of the land.

- can easily be sold

- much more valuable than a life-estate

- after the life estate expires, the remainder in fee simple becomes the same as the estate in fee simple absolute

- heals itself of any division through settlement & plods on to eternity

- a life estate vested in interest & possession.

- a remainder in fee simply vested in interest but not yet in possession.

Reversion

- when only a life estate is given but no remainder specified, a reversion in fee simple takes place. It reverts to the initial holder of the land and is dealt with under the rules of succession. Becomes part of the testator’s estate.


Contingent Remainders

- you can also attach preconditions to a remainder in fee simple; then, the remainder cannot be claimed until that person meets the condition, not right at death of testator.

- this creates a contingent estate (opposite of vested in interest). Cannot be claimed until the contingency is resolved.

- more complicated preconditions can be set-up, which creates a competition among many possible beneficiaries.

- only began to be recognised in the 15th & 16th centuries.

- still put some restrictions on contingent future interests: time limits, etc.

- Rule Against Perpetuities

- has been abolished here in Manitoba

Rule Against Perpetuities (NOT EXAMINABLE)

- directed at things that last too long (but not interests in land, like fees simple absolute)

- concerned about contingencies which last or may last for too long; those which are unduly long-lasting.

- designed to prevent people from tying-up land from the grave for an unduly long time.

- whenever a contingent interest in land is set-up, the rule against perpetuities declares a time limit for each type.

- if there is a chance that it will overrun this time limit, the contingency is null & void from the moment it is assigned.

- there is no ‘wait & see’

First Step: figuring-out what the perpetuity time limit is

- a life or lives in being, plus 21 years plus any relevant gestation period.

- tricky issue: what is meant by life or lives in being?

- measured by those mentioned in the will or necessarily implicit in it

- must measure the ‘lives in being’ from a finite class of people; not one that is still expanding

Second Step: is it possible that the contingency could be resolved after the perpetuity period has ended? If yes, then the contingency is void.

- is it possible that the contingency could be resolved after the last of this class dies plus 21 years, 9 months? If so, it is void for perpetuity.

- an attempt to control the extravagant use of contingencies (not vested in interest)

- will not ‘wait & see’

- not worried that it might happen, but indeed that it just might resolve itself, but beyond the perpetuity limitation period.

Heritable Freehold Estates

- when the current holder dies, the estate will pass to someone else

1. Fee simple absolute: the biggest & best kind; also the most common

2. Modified fees: a species of fee simple, almost as good as a fee simple absolute, only has some little deficiency; ‘strings attached’. Two kinds:

a. determinable fees OR fees simple determinable OR limitations

b. fee simple limited upon condition subsequent


Determinable Fees

ex. Uncle Charlie leaves you Blackacre, until such time as alcohol is consumed on the premises. Could go on forever; may be absolute. Yet, this limitation makes it a little less likely to last.



- if the limitation is offended, the possibility of reverter kicks in

- property is automatically revested in the original donor or his estate

ex. Old City Hall was held on determinable fee simple: public-minded donor gives the land to the city so long as the building is used for municipal purposes.



* Immune from the Rule Against Perpetuities *
Fees Simple Limited Upon Condition Subsequent (FSLUCS)

- if ‘condition subsequent’ is broken, a right of re-entry arises. Not automatic reversion. Must go to court & assert your right to have the land reconveyed. Subject to the rule against perpetuities.
What’s the Difference Between the Two?

- diagnostic clues: vocabulary, syntax, punctuation

- very technical

- Vocabulary: important when trying to determine what kind you have


- language of continuance; to be continued until a certain point (so long as, until such time, for as long as) = determinable fee


- separate clause of defeasance; first breath seems to give it outright, second sentence/paragraph imports a condition (but if; however) = fee simple limited upon condition subsequent.

Determinable Fee = possibility of reverter

- immune from rule against perpetuities

Fee Simple Limited Upon Condition Subsequent = right of re-entry

- subject to rule against perpetuities
Back to Heritable Fees…

3. Fee tail (entailed): only heritable by people of the direct blood line

a. fee tail general: goes to eldest son, or any son, or to any daughters

b. fee tail special male: land passes to son

c. fee tail special female: land passes to daughter

- if proper kind of offspring is not produced, there is a reversion.

d. can also specify children born of a specific spouse, even then of a particular gender (ex. “begotten of…”)

* have been abolished as anachronistic in some jurisdictions. All Canadian common law jurisdictions have abolished them, except PEI.

- Manitoba accidentally reintroduced them in 1889, after abolishing it in 1885.

- 1885: Real Property Act ~ abolished the fee tail

- in the 1880s, Manitoba introduced a new land registration system ~ the Torrens sytem. Attempted to make conveyancing and land transactions easier.

- 1886, 1887 & 2 again in 1888: 5 Real Property Acts

- in 1889, they planned to consolidate all these acts into 1 major act. They accidentally forgot to abolish the fee tail, which caused it to be resuscitated. It is still the law today.

- however, the Law of Property Act, s.30, provides for a way to bar an estate tail.

- has been done since the 15th century

- converting it into a fee simple absolute, to be inherited by anyone

- done by filing a certain kind of disentailing form at the Land Titles Registry.

Non-Heritable Estates

1. Life Estate

- its duration is measured by the lifetime of its holder

- cannot be left by will

- very restricted/limited right

- has a right to enjoy the land, but even this is curtailed by the doctrine of waste

- also governed by many other rules re: property tax, mortgage payments

- fairly common; can be created by will, but mostly came from statute ~ Dower Act (nowadays the Homesteads Act)



- the non-property-owning spouse has important rights over the home (“homestead”)

1. Veto power: ability to prevent disposition of the land (by sale, lease, etc…)

2. Entitled to a life-estate (despite what the testator says in his will)

- one frailty is that creditors get first dibs. May leave the widow a life-estate in nothing.

2. Estate Pur Autre Vie

- estate ‘for the lifetime of another’

- can be deliberately created

- the measuring life can also be called ‘cestui que vie’

- can list off a number of these measuring lives

- measuring life must be that of an already living person



What if tenant pur autre vie died before the cestui que vie?

- can be left by will or rules of intestacy

- so, it’s not really non-heritable

- most usually created when a life-tenant sells out to someone else: former life-tenant becomes measuring life

Non-Freehold Estates: Leaseholds

- an interest in the land for a predetermined, fixed time

- can be left by will, but most are created under contract

- the essence of a lease is not the payment of rent (which is not necessary when granted as a gift or by will) but that its length/time period is fixed

- requires a set time period & exclusive possession of the land

- not a member of the real estate family; actually, a ‘chattel real’ ~ seen to be worth less than a real estate.

Note also the existence of estates at will and estates at sufferance. Look them up yourself!

[From the Canadian Law Dictionary:



Tenancy at Sufferance (a.k.a. Holdover Tenancy)

In landlord-tenant law, a tenancy that comes into existence when one at first lawfully possesses land as under a lease and subsequently hold over beyond the end of one term of such lease or occupies the land without such lawful authority.



Tenancy at Will

In landlord-tenant law, a leased estate that confers upon the tenant the right to possession for an indefinite period such as is agreed upon by both parties. A tenancy at will is characterised primarily by the uncertain term and the right of either party to terminate upon proper notice.]


Shared Estates

- not temporal division, but simultaneous sharing of an estate

ex. Mr. & Mrs. X, both own the land; or possibly 5 or 6 siblings share it under a will. Four Ways Known to the Common Law:


Joint Tenancy

Characterised by 4 Unities:

- time

- title

- interest

- possession

- must all be on equal footing (ex. ½ & ½)

- important peculiarity: survivorship

- when a joint tenant dies, his share accrues to the remaining tenants

ex. 3  owners >>> 2 ½ owners >>> 1 full owner.

- kind of a longevity competition; longest lived gets sole ownership.

Tenancy-in-Common

- survivorship does not apply

- need not be on equal footing

- can be left/sold to whomever

- severance process: converts joint tenancy to tenancy-in-common

- partition: ends the sharing process altogether

- applies equally to joint tenancies & tenancies in common

- sale can be substituted; division of proceeds.

- ancillary rules will be dealt with later

Lesser Interests (NOT EXAMINABLE)

- other interests, less than estates, are floating around out there

1. Servitudes

a. Easements: very common

- a right attaching to property, benefiting it & enhancing enjoyment.

- detriment to another property; burdened by its enjoyment.

- benefiting = dominant tenement

- burdened = subservient tenement



Positive Easements

ex. A right of way: An ‘easement of necessity’. A positive easement ~ actually entitles you to do something on your neighbour’s land.



- requires two properties

ex. running cables, pipes; discharging water; herding cattle ~ all positive easements

Negative Easements

- staying on your land, restricting your neighbour’s conduct

ex. obstruction of air-intake fans, windows

- neighbour not allowed to build & obstruct these things



Easement of Support

- if your neighbour lives right up next to you, he must ensure your building remains standing.

- must be precisely defined & lawfully acquired

- can be acquired by contract, upon arrangement of neighbours

- can become a perpetual easement, attaching to both pieces of property indefinitely.

- however, such a right can also come about through doing the same thing for years…


Prescriptive Easement

- acquired by long enjoyment of the same privilege. Need not be agreed to or paid for

- must be capable of precise definition (ex. a particular route)

- must show it has been enjoyed for 20 uninterrupted years immediately preceding the dispute.

- Prescription Act of 1832 (English statute)

- must be enjoyed under the proper circumstances:


Nec Vi: without violence

Nec Clam: not in secrecy, covertly

Nec Precario: not if neighbour has permitted it (if you asked permission)

by leave, license or agreement of your neighbours.

- must be acting as if you already have a right.

- not included in our title system; not listed on title certificate (as with leases of less than three years)



Doctrine of the Lost Modern Ground

- another way to acquire easements



Implied Grant or Reservation

- where A buys the land from X, if not specified in the sale/lease, gains an easement of necessity. X cannot imprison A on his new property (implied grant)



Wheeldon v. Burrows Rule

- if the case were reversed, and X stayed on the river, he would get an implied reservation of rights of way (but rule from Wheeldon v. Burrows doesn’t apply)

- note that easements are not required to be registered at Land Titles

- be careful when purchasing land, for these things

- easements are very common in Manitoba

Rights in the Nature of Easements

ex. hydro wires, gas pipes. Not a real easement ~ no dominant property, which is benefiting.

- must be granted by statute

b. Profits or Profits-à-prendre

- also requires dominant & servient lands, one to be benefited & one to be burdened.

- can be granted in the same way as easements

- one difference: can go across neighbour’s land (as in easements) and bring something back (ex. game, fish, sand, wood, water)

- very valuable rights

- can be a big pain for servient tenament

- can be granted or obtained by prescription (under Prescription Act, 1832) but over a period of 30 years

NOTE: need not be the same tenants over this period of time

c. Covenants

- look a lot like easements by express grant

- very difficult subject

- a contractually-binding promise (ex. deed) between two land owners

- where contract & real property law overlap, concept of privity is the first to go (not as revered as in contract law itself)


Restrictive Covenants

ex.

A sells this grassland to B. A asks that the land not be used for building, just horses. So, B covenants this as part of the contract for sale. Now, B dies and his estate is sold to C, who keeps the land as pasture. Eventually lands up owned by Qualico. Plan to build houses. A approaches Q regarding covenant he made with B.

- doctrine of privity would say it didn’t apply to Q, but covenant says otherwise

- this applies even if A has died & someone else owns his land, too

- note how benefits & burdens of covenant run through time

benefit: ability to sue on this promise

burden: liability to have promise enforced against you

- complicated rules govern the running of the benefit/burden

- note that the burden only runs in equity, based on equitable rules

- must be a restrictive covenant (some negative promise)

ex. we will never build anything on the land

- a positive covenant would be something like ‘we will maintain a fence between us’

- note that covenants require two pieces of land, dominant & servient.

- running of benefit is governed by both common law & equity

- running of burden is governed exclusively by equity

- must be negative in substance

- privity of contract goes out the window


Covenants in Leases

- very important; special

- can be implied (by Landlord & Tenant Act)

ex. 10 year lease between landlord & tenant

- exchange contractual promises (known in leases as covenants)

- after two years, tenant (T) sells out to T2 (assigns his interest)

- T2 run over by bus; T3 inherits it

- Landlord (L) dies; his son L2 takes over

- continue the story to L5 (though # doesn’t matter)

- note that these two (L5 & T3) now stand in the shoes of initial L & T

- there is no privity of contract, but PRIVITY OF ESTATE

- covenants between L & T are enforceable as between L5 & T3 due to privity of estate

- this does not apply to merely personal promises, but only to promises concerned with the land

- governs both positive & negative covenants

ex. Go back to L & T2

- T2 has flown the coop; L wants rent

- cannot find T2 to sue by privity of estate, so he can rely on privity of contract & sue T

ex. Go back to L & T3

- T3 wants to sublet (for 2 years of his remaining 3 year lease)

- sublets to ST (subtenant)

- no privity of estate between ST & L; no privity of contract, either

{Definitions:

Assignment = complete handing-over

Assignment of your lease less a day or more = sublet}

- covenants are not really servitudes, but sometimes they look a lot like easements, so we throw them in here.

Charges

- when land is used as a security for debts (loans, mortgages, etc…)

- most important: mortgage

- land is the security; if borrower defaults, the mortgagee can sometimes sell the property or seize it (through foreclosure)

- complicated by concept of compound interest
These are all the proprietary interests (except mortgages ~ they are security interests; bank doesn’t own the land)
One Last Complication…Trusts

- common law & equity. Rules are combined in one system now.

- however, it can be useful to consider them separately

- sometimes equity contradicts the common law

- note the phenomenon of the trust ~ exclusively equitable

- equity’s greatest contribution

- two layers of title: technically divisible into common law & equitable layers

- where they differ, there exists a trust. Each layer points to a different person as owner/holder.



ex. common law ~ A; equity ~ B

A is referred to as the trustee; B can be called the beneficiary, equitable estate holder, beneficial estate holder or cestui que trust (or plural, cestuis que trustent)

- equitable owner has the real right of enjoyment of the land; common law owner has an empty shell of a title which comes with heavy burdens (to protect the equitable estate holder)

- nowadays, most trusts are deliberately set-up



ex. “I give my land to T1 & T2 ON TRUST FOR Aunt Madge (equitable life estate) and the remainder to Fred (equitable remainder in fee simple).”




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