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LTA - Chapter 5 - LTA Registration of Title in BC

By Rick Ferguson,2014-07-10 17:41
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LTA - Chapter 5 - LTA Registration of Title in BC ...

PROPERTY-RAMSAY-TERM 1 & 2_2002-2003

Cases & statutes areas

    1. Air space

    2. Fixtures

    3. Riparian rights accretion, access, Water Act cases

    4. Support

    5. Delivery gifting cases

    6. Effect of s. 20 LTA

    7. Proprietary estoppel

    8. Misc. cases

Kelsun v. Imperial Tobacco Co. (1957 Eng. QB)

    ? ? leasing land. ? uses premises airspace for ad. ? applies to put up another sign protruding into ?‘s airspace. Owners

    consent, sign up. 3 yrs later, ? orders sign removed, ? won‘t. ? says sign trespass; if not, then nuisance. ? Tobacco sign people going thru shop to maintain sign. Changed mind b/c s/o else offered $ to put up diff. sign.

    ? Trespass, ? must prove right to airspace. To claim nuisance, ? must prove damages; can be to use & enjoyment of ppty. ? Test for damages in lieu of injunction: Injury to ? must be small; must be able to calculate loss in financial terms; must

    be able to compensate injury by small $ payment; and injunction is oppressive to ?. ? Ratio: ? (as leaseholder) owned airspace. Signage overhanging property constitutes trespass [Narrow]; anything

    overhanging airspace (other than aircraft) constitutes trespass [Broad]. You have right to airspace above your land.

    ? Injunction granted, not damages. Damages would‘ve meant court gave licence to ? to continue violating airspace. Why did he want trespass over nuisance? < Injunctive relief.

    There‘s no degree of trespass. It either is trespass, or it isn‘t. The amount of trespass determines damages, etc.

Bernstein v. Skyview (1977 QB)

    Facts: ? flew over ? property and took photos of his property. ? sues for trespass.

    Issues: Does an owner of property truly have rights ―to the heavens above‖? Held: Case dismissed

    Ratio: Property rights to airspace extent required/height necessary for ordinary use/enjoyment of their land

Manitoba v. Air Canada (1980 SCC)

    Facts: Politician sues Air Canada for taxes it tried to charged the airline for flying over ―Provincial airspace‖

    Issues: Does a province and/or Crown have the right to tax objects flying over ―their‖ airspace? Held: Case dismissed

    Ratio: Airspace is incapable of being truly ―owned‖ b/c too hard to survey; Provinces cannot tax beyond their borders

    Note: Subsequent legislation in BC has allowed airspace to be “owned” by filing an airspace parcel plan.

Statutory Law

    LTA s.139 - Airspace is land and lies in grant

    LTA s.143 to 146 - Airspace plans must be surveyed, in the proper form and approved by the registrar of land titles

Fixtures

    Important Concepts

    ? Fixtures form part of land and improvements to it

    ? Therefore, when land is transferred fixtures are transferred with land.

    ? What constitutes a fixture?

    ? If object not attached to soil by anything other than its weight it is chattel and NOT fixture

    ? If object attached in ANY way to the soil it is fixture (Subject to a number of tests)

    ? Two part test to determine if it is a fixture

    a) Degree of affixation: If obj attached in manner so slight RP would believe it chattel, cts will hold it chattel

    b) Purpose of affixation: (“Better enjoyment test”)

    Is object affixed for better enjoyment of object? If so, chattel

    Is object affixed for better enjoyment of land? If so, fixture.

    Note: Purely objective test. Intention of party irrelevant. Courts look only at what RP would see it to be.

    Property Cans 2002/3 Ramsay - Page 1

    Can register charges against fixtures in LTO; charge is interest in land & party reg‘ing can seize obj as security for debt etc.

Lasalle Recreations v. Canadian Camdex (1969 BCCA)

    Facts: Carpet laid in hotel not paid for. ? sued for declaration that carpet chattel so they could seize & recover debt.

    Held: Case dismissed. Carpets are fixtures.

    Ratio: Carpet laid for better use of ppty NOT better use of carpet; Affixation does not have to be forever.

Re Davis (1954 Ontario High Court)

    Facts: Bowling lane added onto side of bldg. Upon transfer of ppty, dispute whether lane is fixture or chattel

    Held: Lane is chattel

    Ratio: Bowling lane, on face of it, is fixture. But if purpose of affixing chattel is ―better enjoyment of chattel‖ then

    affixation does not make it fixture; Bowling lane affixed not to ―improve‖ use of ppty but for use & enjoyment of

    lane. Therefore it is chattel. Bowling lane was easy to remove.

    Whether item can be independently enjoyed & used by self or whether merely constitutes improvement to some part of ppty

    Royal Bank v. Maple Ridge (BCSC)

    (1) Any item unattached to ppty except by own weight, removable w/o damage/alteration to fixtures/land, is chattel.

    (2) Any item that is plugged in and can be removed without any damage is a chattel.

    (3) Any item is attached even minimally (ie: cannot be unplugged) is a fixture.

    (4) If equipment attached to structure, & part could be removed but useless w/o attached part, entire equipment is fixture.

    (5) Where item is determined to be fixture, may nevertheless be removed if it can be shown it is tenant‘s fixture. (6) In circumstances not covered by these rules, ct should resort to purpose test > intended to be fixture or chattel?

Elitestone v. Morris (1997 HL)

    Bungalow on concrete pillars held to be part of realty.

Water Rights

    Important Concepts

    ? Riparian Owner: Ppty owner whose land borders on a body of water

    ? Riparian Owners have right of access to water but do not own water, shore or bed underneath.

    ? Crown owns all bodies of water and soil beds underneath unless it has specifically given grant of title away

    ? Riparian Owners once had rights in CL to ―use, flow and quality of water‖ subject to rights of other rip owners ? These repealed by Land Act and Water Act < provides water ―may‖ be used by riparian owner as long as ―unrecorded‖

    (not registered under provisions of act) & only for domestic use. Otherwise permit must be granted for use of water.

    ? Percolating water (Water under ground), standing water & flowing water all owned by Crown

    ? CL rules still apply to ―unrecorded water‖ to extent/effect on other rip owners of same ―unrecorded water‖

Accretion & Erosion

    ? If water boundaries of a riparian owner change through accretion/erosion, boundaries of property change with it

    ? Cts have held accretion must be gradual & accomplished by forces of nature (can‘t pump lake dry to gain acre to ppty)

Johnson v. Anderson (1937 BCSC)

    Facts: Stream running through ? property diverted upstream by ? for the purpose of operating commercial business. ? had

    license under Water Act to use water but it did not vest in him authority to divert stream.

    Issues: Can ? assert rip rights at CL & get injunction against ? b/c denying him right to use water for domestic purposes?

    Held: For ?, injunction granted.

    Ratio: Water Act repealed rip right to ―flow‖ but didn‘t address right to ―use and quality‖ of water for riparian owners

    Rip owners still have right to ―unrecorded‖ water domestic use if doesn‘t affect ―flow‖ or other rip owners‘ rights

Schillinger v. H Williamson Blacktop (1977 BCSC)

    Facts: ? landscaping upstream from ? muddied waters of stream ? using to operate commercial fish farm. ? fish died. ?

    had license to use water but gathering water from stream not specified in license. ? sues for nuisance. Issues: Whether ? has right (Riparian or Statutory) to divert water from ? land for commercial purposes.

    Held: Claim dismissed

    Ratio: Riparian rights at CL never extended to diverting water; ? license never gave authority to use water he was taking,

    ?no right to divert and/or use it; Because he had no right, riparian or statutory, to water he could not get damages

Steadman v. Erickson Gold Mining (1989 BCCA)

    Property Cans 2002/3 Ramsay - Page 2

Facts: ? piped water from stream running through his ppty for personal use & to operate small diamond saw without

    license. ? built road nearby & contaminated his water. ? sues for nuisance.

    Issues: a) Was water ―Ground Water‖ as defined in Water Act?

    b) Did ? operation of diamond saw mean he was using the water for purposes other than ―domestic‖ use?

    c) Were ―works‖ he erected to pipe water into his house in contravention of Water Act? Held: for ?

    Ratio: a) ―Unrecorded‖ ground water NOT subject to Water Act.

    b) Saw was being utilized in ―domestic‖ manner

    c) Act must be interpreted to preserve right to works for diversion for domestic purposes.

    ? using his land (water) in manner infringing neighbor‘s right/ enjoyment of land, ?liable in nuisance

    Property Cans 2002/3 Ramsay - Page 3

Statutory Law

    Royal Proclamation (1763): Vests ownership of all ―non-tidal‖ waters and beds underneath in Crown. Some debate around

    whether this means Crown has owned all the water since this proclamation.

    Land Act : s.52 repeals ―ad medium filum‖ rule and vests ownership of water and beds in Crown

Water Act: s.2 repeals common law right of riparian owners to the use, flow and quality of water; goes on to require use of

    water to be only under a valid license.

    Note: CL rules still apply to “unrecorded” water (Water for which permit not granted under Act) & rip owners may still use

    “unrecorded” water for domestic purposes

Water Protection Act: Vests ownership of percolating water in Crown

    ? Establishes licensing reg‘s for large-scale use of water and/or transportation of water domestically in BC/abroad.

Percolating Water

    CL > rules applicable to riparian owners do not extend to water that flows through the soil. Becomes ppty of the first person

    to draw from it lawfully to surface. In BC Water Act & Water Protection Act take precedence (see above)

Ownership of the Beds of Watercourses, Lakes, and Ponds

    CL rule of medium fulum (middle line) usu operates- Unless some other indication present, will be divided down middle

LAND ACT - unless expressly provided, grants do not include bodies of water

Accretion and Erosion

    Southern Centre for Theosophy Inc. v. South Australia (1981 JCPC)

    F ? has gov‘t lease on some lakefront property, to which accretion has added 20 acres Doctrine of accretion applies R: The law must be consistent, and you have to live with whatever nature chooses to do.

Access by Riparian Owners

    North Saanich v. Murray (1975 BCCA)

    Property owners built wharves across the foreshore- Was this trespass- YES

    R: Riparian owners are entitled to access, but not to disturb foreshore or impede

Support

    Important Concepts

    ? You are entitled in law to lateral support for land in ―natural state‖ (ie. Not including bldgs or structures.) But you can

    have remedy if you can show land would have settled even without bldg.

    ? You are entitled in law to subjacent and vertical support regardless of state of your land.

    ? None of these property doctrines dispel any liability in tort for negligence. Where it can be seen that duty of care

    existed, any act/omission by neighbor causing damage to ppty or buildings likely actionable.

    ? In order to guarantee rights to lateral support once you have built on your property, you must file easement in LTO

    otherwise your rights, in property law, to lateral support are extinguished (Theoretically)

    ? However, BC courts have been willing to say in lat. support cases there is ―duty of care owed‖ by neighbors; if you don‘t

    take reas. care to prevent harm to neighbor‘s ppty you will likely be held liable in tort for negligence

Cleland v. Berberick (Ont)

    F ? took sand from his own beach, causing erosion to ?‘s beach.

    I Erosion caused by nature or by ?‘s actions?

    R ? entitled to lateral support. Every owner under obligation to use land so as not to damage neighbour‘s ppty.

Bremner v. Bleakley (Ont)

    F ? digs holes in own ppty; ?‘s soil blown into holes by storm; ? says ? responsible b/c sand would‘ve come back.

    I Causation. Did digging of the holes cause the damage to ?‘s land? R Does not overrule Cleland, distinguishes. Digging holes didn‘t cause sand to leave ?‘s ppty, & soil from holes wasn‘t supporting ?‘s land. No guarantee soil would blow back to ?‘s land. Nature at fault.

    Property Cans 2002/3 Ramsay - Page 4

Gilles v. Bortoluzzi (1953 Man QB)

    F ? hires contractor to dig hole for foundation; both ?s. ? alleges hole caused lack of support of land, holding up bldg. ?

    claims negl. in use/heavy equipment; loss/lateral support; ? failure to abide municipal building bylaws; trespass. H For ? not based on loss of vertical support; or lack of lateral support b/c land would not have settled w/o bldg. Won

    based on trespass - ―went under‖ - & negligence.

Rytter v. Schmitz (1974 BCSC)

    F Excavation on property line, loss of lateral support admitted by ?, loss of vertical support argued. H ?‘s building had gained right to support through prescription (since abolished by statute). Dmge also caused by

    negligence, & by trespass in crossing ppty line.

     Difference between claim of loss of vertical support and negligence: issue of strict liability. You do not have to prove

    fault with vertical support. Loss of support is more direct way of proving liability.

     Cites Capilano, where vertical support removed w/o trespass

Capilano Bungalow

    F ? dug trench on land, building on adjacent land undermined via rainwater.

    H For ?. Talked about vertical support, but mainly negligence.

The bottom line is:

    1) There is a right to lateral & vertical support of natural land

    2) There may be a right of vertical support of buildings.

    3) Right of lateral support probably doesn‘t extend to bldgs unless land would have subsided in any event.

    4) There may not be a right of support, but you may be able to use trespass or negligence.

    It‘s a good idea to get contractual agreement with adjacent landowner – easement.

Acquiring Land

    All land in BC owned by Prov Cwn except:

    a) lands owned by Fed Cwn or their agencies for public harbours, national defence, Indian reserves, & railway

    lands

    b) lands owned by private owners

    c) lands subject to abo title

Land Act

    You can‘t make grants to people who aren‘t either citizens or permanent residents. You can‘t make grants of the foreshore.

    Without ministerial order, you can‘t make grants of land suitable for mining, timber, pulpwood, minerals.

Crown keeps the following rights:

    a) take up to 1/20 of land for roads, canals, bridges, etc.

    b) geothermal, minerals, coal, oil, gas

    c) water privileges for mining or agricultural purposes nearby

    d) construction material (gravel, sand, stone, lime, timber)

    You don‘t get

    a) geothermal minerals, coal, petroleum, gas

    b) rights over highways

    Grant may hold back other things.

    No significant diff btwn govt‘s rights under grants & under normal fee simple. sec. 1.4 & 6 – can do it under expropriation.

Adverse Possession

    Right of landowner to sue re possessory rights may be statute-barred against s/o who has been in adverse possession of land

    for years. After certain # of yrs, owner can no longer bring suit to regain possession from squatter. (Alta 10 yrs)

    Squatter has to be a) peaceful; b) visible to landowner; c) continuous; d) exclusive; e) intentional

    This doesn‘t apply in BC. S.23 sub 3 of the Land Title Act abolishes adverse possession

    - but there‘s some debate re whether it abolishes easement acquired via adverse possession

    Property Cans 2002/3 Ramsay - Page 5

    - b/c easements are not a possessory right

    In BC, the Land Title Inquiry Act < ask court to investigate & make declaration re prescriptive passage of time

Types of Interests in Land

    Important Concepts

    Types of actions against interests in land

    ? Actions in Trespass:

    ? must prove ? physically intruded on his/her land.

     Actionable ―Per se‖ ? Actions in Nuisance:

    ? must demonstrate his ―enjoyment‖ or use of land infringed upon by some act or omission of ?

    NOT actionable ―Per se‖ (? must show damages)

    Types of interests in land ? Categories of interests in Land

    a) Corporeal: Absolute & exclusive ownership of land

    b) Leasehold: Interest in land to the extent of its use for a fixed period

    c) Freehold: Interest in land with no fixed time (ie. Fee Simple, life estates etc.)

    d) Incorporeal: Interest that extends no ownership (Registered judgments, easements, Restrictive covenants etc.) ? Crown owns all land and merely grants interests in it making ―true‖ corporeal interests impossible in BC

Interests that entitle a person to possession of land

    ? Six main types

    a) Fee simple

    b) Fee tail (abolished by statute)

    c) Life estate

    d) Estate pur autre vie

    e) Leasehold estate

    f) Future estate (usually seen in wills)

Fee Simple

    ? Equivalent to absolute ownership (Qualified by rights of Cwn)

    ? Estate ends only if owner dies intestate with no heirs and land escheats to Cwn

Fee Tail

    ? Same as fee simple but heirs had to be direct descendants of owner; No longer allowed by provisions in PLA

Life Estate

    ? Interest in land for life of beneficiary; upon death interest reverts back to grantor

Estate Pur Autre Vie

    ? Length of interest in land determined by life of s/o other than interest holder (A grants interest to B for life of C)

Leasehold Estates

    ? Interest in land for specific time period - tenant (lessee) pays landlord (lessor) rent in consideration for estate.

Future Interests

    ? Estate where interest in land is promised to beneficiary in the future

    ? Very limited use and rarely seen

    ? Not clear whether this constitutes an actual interest in land or simply a contract

    ? Usually seen in wills (ie. From A to B for life THEN fee simple to C)

Incorporeal Interests

    Any interest in land short of a right to possession

    Two types

    ? Legal Interests (Covenants, Mortgages, Easements etc.)

    ? Equitable Interests: (Trusts etc.)

    Property Cans 2002/3 Ramsay - Page 6

2 steps to buying property

    1. Executory stage

    - Vendor & purchaser negotiate contract of purchase & sale

    - Usually takes place with assistance of realtor

    - Equitable ownership has passed from vendor to buyer

    - Legal title is still in the name of vendor

    2. Executed stage

    - After conveyance

    - Transfer of legal interests

     Before K After K After Conveyance

    Vendor Vendor Purchaser Law

    Vendor Purchaser Purchaser Equity

After K -

    Vendor has:

    - right to purchase monies

    - lien on property for unpaid purchase monies

    - right of possession until they are paid

    Purchaser has:

    - equitable title

    - obligation to pay purchase monies

    - claim if vendor fails to go to Stage 2

If house burns down between stages 1 & 2, purchaser bears the loss. (Insurance issue)

1. life estate until death) freehold estate

    2. fee simple estate )

Officer signature acknowledgement transferor signed. If sign w/o seeing person before you, disbarred. Proper ask for ID.

Original document used instead of Form A contained all Column 1 words, deemed to include Column 2.

    Stage A document contract of purchase & sale.

LTA s. 185(2)(b) > you might be able to convince a registrar to accept something other than a Form A

    deed sealed instrument containing K/covenant delivered by party bound & accepted by party to whom K/covenant runs

    ? a document signed, sealed, & delivered through which interest, ppty, or right passes

covenant historically, an agreement; now, normally talking about a promise

delivery act by which res or substance thereof is placed within actual/constructive possession or control of another

    ? voluntary transfer of possession of the document

gift voluntary/intentional transfer of property from owner to another person w/o consideration

    Person making gift = donor

    Person receiving gift = donee

    General rule A gift is not enforceable. Policy element is that there has been no exchange of promises.

3 elements for valid oral gift:

    1. intention

    2. acceptance

    3. delivery

In BC today, the critical element seems to be delivery (transfer of possession or sth equivalent).

    ―The donor must have done everything necessary for the transfer to take place.‖

In addition to parting w/ possession, other things have to be done (transfer documents etc.)

    Property Cans 2002/3 Ramsay - Page 7

    ? Make sure the donor takes enough steps.

    ? Delivery may be more than simple transfer of possession.

How do we get an oral gift of land?

    ? LTA s. 185(1) req‘s Form A

    ? PLA s. 5 (1)

    You‘re going to need documentation.

Law and Equity Act = trusts may not have to be in writing

    ? Shifting now from oral gifts to gifts in writing

    ? Inter vivos transfer A gift in writing under seal

Romaine

    Claude signs ―gift documents‖:

    Schedule 1 A letter addressed to Michael & Sharyn ―to evidence my gifting to you... held in trust for you‖

    ? Legal interest stays w/ Claude

    ? Equitable interest goes to Michael & Sharyn

    Schedule 2 –―whereas‖ recitals of facts

    ? trustee still registered owner of land

    ? mutually agreed as follows (to show consideration)

    ? ―signed, sealed, delivered‖

Claude & Michael later had falling out. Claude then began to make statements about what he ―really intended‖.

    Eventually Claude tried to will everything to charity. - But along the way a Form A was produced, signed by Claude.

    Michael said Claude had done everything there was to do. - Court concluded these were valid gift documents.

    Decision talks about ―sealed K rule‖ – no question Claude competent, had signed/sealed/delivered

    ? seal serves evidentiary function; such a K derives validity from form alone; ?can be enforced even w/o cons. Gift reduced to writing under seal < no enforceability problems provided there has been sufficient delivery.

    ? Michael & Sharyn needed Form A < they had it, ? delivery

    ? if there‘d been no Form A, could they have argued enforceable K b/c seal?

    o issue not in front of court, but probably > para 44, 29, 31 go on about seal

Assuming you have a valid gift, what does the donee actually get?

    ? < issue of resulting trust

    A gift in writing under seal, Form A

    B less ideal situations < what is sufficient?

    B1 at CL & absent a land title reg system

    ? approach conveyance in order to be executed had to be (a) signed by donor (b) sealed (c) delivered

    ? issue begins to arise: what does ―delivered‖ mean?

    ? can delivery be sth less than parting w/ possession of deed?

Ross v. Ross (1977 NSSC)

    F: Grandma transferred land to grandson (?) in properly executed transfer cont. words ―signed, sealed, delivered‖. Grandma

    never actually delivered transfer to ? - died before being able to.

    I: Did grandmother deliver deed at CL since clearly her intention to be bound by document?

    H: Transfer had occurred, ? gets order for specific performance against title

    R Execution of a transfer in front of witnesses is sufficient to ―infer‖ delivery

    If facts show party intended to be bound by transfer, failure to physically deliver won‘t prove fatal to transfer of title

Two ways of inter vivos transfer:

    1. Gift in writing under seal

    2. Can there be something less than Romaine?

    Yes Ross

    Retaining deed after signing/sealing doesn‘t necessarily mean execution defective for want of delivery.

Zwicker v. Dorey (1975 NSSC)

    F: Land transferred to ? with words ―This deed not to be recorded till my death‖, transfer form was delivered to ?.

    Grantor then bequeathed property to numerous other parties, continued to use land.

    Property Cans 2002/3 Ramsay - Page 8

    I: Whether delivery of deed to ? was effective and gave legal title to ? H: No delivery occurred

    R: a) Presumption of delivery can be rebutted by express words contained in transfer

    b) Actions of grantor can be evidence of contrary intention and can rebut presumption of delivery

    Unrecorded deed was a testamentary document.

Testamentary Document

    o meant to operate at time of death

    o must be witnessed in a certain way

    - 2 witnesses; must be present at same time grantor signs and same time as each other

    Zwicker: ―There is no requirement that a deed must be recorded in order to be effective.‖ LTA s. 20 Except as against person making it, an instrument... does not operate to pass estate/interest... unless registered‖

    When 3rd party competing claims are involved, registration is mandatory.

    Zwicker:

    ―what‘s essential to delivery of document is that party acknowledges intention to be bound‖ ―escrow‖ – becomes operative on occurrence of specific event

    ―necessary to determine intent of grantor‖ – evidence as to circumstances is admissible

    found Zwicker only intended transfer to be effective on death; living on land; still giving it away

Difference between will and gift Will revocable at any moment up to death.

    Escrow - becomes operative on occurrence of specific event rd party who holds them until conditions met - take completed documents, (phys) deliver to 3rd- ie, shares can be in escrow until paid for vendor signs shares, they go to 3 party

    - Difficulties if linked to death

MacLeod v. Montgomery (1980 Alta CA)

    F: ? gifted land to ? but kept duplicate title certificate, making it impossible for donee to register title

     Donor kept life interest; ? leased land & filed caveat in land titles office

    I: Whether legal delivery had occurred & good title could be registered

    H: No delivery occurred

    R: a) By withholding duplicate title, donor may leave open option to change mind & revoke gift

    b) No delivery can occur until recipient has all documents required to register title

     c) Intention of party no longer applicable in a registration system

    ―no instrument effectual... unless executed & registered‖

    ―Courts have in general laid down... that no transfer or ownership passes... unless registration‖ ―statutory transfer gives title in equity until registration; when registered, has effect of deed‖ ―To complete a gift effectively, donor obliged to do what can be done.‖ - duplicate title must be filed, unless lost/destroyed

Yeulet v. Matthews (1982 SCC)

    F Matthews made equitable mtge. against son got duplicate title certificate

     Yeulet gets judgment against Matthews fils - tries to collect via property

    H Unregistered mortgage had priority over registered judgment

    This flies in face of s.20.

Stonehouse v. BC (1962 SCC)

    F Husb & wife JTs; Wife secretly transferred her half to daughter; transfer unregistered; wife dies; Husband claims ROS

    I Did unregistered transfer sever JT?

    H Yes

     Delivery had occurred b/c daughter had everything necessary to register

Argued Torrens system means unreg. documents have no effect

    Court held they did have effect despite being unregistered

    ―Fact of her interests being transferred destroyed unity of title‖

    ? LTA s. 20 protects unregistered interests ―as against the person making it‖.

    ? husb argues Aus case similar facts; dist‘d b/c they have strict Torrens w/o ―except as against person making it‖

    Property Cans 2002/3 Ramsay - Page 9

A. Gift in Writing under Seal

     Romaine v. Romaine

    ? Sealed Document, Form A, Registered

    B. Can there be something less than Romaine?

    1. At CL, no land registration scheme

    a) Executed Conveyance

    b) Can delivery be less than parting w/ possession?

    ? Ross

    ? MacLeod v. Montgomery

    ? Zwicker v. Dorey

    2. Land Registration Scheme

    ? LTA s. 20, but McLeod v. Montgomery

    ? ―Except as against the person making it‖

    ? Yeulet, Stonehouse

    C. Assuming ―Delivery‖ (at CL or under terms)

     What does the grantee get?

    1. Romaine

    2. Presumption ―No one gives away something for nothing‖

    ? Rebuttable

    ? But if applies:

    a. Resulting trust

    b. Presumption of advancement

Donor > gift > donee

    ? completed Form A, etc.

    ? unregistered rd party < registered Then donor sells to 3rd3 party safe from unregistered gift

Chung Estate v. Chan (1995 BCCA)

    F: Chung told notary to execute transfers. Left Van, died b/f return. Notary delayed; learned of death, rushed to register.

    R: Held that transfer of interest applied.

    ? No real difference between this and McLeod, except estate.

Chung did everything necessary to complete gift.

    This would likely be effective to create joint tenancy as well.

    1. Keep in mind what‘s it going to take to have a completed gift?

    2. Romaine what less?

    3. What analysis do you use to see what can be acceptable that‘s less than Romaine? (Ross)

    4. What is the CL test?

    5. What does delivery mean?

    6. If analysis says gift valid at CL will it stand up/statutes? registration requirements, Form A, etc.

    7. Has the donor done everything necessary to complete the gift?

    8. Is registration critical?

    1. CL

    2. Statute

    3. Registration

    4. When gift is made, what does donee actually get?

CL presumption re gift < No one gives something away for nothing

    ? Romaine issue doesn‘t come up b/c sealed contract

    Presumption is that donee takes gift in trust for donor < resulting trust

    Property Cans 2002/3 Ramsay - Page 10

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