DPRQC” PROPERTY LAW – Professor Ramsay aka: “
2007/08 – (Robert Kiesman)
CHAPTER 1: The Legal Concept of Land.
Common Law: Whoever owns the soil holds title all the way up to the heavens and down
to the depths of the earth.
2 methods describing dimensions: (a) Description by a plan - sets out dimensions of the
property; (b) A metes and bounds description: a starting point (not a plan).
Kelsen v. Imperial Tobacco Co: It is a trespass to interfere with the column of air
above real property. It is trespass to erect an object which overhangs or intrudes
into the immediately superincumbent airspace of another.
Kelsen is the assignee (sub-lesee) of a lease...but is really a lesee.
The owner consented to the sign being put up.
Imperial, the defendant, put up the sign - a physical object in airspace - and have to get
in their to maintain the sign.
Cause of action: trespassing. P must prove D came on their land... and in a sense must prove the air is part of their land.
The lesee doesn‟t care about the sign, but wants another guy‟s sign there who is willing to pay more. Underlying interest. Laches: a defense that people who get sued can rely on. If P unduly delays in enforcing their rights, D can argue the delay as a defense.
There are time limits in commencing a lawsuit.
Bernstein v. Sky: An owner has a right in airspace above his land only to such
height as is necessary for ordinary use and enjoyment of his land and the
structures on it. The specific use of the property will dictate what height is
necessary for the use and enjoyment of the land and structures.
Skyviews flew over Bernstein‟s land and photographed it. Bernstein claimed trespass. Argument was that he must have trespassed in order to
take the photo. If he wanted to establish trespass, he had to establish that the D came
onto his land. What is his land?
Manitoba v. Air Canada: An owner has a right in the airspace above his land only in
the enjoyment of that land, and in preventing anyone else from acquiring a right in
that airspace. The owner has no property right or legislative jurisdiction in
relations to the airspace above his land.
Manitoba tried to tax Air Canada on planes landed in, flew over province.
Court said maxim could go no further “so as to limit a person to whatever proper use he
can make of his land.”
STATUTES: AIR SPACE
Under certain circumstances (specifically in vicinity of airports) the common law position
on rights to airspace does not apply.
Strata Property Act (formerly Condominium Act)
Sets up statutory scheme under which a person may acquire fee simple ownership in a
multi-unit building situation on land that (s)he doesn’t own. Under this scheme to accomadate that, a unit gets the benefit and burden of a series of rights (eg: access
services and support). There is ability to subdivide the building.
TWO types of stratas: (a) Bare Land Strata Plan: allows subdivision into strata lots on horizontal plane ( subdivision with special rules. (b) Building Strata Plan:
Strata Lot: individually owns units. In addition to getting the unit, you also get
proportionate share in the common property (and assets) as well. Common property
Balconies are generally limited common property: it isn‟t really yours in the same way your unit is - because they want rules of what you can do on your balconies (eg: no
BBQ‟s). Governance structure: bylaws govern how people get along. Strata corporation:
corporate body that governs development. Strata council: board of directors. Unit entitlement: necessary to divide up expenses; deal with apportioned loss. = Your
square footage divided by overall square footage. However, bigger units don‟t get more
votes - all only get 1.
Land Title Act: Airspace Parcels
You can grant the right to an air space parcel over your land without it affecting your
ownership of the rest of the air parcel.
s. 136 states that; "Airspace constitutes land and lies in grant"; problem: statutory interpretation (ie. Land Title Act has no definition of "airspace"; turn to common law to
determine meaning of airspace.
An “airspace parcel” within a building - these can be underground.
s. 6(2) states that owner of a strata lot (plan) may deal w/ his individual space in the same manner as conventional land-owner, but he may not deal separately w/ jointly owned facilities.
AD INFEROS - below surface
Common law: gold and silver belonged to the Crown - all minerals and mines belong to
1858: you didn‟t get gold or silver either in BC. 1897 onward you didn‟t get base metals
other than coal. 1899 Crown stopped giving coal and petroleum. 1951: Crown stopped
giving out natural gas with original grant. You have to ask: when was original grant given?
Government got nasty with grant owners that got minerals because their grants were
given early enough (eg: Nanaimo Esquimalt Railway, p.10). Gov‟t starting taxing the
grant owner on base of minerals and if they didn‟t pay tax the minerals reverted back to
Mineral Tenures Act (1996): you can get a free miners license that gives you right to go
on private property and look for gold and silver and minerals that the Crown owns. If
you find them you have certain rights to access them.
Accuracy: Land Title Act 23(h): “the mere fact that you have this plan and are a
registered owner is no guarantee that it is accurate.” Have had it surveyed.
Road allowances are 66 feet because the chains used by surveyors were/are that long.
Also, every 666 feet, you have to set aside 66 feet for road allowance.
Cadastral surveying: contrasting with topograpic surveying (features): (1) District (province divided into districts; (2) within District, various measurements are used: (a)
Township was 6 miles by 6 miles = 36 square miles; (b) Section 1 mile by 1 mile (640 acres); (c) District Lots - vary in size - between 50 - 500 acres; (d) Block - various sizes; (e) Lots occur when the blocks are subdivided.
Parcel identifier: Each parcel of land has been assigned a parcel identifier (PID)#.
Winrub v. Street: An issue over the dimensions of the land and purchaser purchased
land which was fenced. Purchaser‟s lawyer did title search but did not order copy of plan.
It turned out what was inside the fence did not all belong to the purchaser. Purchaser (P)
sought to hold lawyer responsible - couldn’t hold Land Title responsible as they
don’t guarantee correctness. Court concluded the lawyer did nothing wrong and
followed practice that was generally acceptable.
What should a lawyer do? Order a copy of the plan, and have client initial the plan as
part of the paperwork. Often the bank will ask for a survey---> they want to see any
buildings on the plan---> to make sure your house is located within the four corners of the plan.
Horizontal boundaries: are fixed at a point in time by the plan.
Common law: A transfer of an interest in land by a sale, gift, mortgage or lease, includes
all the fixtures on the land - defined as “a chattel which is so fashioned or connected to
the land that n law it forms part of the land.” Common law said transfer (sold, given, leased) of interest in land included all the fixtures on (eg: Blackacre). Somewhere
between resting on the land and becoming attached it becomes land. Fixture = part of land.
Four situations it becomes an issue when something becomes a fixture: (a) What does
one get when one buys property with a house? (b) What does tenant get at end of his
tenancy? (c) Mortgage or other security interest that has been taken by a lender: What can they take here? (d) When someone dies: Who gets the appliances in the house and
machinery in workshop?
Starting point: Has the chattel/item become a fixture? Has it been transformed? Ask: What is the objective/intention of the parties? --> What would an outsider looking at this
was the intention?
FIRST STEP: What is the degree of annexation - to what extent is it attached to the land?
You turn to two rebuttable presumptions: (a) If a chattel rests on its own weight presumed it stays a chattel; (b) If the chattel is attached even slightly it is presumed to
be a fixture. You end up now with it either being a fixture or a chattel. ONUS now shifts
to defendant to rebut it.
STEP TWO: Object of annexation: What is purpose of annexation? Would a reasonable
personal familiar with customs of time and place conclude the parties: (a) intended item
to remain chattel; (b) intended item to become part of real estate? Bathtub 200 years
ago a chattel...now it is a fixture.
Haggert v. Brampton: Approach - looks first at degree of annexation - then second at
object of annexation. This approach underlies most of the case law. Also considered
permanence. As for object of annexation: “the question is whether the goods were
affixed to building, though slightly, for the better use of the goods as goods, or for the
better use of the building as a hotel building.” Answer: carpet meant to enhance the building.
Re Davis: If object is attached for the better enjoyment of the building as a building,
it is a fixture. If it is for the better enjoyment of the chattel as a chattel, it is a
A widow‟s downer lays claim to real estate. Is bowling alley fixture or chattel?
While the assumption based on the degree of annexation is that bowling alley would be
a fixture, it fails on the second test - because the purpose of the annexation was for the
better enjoyment of the chattel, not the building.
Found that the bowling alleys weren't affixed for the better use of the building, but in
order that bowling might be more efficiently carried on.
LaSalle Recreations v. Canadian Camdex Investment: Notice the discussion of the famous case Stack v. Eaton: Settled law: (1) Articles not otherwise attached to the land
than by their own weight are not considered part of the land; (2) The slightest affixing
enough to raise presumption they become fixture; (3) The degree of annexation; (4) The
intention of the person who affixes the object is only material to the extent that you can
determine from that the degree and object of the annexation - it is not what person says
their intention was; (5) Where tenant affixed fixtures, a separate set of rules.
LaSalle Discussion: A chattel becomes a fixture when it is affixed to the land by
more than its own weight and the purpose of the attachment is for the better use
of the building as a building, and not for the better use of the chattels as chattels.
Villa is owner of property. Camdex is financier and mortgage holder. LaSalle is supplier
of chattel (carpet).
LaSalle sold the carpet but financed it - it was not a cash sale. They took a Conditional Sales Agreement. Ownership of carpet remains with LaSalle until it is paid in full - BUT
they do not have possession of it. It then appears to an outsider that the owner of
property is owner of the carpet. A scheme developed: where LaSalle was to give notice
to world that they were true owner: registering sales agreement in Land Title Office.
LaSalle got into problem because NEGLECTED to register. If they had, there would not
have been a case. LaSalle argued that it had never become part of the land.
Decision: carpet was a fixture and LaSalle loses.
Royal Bank v. Maple Ridge Farmers Market: Chattels and fixtures can be distinguished as follows: (1) If object on its own weight and can be removed without
damage or alterations to the fixtures or land that will need repair is a chattel - removal of
door jamb or window is NOT damage; (2) Any item plugged in and can be removed
without damage or alteration is a chattel; (3) Any item attached even minimally (it cannot
be unplugged) is a fixture - screws, nails, bolts, detachment of plumbing are fixtures; (4)
Item is a fixture if it loses its essential character because it is of no use unless attached
to a permanent and substantial improvement to the premises of which it formed a part;
(5) A tenant‟s fixture may be removed from the premises during the currency of the tenancy; (6) In exceptional circumstances not covered, the court should have resort to the purpose test.
Dispute between trustee in bankruptcy and mortgagee as to whether restaurant equip
should be fixtures or chattels.
Evaluate degree of annexation and object of annexation.
TENANT: When tenant takes object, cannot be material damage: (a) Trade fixture (shelving, hangings, mirrors - linked to tenant‟s use of the structure; (b) Ornamental
fixtures; (c) Articles of domestic convenience and utility - cupboards and stoves
(residential); (d) Articles annexed for purpose of enjoying them as articles.
It is tenant‟s fixture if it is affixed by tenant and can be removed with no material damage.
Elitestone v. Morris: There are three possibilities: chattel, fixture improvement to
real property (part and parcel of land itself), determined by examining the degree
and object of annexation. The object of annexation can be inferred whether
annexation was intended to be permanent or temporary.
Dealing with situation with house being put on a premesis. Bungalow resting on concrete
pillars for 50 years- is it a fixture or a chattel?
Court‟s categorization: Chattels, Fixtures, and part and parcel of the land.
Diamond Neon: A person not privy to a contract cannot be bound by that contract.
The contract was not valid and therefore the sign became a fixture and passed
with the sale of land.
There was a pole with a sign on it. Pole set in concrete and held a business signn- sign
supplied by a company (not owned by owner of the land).
Agreement between supplier of sign and owner was the ownership remained with
supplier: contract said “even if sign becomes fixture” it is still ours. Then someone bought the property without knowledge of contract. Became contest
between purchaser and sign company. Purchaser could have argued: I am not privy to
contract because I didn‟t know about it. Contract between A and B does not define
relationship between A and C. There is responsbility for seller to notify the purchaser. If
purchaser loses out, there would be a claim towards the vendor. **They could have
registered it (LaSalle) in order to avoid this problem.
(Case in Nanaimo in 1910: Two storey building rested on rocks and was held by
Supreme Court to be a chattel - there was no degree of attachment.)
Mobile Homes have become more of a contention. Burlington Administration Company.
Home set on concrete blocks - wheels removed - plywood skirting - wooden addition to
mobile - hitch removed - connected to utilities. Court applied LaSalle and concluded that it was NOT a fixture. Plaza Equities: steel frame removed - concrete steps to front and
rear - decided that it was a fixture.
***Possible exam question/theme: Floating House*** You have leased land...could
it become a fixture...it is fastened down. You are a tenant (you argue tenant’s
fixture...I can remove before end of lease). Other setups: they have strata-ed
title...suspects that it would become a fixture.
Common law: (a) Right to the bed of the water. Rights extend out to the middle of the water. (b) Rivers: As long as it was fresh water on non tidal it did not matter if it was
navigable or not in England. In BC, if local circumstances make it inapplicable, won‟t
follow - If the river is navigable, riparian rights not extended.
Water Act: Flowing water is unregulated, percolating water is not (s.3). s.2 takes away
riparian owners‟ right to the use, flow, and quality of water flowing by his land - requires
all users of water to get a permit to take water (unless it is considered unrecorded which
is usable for domestic purposes).
Along comes Land Act... (Section 55; p.56). “No part of bed belongs to riparian owners.” Essentially they have TAKEN it away in 1961.
Salt Water Issues: Is the boundary at high tide or low tide? The boundary becomes the
HIGH water mark. Choosing High Water mark based on: where there is a distinct line;
change in vegetation. Different surveyors come up with different boundaries. Who owns
seabed (foreshore)? The provincial Crown - result in dealings between feds and
provinces. Not true everywhere in BC - reserves (feds own) - certain harbours (Victoria,
Eqs, Burrard, New West) federal govt land.
There are 2 kinds of water:
(a) Flowing - as in a stream or river.
Common law: coming with ownership of riparian land a proprietory right to have water
flow to him in its natural state in flow, quality, quantity - and entitled to make certain
uses of it. Also, “whether he has made use of it or not.” Rights do not depend on
prescription or grant you only get it because you own the land. However, the guy
downstream is also entitled to non diminished stream contingent on the other guy‟s domestic use. Owner can‟t cause injury to other riparian owners unless injury results from dom use.
Water Act: (a) The original right to use water vested in Crown; (b) Right to use water dependent on licence; (c) Unused licenses subject to cancellation; (d) Date of licences
a priority; (e) Not an offence to divert unrecorded water to extinguish fire; (f) Not an offence to divert unrecorded water for domestic purpose or for prospecting mineral.
Land Act s.55: Riparian owner does not have right in bed or shore, unless it was
specifically granted, except for the bodies of water outlined in colors other than red on
These three cases related to NON-tidal waters...
Johnson v. Anderson: A riparian owner has a legal right to use of unrecorded water
against an unauthorized user, if owner uses it for domestic purposes; unless
invalidated by statute, all riparian rights remain in common law. Water Act does
not overrule common law riparian rights (s.42(2). Anderson diverted stream from flowing through Johnson‟s property where it was being
used for domestic and stock watering purposes.
Johnson had no water licence.
Anderson has licence but it did not authorize diversion.
Common law rights versus unlawful rights. Court finds the common law rights continue
and have priority over unlawful uses.
Schillinger v. Williamson Blacktop: Riparian rights, if any, can only exist for a person lawfully using water and the only way to acquire the right to the use and flow of
water in any stream in BC is under the provisions of the Water Act. If water used
contrary to licence granted, no enforceable rights exist.
P operated hatchery in water diverted by licence. D logging, road building and gravel
P alleges D added silt to water rendering it unusable.
P felt entitled to undiminished and quality water under common law position. P was unsuccessful because it was an illegal use of the water.
Riparian rights do not extend to water diversion; P's license did not grant him rights over
the water, so he had no rights to divert the water.
(ii) b/c P had no right to the water which he was using, he could get no damages
(iii) confirms that the changes made in the Water Act probably do take away
riparian rights with respect to diversion of flow of water.
Stedman v. Erickson: Person has right to the uninterfered use of unrecorded water
so long as there is no other person with a licence to use the water.
P is getting water from a dugout spring for domestic use. First thing you look for is
source of water (perculating or flowing). If groundwater it is NOT within the Water Act
and you fall on common law. CL says plaintiff gets it undiminished as to quantity and
quality. If it weren‟t groundwater, extracting for domestic use permitted, unless D has
D polluted the water by road construction.
Lawsuit brought under the tort of nuisance: when someone engages in activity on their land which impacts negatively what you are doing on yours.
ACCRETION/EROSION LTA ss.94-96. Accretion describes the INCREASE which land bordering on a river,sea, or lake
undergoes through the silting up of soil, sand or other substance for the permanent
withdrawl or retreat of waters. In this case you GET THE LAND. But it has to occur
through natural process or activites of someone on another property - it must be
gradual (but maybe a natural storm?) - must not be responsibility of the owner.
Southern Centre v. South Australia: You can benefit from land gained by accretion through gradual and imperceptible natural forces, whether or not you own the
land in fee simple or leasehold.
Example where the new land went to the leaseholder - the riparian owner gets the accreted land. Even if you have been given land under accretion, it does NOT mean we
are excluding the common law principles.
Leasehold owner of lakefront property applied for accreted land. Appealed to Privy
Council, leasehold owner granted accreted land.
Note: Accretion not restricted to salt water bodes and happens not only by water
retreating, but also other possibilities (air borne sand).
ACCESS BY RIPARIAN OWNERS
More of an issue with ocean: tides and foreshore. Can you go over land owned by the
Foreshore: land between low tide mark and average of neap and spring high tide marks.
North Saanich v. Murray: Riparian owners have a private right to access and
regress to and from water abutting their land but cannot put down anything which
disturbs the foreshore and interferes with the foreshore owner’s rights.
You cannot interfere with any public right of navigation.
Murry owns land that fronts the sea - built a wharf - North Saanich claims this is trespass.
Crown owns the foreshore and bed of the body of water, and may grant the foreshore
and bed for private use (oyster farming).
Right of ownership does not come from ownership of water, but from ownership of the
land which abuts the water.
(b) Perculating water - well water.
You may not have to turn to property law to solve these problems (can use torts or
contracts). Often brought as alternate types of remedies (claim for trespass).
Lateral support: the support owed by adjoining land owners. Nobody can interfere with
land by removing lateral support (not including support for additional structures).
Subjacent/vertical support: the support by a sub-surface owner to the surface owner.
Limited to land in its natural state, though it can be extended to vertical support for a
building, by applying rules of trespass rather than support doctrine.
General Statement: the owner of land is entitled to have the land left in its “natural plight”
and condition without interference by the direct or indirect action of nature caused by the
direct action of the owner of adjoining land (or sub-surface owner). It is an absolute
right, it is not a right that arises from the law of torts. You do not have to show that
adjacent land owner was negligent.
Limited to land in its natural state. If there is building there is no right of support for
building. But, if there is a building, and it falls due to earth being removed beneath. The
owner of the building could argue that the land would have fell even without a building
having been there.
(Trinidad Asphalt: Adjacent landowners - and there was pocket of pitch shared beneath
them. One guy sucked pitch out of his own land. As he sucked it out, the other guy‟s
land fell in. There was no trespassing, but they were not mindful of the right of support. There was a claim and the plaintiff won damages.)
Cleland v. Berbarick: A landowner must not use his land in such a way as to
remove the natural support of adjoining land and thus interfere with or prevent
their neighbor from enjoying their own land in its natural state.
P and D own side by side parcels of land on the lake. D had large amount of sand
removed - as result of removal of land, more sand taken from property. Right of support
just comes with the land - part of land. Selling the sand immaterial - although
“uneighborly.” If there is a building there, you must show the land would have gone done
independent of the building being on the site. Removal of sand: removal of support.
Bremner v. Bleakley: A landowner is entitled to all the natural advantages of the
land, but this does not include retaining title to sand which blows away. Sand is
owned where it lies.
Here A had dug a hole on property - wind blew sand from R‟s property and it came to
rest in the hole. P argues right to natural, lateral support of land. Doctrine that courts
applied to blowing sand: relates to accretion: if sand forms by gradual accumulation -
becomes property of the owner. Not escavation that produced movement - it merely prevented it from being blown back.
Gillies v. Bortoluzzi: Landowner is entitled to lateral support of the land but not the
D excavated basement, Subsequently the adjacent wall of building standing on adjoining
land collapsed, tenanted by plaintiff. P alleges D removed lateral and vertical support.
Doctrine only applies where you show the land would have gone down without building.
D did succeed - not on right of support - but on negligence. P engaged in activity on their property which caused harm to their neighbor. Collapse of the wall was caused by
the negligence of D. Three Ways: You can have right of support claim - negligence
claim - or trespass claim. Trespass is the easier claim to make - if they crossed the line,
they are liable.
Rytter v. Schmitz: In addition to fact that landowner cannot remove both vertical
and lateral support of his neighbor’s land, the right to lateral support is also under
negligence and trespass.
D excavates basement. Removal of soil cased subsistence by loss of lateral support of
P‟s building. Prescription: a doctrine that says if you‟ve enjoyed a right for an extended
period of time then you actually acquire that right - BC has abolished this prescription.
This case introduces: suggestion that perhaps a building is entitled to support...maybe it
is changing... “buildings may be entitled to vertical support.” In Capilano Bungalow:
court talked about how there was tresspass and negligence - and began talking about
support. However, this part was not central to issue of liability. This case needs to be
taken with grain of salt.
Ziff (104): the properties need not be immediately side-by-side. The doctrine as we have seen does not extend to right of support for buildings - don‟t
limit it to buildings - rather, “things.”
Even though right of support is there, if you are in position as landowner to get
easement of support (or contractual agreement) with an adjacent property owner that
you will get support - do it! Advantage: you can be more specific/customize it to fit the
circumstances - and include the requirement to support the building!
CHAPTER 2: General Principles of Land Law.
DIFFERENT TYPES/DIVISIONS OF PROPERTY
If you die intestate: first $65,000 goes to widow, and the remainder divided between
child and widow. If you have more than one child...
Equitable rights: gave rise to equitable interests in land. In BC today, if you own land,
you are both the legal and equitable owner - but the law lets you seperate the two (one
person can be legal owner and another is the equitable owner). Being the registered
owner does not always mean person is the legal/real owner.
Themes to keep in mind: Essay question on exam asks to apply understanding of what
we learned and comment on some theme of some kind. Ex: (a) There are differing
interests developing over time in response to cultural and economic factors; (b) Aside
from the interests there are also many rules relating to the transfer of those interests -
how do you transfer the ownership? (c) How do you keep track of all those interests?
Registration system; (d) To what extent is an interest freely alienable or transferable?
Allodial Ownership: Predates the feudal system. Literally it means “free” or owned
without obligation of providing feudal services and loyalty and faithfulness to the lord.
Those rights pre-exist what we call the title of the crown. AO is coming into play today in
the form of Aboriginal rights.
Feudal System: Crown/King owning all of the land and parcels it out to his “friends” who get something less than full ownership. Different tiers of owners: Crown --> Lords-->
Others. Tenure: the terms on which a tenant held the land (what were the incidents).
“Free and Common Socage” is what we have in BC. Four main types of freehold: Knight service: tenant had to supply soliders and “succession duties” Sergeanty: different name for knight service and socage
Frankelmoin: spiritual tenure to be given
Socage: tenant had to perform agricultural and “succession duties.”
Now only socage remians and leaves two obligations: foreiture of land
for treason; forfeit land if you had no heirs (escheat).
CORPOREAL INTERESTS (Right to possession):
Estate: has more to do with time. How does does the interest in land last? Tenure
speaks to nature of interest, Estate refers to duration of interest. Types of estates: Fee Simple Interest: This is what people call ownership. There is no end to your ownership of it - it goes on after your death. There is no absolute owndership - fee
simple is the best you can do.
(Fee Tail): ownership continued as long as you had lineal descendants.
Life Estate: ownership lasts for the length of the life of somebody.
Estate Pur Autre Vie: life estate where length of time is measured by someone else‟s life.
Leasehold: landlord and tenant (lessor - lesee) - estate with a limited duration.
Future Interests: estate where estate is promised to holder in the future (may be
It is possible for the land to revert back:
Escheat: allowed the lord/Crown to regain the land once the tenure that was granted
came to an end. Happens in BC: (a) where someone has fee simple interest with no
relatives whatsoever and no will; (b) the owner of the land is a limited liability company
(a creation of the law) - if the company ceases to exist (eg: never files) the Crown gets
back the land.
Forfeiture: came into play to end a tenure when there was a breach of the terms under
which the land was granted. But under free and common socage (in BC) there are no duties that you must carry out.