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.