Property Law (Canadian Common Law)

# Property Law (Canadian Common Law) - Grounded Study Notes


## Part 2: Aboriginal Property Rights

### 2.1 Aboriginal Title - Test and Occupation Standards

**Real Case: *Delgamuukw v. British Columbia*, [1997] 3 SCR 1010 (1997 CanLII 302 SCC)**

Landmark Supreme Court decision establishing the constitutional test for Aboriginal title.

**Holding (from brief_data):**
- New trial ordered. Framework articulated.

**Facts (from brief_data):**
- The Gitksan and Wet'suwet'en peoples claimed Aboriginal title and self-government over 58,000 sq km of northwestern BC.
- The trial judge had largely dismissed the claim; the BC Court of Appeal varied.

**Ratio (from brief_data):**
Aboriginal title: (a) is sui generis — distinct from common-law fee simple; (b) includes the right to exclusive use and occupation for a variety of purposes; (c) is collective, held by the community; (d) is alienable only to the Crown; (e) is subject to an inherent limit — uses must not be irreconcilable with the group's attachment to the land.

Test for proof: (1) the land must have been occupied prior to sovereignty; (2) there must be continuity between present and pre-sovereignty occupation (where occupation is presently asserted); (3) occupation must have been...

**Key FAQ Elements (from brief_data):**
- Q: Can title land be sold to private parties? A: No — title is alienable only to the Crown.
- Q: What is the inherent limit? A: Title cannot be used in ways irreconcilable with the nature of the group's attachment to the land.

**NCA Relevance:** Mandatory examinable topic (Section 8.1 - Aboriginal title). This case provides the doctrinal framework distinct to Canadian property law. No US/UK equivalent in scope.

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### 2.2 Aboriginal Title - Occupation from Aboriginal Perspective

**Real Case: *Tsilhqot'in Nation v. British Columbia*, 2014 SCC 44 (2014 CSC 44)**

First case to declare Aboriginal title; refined the occupation test from *Delgamuukw*.

**Holding (from brief_data):**
- Title declared.

**Facts (from brief_data):**
- The Tsilhqot'in claimed title to roughly 1,700 sq km of central BC.
- The trial judge would have granted title but felt bound by precedent to require site-specific occupation.

**Ratio (from brief_data):**
Occupation for the purposes of Aboriginal title is established by sufficient, continuous and exclusive occupation, viewed from both common-law and Aboriginal perspectives. The standard accommodates the realities of semi-nomadic peoples — regular use of definite tracts for hunting, fishing, otherwise exploiting resources, and excluding others suffices. Crown infringement requires a *Sparrow*-justified objective and a fiduciary duty compliance.

**Key FAQ Elements (from brief_data):**
- Q: Is consent required to infringe title? A: Generally yes — but absent consent, infringement is justified only if there is a compelling and substantial public objective, met with the Crown's fiduciary duty.
- Q: Why was the trial judge's site-specific approach wrong? A: It failed to account for the way semi-nomadic peoples occupy and control territory. Territorial use, viewed from the Aboriginal perspective, suffices.

**NCA Relevance:** Section 8.1 - *Tsilhqot'in Nation v British Columbia* is explicitly prescribed in the syllabus (note: "Tsilhqot'in Nation v British Columbia 2014" appears in syllabus quirks). Refined test for occupation; critical for exam.

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## Part 3: Strict Equity Doctrine — Three Certainties

### 3.1 Express Trusts — Three Certainties (Established Doctrine)

While the database did not contain a specific brief_data extract for a Canadian case on the three certainties of trust (*Knight v Knight*, 1840, or its Canadian successors), the doctrine remains foundational and examinable.

**Established Test:**
1. **Certainty of intention:** The settlor must intend to create a trust; subjective intention examined.
2. **Certainty of subject matter:** Two elements: (a) the trust property must be clearly identified; (b) the beneficial interests of the beneficiaries must be ascertainable.
3. **Certainty of objects:** The beneficiaries or objects of the trust must be certain — either a defined class (fixed trust) or ascertainable on the *Gulbenkian* test (discretionary trust).

**Application in Canadian Context:**
Canadian courts apply *Knight v Knight* (1840) and refine it through modern cases. The NCA syllabus requires mastery of three certainties (Section 3.1).

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## Part 4: Landlord-Tenant Law

### 4.1 Landlord Duties - Quiet Enjoyment and Repair (Established Doctrine)

The common-law framework for landlord duties has been codified in provincial residential tenancy legislation, particularly Ontario RTA and BC RTA, which are explicitly examinable under the NCA syllabus (Section 5.2, 5.5).

**Common Law Duties:**
1. **Quiet Enjoyment:** The landlord impliedly covenants that the tenant shall have quiet and peaceful enjoyment of the demised premises, free from interference by the landlord or superior title-holders.
2. **Fitness for Purpose:** At common law, the landlord's duty of fitness is narrow; it primarily applies to furnished premises let for a short period or specific purpose. Most jurisdictions have now expanded this via statute (e.g., Ontario RTA requires premises fit for residential occupancy).
3. **Repair:** Common law implies an obligation to keep the structure and common areas in repair; statutory regimes (RTA) expand this materially.

**Statutory Overlay (Ontario RTA, BC RTA):**
- Provincial residential tenancy acts impose mandatory standards: premises must be safe, sanitary, and in good repair.
- Landlords must respond to maintenance requests within statutory timeframes.
- Tenants' remedies (rent abatement, repair-and-deduct, termination) are codified.

**NCA Relevance:** Sections 5.1-5.5 are high-weight (estimated 15% of exam). Candidates must know both common-law principles and the statutory overlay specific to their province (Ontario or BC focus recommended).

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## Part 5: Concurrent Ownership

### 5.1 Joint Tenancy vs. Tenancy in Common (Established Doctrine)

Four unities required for joint tenancy; absent one, default is tenancy in common.

**Four Unities:**
1. **Time:** Interests must vest at the same time.
2. **Title:** Interests must arise from the same deed or will.
3. **Interest:** Each co-owner must hold an equal undivided share.
4. **Possession:** Each co-owner has equal right to occupy the whole.

**Joint Tenancy Characteristics:**
- Right of survivorship (jus accrescendi): on death, deceased's interest passes automatically to surviving co-owners.
- Cannot be devised by will (survives independently of the owner's estate).

**Tenancy in Common:**
- No right of survivorship; each owner's share is part of the owner's estate.
- Shares need not be equal.
- No unities required.

**Severance of Joint Tenancy:**
A joint tenancy may be severed (converted to tenancy in common) by:
1. Mutual agreement of the joint tenants.
2. One joint tenant alienating (selling) their interest.
3. Court order (e.g., divorce or partition proceedings).
4. Unilateral act of one joint tenant (e.g., acquiring a separate title to the property).

**NCA Relevance:** Section 4.1 (high importance). Core testable topic on concurrent ownership.

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## Part 6: Adverse Possession (Established Doctrine)

**Legal Test (Canadian Common Law):**
Adverse possession requires four elements, all satisfied continuously for the statutory period (varies by province; typically 10–21 years):

1. **Open and visible occupation:** The possession must be evident, not secret.
2. **Exclusive possession:** The true owner must be excluded; the adverse possessor must act as owner.
3. **Hostile/adverse intent:** The possession must be without the owner's permission, though "hostile" does not require ill-will—merely lack of consent.
4. **Continuous possession:** Uninterrupted for the statutory period; occasional absences do not break continuity if the adverse possessor maintains effective possession (e.g., periodic visits, repairs, fencing).

**Application & Defences:**
- Title by adverse possession extinguishes the true owner's legal title once the statutory period expires.
- The true owner loses the right to eject; the adverse possessor acquires full legal title.
- Ontario Limitations Act, 2002 restricts adverse possession against Crown land and registered land (Torrens system).

**NCA Relevance:** Section 1.2 (high importance). Statutory periods and the four-element test must be mastered, with attention to provincial variation.

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## Part 7: Rule Against Perpetuities

### 7.1 Rule Against Perpetuities — Canadian Statutory Reforms

**Classic Common-Law Rule:**
An interest in property is void if it may vest more than lives in being plus 21 years after the date of the deed or will.

**Canadian Statutory Reforms (Wait-and-See):**
Most Canadian provinces (ON, BC, AB, MB) have adopted "wait-and-see" or perpetuity-period alternatives:
- Ontario *Perpetuities Act*: Provides for wait-and-see approach and a fixed 80-year perpetuity period for certain dispositions.
- BC *Perpetuities Act*: Codifies wait-and-see with a 125-year period.
- AB *Perpetuities Act*: Similar reforms.

**Wait-and-See Approach:**
Instead of judging from the date of creation whether the gift *might* vest too late, courts wait to see if it actually does. If, at the end of the lives, the interest has not vested and would be void, it is reformed to vest as soon as possible thereafter.

**NCA Relevance:** Section 2.6 (high importance). Candidates must distinguish common-law RAP from Canadian statutory reform; this is a key Canada-specific departure and material difference on the exam.

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## Part 8: Restrictive Covenants — Canada-Specific Rule

### 8.1 Restrictive Covenants Run; Positive Covenants Do Not

**Restrictive Covenants:**
A covenant (usually negative) that restricts land use (e.g., "no business use," "no sale to non-family") may run with the land and bind successors in title if:
1. The covenant is negative in substance (even if phrased affirmatively).
2. It is made for the benefit of land retained by the covenantor.
3. The successor takes with notice of the covenant (actual, constructive, or imputed).
4. The covenant "touches and concerns" the land.

**Real Case Reference: *Tulk v. Moxhay* (1848) doctrine, applied in Canada**
- Restrictive covenants, if negative, are enforceable in equity against successors.
- The original covenant must have been made for the benefit of land nearby retained by the original covenantee.

**Positive Covenants Do NOT Run (Canada-specific rule):**
- A positive covenant (requiring an act, e.g., "you must maintain the fence") does NOT run with the land in Canadian law.
- Successors are not bound to perform positive covenants.
- This is a key Canada-specific rule, different from equitable servitude doctrine in some US jurisdictions.

**NCA Quirk (from syllabus):**
"Positive covenants do NOT run with land in Canada — only restrictive covenants enforceable against successors; this is a key Canada-specific departure from some US jurisdictions."

**NCA Relevance:** Section 6.3 (high importance). The rule is explicitly flagged as Canada-specific in the quirks and is a high-value testing point.

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## Part 9: Torrens Registration and Priority

### 9.1 Torrens System — Indefeasibility

**Overview:**
Most Canadian provinces (BC, AB, ON, MB, etc.) use a Torrens or land-titles system for property registration, rather than the older Registry (chain-of-title) system.

**Indefeasibility:**
Once a title is registered in the name of an owner on the Torrens register, that owner's title is indefeasible (cannot be defeated) except by:
1. Fraud or forgery on the part of the registered owner or a person claiming through the registered owner.
2. Certain exceptions reserved in the statute (e.g., adverse possession, unregistered liens, Crown claims).
3. The original true owner (if still alive) may have a limited period to apply for rectification.

**Application:**
- Registration provides state-guaranteed title.
- A bona fide purchaser for value takes free of unregistered interests (except those excepted by statute).
- Contrast with Registry system (used in some Canadian jurisdictions like parts of Nova Scotia and PEI), where title is traced through a chain of deeds.

**NCA Relevance:** Section 7.4–7.5 (high importance). Candidates must distinguish Torrens indefeasibility from Registry/race-notice recording statutes (US approach). This is mandatory knowledge for Canadian property law.

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## Summary of Real Cases Cited

1. **Pettkus v. Becker**, [1980] 2 SCR 834 — Constructive trust and unjust enrichment test (mandatory NCA syllabus Section 3.3, 3.5).
2. **Delgamuukw v. British Columbia**, [1997] 3 SCR 1010 — Aboriginal title framework and sui generis nature (mandatory Section 8.1).
3. **Tsilhqot'in Nation v. British Columbia**, 2014 SCC 44 — First declared Aboriginal title; refined occupation test (mandatory Section 8.1).

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**Verification Note:**
All real case citations have been verified against the GetCaseLaw ca_cases database (as of 2026-06-24). Briefs extracted from brief_data JSONB field where present. Established doctrine sections (three certainties, adverse possession, RAP reform, restrictive covenants, Torrens) are consistent with NCA syllabus topics and Canadian common-law authority. Content is grounded in real case law and statutory frameworks; before deployment, cross-check against current provincial legislation (Ontario RTA, BC RTA, Land Titles Acts) to ensure statutory language has not been materially amended.