NCA Property Law

# NCA Property Law — Grounded Notes (Real Canadian Cases)

**Header:** GROUNDED — real Canadian citations from ca_cases (holdings from briefs where present, else established doctrine); verify before deploy.

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## Part 1: Land Boundaries and Dimensions

### Physical Surface Boundaries
**Relevant Doctrine:** The common-law test for establishing land boundaries requires reference to legal description, deeds, and survey maps. When ambiguity arises, courts apply the "four corners" rule and extrinsic evidence is admissible.

**Key Case:** *Prudential Trust Company Ltd. v. The Registrar, The Land Titles Office, Humboldt Land Registration District*, [1957] SCR 658 (SCC).
- Addresses registration title and boundary disputes within the Torrens system.
- Established principles of title registration and the effect of registration on disputed boundaries.

### Airspace Rights
**Doctrine:** Fee simple ownership traditionally extends both above and below the surface. However, airspace rights are subject to: (a) statutory regulation of aircraft navigation; (b) Crown ownership of certain airspace; (c) public law nuisance limitations.

### Subsurface and Mineral Rights
**Doctrine:** Mineral rights may be severed from surface ownership. In Canada, many provinces have Crown ownership of minerals on Crown land, and severance on private land must be explicit in the deed. The vendor's intention governs whether a conveyance passes minerals.

### Fixtures vs. Chattels Distinction
**Test:** The fixture test (established in common law, applied across Canadian provinces):
1. **Degree of annexation** — Is the article attached to the land and how firmly?
2. **Purpose of annexation** — Was it annexed to improve the land or for mere enjoyment of the chattel?
3. **Intention of the annexer** — As objectively evidenced (not subjective intent).

A chattel affixed to land remains the chattels' owner's property unless the facts show it has become part of the realty.

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## Part 2: Freehold Estates

### Fee Simple — Creation and Transfer
**Doctrine:** Fee simple is the largest estate in common law, conveying the right to exclusive possession for an indefinite duration and freely alienable. Creation requires a grantor of superior title, proper formalities (writing under the Statute of Frauds), and delivery of the deed.

**Key Concept:** In Canada, the Land Titles Act (Ontario, Alberta, BC) and Registry Act (Ontario) systems govern how fee simple interests are registered and transferred. Under Torrens registration, title is guaranteed by the Crown subject to narrow exceptions (fraud, s.35 Aboriginal rights, etc.).

### Life Estates — Creation, Waste, and Remainderman Rights
**Doctrine:** A life estate is measured by the life of the named person (or sometimes another "cestui que vie"). The life tenant has the right to possession and rents/profits but owes the remainderman duties not to commit waste:
- **Voluntary waste** — Deliberate acts reducing land value (e.g., timber-cutting, mineral extraction).
- **Permissive waste** — Failure to maintain (allowing deterioration).
- **Ameliorating waste** — Improvements that increase value (may be permitted depending on jurisdiction).

The remainderman may sue for waste; the life tenant's interest ends at death.

### Fee Tail
**Doctrine:** Historically, fee tail entailed the land to a lineal succession of heirs; widely abolished in Canada. Where not abolished, reversion occurs on failure of heirs.

### Future Interests: Remainders, Reversions, Executory Interests
**Classification:**
- **Reversion** — The interest retained by the grantor or heir when a lesser estate ends.
- **Remainder** — A vested or contingent interest in a third party, following a particular estate.
- **Executory interest** — A future interest that divests a preceding estate (shifting or springing).

Rules: Contingent remainders are destroyed if the condition fails before vesting; a reversion always vests.

### Rule Against Perpetuities
**Common-Law Test:** "No interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest."

**Statutory Modifications:** Most Canadian provinces have modified or abolished RAP by statute. For example, Ontario's Perpetuities Act now includes wait-and-see tests and trusts of land are exempt. Confirm current provincial law.

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## Part 3: Leasehold Interests

### Distinguishing Lease from Licence
**Test (Established in Common Law):**
A lease confers exclusive possession for a fixed or periodic term; a licence is merely a permission to enter land without exclusive possession. Courts look at substance over form:
- Exclusive possession of a defined space for a defined period → lease.
- Mere permission to use; no exclusive possession → licence.

**Significance:** Leases confer proprietary rights (assignable, heritable); licences are personal. Statutory protections (notice, distress, forfeiture) apply to leases.

### Types of Tenancy
1. **Fixed-term lease** — Ends automatically at the date specified; no notice required.
2. **Periodic tenancy** — Continues for recurring periods (month-to-month, year-to-year) until one party gives notice.
3. **Tenancy at will** — Continues at the pleasure of either party, terminable instantly.
4. **Tenancy at sufferance** — Tenant remains after lease ends; landlord tolerates; easily terminated.

### Landlord and Tenant Rights and Duties
**Landlord's Duties:**
- Provide quiet enjoyment (not to interfere with tenant's use).
- Maintain the premises in habitable condition (fitness for purpose).
- Comply with housing/safety codes.

**Tenant's Duties:**
- Pay rent on time.
- Maintain premises in a reasonable state (fair wear and tear excepted).
- Not cause waste.
- Permit landlord access for repairs/inspections.

### Assignment and Subletting
**Doctrine:** An assignment transfers the entire remaining lease to a third party (assignee). A sublease retains a reversionary interest for the original lessee. Covenants restricting assignment are construed strictly; they do not run with the land unless the covenant explicitly binds successors.

**Privity of Contract:** The original lessor and lessee remain liable unless there is an express or equitable release.

### Termination for Breach — Remedies
**Landlord's Remedies:**
1. **Distress (levy)** — Seizing tenant's goods for unpaid rent (if permitted by provincial law; increasingly restricted).
2. **Forfeiture** — Re-entry and termination of the lease (only if covenant breached and notice given, absent waiver).
3. **Damages** — For breach of covenant.
4. **Injunction** — For continued breach (e.g., nuisance).

**Tenant's Remedies:**
- Withholding rent if habitability is breached (constructive eviction doctrine).
- Damages for landlord's breach of covenant.
- Specific performance to compel landlord to repair.

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## Part 4: Equitable Interests and Trusts

### Express Trusts — Creation and Three Certainties
**Three Certainties (Knight v. Knight, applied in Canada):**
1. **Certainty of intention** — The settlor must intend to create a trust (not merely a moral obligation).
2. **Certainty of subject matter** — The trust property must be clearly identified, and the beneficial interests must be clearly defined (including shares if multiple beneficiaries).
3. **Certainty of objects** — The class of beneficiaries must be ascertainable.

**Formal Requirements:** Express trusts of land must be evidenced in writing under the Statute of Frauds (provincial equivalents). Failure to comply does not render the trust void; instead, the beneficiary may seek equitable remedies (constructive trust, rectification).

### Resulting Trusts
**Doctrine:** A resulting trust arises by operation of law where property is transferred but the transferee has no intention to benefit (or where the transferor's intention to benefit fails). Common situations:
- Gratuitous transfer with no consideration → presumed resulting trust for the transferor.
- Failure of an express trust → reversion to the settlor/testator.
- Purchase money resulting trust → where one person provides funds but another takes title.

**Presumption of Advancement:** In some cases (spouse, child), the presumption flips — a gratuitous transfer is presumed a gift, not a trust, unless rebutted.

### Remedial Constructive Trust (Canadian Doctrine)
**Landmark Case:** The remedial constructive trust is a distinctive Canadian remedy, developed to address unjust enrichment between non-married couples and other parties.

**Elements (Established Doctrine):**
1. **Enrichment** — One party's enrichment and the other's corresponding deprivation.
2. **Absence of juristic reason** — The enrichment is not justified by contract, statute, or legal obligation.
3. **Unjust factors** — Fraud, duress, undue influence, unconscionable conduct, or breach of confidence.

**Application:** Used extensively in matrimonial property disputes, cohabitation disputes, and fiduciary breach cases to impose a trust on property.

**Effect:** Unlike a resulting trust (which merely preserves the legal claim of the contributor), a remedial constructive trust is fashioned in equity to remedy the unjust enrichment, and the court may vary its extent.

### Institutional Constructive Trust
**Doctrine:** Imposed by law (not the discretion of the judge) when a fiduciary relationship exists and a fiduciary breaches duty or acquires property in breach. Examples: trustee acquiring property, agent self-dealing, company directors acquiring opportunities.

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## Part 5: Registration Systems

### Deeds Registration (Common-Law Priority)
**Rules:**
- First in time, first in right (absent fraud or notice).
- A later deed is void as to a prior registered deed *unless* the later grantee had no notice (actual, constructive, or imputed) of the earlier deed.
- Constructive notice arises from the registry records (under notice doctrine).

**Effect:** The priority of unregistered interests is determined by order of acquisition.

### Torrens (Title Registration) System
**Principles (Mirror, Curtain, Insurance):**
1. **Mirror** — The register accurately reflects the title to the land.
2. **Curtain** — One need only look at the register; all relevant interests are noted on it (except for specific statutory exceptions).
3. **Insurance** — The Crown guarantees the title shown on the register; if a person is wrongly deprived of title due to fraud, the Crown compensates.

**Indefeasibility:**
- A proprietor registered with indefeasible title cannot be deprived of it except for:
  - Fraud by the proprietor or their agent.
  - Section 35 Aboriginal rights (constitutional).
  - Caveats or other notices registered before the proprietor's interest.

**Priority:** First in registered time is the rule under Torrens; no notice doctrine.

### Canadian Registration Systems by Province
- **Land Titles Act systems** (Torrens): Ontario, Alberta, BC, Saskatchewan.
- **Registry Act systems** (deeds registration): Ontario (for unregistered land), parts of Quebec.
- **Land Registration Act systems**: Nova Scotia, New Brunswick (Torrens variants).

Practitioners must confirm the applicable system for each transaction.

### Fraud Exception and Section 35 Aboriginal Rights
**Fraud:** Indefeasible title may be defeated if the registered proprietor (or agent) obtained it by fraud. The defrauded person may seek an order to rectify the register or recover damages from the Crown.

**Section 35 Aboriginal Rights:** Courts have held that Aboriginal title claims under *R v. Sparrow*, *Delgamuukw*, and *Tsilhqot'in Nation v. British Columbia* override registered Crown title. The Torrens "curtain" does not insulate against constitutional Aboriginal rights.

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## Part 6: Non-Possessory Interests: Easements and Covenants

### Requirements for a Valid Easement
**Test (Re Ellenborough Park standard, applied in Canada):**
1. **Right** — The interest must be capable of forming the subject matter of a grant (clearly defined, reasonable duration).
2. **Dominant and servient land** — There must be identifiable land that benefits (dominant) and land burdened (servient).
3. **Different ownership** — Ordinarily, at the time of creation, the dominant and servient land must be in different ownership (absent very narrow exceptions).
4. **Easement character** — The right must not be a right to occupation, nor must it amount to complete exclusion of the servient owner.

**Examples:** Rights of way, rights to discharge water, rights to use shared facilities.

### Express, Implied, and Prescriptive Easements
1. **Express** — Created by deed or will with clear words.
2. **Implied** (e.g., necessity, prior use):
   - **Necessity** — Where land is landlocked and access is essential.
   - **Prior use** — Where an apparent and continuous use exists at the time of severance (quasi-easement).
3. **Prescriptive** — Acquired by 20+ years of open, visible, continuous use without permission (varies by province).

### Restrictive Covenants
**Running with the Land in Equity:**
A restrictive covenant (e.g., "no commercial use") runs with the land in equity if:
1. It is negative in substance (not affirmative, imposing a burden to do something).
2. The covenantee intends the benefit to run to successors.
3. The successor has notice of the covenant.

**Notice:** Can be actual, constructive (via the register or deeds), or imputed (agent's knowledge).

**Remedy:** Injunction to restrain breach; damages are not available in equity for purely restrictive covenants.

### Positive Covenants — Limitations
**Rule:** A positive covenant (requiring an action, e.g., "repair the fence") does not run with land at law. The successor is not bound unless:
- There is privity of estate (only landlord-tenant).
- The successor has expressly assumed the burden.
- An equitable doctrine (e.g., estoppel) applies.

**Chain of indemnity** may pass the burden through successive owners via contract, but only the covenantor remains liable to the original covenantee.

### Extinguishment and Invalidity
**Extinguishment:**
- Express release by the person entitled to the benefit.
- Abandonment (clear, consistent non-use + change in character of land).
- Statutory discharge (some provinces allow discharge for obsolescence, s.40 Ontario Conveyancing Act equivalent).

**Invalidity:**
- Uncertainty (too vague to be enforceable).
- Breach of public policy.
- Repugnant to fee simple.

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## Part 7: Aboriginal/Indigenous Property Rights

### Aboriginal Title — Proof and Content
**Landmark Cases:**
- *Delgamuukw v. British Columbia*, [1997] 3 SCR 1010.
  - **Holding:** Title is sui generis, distinct from fee simple. Includes the right to exclusive use and occupation for a variety of purposes.
  - **Proof Test:** (1) Land must have been occupied prior to European sovereignty; (2) Continuity between pre- and post-sovereignty occupation (if presently asserted); (3) Occupation must be exclusive at sovereignty.
  
- *Tsilhqot'in Nation v. British Columbia*, 2014 SCC 44 — First declaration of Aboriginal title to a specific tract of Canadian land.
  - **Holding:** Occupation is satisfied by territorial use (hunting, fishing, resource exploitation) from both Aboriginal and common-law perspectives. Semi-nomadic peoples may establish title across their traditional territories.
  - **Effect:** Territorial control, not site-specific residence, suffices.

**Content:**
- Exclusive use and occupation.
- Right to decide use (subject to inherent limit).
- Alienability restricted to the Crown (not to third parties).
- Inherent limit — uses must not be irreconcilable with the nature of the group's attachment to the land.

### Aboriginal Rights Short of Title
**Doctrine:** Established in *R v. Sparrow*, [1990] 1 SCR 1075:
- **"Existing" Aboriginal rights** — not extinguished by clear and plain intention before 1982.
- Examples: hunting and fishing for food, harvesting medicines, spiritual practices.
- Rights survive in their unencumbered form; regulation is an infringement requiring justification.

### Section 35 Constitution Act 1982 — Duty to Consult and Justify Infringement
**Sparrow Test (Infringement and Justification):**
1. Prima facie infringement of an existing Aboriginal right.
2. Justification: (a) Valid legislative objective; (b) Consistency with the honour of the Crown — including consultation, priority of Aboriginal interests, minimal impairment, and proportionality.

**Haida Principle (Duty to Consult):** *Haida Nation v. British Columbia (Minister of Forests)*, 2004 SCC 73.
- The Crown owes a duty to consult when it has knowledge of a potential Aboriginal right or title and contemplates conduct that may adversely affect it.
- Duty exists before title is proven.
- Scope is proportionate to the strength of the case and the seriousness of adverse effect (spectrum from notice to deep accommodation).

### Indian Act — Certificates of Possession and Reserve Land
**Doctrine:**
- Certificates of Possession (CPs) are issued to individual band members for Crown land on reserves.
- Holder has exclusive right to occupy and use; may not sell or lease without band consent (if at all).
- Transfer only to the Crown (via intestate succession or voluntary surrender).
- Band retains ultimate title; CP holder has beneficial interest.

### Modern Treaties and Self-Government Agreements
**Example:** Nisga'a Final Agreement (federal and BC legislation, 1999).
- Comprehensive land claims settlement defining Aboriginal title, harvesting rights, and governance.
- Nisga'a Nation holds title to Nisga'a Lands; Crown relinquishes title and sovereignty over those lands.
- Self-government agreement establishes Nisga'a government authority.
- Framework for revenue-sharing, resource management, and judicial authority.

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## Study Tips for NCA Property Exam

1. **Open-Book Exam Format:** Prepare tabbed notes organized by topic. The exam is fact-based (long-response IRAC); focus on identifying issues from fact patterns, not recall.

2. **Dual Registration Systems:** Understand both deeds registration (notice doctrine) and Torrens (indefeasibility doctrine). Know which applies in the jurisdiction specified in the problem.

3. **Aboriginal Title — High-Weight Topic:** Review *Delgamuukw* and *Tsilhqot'in Nation v. BC* in detail. Exam often tests proof, content, and Crown's consultation/justification obligations.

4. **Constructive Trust — Canadian Specificity:** The remedial constructive trust is tested heavily. Master unjust enrichment and the elements; contrast with institutional trusts.

5. **Easements and Covenants:** Re-apply the *Re Ellenborough Park* test to fact patterns. Distinguish positive covenants (do not run) from negative (run in equity).

6. **Fixture Test:** Be ready to apply all three prongs (annexation, purpose, intention) to goods affixed to land.

7. **Lease vs. Licence:** The substance test is crucial. Many fact patterns involve disputed characterization.

8. **Future Interests:** Rule Against Perpetuities is less tested post-statutory reform, but remainders, reversions, and executory interests still appear. Confirm provincial RAP rules.

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**Date of Creation:** 2026-06-24  
**Real Cases Cited (from ca_cases database):** See Summary below.