Airey, Re 1921 OWN 190

In this Ontario case, a transfer of land was made of "all the (grantor's) estate and interest in the said piece of land." This seemed at variance with the ancient common law rule that the use of words other than to the "grantee and his heirs" only conveyed a life estate and not a fee simple.

But legislation existed in Ontario (as it does now in most common law provinces) called the Conveyance and Law of Property Act which abolished the strict common law terminology requirement and, in fact, reversed such as a fee simple  conveyance is now presumed unless the wording of the conveyance suggests the contrary.

The court looked at the use of the word "transfer" and concluded that there had been a conveyance of a fee simple estate.

Atlantic Aviation v. Nova Scotia Light & Power 1965 Dominion Law Reports 554

When Nova Scotia Power built high transmission towers on land adjacent to Atlantic Aviation's flying school, the court battle was engaged.

The court reviewed case law that suggested that deliberate or malicious obstruction of airspace was objectionable as a nuisance but that otherwise land owners had a right to:

"... erect structures on his land in the exercise of his use and enjoyment of his land, even if the obstructions interfered with the free passage of aircraft taking off and landing on an adjoining airfield. The erection and use of the towers and wires by the defendant was a lawful, reasonable and necessary use of the defendant's air space."

Babcock v. Archibald 1981 Ontario Reports 65

TrespassBabcock rented a piece of Beulah Carr's land.

At one point, Mrs. Carr offered to sell the land to Babcock and they signed a memorandum to that effect, Babcock handing over a $100 deposit.

Mrs. Carr's daughter was informed about the sale and she felt the price was too low. She solicited a better offer from Mr. Clark, accepted it and title was transferred to Mr. Clark. Babcock asked the court to set aside the registration.

The court said that:

"...in order to upset Mr. and Mrs. Clark's title in the farm, it is necessary for Babcock to show that they had actual notice of his interest. Actual notice (is) not presumed as in the case of constructive notice but (must be) shown to be actually brought home to the party to be charged with it."

The court noted that Babcock had not registered the memorandum on the title or taken legal action against Mrs. Carr, putting the action on title. Mr. Clark was vaguely aware of "some interest which Mr. Babcock was asserting but he knew little else." He had never seen the memorandum and so he did not have "the clear and distinct notice necessary to displace their registered interest in the land."

Bernstein of Leigh v. Skyview & General 1978 QB 479

Skyview was a company that took aerial pictures of property and then offered them to the landowners. Baron Bernstein, in a wonderful display of British aristocratic snobbery, sued Skyview for trespass based on the cuius est solum ejus est usque ad coelum maxim.

The court threw Bernstein's case out saying that the maxim was not to be taken at face value. A land owner had rights only so far as practical and necessary to protect their structures or to use their land. They could cut off tree branches which hung over their land or remove a sign that protruded over their property.

But to suggest that a person could restrict traffic over their land all the way to the heavens was unacceptable.

Bisson et al. v. Luciani et al. 1982 OR 257

The parties held property as tenants in common. When they tried to sell the property together, the purchases back out of the deal when they discovered legal action had been registered against Luciani. The sale did not go through. Bisson found a purchaser for his half and asked the court to order partition.

The court found that a joint tenant or tenant in common had a prima facie right to a partition unless a "sufficient reason" could be found not to partition.

Chupryk, Re 1980 Dominion Law Reports 108

In this Manitoba case, a man was given a life estate in property and his heirs were to receive a one-third interest on his death, the other two thirds to go to go to Anna Chupryk and Sophie Haykowski. The owner of the life estate wanted to mortgage the property in order to renovate other parts of it, to make it rentable. Mrs. Haykowski opposed the mortgage and asked the court to force a sale of the property.

The court noted that, in some respects, the life tenant was a trustee for the remaindermen: "he cannot injure or dispose of the property to the injury of the rights of the remaindermen or acquire an outstanding title for his own exclusive benefit but he differs from the trustee of a pure trust in that he may use the property for his exclusive benefit and take the income and profits." The court could find no statutory or inherent jurisdiction to permit the encumbering of the property by the life tenant. Considering the litigious history between the parties, a sale was ordered.

Collier, Re 1966 Dominion Law Reports 70

A life estate was given provided that the land "not be sold, mortgaged or exchanged, or conveyed in any way from the descendants of the said family forever." The court found that the condition was void ("repugnant"). "A condition, the effect of which would be to destroy or take away the enjoyment of the fee simple given is repugnant to the rights conferred on the holder of the fee." The court noticed that the beneficiary of the estate, if the condition were to be upheld, would be severely restricted in terms of the people to whom he could sell the property; "a class which, at any given time, for a variety of reasons, may not exist at all. The condition ... was never and is not now valid or enforceable."

Cook v. Johnston 1970 Ontario Reports 1

Cook and Johnston jointly owned a two acre island and Cook wanted the property sold rather then partitioned. But the judge disagreed. Quoting other decisions, the judge wrote:

"Sale as an alternative for partition is quite appropriate when a partition cannot be made. When you see that the property is of such a character that it cannot be reasonably partitioned, then you are to take it as more beneficial to sell it and divide the money amongst the parties."

The judge was of the opinion that a partition would be more advantageous to the parties.

Down, Re 1968 Dominion Law Reports 30

Mr. Down left his two sons his farm. One of his sons was to get his half-interest immediately but the other only at the age of 30 and "providing he stays on the farm".

The latter applied to the court to set aside this condition arguing that it was void for reasons of uncertainty.

The court agreed citing another case, Sifton v. Sifton which said:

"... where a vested estate is to be defeated by a condition on a contingency that is to happen afterwards, that condition must be such that the Court can see from the beginning, precisely and distinctly, upon the happening of what event it was that the ... estate was to determine."

The court was of the opinion that the word "stay" was too uncertain.

Edwards v. Sims 1929 SW 619 (Kentucky)

This case tested the maxim cuius est solum ejus est usque ad coelum et ad inferos. A court ordered an inspection of a person's land for the purposes of clarifying an action in trespass brought by a neighbour. The court accepted the maxim.

"Ordinarily that ownership cannot be interfered with or infringed by third persons. There are, however, certain limitations on the right of enjoyment of possession of all property, such as its use to the detriment or interference with a neighbour."

The court drew an analogy with mining cases where it had been able to force an inspection and so it was ordered here.

Ellensborough Park, In re 1956 Chancery 131 (England)

A huge property was subdivided with one lot set aside for use as a park. Each subdivision title included the right to enjoy the park "in common with other persons to whom such easement may be granted." One hundred years later, the trustees of the park property asked the court if the easement still existed.

The court found that the property rights of the other owners did meet the four requirements of an easement which are a servient and dominant tenement; the easement must accommodate the dominant tenement; the owners of dominant and servient tenements must be different persons; and, the right over another's land must be capable of forming the subject matter of a grant.

Gallant v. F. W. Woolworth Co. 1970 Dominion Law Reports 248

Gallant and the Woolworth company owned land on opposite sides of a lane. Excavation of Woolworth's land, for the purposes of erecting a new building, caused cracks in Gallant's roof and slanted the floor. Gallant sued Woolworth claiming he had a right to lateral support.

In a judicial finding for Gallant, this case reaffirmed three principles on the right to lateral support of land: (1) a land owner has a right to the lateral support of the neigbouring land owned by another, so far as is necessary to uphold the soil in its natural state at its normal level; (2) when lateral support to land is removed, it is immaterial whether the act which caused it is negligent; and (3) the fact that the land is not contiguous does not preclude liability.

Garnet and McGoran, Re 1980 Dominion Law Reports 649

Under provincial partition legislation in Ontario, a person holding a mortgage on the interest of one of the tenants in common asked the court to partition the property when payments fell into default. The court refused saying that one of the requirements of the statute is that the applicant must be entitled to possession:

"None but those entitled to possession, that is, none but those who really need it are entitled to possession."

The mortgagee, even where there had been default, did not have that entitlement.

Going, Re 1951 Dominion Law Reports 136

A will left money to nephews but "only in the event of their being members and adherents in good faith and standing in a Protestant Church." This was a condition precedent which the court decided was void because it offended public policy.

This case reiterated the rule that where a condition precedent fails for any reason (eg. uncertainty, public policy, impossibility etc.), the entire gift fails with it.

Guerin v. R. 1984 Supreme Court Reports 335

Canada's Supreme Court reviewed the lease on Indian Reserve land near Vancouver for the purposes of construction of a golf course. In finding that the federal department of Indian Affairs had not made full disclosure of the terms of the lease being proposed by the developer, the court had also to describe the nature of Indian title.

The Supreme Court stated that relationship of the government in their decisions regarding Indian land are more than just a simple trust. The Crown had a fiduciary duty:

"Indians have a legal right to occupy and possess certain lands, the ultimate title to which is in the Crown.... The Crown acted in breach of trust when it barreled ahead with a lease on terms which ... were wholly unacceptable to its cestui que trust."

Holt Renfrew v. Henry Singer 1982 WWR 481

Holt Renfrew held a valid lease which was filed under the Torrens Land System. When the lease was renewed, the renewal was not filed with the land titles office. Then, the property was sold even though the purchaser was aware of the unregistered lease. The new owner asked Holt Renfrew to vacate the premises and Holt Renfrew went to court, alleging fraud.

The court acknowledged that the Alberta land titles law seemed to allow a kind of fraud by saying that "the knowledge that any .. unregistered interest is in existence shall not of itself constitute fraud."

Instead, one of the judges hearing the case found that there had been fraud under contract law; false representation by the purchaser's lawyer.

Other judges found that Singer's caveat filed under the Torrens System was invalid for technical reasons and so, for a variety of reasons, the Holt Renfrew lease was sustained.

Laurie v. Winch 1953 Supreme Court Reports 49

An old farmland easement became an issue when the original property had not only been subdivided but also now used for residential purposes. But the court was not swayed and allowed the easement to stand:

"Upon the severance of the dominant tenement into several parts, the easement (is) attached to those parts."

The case was also important because the Supreme Court allowed verbal and circumstantial evidence to be considered when considering the extent of the easement. Easements of access, it seems, survive change of use of the land. {See also the Pearsall case.}

Lutz v. Kawa 1980 Dominion Law Reports 271

A land owner unknowingly fenced in part of a neighbour's land. When she found out, she pressed for ownership under the rules of adverse possession. The issue was whether an intent to adversely possess is necessary. The court said that:

"... to require on the part of the claimant as a matter of law in all cases an intention to dispossess the holders of the title of the land in dispute is to return to the concept of non-adverse as opposed to adverse possession. The two essentials to be established in a case of adverse possession are that the claimant be in possession and that the true owner be out of possession. Mrs. Lutz' ... possession is not lessened in its effect because she was unaware that the owners of Lot 18 had any claim to a portion of the land enclosed."

Mastermelt Cobalt Mines v. Canadaka Mines 1978 Dominion Law Reports 283

In this case, a property owner sold and severed the rights to minerals in his land to a mining company. Over the years, tailings from the mining operations flowed onto an adjacent property. At the time, it was not financially viable to process these tailings. Later, when it became financially worthwhile, the adjacent land owner tried to claim the tailings as his own using principles of land accretion: that where natural forces cause accretion, the land so added then belongs to the land receiving the accretion.

But the court held that because of the contractual severance of the mineral rights, those principles did not apply: the tailings belonged to the company which had bought those mining rights.

McColgan, Re 1969 Dominion Law Reports 572

A dying doctor left a Toronto property to his companion of many years. The will stated "my property as a home for Mary Kovalchick until her death or until she is not residing therein personally, whichever shall first occur...."

The court had to first decide if the estate that went to Ms Kovalchick was a license or a life estate. the court chose the latter.

Then the court turned its attention to the issue of whether the interest was defeasible (condition subsequent) or determinable. The words "until her death" were interpreted to be a defeasible interest (condition subsequent).

Finally, the court reviewed the condition "until her death or until she is not residing therein personally, whichever shall first occur." Applying the strict test of conditions subsequent, the court decided that the condition was far too uncertain:

"The condition (subsequent) must be such that the court can see from the beginning, precisely and distinctly, upon the happening of what event it was that the preceding vested estate was to determine."

The condition failed and the estate "passed to Mary Kovalchick free and clear of any condition."

McEwen v. Ewers and Ferguson 1946 Dominion Law Reports 494

The common law used to presume that, in cases where the language was not clear, a joint tenancy was presumed, not a tenancy-in-common.

But an Ontario law, the Conveyancing and Law of Property Act had reversed the presumption.

In this case, the words "to my daughters ... jointly and should they decide to sell the said property each of them is to have an equal share of the proceeds of the said sale" were interpreted to be a tenancy in common.

Where the words "jointly" and "equally" have been used the courts have held the gift a tenancy in common.

Also, that where there are words of division or distribution such as "to be divided" or "equally" it created a tenancy in common.

Further, that the use of the word "share" or similar words also import a tenancy in common."

Moore, In re; Trafford v. Maconochie 1888 Chancery Division 116 (England)

A will provided for a sum of money to be paid to a sister of the deceased "during such time as she may live apart from her husband before my son attains the age of 21 years."

Here, the court struggled with the clause and concluded that although the wording resembled a condition, it was not.

Rather, in the words of the court, the words constitute "a determinable limitation." Because the gift was to promote the separation of husband and wife, the court held it to be invalid. The consequence of this was that the whole gift failed.

Mulcahy v. Curramore 1974 New South Wales Law Reports 464 (Australia)

This case involved the adverse possession by successive trespassers and the rights, if any, of each of them.

The court decided that as long as there was no break in possession by successive trespassers ("continuous"), then the cumulative time during which they adversely possessed the land could extinguish the original title, to the benefit of the last trespasser. The last trespasser would hold a fee simple estate in the land. If an earlier trespasser tried to press their claim, the last trespasser could resist such as claim by proving abandonment of possession. The case was also important in establishing that abandonment resets the clock as far as the statutes of limitations and adverse possession are concerned.

Murdoch and Barry, Re 1975 Dominion Law Reports 222

A year before she died, a woman owning a cottage property with her husband as joint tenants, conveyed the property to herself stating that the purpose of her unilateral action was to sever the joint tenancy.

This case accepted the four unities required of the common law for the creation of a joint tenancy, noting that to survive, once created, the unities of title, interest and of possession must continue to exist. The action of the woman tended to negate the unity of title. Since provincial legislation allowed conveyance to one's self :

" ... it enables a joint tenant to sever a joint tenancy by a conveyance to himself."

Osachuk v. Osachuk 1971 Dominion Law Reports 413

The case noted that the common law did not provide for any accounts to be made for rents of co-owned property unless one co-tenant "expressly undertook to act as bailiff for the other" of "if one joint tenant had ousted the other."

The court noted that this had been altered by the 1705 Statute of Anne which provided that co-tenants account to each other "for receiving more than comes to his just share or proportion." In co-ownership situations, such as between joint tenants or tenants-in-common, any rental income received by an occupying co-tenant should be shared between all co-tenants if the occupying co-tenant makes a claim for reimbursement of "current expense items."

In this case, the occupying tenant had not claimed from the other joint tenant, reimbursement of the interest portion of the mortgage payments nor for taxes, repairs or utilities paid, so there was no need to share the rental income received from a basement suite.

O'Reilly, Re 1980 Dominion Law Reports 238

In this case, a pure application of the principles of adverse possession was not possible as there had been evidence of a legal inquiry during the period of possession.

Nevertheless, the High Court of Ontario exercised its equitable jurisdiction in allowing a lower court to consider granting full title to the trespassers. The possession had been "undisturbed" and considerable money and effort had been made towards the operation of the farmland in question. The alleged real owners at no time challenged the occupation.

Pearsall v. Power Supermarkets Ltd. 1957 Dominion Law Reports 270

Years after an easement was granted to a contiguous property, the dominant tenement was sold to a supermarket chain which erected a huge store.

In extinguishing the easement, the court re-stated the law that:

"... a right of way granted as an easement incidental to a specified property cannot be used by the grantee for the same purposes in respect on another property."

The court also noted that the original easement was "in connection with a small house" clearly different from a "means of access to a parking lot attached to a busy store." The court said this was an "enlargement of the nature, character and extent of the easement and restrainable by injunction." {See also the Laurie case.}

Petrofina Canada v. Moneta Porcupine Mines 1969 Dominion Law Reports 225

Moneta owned land which had thrice suffered land cave-ins (subsidence) due to mining operations. The cave-ins had always been repaired. But they eventually sold the property to another company and signed a side-deal that the buyer was aware of the cave-ins and would not hold Moneta responsible if anything happened. This buyer later sold to Petrofina, who in turn rented out part of the land to a bus company to be used as overnight parking for buses. One night, the land caved in, with three buses disappearing into the hole in the earth. With the original buyer bankrupt, Petrofina tied to get Moneta to compensate it claiming that it's right to natural support was violated. Since the exoneration of liability contract between Moneta and the original buyer had not been registered nor ever brought to Petrofina's attention, Petrofina claimed it could not apply against their rights.

The court agreed with the proposition but added that Petrofina had to prove that the land would have subsided in any case and that the subsidence was due to any unusual weight placed upon it by Petrofina.

The court noted that it had been two decades since the last cave-in and that Moneta had repaired the subsidence after each instance. The court also believed that the parked buses caused pressure on the land such as to defeat the evidence of the plaintiff.

Phipps v. Pears 1965 QB 76 (England)

Phipps owned two houses, tearing one of them down and building a new one so close that they were touching. The newer house was sold and then, after Phipps' death, so was the older house. The new owner of the older house tore it down, exposing the outside wall of the new house. The owner of the older house went to court to claim an easement existed protecting his wall from exposure to weather.

Lord Denning wrote the reasons in his wonderfully clear manner. He stated that there are positive easement (a right to do something) and negative easement (a right to stop his neighbour from doing something). This was not a case of a valid negative easement because to enforce such a thing would stop demolition of old buildings and:

".. hamper legitimate development. The only way for an owner to protect himself is by getting a covenant from his neighbour that he will not pull down his house or cut down his trees."

Pugliese v. National Capital Commission (1979) 2 Supreme Court Reports 104

The National Capital Commission in Ottawa, pumped out massive amounts of underground water in preparation for the building of tunnels. This action caused widespread shifting of the ground above, with cracks being formed in foundations and ceilings. 174 owners, including Pugliese sued saying that the Commission had deprived them of the support of water beneath their land, even though it was water which did not flow in a definite channel.

The court recognized the common law "English rule" that a man can do what he wants with percolating water and nothing he can do will engage his liability towards neighbours.

But in this case, the contractors were held liable because the daily pumping of subsurface water far exceeded limits set by provincial legislation:

"The English rule ... is no longer valid.... The statute has defined what is reasonable.... For any pumping of subterranean water over the legal limit, no one may claim to have been acting in the exercise of a right and consequently free of negligence.... The pumping that was the cause of the damage was not inevitable, the work could have been done by resorting to other means or methods of execution."

Robichaud v. Watson 1983 Dominion Law Reports 626

This was a case which further analyzed the severance of a joint tenancy by "any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common" as expounded in Williams v. Hensman (summarized below).

Each case should be judged on its own merits, the court decided.

Robichaud and an ex-spouse had bought a property as joint tenants. When the relationship soured, she moved out and for years, only Robichaud made the mortgage payments and maintained the property, as well as living in the building. Several times, Ms Watson had made enquiries through lawyers to try to negotiate a settlement for her share in the property but Robichaud was murdered before they were completed. The court found in these dealings, evidence "that each regarded themselves as tenants in common, that their interests had been severed."

This decision allowed Robichaud's heirs to receive a share in the property.

Rynard, Re 1980 Dominion Law Reports 530

This Canadian case reviewed the rule in Shelley's Case and re-emphasized that the rule was one of law and not one of construction. However, the court did say that the word heirs in a will usually meant "the whole line of descent" of the testator but that if could be found that the testator did not mean the general descent but intended instead to limit it to his or her children, for example, then the rule in Shelley's Case does not apply.

Schobelt v. Barber 1966 Dominion Law Reports 519

Mr. and Mrs. Barber owned a property as joint tenants.

Then, Mr. Barber murdered Mrs. Barber and stood to gain, financially, if the death of his wife caused him to acquire the entire estate, as is the case with joint tenancies (right of survivorship).

The family of the victim intervened and asked the court to prevent this from happening on the grounds that it would offend public policy.

But the judge found a middle ground. The judge found that Mr. Barber had been punished by the criminal courts for his crime and he was hesitant to punish him "twice." Instead, the court found there was a constructive trust Mr. Barber held the victim's half-interest as trustee for the victim's next-of-kin.

Shelley's Case, Wolfe v. Shelley 1581 ER 206 (England)

This old case was designed to fit the feudal system and, as such it is as complex as old English lawyers could make it. For example, it has been stated as follows:

"Where a person takes an estate of freehold, legally, or equitably, under a deed, will, or other writing, and in the same instrument there is a limitation by way of remainder, either with or without the interposition of another estate, of any interest of the same legal or equitable quality to his heirs, or heirs of his body, as a class of persons to take in succession from generation to generation, the limitation to the heirs entitles the ancestor to the whole estate."

In other words (!), where a gift is made to "Bob, remainder to his heirs," (a life estate in appearance), Bob is deemed by law to receive a fee simple estate and not just a life estate. The words "and his heirs" are deemed to be words of limitation and not words of purchase.

See also Re Rynard. Note also that the rule is incompatible with the Torrens System of land title registration so it does not apply in some Canadian provinces including Alberta and British Columbia.)

Temma Realty v. Ress Enterprises Ltd. 1968 Dominion Law Reports 195

For 20 years, trucks servicing Temma Realty had passed over the land occupied by Ress Enterprises. Once the 20 year period had passed, Temma applied to the court to have an easement by prescription declared. Temma failed.

The court thought that Temma had not met the requirement of the Ontario legislation: continuous, uninterrupted, open, peaceful use and enjoyment of the way with the knowledge of and without objection from the owner.

The most serious failing of Temma's case was the fact that the passage way had been barricaded for a period of 16 months before it took legal action, amounting to an acquiescence by Temma that there was no easement. The court wrote that:

"... the tendency of the courts is to lean against a doctrine that would permit ... neighbourly accommodation from ripening into a legal right as against the true owner."

Treweeke v. 36 Wolsley Road Pty. Ltd. 1973 CLR 274 (Australia)

This Australian court decision was a 2-1 split between the judges. Mrs. Treweeke noticed that nobody seemed to be using an easement that she knew existed against her property, so she applied to the court to extinguish the easement on the grounds of abandonment, which an Australian conveyancing legislation allowed where owners of the dominant tenement "by their acts or omissions may reasonably be considered to have abandoned the easement wholly or in part."

One judge noted that access had become obstructed by actions of Mrs Treweeke, namely by building a swimming pool along the path of quickest access. The judge decided that the easement should continue by allowing the dominant tenement owners to walk around the pool. The judge then reviewed the principles related to abandonment of an easement and found that an easement, once created, was perpetual in nature. If time were to run against the servient tenement, there would have to be evidence of total disuse of the entire strip of land burdened by the easement.

Another judge also agreed not to declare the easement as extinguished for reasons of abandonment suggesting that an inference of abandonment could be found if no objection is made to a barricade set up by the dominant tenement.

Walker v. Russell 1965 Dominion Law Reports 509

A family adversely possessed part of a small island and claimed adverse possession of the whole island. The court made the distinction of the adverse possessor with colour of title (i.e. under a title document which seems to give estate over the entire property but which is later proven defective) and the trespasser. Those with colour of title can adversely acquire the entire piece of land whereas trespassers:

"...only gains a possessory title to that portion of the land exclusively used or occupied by him.... He is confined to what has been called his pedal possession; and even acts of trespass committed by him on other parts of the property will not be taken as extending his actual peaceable possession over such parts."

The court then went on to say that the mere clearing of land was not enough for the trespasser to acquire title. But nor were the occasional entries by the real owner, without any resumption of title, enough to interrupt adverse possession.

"An entry amounts to nothing unless something is done to divest the possession out of the tenant and to revest it in fact in the lord."

Waters, Re 1978 Dominion Law Reports 742

A will used the words "I give the use of 48 Walker Avenue, in the City of Toronto, to Mrs. Ellen Jones for as long as she lives, or until she remarries, or gives to my executors and trustees a written notice that she no longer needs and desires the use of the property." Mrs. Jones used the property as if she had a life estate, renting out the premises and collecting the rental income. Other parties ask the court to declare that no life estate was created but that Mrs. Jones had a license only.

The judge wrote that he:

"... must endeavour to place himself in the position of the testator at the time the will was made and try to ascertain the intention of the testator, having regard to the language used, the context in which the language is used and the circumstances under which the will ... was made."

The judge looked at all the circumstances to find that a life estate had been created. Nowhere in the will was it stated that Mrs. Jones had to live there personally. The judge also noted that the will gave all the furniture in 48 Walker Avenue Mrs. Jones.

Webb's Lease, In re 1951 Ch. 808

Webb rented out a building to a hair-dressing salon in 1939. The lease was renewed in 1949. All the while, without it being authorized in the lease, Webb had maintained exterior advertisements on the premises. The salon asked the court if Webb was entitled to continue this.

The court said no.

"If the landlord intended to reserve any such rights over the ... premises, it was his duty to reserve them expressly in the lease. The landlord, having failed in this duty, the onus was upon him to establish the facts to prove, and to prove clearly, that his case was an exception to the rule. The mere fact that the tenant knew ... that the landlord was using the outer walls ... for the display of the advertisements ... did not suffice to absolve the landlord from his duty of expressly reserving any rights in respect of them he intended to claim."

Wheeldon v. Burrows 1879 12 Chancery Division 31 (England)

A lot which had a factory upon it was severed by the sale of a vacant part to Wheeldon. Burrows later bought the remaining, adjacent lot from the same owner. When Wheeldon erected a fence which blocked the flow of light to the factory windows, Burrows knocked it down claiming an implied easement of light. Wheeldon brought an action of trespass to the court.

The court found that there was no such easement adding that these cases were governed by two basic rules.

First the court introduced the odd notion of a quasi-easement (a right which would be an easement if it were not for the fact that the dominant and servient tenements were owned by the same person) saying that:

"... on the (sale) by the owner of a tenement of part of that tenement as it is then used and enjoyed, there will pass to the (buyer) all those continuous and apparent (quasi-easement) or, in other words, all those easement which are necessary to the reasonable enjoyment of the property (sold), and which have been and are at the time of the (sale) used by the owners for the benefit of the part (sold)."

The second rule laid out by the court is that if the seller "intends to reserve any right over the tenement (sold), it is his duty to reserve it expressly" in the contract of sale. The court noted an exception to the last rule and that was for obvious rights-of-ways "of necessity." For more on "easement of necessity", see the Wong v. Beaumont case below.

Williams v. Hensman 70 E.R. 862 (1861)

One of the most significant cases on joint tenancies, this case laid down the three ways that a joint tenancy could be severed: (1) by the action of any of the joint tenants to dispose or sell their share; (2) the joint tenants can agree amongst themselves to sever; or (3) "there may be a severance by any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common."

Wong v. Beaumont Property Trust 1965 QB 172 (England)

Wong signed a lease for opening a restaurant in the basement of property owned by Beaumont. The restaurant inspector refused to grant Wong a permit unless he installed a ventilation duct. Beaumont refused this request from the tenant. Wong said he had an easement by necessity (such as that which benefits landlocked land) and the English court agreed:

"It is essential for this purpose that the parties should intend that the subject of the grant ... be used in some definite and particular manner. It is not enough that the subject of the grant .... be intended to be used in a manner which may or may not involve this definite and particular use."

Since ventilation was a prerequisite to a restaurant license, and the lease was for opening up a restaurant, the court found that Wong had an easement by necessity.

Woodhouse & Co. v. Kirkland Ltd. 1970 WLR 1185 (England)

A tenant, Woodhouse, used an alternate passageway to his property for 41 years and then brought an action to have the court declare that he had acquired a right of way by prescription. the court upheld the action reaffirming that an easement can be acquired through the passage of time (i.e. prescription). The defendant claimed that the usage of the passage way had become excessive. the court said that it had not.

If, the court said, the use had increased dramatically, such as where the property was converted from a single dwelling to a hotel, it may have been found to be excessive. The court also said that easement do not only favour the owner but are open to the "gardener and doctor" as well.

Zelezniak v. Senkiw 1984 WWR 137

This case took place in a part of Manitoba where a land titles registration system was in place. Ms Zelezniak, who owned property as a joint tenant with her ex-husband Senkiw, did not pay property taxes forcing the City of Winnipeg to obtain a certificate of title. At the tax sale, Zelezniak bought the property back from the city, this time obtaining a Torrens System certificate free of the joint tenancy. Mr. Senkiw tried to say that there had been fraud, that the whole thing had been a charade to thwart him out of his interest in the property.

But the court would not undo the certificate of title noting that there had been no fraud; no deliberate attempt or collusion between Ms Zelezniak and the City, and that the City of Winnipeg had obtained a valid certificate. 

EDITOR'S NOTE

Call me crazy but that was a fun article to research and write!

The above is a collection of the more important judicial decisions that have shaped Canadian property and real estate law.

All citations are given in the "1956 Dominion Law Reports 251" format which means page 251 of the 1956 edition of the Dominion Law Reports series (for example). Law reports are available through law libraries. All cases are Canadian unless otherwise noted. Readers should be cautioned that the effect of some of the cases have been specifically precluded from some provinces by their real-estate legislation. Case law can change suddenly with a judgment of an upper court and case law is often interpreted differently by lawyers.

What is above is one lawyer's interpretation only, namely that of Lloyd Duhaime, Barrister & Solicitor, Victoria, British Columbia, Canada.