Report On Basic Principles of Land Law 193801 PDF

REPORT
ON
BASIC PRINCIPLES OF LAND LAW
ONTARIO LAW REFORM COMMISSION
k
T*j
Ontario
Ontario
REPORT
ON
BASIC PRINCIPLES OF LAND LAW
ONTARIO LAW REFORM COMMISSION
1111.11kmaI
Ontario
Ontario
1996
1996
Ontario Law Reform Commission was established
The Ontario the Ontario Government in
established by the in 1964
1964 as
as an
independent legal
independent research institute.
legal research institute. It
It was the
the first
first Law Reform Commission to to be created
created in
in the
the
Commonwealth. It It recommends reform
reform in
in statute
statute law,
law, common law,
law, jurisprudence,
jurisprudence, judicial
judicial and
quasi-judicial procedures,
quasi-judicial procedures, and in issues dealing
in issues dealing with
with the
the administration
administration of justice
justice in
in Ontario.
Ontario.
Commissioners
D. McCamus, MA, LLB, LLM, Chair

John D.
Rosiers, LLB, LLM*
Nathalie Des Rosiers,
Nathalie
Rodgers, BA, LLB, BCL, LLM*
Sanda Rodgers,
Vibert Lampkin, LLB, LLM*
Judge Vibert
Counsel
(Hon), LLB, LLM, Senior Counsel

J.J. Morrison, BA (Hon),
J.J.
Donald F. Bur, LLB, LLM, BCL, PhD
F. Bur,
J. Hendrickson,
Barbara J. Hendrickson, MA, LLB, LLM
Chief Administrator
Lasica, BAA
Mary Lasica,
Secretaries
Secretaries
Tina
Tina Afonso
Cora Calixterio
Calixterio
** These Commissioners served during the

the deliberations
deliberations concerning this report. Their appointments
this report. appointments expired,
expired, however,
prior to its
prior to its publication.
publication.
The Commission's office

office is
is located the Eleventh
located on the Eleventh Floor Street, Toronto,
at 720 Bay Street,
Floor at Toronto, Ontario,
Ontario,
Canada, M5G 2K1. Telephone (416)
(416) 326-4200. FAX (416)
(416) 326-4693.
326-4693.
Canadian
Canadian Cataloguing
Cataloguing in
in Publication
Publication Data
Ontario
Ontario Law Reform Commission.
Report
Report on basic
basic principles
principles of land
land law
Includes bibliographical
Includes references.
bibliographical references.
ISBN 0-7778-5945-9
1. Real
1 . property—Ontario.
Real property-Ontario. I. Title.
I. Title.
KE0236.057 1997
1997 346.713'043 C97-964005-9
Ontario
Law Reform
Commission
Ontario
The Honourable Charles

Charles Harnick
Attorney General for
Attorney for Ontario
Dear Attorney:
Attorney:
II have the
the honour to the Ontario
to submit the Ontario Law Reform Commission's Report
Report
on Basic
Basic Principles
Principles of
ofLand Law.
i^Ot
December, 1996
December, 1996 John D. McCamus
Chair
Chair
[iii]
Digitized
Digitized by
by the
the Internet
Internet Archive
Archive
in
in 2011
2011 with
with funding
funding from
from
Hall Law School and Law Commission of
Osgoode Hall of Ontario
Ontario
http://www.archive.org/details/reportonbasicpri00onta
http://www.archive.org/details/reportonbasicpriOOonta
TABLE OF CONTENTS
Page
Preface
Preface v
CHAPTER 11 INTRODUCTION 11
CHAPTER 2 THE BASIS OF LANDHOLDING IN ONTARIO 55

1.
1 Tenurial System of Landholding in
Tenurial in England 55
2.
2. The Relevance of Tenure in
in Ontario
Ontario 77
3.
3. Reform of the
the Basis
Basis of
of Landholding 9
CHAPTER 3 SUCCESSIVE ESTATES AND INTERESTS IN LAND 11

11
1.
1 Introduction
Introduction 11
11
2.
2. Outline
Outline of Present
Present Law and Its
Its Historical
Historical Development 11
11
(a)
(a) Introduction
Introduction 11
11
(b)
(b) The Legal
Legal Remainder Rules
Rules 14
14
(c)
(c) Equitable
Equitable Interests
Interests Under Uses 17
17
(d)
(d) Statute
Statute of
of Uses 18
18
(e)
(e) Successive Interests Created by Will
Successive Interests Will 21
21
(f)
(f) Waste 24
(g)
(g) Dealings
Dealings with
with Settled
Settled Estates
Estates 28
5.
5. Reform 30
(a)
(a) Introduction
Introduction 30
(b)
(b) Outline
Outline of
of Reforms
Reforms in
in Other
Other Jurisdictions
Jurisdictions 30
(c)
(c) Reform in
in Ontario
Ontario 43
43
(i)
(i) General 43
(ii)
(ii) Transactions
Transactions to Statutory Trust
to which Statutory Will Apply
Trust Will 48
(iii)
(hi) Nature
Nature of the
the Statutory
Statutory Trust
Trust 56
(iv)
(iv) Determination
Determination of
of Statutory
Statutory Trustees
Trustees 57
(v)
(v) Interrelationship
Interrelationship between Statutory
Statutory Trust,
Trust, General
General Law of
of Trusts,
Trusts, and
Express
Express Terms of of Settlement
Settlement 58
58
(vi)
(vi) Protection
Protection of
of Purchasers
Purchasers 59
(vii)
(vii) Occupation of
of Land by Beneficiary
Beneficiary 59
59
[v)
[v]
vi
VI
CHAPTER 4 QUALIFIED ESTATES AND INTERESTS IN LAND 61

61
CHAPTER 5 THE RULE IN SHEI LEY'S CASE

SHELLEY'S 65
1.
1. Historical Development,
Historical Development, Rationales,
Rationales, and the
the Present
Present Law 65
2.
2. Reform 69
CHAPTER 6 CO-OWNERSHIP 73
73
1.
1 Summary of the
the Present
Present Law 73
(a)
(a) Nature and Types of
of Co-ownership 73
(b)
(b) Creation
Creation of
of Co-ownership 77
(c)
(c) The Use of Land by Co-Owners 80
80
(i)
(i) Accounting for
for Benefits
Benefits of Occupation 80
a.
a. Ouster
Ouster 80
b.
b. Agreement 81
81
c.
c. The "Statute
"Statute of
of Anne" 81
81
d.
d. Waste 82
e.
e. Equitable
Equitable Accounting 83
f.
f The Family Law Act 85
85
(ii)
(ii) Claiming
Claiming for
for Expenditures
Expenditures Related
Related to Property
to Property 86
(d)
(d) Severance
Severance of
of Joint
Joint Tenancy 89
(i)
(i) Severance by Act of the
the Parties
Parties 89
a.
a. Introduction
Introduction 89
b.
b. Destruction
Destruction of
of One of
of Four Unities
Unities 90
c.
c. Severance
Severance by
by Agreement 93
93
(ii)
(ii) Severance
Severance by
by Unilateral
Unilateral Act 95
95
(iii)
(iii) Severance
Severance by Operation
Operation of
of Law 96
(e)
(e) Partition
Partition or
or Sale
Sale 97
97
2.
2. Reform 104
104
(a)
(a) Assimilation
Assimilation of
of Law Relating
Relating to
to Real
Real and Personal Property
Personal Property 104
(b)
(b) Terminology 104
104
(c)
(c) Nature
Nature and
and Types of
of Co-ownership
Co-ownership 105
105
(i)
(i) The Four Unities
Unities 105
105
vii
Vll
(ii)
(ii) the Entireties
Tenancy by the Entireties and the
the Rule in Re Jupp
Rule in 107
107
(d)
(d) Creation of
of Co-Ownership 108
108
(e)
(e) The Use of Property
Property by Co-owners 109
109
(f)
(f) Severance of Joint
Joint Tenancy 113
113
(i)
(i) Severance by Destruction
Severance Destruction of
of the
the Three Unities
Unities 113
113
(ii)
(ii) Severance by Operation of
of Law 115
115
(iii)
(iii) Unilateral Severance by Act of a
Unilateral a Party
Party 116
116
(g)
(g) Severance by Agreement 120
120
(h)
(h) Termination
Termination of
of Co-ownership 120
120
CHAPTER 7 EASEMENTS AND PROFITS 125

125
1.
1 Introduction
Introduction 125
125
2.
2. Summary of the Present Law
the Present 126
126
(a)
(a) Nature and Requirements of
of Easements
Easements and
and Profits
Profits 126
126
(b)
(b) Creation of Easements 129
129
(i)
(i) Introduction
Introduction 129
129
(ii)
(ii) Easements Arising
Arising by Implication
Implication 130
130
a.
a. The Rule in
in Wheeldon v.
v. Burrows 131
131
b.
b. The "General Words" Statutory
Statutory Provision
Provision 131
131
c.
c. "Indeed" Easements 132
132
d.
d. Easements of
of Necessity
Necessity 133
133
(iii)
(iii) Prescriptive
Prescriptive Easements 133
133
(c)
(c) Extinguishment of
of Easements
Easements 138
138
(i)
(i) Express Release 138
138
(ii)
(ii) Abandonment 138
1 38
(iii)
(iii) Unity
Unity of
of Ownership and Possession
Possession 138
138
(iv)
(iv) Effect
Effect of Land Titles
Titles Act and Registry
Registry Act 139
139
3.
3. Reform 139
139
(a)
(a) Approaches to
to Reform 139
139
(b)
(b) Proposed Reforms 141
141
(i)
(i) Easements in
in Gross 141
141
(ii)
(ii) Creation
Creation of
of Easements and Profits
Profits 146
146
viii
Vlll
a.
a. Introduction
Introduction 146
146
b.
b. The "General Words" Statutory
Statutory Provisions
Provisions 146
146
c.
c. Prescriptive Easements and Profits
Prescriptive Profits 147
147
(iii)
(iii) Modification and Extinguishing
Modification Extinguishing of Easements 154
154
SUMMARY OF RECOMMENDATIONS 157

157
PREFACE
Throughout the thirty-two years

the almost thirty-two years of its its existence,
existence, the
the Ontario
Ontario Law Reform
Commission hashas continued
continued toto devote some of its its resources
resources toto research
research on the
the modernization of of
the law concerning
the the ownership of land.
concerning the land. The law of property
property is is an
an obvious topic
topic for
for a
a
provincial law reform commission. Land law is
provincial law needlessly complex and archaic.
is needlessly archaic. It
It is
is often
often
obscure.
obscure. The law isis replete
replete with terminology that lay persons and many lawyers
that lay lawyers fmd
find difficult
difficult to
to
comprehend. Many of its its rules bear the
rules bear the hallmarks
hallmarks of the the social,
social, economic, political
political and legal
legal
the distant
conditions of the
conditions past. The law contains
distant past. contains many traps
traps for
for the
the unwary. Although
Although these
these traps
traps
can
can normally be avoided by clever
clever lawyering,
lawyering, they
they are
are capable
capable of
of producing
producing substantial
substantial injustice
injustice
for individual
for Ontarians on a
individual Ontarians virtually random basis.
a virtually basis.
The very
very first
first report
report of the the Ontario
Ontario Law Reform Commission, publishedpublished in in 1965,
1965, led
led to
to
reform of an
reform an aspect
aspect of property
property law,law, the
the rule
rule against perpetuities. Since
against perpetuities. Since then,
then, aa number of of
Commission Reports have touched upon various various aspects
aspects of property
property law,
law, including
including reports
reports on
landlord
landlord and tenant, the law of
tenant, the law of condominium, the law of mortgages, the law on covenants
the law of mortgages, the law on covenants
affecting
affecting freehold
freehold land,
land, and a a report
report concerning the the new phenomenon of timesharing.
timesharing.
Additionally,
Additionally, thethe Commission's major reports reports concerning thethe administration
administration of estates,
estates, the
the law
of trusts and, most recently,
trusts and, recently, thethe law of charities
charities consider
consider important
important questions
questions concerning the the
ownership of land.
land. There is, is, therefore,
therefore, aa measure of appropriateness,
appropriateness, if
if not
not aa touch
touch of irony,
irony, in
in
the
the fact
fact that
that this
this last
last substantive
substantive report the Ontario Law Reform Commission, prior
report of the prior to
to its
its
sunsetting
sunsetting atat the
the end of thisthis month, addresses three fundamental areas
addresses three areas of land
land law inin which
modernization of the law of Ontario appears desirable.

modernization of the law of Ontario appears desirable.
The completion of this report on basic

this report basic principles
principles of land
land law owes much to to the
the work of
our
our Project
Project Director,
Director, Timothy G. G. Youdan, of the the Ontario
Ontario Bar.
Bar. Much of the the work on the the
Director's Report was undertaken
Director's undertaken by then Professor Youdan, of Osgoode Hall
then Professor Hall Law School of
York University,
University, while
while on sabbatical
sabbatical leave
leave in
in 1991-92.
1991-92. On his
his behalf,
behalf, we should
should like
like to
to express
express
appreciation
appreciation toto the
the Master and Fellows
Fellows of St. St. Catherine's
Catherine's College,
College, Oxford where Professor
Professor
Youdan spent his sabbatical
spent his sabbatical leave
leave as
as aa Visiting
Visiting Fellow
Fellow and toto the Librarian and staff
the Librarian staff of the
the
Bodleian
Bodleian Law Library
Library where much of his research was conducted.
his research conducted. After
After completing
completing the the
Director's Report,
Director's Report, Professor
Professor Youdan continued to provide much valuable
to provide valuable advice
advice to to the
the
Commission. His His involvement with
with the project continued
the project continued after
after he joined
joined the
the Toronto law firm
firm of
Davies,
Davies, Ward and Beck.Beck. The Commission is is extremely
extremely grateful
grateful to
to Mr. Youdan forfor his
his initial
initial
work on the
the project
project and his perseverance in
his perseverance in enabling
enabling the
the Commission to to see
see the project through
the project through
to its
to its completion.
completion.
We also
also wish to
to express
express our
our appreciation
appreciation for
for the
the contributions
contributions to
to this
this project
project ofof previous
previous
Commissioners.
Commissioners. The Commission gratefully
gratefully acknowledges our our indebtedness
indebtedness to to the
the earlier
earlier work
of
of Mr. Justice
Justice Mendes Da Costa
Costa who, prior to
prior to his
his tenure
tenure as
as Chair of the
the Commission, prepared
prepared
working papers
papers which were of considerable
considerable assistance to Mr. Youdan, especially
assistance to especially in his work on
in his
future
future interests.
interests. Also,
Also, Mr. Youdan benefited
benefited from thethe work done inin draft
draft by Dr.
Dr. H. Allan Leal,
H. Allan Leal, a
a
ix
[ix]
x
member of the Commission for

of the for more than
than two decades who also
also served
served as Chair. A number
its Chair.
as its
previous Commissioners, Madam Justice
of previous Justice Abella,
Abella, who was then
then Chair of the
the Commission,
Professor Richard
Professor Richard E.B.
E.B. Simeon, then
then Commission Vice-Chair,
Vice-Chair, and Commissioners Earl Earl A.
Cherniak and Margaret
Cherniak Margaret A.A. Ross of the
the Ontario
Ontario Bar participated
participated in
in the
the majority of thethe
deliberations concerning
Commission deliberations concerning this project.
this project.
The Commission is is very

very grateful,
grateful, as
as well,
well, to
to the
the members of an Advisory
Advisory Board struck
struck by
the Commission to
the to assist
assist us
us inin this
this work. The members of of the
the Committee were
Ernest
Ernest F. Gutstein, Garth
F. Gutstein, Garth Manning, Q.C. and Paul Paul M. Perell,
Perell, all
all of the
the Ontario
Ontario Bar,
Bar, Dean
Eileen E. Gillese
Eileen E. Professor Albert
Gillese and Professor Albert H. Oosterhoff,
Oosterhoff, of the
the Faculty
Faculty of Law of thethe University
University of
of
Western
Western Ontario
Ontario and Professor
Professor Arnold S. S. Weinrib of thethe Faculty
Faculty of Law of of the
the University
University of
of
Toronto.
Toronto. The Board provided
provided valuable
valuable advice
advice to
to Mr. Youdan and to to the
the Commission at at various
various
stages
stages in
in this
this project
project and we are
are most appreciative
appreciative of their
their assistance.
assistance.
Preparation
Preparation of thethe fmal
final version
version of this
this report
report was undertaken by Commission staff staff some
time
time after
after the
the decision
decision of the the Government of Ontario Ontario toto terminate
terminate the
the existence
existence ofof the
the
Commission on December 31st, 31st, 1996.
1996. We areare therefore
therefore especially
especially appreciative
appreciative of the
the efforts
efforts of
the
the Commission staffstaff and counsel
counsel who devoted themselves with characteristic
characteristic diligence
diligence and
good cheer
cheer to
to the
the task
task of preparing
preparing this
this fmal
final substantive
substantive report
report of the
the Commission. Commission
Counsel,
Counsel, Barbara Hendrickson, ensured that the fmal
that the final version
version of the
the report
report accurately
accurately reflected
reflected
the
the deliberations the Commission concerning
deliberations of the concerning thethe subject
subject matter
matter of
of the
the report.
report. Under severe
severe
time
time constraints,
constraints, Doreen Potter
Potter aided
aided the
the Commission once again again by partially
partially editing
editing the
the text
text
and footnotes
footnotes of thethe report
report and Cora Calixterio
Calixterio endured several revisions to
several rounds of revisions the
to the
manuscript and prepared
manuscript prepared its
its published
published version.
version. The Commission is is very
very grateful
grateful to
to each of these
these
individuals.
individuals.
December 1996
1996
CHAPTER 11
INTRODUCTION
The basic
basic principles
principles of Ontario landland law areare derived from English common law, law,
supplemented by old old English
English statutes
statutes which were either
either made part
part of Ontario
Ontario law by reception
reception
in
in 1792
1792 oror were the
the models from which Ontario statutes
statutes were copied.
copied. Considerable reform of
basic
basic principles
principles of land
land law has
has been enacted
enacted in
in other
other Commonwealth countries,
countries, including
including
England, and thethe United States
States of America. In
In Canada, including
including Ontario,
Ontario, there
there has
has been little
little
significant
significant reform of basic
basic principles)
principles although
although there
there has
has been reform
reform in
in particular
particular areas
areas such as
as
residential
residential tenancies
tenancies and condominiums.
The Ontario
Ontario Law Reform Commission has has published
published various
various reports
reports dealing
dealing with
with
particular
particular topics
topics relating
relating in
in varying degrees to to land
land law.
law. One significant reform to
significant reform to basic
basic
principles, the
principles, the statutory
statutory changes to to the
the perpetuity
perpetuity rule,
rule, was based on the the Commission's reports
reports
on the
the rule
rule published
published inin 1965
1965 and 1966.
1966. The Ontario
Ontario condominium system2system was also also based
based on
the
the Commission's Report on the the Law ofof Condominium (1967).
(1967). In
In addition,
addition, the
the Commission has has
dealt
dealt with landlord
landlord and tenant
tenant law in
in its
its two reports
reports on that
that topic.
topic. More recently,
recently, the
the following
following
reports have been published:
reports published: Report on the the Law of of Trusts
Trusts (1984),
(1984), Report on the the Law of of
Mortgages (1987),
(1987), Report on Timesharing (1988),
(1988), Report on Covenants Affecting
Affecting Freehold
Land (1989),
(1989), and Report on Administration
Administration of of Estates
Estates of
of Deceased Persons (1991).
(1991). Three areas
areas
of land
land law remain in in which reform is is desirable.
desirable. These are successive interests,
are successive interests, co-ownership,
and easements.
easements.
Four themes are

are apparent
apparent in in our
our views
views asas to
to the
the desirability
desirability of reform
reform and in in the
the shape
shape of
the
the reforms
reforms proposed.
proposed. First,
First, we have been concerned to to bring to date
bring up to areas of law
date areas law afflicted
afflicted
with
with archaic
archaic principles
principles and rules.
rules. The lawlaw ofof successive interests provides
successive interests provides many striking
striking
examples. This
This area
area of law is
is subject
subject to
to aa body ofof highly
highly complex and often
often obscure rules, many
obscure rules,
of which have no functional justification in
functional justification in modern Ontario.
Ontario. They areare the
the product
product of history,
history,
mainly English
English medieval and Tudor history. It is
history. It is true
true that
that many of these
these rules,
rules, such
such as
as the
the legal
legal
One exception
exception is
is reform
reform of
of the
the rule
rule against
against perpetuities,
perpetuities, first
first enacted
enacted in
in The
The Perpetuities
Perpetuities Act,
Act, 1966,
1966, S.O.
S.O. 1966,
1966,
c.
c. 113.
113. See
See now Perpetuities
Perpetuities Act,
Act, R.S.O.
R.S.O. 1990,
1990, c.
c. P.9.
P.9.
22
See the
See the Condominium Act,
Act, R.S.O.
R.S.O. 1990,
1990, c.
c. C.26.
C.26.
[1]
2
-1
remainder rules
remainder the rule
rules and the rule of Purefoy
Purefoy v. Rogers,' can be,
v. Rogers, be, and routinely
routinely are,
are, circumvented by
appropriate drafting.
appropriate drafting. However, this this does notnot mean that their continuation
that their continuation in in the
the law is is not
not
harmful. Considerable
harmful. Considerable cost is incurred
cost is incurred inin the
the time
time spent
spent by the
the skilled
skilled practitioner
practitioner inin acquiring
acquiring
and maintaining
maintaining the the knowledge needed in
in order
order to
to ensure appropriate circumvention of archaic
ensure appropriate circumvention of archaic
4
rules.4
rules. In addition,
In addition, these rules are
these rules occasion not
are on occasion not circumvented so so that
that they
they apply with
unpredictable capricious consequences,
unpredictable and capricious consequences, most probably
probably after
after expensive litigation.
litigation. Or, just
Or, just
about
about as as bad,
bad, they
they are held after
are held after such
such litigation
litigation to
to have no application.
application. Ironically, the expense of
Ironically, the
litigation is
sort of litigation
this sort
this is likely to be
likely to be borne
borne by the
the less
less well
well off
off since
since persons
persons with
with modest property
property
holdings
holdings are are more likely
likely to neglect to
to neglect to obtain
obtain the
the skilled
skilled advice
advice that
that should lead
lead to
to circumvention
of
of the rules. Finally,
the rules. Finally, there
there are
are some bodies of archaic doctrine
bodies archaic doctrine that
that are
are not
not readily
readily circumvented
even by skilled drafting.
by skilled drafting.
A second theme is is clarification.

clarification. This
This is
is closely related to
closely related to modernization of archaic
archaic doctrine
doctrine
since archaic doctrines
since archaic doctrines tend
tend toto be obscure,
obscure, mainly because their their rationales
rationales are
are unrelated
unrelated toto
modern conditions.
conditions. More generally,
generally, we have attempted
attempted toto identify
identify and reform areas
areas of law that
that
require clarification.
require clarification. The rights
rights and obligations
obligations of co-owners in in the
the occupation and management
of co-owned land provides an
land provides an example. This
This is
is an important
important area
area of law having practical
practical effect
effect
on the
the lives
lives of many people
people and yet the law is
yet the is often
often unclear.
unclear. We shall
shall propose a a statutory
statutory
formulation of the
formulation rights and obligations
the rights obligations of co-owners,
co-owners, providing
providing a a clear
clear and fair
fair system for
for
guiding
guiding behaviour and resolving
resolving disputes.
disputes.
A third
third theme is is the re-evaluation of conceptual
the re-evaluation conceptual explanations
explanations forfor existing
existing doctrines.
doctrines. This
This
point can best
point clarified by an example. In
best be clarified In the
the present
present law of co-ownership,
co-ownership, thethe concept
concept of the
the
"four
"four unities"
unities" has
has aa pervasive
pervasive impact on thethe operation
operation of the
the law.
law. On the the one hand, the four
the four
unities limit
unities limit the types of arrangements that
the types that may bebe created
created as joint tenancies.
as joint tenancies. On the
the other
other hand,
hand,
they
they provide the the key
key concept
concept for
for determining the the ways in in which a joint tenancy
a joint tenancy may be
"severed"
"severed" by beingbeing changed intointo a
a tenancy in in common. We shall shall evaluate
evaluate the
the functional
functional
for these
justifications for
justifications these roles
roles played
played by the
the four
four unities
unities and we shall propose removal of their
shall propose their
relevance. Instead,
relevance. Instead, we put
put forward new rules
rules for
for the
the creation
creation and severance of a joint tenancy.
a joint tenancy.
The fourth
fourth theme is is simplification the law by assimilation
simplification of the doctrines. One example is
assimilation of doctrines. is
the
the continuing
continuing distinctions
distinctions inin the
the present between real
present law between real and personal property. Generally,
personal property. Generally,
there
there is
is no justification
justification inin modern circumstances
circumstances for
for such
such differences,
differences, and in this report
in this report we
continue the trend
continue the trend to
to removing them.
them. For example,
example, our reform of
our proposed reform of the
the law dealing
dealing with
with
successive interests
successive will have
interests will have the
the practical
practical effect
effect of removing
removing aa large
large body of special
special rules
rules
applicable
applicable only
only to
to land
land and will
will make the
the same doctrines
doctrines apply to real
apply to real and personal
personal property.
property.
The other
other major
major examples of assimilation
assimilation of doctrine
doctrine is
is the
the increased
increased assimilation
assimilation of covenants
affecting
affecting land
land and of easements which will will be carried
carried out
out by our proposals on easements.
our proposals easements.
3
(1671), 2 Wms. Saund. 380.
(1671),2Wms.Saund.380.
4
See,
See, also,
also, B.E.
B.E. Jacob.
Jacob. "The Law of Definite
Definite Elements: Land inin Exceptional Packages"
Packages" (1982),
(1982), 55
55 So.
So. Cal.
Cal. L.
L. Rev.
Rev.
1369,
1369, atat 1395:
1395: "The despair
despair of property teachers
teachers and their
their students
students is
is an important justification
an important justification for reform in
for reform in this
this
area."
area.
3
Chapter 2 of the the report briefly reviews the

report briefly the basis
basis of landholding in in Ontario,
Ontario, and the the
conclusion is is reached that the
reached that the tenurial theory that
tenurial theory that land
land is held of the
is held the Crown has no practical
practical
effect
effect in
in modern law so that nothing
so that nothing would be usefully
usefully achieved
achieved by replacing
replacing itit with aa theory
theory of
"allodial" landholding. Chapters 3 to 5
"allodial" landholding. Chapters 3 to 5 review a
a wide range
range of doctrine
doctrine relating to successive
relating to successive
interests
interests in land and contain
in land contain comprehensive recommendations for reform. Chapter 6 similarly
for reform. similarly
reviews co-ownership and proposes
reviews proposes comprehensive reform.
reform. Chapter 7, 7, on the
the other
other hand,
hand, does
not comprehensively deal
not deal with reform of easements but proposes reforms where most required,
but proposes required,
and in
in doing
doing soso builds
builds on the
the work done in in our Report on Covenants Affecting
Affecting Freehold Land.Land.
As mentioned above,above, our proposals
proposals will lead
will lead to
to substantial
substantial assimilation
assimilation ofof covenants and
easements.
easements.
A
CHAPTER 2
THE BASIS OF LANDHOLDING

IN ONTARIO
1.
1 . TENURI AL SYSTEM OF LANDHOLDING IN ENGLAND
TENURIAL
The English
English legal
legal historian
historian S.F.C.
S.F.C. Milsom observed that that in
in parts
parts of "our
"our books on
property
property law...the
law... the reader
reader can sometimes wonder what century
century he isis in."I
in." Remarkably, this
this can
can
be said
be said with
with asas much, oror more,
more, force,
force, with
with respect
respect to
to Ontario.
Ontario. InIn order
order to
to put
put in
in context
context
discussion
discussion about
about the
the basis
basis of landholding
landholding inin Ontario
Ontario it
it is,
is, therefore,
therefore, necessary
necessary to
to survey,
survey,
albeit
albeit very
very briefly necessarily superficially,
briefly and necessarily superficially, historical
historical developments in in England dating
dating as
as
far back as
far as the
the Norman Conquest.2
Conquest.
The Conquest enabled the the Norman kingskings to

to turn
turn England into
into the
the "most perfectly
perfectly
feudalized"3 of all
feudalized" all countries.
countries. The Crown laidlaid claim
claim to
to all
all the
the land
land which was then
then granted
granted to
to
new tenants
tenants or
or re-granted
re-granted to
to existing
existing ones.
ones. The Crown did did not
not make absolute
absolute grants.
grants. The
grantees
grantees from the
the Crown ("tenants
("tenants in
in chief')
chief) were tenants
tenants of the
the Crown, persons
persons who had a a
continuing
continuing relationship
relationship with
with their
their lord,
lord, the
the king.
king. The Crown retained
retained ownership and the the
tenants held the land of the
tenants held the land of the King in return for the performance of specialized services.
in return for the performance specialized services.
The services
services required
required to
to be provided
provided by the various, dealing
tenants were many and various,
the tenants dealing
with
with the
the whole range
range of the
the needs
needs of
of the
the King,
King, his
his government and household,
household, including
including such
things
things as
as the
the provisions
provisions of
of armed men, the
the saying
saying of
of masses,
masses, the
the performance of
of duties
duties at
at the
the
royal household,
royal household, and the
the supply
supply of
of food.
food.
As well
well as
as the
the feudal
feudal services
services owed byby aa tenants
tenants to
to his lord, certain
his lord, certain "incidents"
"incidents" of tenure
tenure
provided important
provided important benefits
benefits for
for the
the lord.
lord. "Relief'
"Relief was payable
payable toto the
the lord
lord on the
the death
death of the
the
tenant in
tenant in order
order to
to permit
permit succession
succession of
of the
the tenancy;
tenancy; if
if a
a tenant
tenant died
died leaving
leaving an
an infant
infant heir,
heir, the
the
Historical
Historical Foundations of
of the
the Common Law (2d.
(2d. ed.,
ed., 1981),
1981), at
at viii.
viii.
2
For
For more detailed
detailed surveys,
surveys, see
see A.H. Oosterhoff
Oosterhoff and W.B. Rayner,
Rayner, eds.,
eds., Anger and Honsberger's
Honsberger's Law of of Real
Property
Property (2d
(2d ed.,
ed., 1985),
1985), at
at 14-25;
14-25; E.E. Gillese, ed.,
E.E. Gillese, ed., Mendes da Costa and Balfour's
Balfour's Property Law: Cases,
Cases, Text
Text
and Materials
Materials (2d
(2d ed.,
ed., 1990),
1990), ch.
ch. 6;
6; R.
R. Megarry and
and H.W.R. Wade, The Law of of Real Property (5th
(5th ed.,
ed., 1984),
1984),
at
at 35-43;
35-43; and B.
B. Ziff,
Ziff, Principles
Principles of
of Property Law (2d
(2d ed.,
ed., 1996),
1996), at
at 50-57.
3
F.
F. Pollock
Pollock and F.W. Maitland,
Maitland, History of
of English
English Law Before the Time of
Before the of Edward1(2d
I (2d ed.,
ed, 1898)
898) vol.
vol. I,
1 I, at
at 235.
235.
[[5]
5]
6
child the ward of the

child became the the lord
lord who was entitled
entitled to the profits
to the profits from the
the land
land during
during the
the
wardship; and if
wardship; the tenant
if the tenant died
died without an
an heir,
heir, the
the land
land "escheated",
"escheated", or
or went back to
to the
the
lord.
lord.
Until
Until the position was changed by statute
the position statute in
in 1290,
1290, tenants
tenants were free
free to
to create
create new
tenurial relationships
tenurial relationships in a process
in a process (known as as "subinfeudation")
"subinfeudation") rather
rather like
like sub-letting
sub-letting inin the
the
law. Land was granted
modern law. granted by the
the tenants
tenants in
in chief
chief to
to others,
others, to
to hold
hold of them in in return
return for
for
such services
such as might be
services as be reserved
reserved by the
the grant.
grant. Such grantees
grantees from the
the tenants
tenants in
in chief
chief could
in their turn
in their turn grant land to
grant land to others in like
others in like manner.
The statute
statute of Quia Emptores of 12904 prevented further
1290 prevented further subinfeudation
subinfeudation after
after that
that date.
date.
However, it provided that
it provided that tenants,
tenants, other
other than
than tenants
tenants in
in chief
chief (who required
required the
the Crown's
consent),
consent), could
could freely
freely dispose
dispose of their
their land
land by substitution.
substitution. When a a grant
grant by substitution
substitution was
made toto C by a
a tenant,
tenant, B, held the
B, who held the land
land of
of a
a lord,
lord, A,
A, B dropped out
out of the
the picture,
picture, being
C: no new tenure
replaced by C:
replaced tenure was created
created between B and C; C; instead,
instead, C would hold
hold the
the land
land as
as
tenant of A who would be substituted
tenant substituted for
for B in
in the
the feudal
feudal structure.
structure.
The feudal
feudal system
system of landholding had two importantimportant and inter-related
inter-related elements:
elements: thethe
personal relationship of lord
personal relationship lord and tenant
tenant and the
the provision
provision of services
services in return for
in return for the
the holding
holding
of land.
land. The significance
significance of both
both elements declined
declined early
early in
in the
the medieval period.
period. After
After the
the
statute
statute of Quia Emptores, successive
successive dispositions
dispositions by substitution
substitution weakened the the personal
personal tie
tie
between lord
lord and tenant.
tenant. Moreover, most tenure
tenure inin the
the course
course of time became tenure
tenure in
in which
the
the Crown was,was, or
or was deemed to be, the
to be, the lord.
lord. This
This occurred because many tenures
occurred because tenures came to to
an
an end through
through escheat,
escheat, no new tenures
tenures could bebe created
created except ones in in which the
the Crown was
lord,
lord, and proof of a a tenurial relationship often
tenurial relationship often disappeared
disappeared and it it was presumed that that in
in the
the
absence of proof to
absence of proof to the contrary tenure
the contrary tenure was with the
with the Crown. In addition, the feudal services
In addition, the feudal services
declined
declined inin importance.
importance. Many were commuted from personal personal service
service into
into money payments
(thus
(thus illustrating
illustrating the
the decline
decline in
in the personal tie
the personal between lord
tie between lord and tenant)
tenant) and as as the
the value
value of
money declined
declined the
the money payments
payments became insignificant.
insignificant.
Tenure,
Tenure, asas a relationship between Crown and tenant,
a relationship tenant, retained
retained importance only
only because
because
of fiscal
fiscal considerations.
considerations. Although the the feudal services declined
feudal services declined in
in importance,
importance, the
the feudal
feudal
incidents,
incidents, which generally
generally were not
not fixed
fixed at
at stated
stated amounts ofof money but
but were entitlements
entitlements
to
to the
the profits
profits from thethe land
land for
for certain periods of time,
certain periods remained important
time, remained important sources
sources of royal
royal
revenue up to
revenue to the
the seventeenth
seventeenth century.
century.
After
After the
the defeat
defeat of
of the
the Royalists
Royalists in the Civil
in the Civil War and thethe establishment
establishment of Parliament's
Parliament's
control
control over
over taxation
taxation in the seventeenth
in the seventeenth century, lost even
tenure lost
century, tenure even its
its fiscal
fiscal importance,
importance, aa process
process
that
that was formalized
formalized by the
the Tenures
Tenures Abolition
Abolition Act,
Act, 16605
1660 which converted
converted most tenures
tenures into
into free
free
and common socage
socage and abolished
abolished all fiscally important
all fiscally important tenurial
tenurial incidents
incidents except
except for
for escheat.
escheat.
4
18 Edw. I,
18Edw. c. I1 and c.
I,c. c. 2
2 (U.K.).
(U.K.).
5
12 Cha. 2, c. 24 (U.K.).
12Cha.2,c.24(U.K.).
7
century property
twentieth century
The twentieth reforms in
property reforms England6 finally
in England finally ended allall importance
importance of tenure
tenure by
converting copyhold tenure
converting tenure into freehold tenure
into freehold tenure of free
free and common socagesocage and by abolishing
abolishing
7
escheat. Although it
escheat.' remains "in
it remains "in one sense
sense true
true to
to say
say that
that all
all land
land in
in England was vested in in the
the
subject can
Crown; aa subject hold it only as
can hold it as tenant", the "tenurial
tenant", the relationship is
"tenurial relationship is now so
so slender
slender that
that it it
o
can
can in
in practice
practice be
be ignored"8
ignored" and the the owner of an estateestate in
in fee
fee simple (the largest unit
(the largest unit of
of
ownership in land) can be treated as the
ownership in land) can be treated as the owner of the
the land.
land.
2.
2. THE RELEVANCE OF TENURE IN ONTARIO
Subject
Subject to
to any title
title to
to land
land retained
retained by Canadian First
First Nations,
Nations, title
title to
to ungranted
ungranted land in
land in
Canada belongs
belongs to the Crown,9
to the Crown, and the the Crown means for
for this
this purpose the
the Crown in right of
in right of a
a
province
province with
with respect
respect to land in
to land in the
the province.10
province.
Section 43 of the
Section the Constitution
Constitution Act,
Act, 1791,11
1791, provides
provides as
as follows:
follows: "[A]ll
"[A]ll lands
lands which shall
shall bebe
hereafter
hereafter granted
granted within
within the
the said
said province
province of Upper Canada, shall shall be
be granted
granted in free and
in free
common soccage,
soccage, in
in like
like manner asas lands
lands are
are now holden in in free
free and common soccage, in that
soccage, in that
part of Great
part Great Britain
Britain called
called England..."
England..." In
In theory,
theory, therefore,
therefore, the
the system of tenurial
tenurial landholding
landholding
was introduced into Upper Canada and land
introduced into land granted
granted by the
the Crown in in Ontario
Ontario continues
continues to be
to be
held
held "of
"of the
the Crown" with
with the
the Crown and
and the
the grantee,
grantee, or
or any person taking the grantee's place,
any person taking the grantee's place,
having
having aa continuing
continuing tenurial
tenurial relationship.
relationship.
However, inin practice

practice this
this tenurial
tenurial relationship
relationship isis of no importance.
importance. From the the establishment
establishment
of
of the
the province
province of Ontario,
Ontario, no service
service has
has been generally performable in
generally performable in respect
respect of tenure
tenure by
free
free and common socage.
socage. To the the extent that the
extent that the grantee
grantee owes any particular
particular obligation
obligation with
with
respect to
respect to the
the land
land grant
grant it
it flows
flows from thethe terms
terms of
of the
the grant
grant rather
rather than
than from the
the fact
fact of
of tenure.
tenure.
In
In addition,
addition, there
there are
are now no incidents
incidents relating
relating to
to tenure
tenure byby free
free and common socage.
socage. The only
only
incident
incident that
that used
used to
to be relevant to
be relevant this form of
to this of tenure
tenure was escheat.
escheat.
6
Law of
of Property Act,
Act, 1922,
1922, 12
12 & 1313 Geo. 5,5, c.
c. 16
16 (U.K.),
(U.K.), s.
s. 128 12th Sched.,
128 and 12th para. (I);
Sched., para. (1); Administration of
of
Estates
Estates Act,
Act, 1925,
1925, 15
15 & 16
16 Geo. 5,
5, c.
c. 23 (U.K.),
(U.K.), ss.
ss. 45, 46, and 2nd Sched.,
45, 46, Sched., Pt.
Pt. 1.
1.
7
For
For discussion
discussion about
about the
the different
different types
types of
of escheat,
escheat, see infra. "Escheat
see infra. delictum tenentis
"Escheat propter delictum tenentis (for
(for felony) no
felony) no
longer
longer existed
existed in
in 1925.
1925. The Corruption of Blood Act 1814 [54 Geo. 3,
1814 [54 c. 145
3, c. 145 (U.K.)]
(U.K.)] had restricted
restricted itit to cases of
to cases
petit treason
petit treason and murder,
murder, and the
the Forfeiture
Forfeiture Act of 1870 [33 & 34 Vict.,
1870 [33 Vict., c.
c. 23
23 (U.K.)]
(U.K.)] completely
completely abolished
abolished it,
it,
together
together with
with the
the Crown's prerogative
prerogative right
right of forfeiture
forfeiture for
for high treason": Megarry and Wade, supra,
high treason": note 2,
supra, note 2,
at
at 34.
34.
8
Megarry and
and Wade, ibid.,
ibid., at
at 13.
13.
9
See
See St.
St. Catherine's
Catherine's Milling
Milling and Lumber Co.Co. v.
v. The
The Queen,
Queen, [1887]
[1887] S.C.R.
S.C.R. 577,
577, at
at 599;
599; appeal
appeal dismissed
dismissed (1888),
(1888), 14
14
A.C.
A.C. 46.
46. See,
See, also,
also, Doe d.
d. Burk v. Cormier (1890),
Burkv. (1890), 30 N.B.R. 142;
142; R.
R. v.
v. Guthrie
Guthrie (1877),
(1877), 41
41 U.C.Q.B.
U.C.Q.B. 148
148 at
at 154.
154.
See,
See, also,
also, D.
D. Butt,
Butt, Land Law (3d(3d ed.,
ed., 1996),
1996), at
at 59-60;
59-60; B.H.
B.H. Davis,
Davis, Introduction
Introduction to to Real Property
Property (1979),
(1979), at
at 19-20
(New Zealand);
Zealand); G.W. Hinde,
Hinde, D.W. McMorland, and P.B.A.P.B.A. Sim,
Sim, Land Law (1978),
(1978), atat 18
18 (New Zealand).
Zealand).
10
10
Constitution
Constitution Act,
Act, 1867, 30 & 31
1867, 30 31 Vict.,
Vict, c.
c. 3
3 (U.K.), s. 109;
(U.K.), s. 109; subject
subject to
to ss.
ss. 108,
108, 117.
117.
n
11
31
31 Geo.
Geo. 3,3, c.
c. 31
31 (Imp.).
(Imp.). The reception
reception of English law as
English law by Property
provided by
as provided Property And Civil
Civil Rights
Rights Act,
Act, 1792,
1792, 32
32
Geo.
Geo. 3,
3, c.
c. 1
1 (U.C),
(U.C), s.
s. 3
3 (see
(see now Property and Civil
Civil Rights
Rights Act,
Act, R.S.O.
R.S.O. 1990,
1990, c.
c. P.
P. 29,
29, s.
s. 1)
1) had similar
similar effect.
effect.
8
as an
Escheat as incident of feudal
an incident tenure has
feudal tenure has survived
survived until
until modern times.
times. It
It occurred whenever the
the
tenancy terminated.
tenancy It was a principle
terminated. It principle of feudal
feudal law that
that someone must always be seised
seised of the
the
since all
land and since
land all land
land was held
held of some superior
superior lord,
lord, when aa tenancy
tenancy came to to an end the
the land
again come into
would again into possession
possession of the
the lord.
lord.
Escheat was of two types,

Escheat types, namely propter
propter defectum sanguinis
sanguinis and propter
propter delictum tenentis.
tenentis. The
former occurred
occurred when the
the tenant
tenant died
died without heirs.
heirs. Escheat of the second type occurred when aa
Escheat of the second type occurred
tenant attainted for
tenant was attainted for a
a felony,
felony, but
but in
in this
this case...the
case... the Crown could hold thethe land
land for
for a
a year and a
a
time.12
12
day
day and was permitted toto commit waste during
during that
that time.
Escheat propter delictum

Escheat propter delictum tenentis
tenentis was abolished
abolished in
in Canada in
in 1892.13
1892. Escheat propter
propter
defectum
defectum sanguinis
sanguinis was replaced
replaced in
in Ontario
Ontario by section
section 47(7)
47(7) of the
the Succession
Succession Law Reform
Reform
14
Act."
Act. It provides:
It provides:
47.—
47.—(7)
(7) Where a a person dies
dies intestate
intestate in respect of property
in respect property and there
there is
is no surviving
surviving spouse,
spouse,
issue, parent, brother,
issue, parent, brother, sister,
sister, nephew, niece,
niece, or
or next of kin,
kin, the
the property
property becomes the
the property
property of
the Crown, and the
the the Escheats Acts
Acts applies.
applies.
Although thethe marginal

marginal note
note describes
describes this
this subsection
subsection asas "Escheat",
"Escheat", this
this is
is misleading.
misleading.
Escheat applied
Escheat applied only
only where the
the owner of an estate
estate in
in fee
fee simple
simple in real property
in real property died
died without
without
heirs,
heirs, whereas section
section 47(7)
47(7) applies
applies to
to "property".
"property". It
It thus replaces the
thus replaces the common law principle
principle of
of
bona vacantia,
vacantia, which was applicable
applicable to
to personal property, as
personal property, as well
well as
as escheat.
escheat. Section
Section 47(7)
47(7) also
also
has
has aa different
different effect
effect from escheat.
escheat. Escheat was a a process
process which involved
involved the
the termination
termination of the
the
tenant's
tenant's estate
estate and the
the consequent
consequent return
return of the
the land
land toto the
the lord.
lord. Section
Section 47(7)
47(7) assumes the the
continuation
continuation in in existence
existence of the property of the
the property the intestate
intestate and provides
provides for
for it passing to
it passing to the
the
15
Crown. The Crown, therefore,
therefore, takes
takes the property as
the property as the
the "ultimate
"ultimate heir".15
heir".
16
The Ontario
Ontario Escheats
Escheats Act16
Act isis similarly
similarly misleadingly
misleadingly entitled.
entitled. Section
Section 1
1 (1)
(1) provides:
provides:
1.—(1)
1. (1) Where any property
property has
has become the property of the
the property the Crown by reason
reason of the
the person
person last
last
seised
seised thereof
thereof or
or entitled
entitled thereto
thereto having died
died intestate
intestate and without lawful
lawful heirs,
heirs, or
or has
has become
forfeited
forfeited for
for any cause
cause to
to the
the Crown, thethe Public
Public Trustee
Trustee may cause
cause possession
possession thereof
thereof to
to be taken
in
in the
the name of the
the Crown, or, or, if is withheld,
if possession is withheld, may cause
cause an action
action to
to be brought for
for the
the
recovery
recovery thereof,
thereof, without
without an inquisition
inquisition being
being first made.
first made.
12
12
Oosterhoff and Rayner, supra,
Oosterhoffand supra, note
note 2,
2, at
at 22-23.
22-23.
13
13
Criminal Code,
Code, 1892,
1892, 55-56 Vict.,
Vict., c.
c. 29 (Can.),
(Can.), s.
s. 965.
965. See now Criminal Code, R.S.C.
R.S.C. 1985,
1985, c.
c. C-46,
C-46, s.
s. 6(1)(b)
6(l)(b) as
as
rep.
rep. & sub.
sub. by R.S.C.
R.S.C. 1985,
1985, c.
c. 27 (1st
(1st Supp.).
Supp.).
14
14
R.S.O.
R.S.O. 1990,
1990, c.
c. S.26.
S.26.
15
15
See,
See, also,
also, Ultimate
Ultimate Heir
Heir Act,
Act, R.S.A.
R.S.A. 1980,
1980, c.
c. U-1.
U-l.
16
16
R.S.O.
R.S.O. 1990,
1990, c.
c. E.20.
E.20.
9
This
This statute is not
statute is restricted to
not restricted real property
to real property but
but extends
extends to
to "any property".
property". The section
section applies
applies
whenever property has vested
property has vested in the Crown by virtue
in the virtue of section
section 47(7)
47(7) of the
the Succession Law
Succession
Reform
Reform Act oror because
because of forfeiture.
forfeiture. It
It then
then regulates
regulates the
the effect
effect of the
the Crown's succession
succession to
to such
such
property.
property.
3.
3. REFORM OF THE BASIS OF LANDHOLDING
state of New York abolished

The state abolished the
the principle
principle of tenure
tenure in
in relation
relation to
to freehold
freehold estates
estates in
in
land
land early
early in
in the
the nineteenth
nineteenth century.
century. After
After the
the American War of Independence, land land in
in New
York which had been owned by supporterssupporters ofof the

the Crown was forfeited
forfeited and inin 1779
1779 made the the
subject
subject of non-tenurial,
non-tenurial, or
or "allodial",
"allodial", ownership by the the Act Concerning Tenures."
Tenures. At the
the time,
time,
the
the status
status of other
other land,
land, which was heldheld in
in socage
socage tenure,
tenure, was not
not altered
altered except
except that
that the
the people
people
of
of the
the State
State displaced
displaced the
the Crown as as the
the lord.
lord. However, in in the
the wholesale
wholesale revision
revision of the
the land
land law
law
of
of New York State carried out in 1828-1829, tenure of freehold land
State carried out in 1828-1829, tenure of freehold land was abolished and allodial
abolished and allodial
land
land ownership established.18
established.
As early
early as
as 1826
1 826 James Humphrey, an an English
English reformer, had advocated similar
reformer, had similar reform
reform inin
England.I9
England. The matter
matter was considered
considered by thethe Real Property
Property Commissioners in their Third
in their Third
Report2°
Report butbut they
they came outout against
against recommending abrogation
abrogation of
of tenure.
tenure. In
In modem
modern times,
times,
21
abolition
abolition of tenure
tenure was also proposed in
also proposed in the
the Survey of
of the ofNorthern Ireland:21
the Land Law of Ireland:
As aa result
result of the
the Tenures Abolition
Abolition Act (Ireland)
(Ireland) Act 1662
1662 the
the feudal
feudal system of tenure
tenure has
has
now little
little significance
significance in in our
our system of landland law. Primogeniture
law. Primogeniture and thethe concept
concept of escheat,
escheat, along
along
with
with dower and curtesy,
curtesy, were abolished
abolished by thethe Administration
Administration of Estates
Estates (N.I.)
(N.I.) Act 1955.
1955. But
there still remains one cornerstone of the feudal system of landowning; the theory that all land
there still remains one cornerstone of the feudal system of landowning; the theory that all land in
in
the
the United Kingdom is is still
still ultimately
ultimately held under the
held under the Crown. ThisThis theory
theory has
has no practical
practical
significance
significance because the the feudal
feudal incidents
incidents attaching
attaching to
to ownership and services
services have long since
since been
abolished,
abolished, and any exercise
exercise ofof rights
rights of
of paramount ownership by the the Crown, suchsuch as
as compulsory
acquisition
acquisition of property for
of property for public
public purposes,
purposes, isis now invariably
invariably made under
under statutory powers. We
statutory powers.
can
can see
see no justification
justification for retaining this
for retaining this feudal
feudal theory
theory in twentieth century
the mid twentieth
in the century and
recommend its its abolition,
abolition, so
so that
that the
the fee
fee simple absolute
absolute in possession would become equivalent
in possession equivalent inin
so
so far
far as
as the
the law permits
permits to
to absolute
absolute ownership.
ownership. The abolition
abolition of feudal tenure would facilitate
feudal tenure facilitate the
the
repeal
repeal of many old old statutes
statutes of little
little relevance
relevance today.
today.
17
17
See R.L.
R.L. Fowler,
Fowler, History
History of
of the
the Law of
of Real Property in
in New York (1895),
(1895), at
at 89.
89.
18
18
Ibid.
Ibid.
19
19
Observations on the
the actual
actual state
state of
of the
the English
English Law of of Real Property,
Property, with
with the
the outline
outline of
of a Code (1826).
(1826).
Humphreys' work influenced
influenced the
the New York reform.
reform. See
See American Law ofof Property
Property (1952)
(1952) at
at 65;
65; B.
B. Rudden, "A
Code too
too soon:
soon: The 1826
1826 property
property code
code of
of James Humphreys: English
English rejection,
rejection, American reception.
reception. English
English
acceptance"
acceptance" in
in P.
P. Wallington and R.M. Merkin,
Merkin, eds.,
eds., Essays in Memory of
Essays in of Professor F.H. Lawson (1986).
Professor F.H. (1986).
20
Parl.
Pari. Papers
Papers 1831-2,
1831-2, vol.
vol. XXIII,
XXIII, at
at 323.
323.
21
21
Survey of
of the
the Land Law of of Northern Ireland
Ireland (1971)
(1971) by a a working party
party of
of the
the Faculty
Faculty of
of Law, The Queen's
Queen's
University,
University, Belfast
Belfast (Chair:
(Chair: L.A.
L.A. Sheridan)
Sheridan) (a
(a report
report to
to the
the Director
Director of Law Reform for
for Northern Ireland)
Ireland) at
at 13-14.
13-14.
See,
See, also,
also, Law Commission (New Zealand),
Zealand), A New Property Law Act (Report
(Report No. 29,
29, 1994)
1994) at
at 13,
13, 55.
55.
10
10
proposal] would not

[The proposal] not make any change in in the
the substance of the
the law of Northern Ireland.
Ireland.
It is proposed principally
It is in order
principally in order to
to facilitate
facilitate the repeal of statutes,
the repeal statutes, including
including the
the Tenures
Abolition (Ireland) 1662.
Abolition Act (Ireland) 1662.
We take
take the
the view that
that statutory
statutory abrogation
abrogation of
of tenure
tenure of freehold
freehold land
land is
is unnecessary since
since
it has
it has become obsolete.
obsolete. The only
only practical
practical importance it
it ever
ever had in
in Ontario
Ontario was with
with respect to
respect to
escheat and that

escheat is now comprehensively dealt
that is dealt with
with by statute.
statute. Tenure isis not
not even indirectly
indirectly
important today.
important It does
today. It not have any impact on the
does not the drafting
drafting of legal
legal documents. Nor does it it
have any continuing

continuing effect the development of the
effect on the the law.
law.
CHAPTER 3
SUCCESSIVE ESTATES AND

INTERESTS IN LAND
1.
1. INTRODUCTION
In
In this
this chapter,
chapter, we shall
shall deal
deal generally
generally with
with successive
successive estates
estates and interests
interests in
in land.
land.
However, two topics that fall
topics that fall within
within this
this area
area of
of law,
law, qualified
qualified estates
estates and interests
interests in
in land
land and
the Rule in
the in Shelley's
Shelley's Case,'
Case, also
also require
require separate
separate treatment.
treatment. They are
are dealt
dealt with in
in chapters
chapters 4
and 55 respectively.
respectively.
2.
2. OUTLINE OF PRESENT LAW AND ITS HISTORICAL DEVELOPMENT
(a) INTRODUCTION
Introduction
We shall
shall make recommendations for for reform
reform of the
the law affecting
affecting successive
successive estates
estates and
interests
interests in
in land.
land. In
In order
order to put the
to put the difficulties
difficulties in
in the present law,
the present law, and our
our recommendations, in in
context it will be convenient to outline certain aspects of the present law and its historical
context it will be convenient to outline certain aspects of the present law and its historical
development.2
development. First,First, certain
certain ideas,
ideas, terms
terms and distinctions
distinctions that
that are
are fundamental
fundamental to
to the
the system
system of
the
the present
present law willwill be
be briefly
briefly explained.
explained.
The common law law system

system ofof landholding provides extraordinary
landholding provides extraordinary flexibility.
flexibility. Ownership
may be
be split
split in
in various
various ways,
ways, including
including what Maitland described
described asas division
division in accordance with
in accordance with
the
the plane
plane of time.3
time. Interests
Interests can
can be
be created
created whose extent
extent isis determined
determined notnot only
only spatially but also
spatially but also
temporally.
temporally. Leasehold
Leasehold interests
interests are ones whose maximum duration
are ones duration is fixed in
is fixed in time.4
time. They
developed outside
outside the
the common law law system
system ofof estates
estates and,
and, indeed,
indeed, for
for many purposes
purposes areare
classified
classified as
as personal
personal property
property (or(or at
at lease
lease as hybrid form known as
a hybrid
as a as "chattels
"chattels real").
real"). Freehold
Freehold
interests
interests are
are of uncertain
uncertain duration.
duration. There
There were three types of
three types of freehold
freehold estates in land
estates in land at
at common
law:
law: life
life estate,
estate, estate
estate in
in fee
fee simple
simple and estate in fee
estate in fee tail. life estate
tail. A life estate will
will last
last as
as long
long as
as the
the life
life
(1581),
(1581), 1 Co.
1 Co. Rep.
Rep. 93b.
93b.
2
For more detailed
For detailed surveys,
surveys, see
see A.H.
A.H. Oosterhoff
Oosterhoff and W.B. Rayner,
Rayner, eds.,
eds., Anger and Honsberger's Law of of Real
Property
Property (2d
(2d ed.,
ed., 1985),
1985), at
at 77-223,
77-223, 301-432; R.R. Megarry and
and H.W.R. Wade, TheThe Law of Real Property
of Real Property (4th
(4th ed.,
ed.,
1975),
1975), at
at 38-109,
38-109, 1176-86;
1 176-86; and B.
B. Ziff,
Ziff, Principles
Principles of
of Property Law (2d
(2d ed.,
ed., 1996),
1996), at
at 203-09,
203-09, 227-34.
3
F. Pollock and
F. Pollock and F.W. Maitland,
Maitland, History
History of
of English
English Law Before
Before the
the Time of
of Edward I
I (2d
(2d ed.,
ed., 1898)
1898) vol.
vol. 11,
II, at
at 10.
10.
4
Megarry and Wade, supra, note 2,
supra, note 2, at
at 41.
4 1
[Ill
12
12
individual, normally but

an individual,
of an but not necessarily
necessarily thethe holder of thethe estate.
estate. Until
Until modern times,
times, an
estate in
estate in fee simple could be
fee simple be described
described asas an estate
estate for
for so
so long asas the
the current
current holder of the
the estate
estate
or any of his
or heirs, whether descendants
his heirs, descendants or or not,
not, were alive.
alive. If
If he died
died without such heirs
heirs the
the
terminated and the
estate terminated
estate land escheated
the land escheated to to the
the lord.
lord. Now, thethe estate
estate may be accurately
accurately described
as continuing
as continuing forever.
forever. Not only
only may the
the owner of the
the estate
estate dispose of the
dispose the estate
estate by inter
inter vivos
vivos
conveyance or or by will,
will, if
if she
she oror he dies
dies without heirs
heirs the
the estate
estate does
does not
not terminate
terminate but
but becomes
the property
the property of the Crown. An estate
the Crown.5 estate in
in fee
fee tail
tail continues
continues forfor as
as long asas the
the holder of the
the estate
estate
or any of his
or his descendants
descendants live.
live. It
It has been possible
has not been possible since
since May 27, 27, 1956
1956 toto create
create such an
estate tail
estate tail in Ontario. Section
in Ontario. Section 4 4 of the
the Conveyancing and Law of of Property Act6
Act provides as as
follows:
follows:
4.
4. A limitation
limitation inin a
a conveyance or
or will
will that before the
that before the 27th
27th of
of May, 1956,
1956, would have
have created
created
an
an estate
estate tail
tail shall
shall be
be construed
construed as
as an
an estate
estate in
in fee
fee simple
simple or
or the
the greatest
greatest estate
estate that
that the
the grantor
grantor or
or
testator had in the
testator had in the land.
land.
Interests
Interests in
in land
land can exist
exist in possession, in
in possession, remainder, or
in remainder, in reversion:7
or in reversion:
An estate in possession
estate in possession gives
gives anan immediate
immediate right
right to
to possession
possession andand enjoyment
enjoyment ofof the
the land.
land.
Estates
Estates in
in remainder
remainder oror reversion,
reversion, onon the
the other
other hand,
hand, are
are future
future interests,
interests, and
and meanwhile some
other person is
other person is usually
usually entitled
entitled in
in possession.
possession. 'Remainder'
'Remainder' signifies
signifies a
a future
future gift
gift to
to some person
person
not
not previously
previously entitled
entitled to
to the
the land.
land. 'Reversion'
'Reversion' signifies
signifies the residue of
the residue of an
an owner's
owner's interest
interest after
after he
he
has
has granted
granted away some lesser
lesser estate
estate in possession
in possession to
to some other person.
other person.
For example, if if A, the

the owner of an estate
estate in
in fee
fee simple,
simple, granted
granted an estate
estate to
to BB for
for life
life
and thereafter
thereafter to
to C inin fee
fee simple,
simple, B would have a a life
life estate—an
estate —
an estate in possession—and
estate in possession and C —
would have an estate
estate in
in fee
fee simple inin remainder—a
remainder a future—
future interest.
interest. If
If A had merely granted
granted
an estate
estate to
to B for life, A would have retained
for life, retained a a reversion
reversion inin fee
fee simple.
simple. ItIt should
should be
emphasized that
that in
in these
these examples C'sC's remainder and A's reversion
reversion areare future
future interests
interests only
in the sense
in the sense that
that entitlement
entitlement to possession is
to possession is postponed; they
they are
are present
present interests
interests in
in the
the sense
sense
that
that C's remainder and A's reversion
reversion are presently existing
are presently existing proprietary
proprietary interests.
interests.
The interests
interests in
in these
these examples areare all
all vested
vested inin interest.
interest. Although C's remainder and
A's reversion
reversion are
are not
not vested
vested in possession, since
in possession, since the right to
the right to possession
possession isis B's during B's
lifetime,
lifetime, they are
are vested
vested inin interest
interest since
since no contingency
contingency need be satisfied
satisfied for
for the right to
the right to
possession arise. Interests "are
possession arise. Interests "are vested
vested ifif they
they are presently ready
are presently ready to
to take
take effect
effect in
in possession
... upon the
... the natural
natural determination
determination of the preceding estate
the preceding or estates.
estate or estates. [An interest]
interest] is
is contingent
contingent
5
Reform Act,
Act, R.S.O.
R.S.O. 1990,
1990, c.
c. S.26,
S.26, s.
s. 47(7).
47(7). See supra,
supra, ch.
ch. 2,
2, sec.
sec. 2.
2.
6
R.S.O. 1990,
R.S.O. 1990, c.
c. C.34.
C.34.
7
Megarry and Wade, supra,
supra, note
note 2,
2, at
at 44.
44.
13
13
if
if it
it is limited to
is limited to an unborn or unascertained
unborn or unascertained person,
person, or
or if
if it
it is
is subject
subject to
to a
a condition
condition
g
precedent."8
precedent."
Interests
Interests in in land
land may be be absolute
absolute or or qualified
qualified and they
they may be qualified
qualified in in two
conceptually distinct ways;

conceptually distinct ways; they
they may be qualified
qualified either
either by a a determining
determining event
event or by aa
or by
condition
condition subsequent.
subsequent. An example of the the first
first type
type would be a a conveyance by A to to B inin fee
fee
simple
simple until
until B should
should marry C; C; an example of the the second type
type would be a a conveyance by A to to B
in
in fee
fee simple
simple on condition
condition that
that B does notnot marry C. C. Although the
the difference
difference between thethe two is is
merely aa matter
matter of wording, itit has
has important
important practical
practical consequences in present law,
in present law, which we
shall explain in
shall explain in chapter 4. However, it
chapter 4. it can
can conveniently
conveniently be be mentioned here
here that
that in
in the
the case
case of a a
determinable
determinable interest
interest the
the grantor retains an
grantor retains an entitlement
entitlement known as as a possibility of reverter
a possibility of reverter
whereas in the case
in the case of an interest
interest subject
subject toto aa condition
condition subsequent
subsequent the
the grantor retains aa right
grantor retains right of
of
re-entry. At one time these
re-entry. these entitlements
entitlements were not not alienable,
alienable, whether inter
inter vivos
vivos oror by will.
will.
9
Clearly,
Clearly, they
they may now be be disposed
disposed of by will.will. Section
Section 22 of the
the Succession
Reform Ac?Act
provides as
provides as follows:
follows:
2.
2. A person
person may by will
will devise,
devise, bequeath or
or dispose
dispose of all
all property
property (whether acquired
acquired before
before or
or
after
after making his
his or
or her
her will)
will) to
to which at
at the
the time of his
his or
or her
her death
death he or
or she
she is
is entitled
entitled either
either at
at
or in
law or in equity,
equity, including,
including,
(b)
(b) contingent,
contingent, executory
executory oror other
other future
future interests
interests in
in property,
property, whether the testator is
the testator is or
or is
is
not
not ascertained
ascertained asas the
the person or one of the
person or persons in
the persons in whom those
those interests
interests may
respectively vested, and whether he or
respectively become vested, or she
she is
is entitled to them under the
entitled to the
instrument
instrument by which they
they were respectively
respectively created
created or
or under a
a disposition
disposition of them by
deed or
or will;
will; and
(c)
(c) rights
rights of entry,
entry, whether for
for conditions
conditions broken or
or otherwise.
otherwise.
In addition,
In addition, section
section the Conveyancing and Law of
10 of the
1 Property Act°
of Property Act provides
provides that
that a
a
contingent,
executory oror future
future interest,
interest, a
a possibility coupled with
possibility coupled with an
an interest
interest in
in land
land and aa
present or
present or future right of entry
future right entry upon land
land may bebe disposed deed. However, this
disposed of by deed. this may
possibly not
possibly not extend to
to all
all rights
rights of re-entry.
re-entry.
It
It has
has been pointed
pointed out
out that
that the
the section
section does not appear to
does not to authorize the conveyance of a
authorize the a
mere possibility
possibility before
before breach
breach of aa condition,
condition, as
as such
such possibility
possibility is not coupled with an interest
is not interest in
in
land,
land, and the section does not
the section authorize conveyance of a
not authorize right of
a right of entry
entry after breach of a
after breach a condition
condition
88
Oosterhoff and Rayner,
supra, note
note 2,
2, at
at 391.
391
9
Supra,
Supra, note
note 5.
5.
10
10
Supra,
Supra, note
note 6.
6.
14
14
because itit does not include

include such a right
right of entry."
entry. Under
Under the
the corresponding Imperial
Imperial Real
12
Property Ac1,12
Act, it was similarly
it similarly held
held that
that the
the provision does not relate
relate to
to a right
right to
to re-enter
re-enter for
for
condition broken but but only to
to an original
original right
right where there
there has been a disseisin or
a disseisin or where the party
party
13
has
has a
a right
right to
to recover land and only hishis right entry remains.13
right of entry remains.
Finally,
Finally, aa brief
brief comment should be made on the the concept of seisin
seisin because
because of itsits
importance in
importance in the
the formation rules that
formation of rules that currently
currently exist
exist in
in Ontario.
Ontario. Seisin
Seisin may be described
described as
as
the possession
the possession of landland enjoyed
enjoyed by thethe holder
holder of a a freehold
freehold estate.
estate. It
It was important in in the
the
formation of legal rules because
formation legal rules because (among other
other things) feudal services
things) feudal services and incidents
incidents could be
enforced only
enforced only against the person
against the person seised
seised of land;
land; and conveyance of freehold
freehold estates
estates in
in land
land could
could
originally only
originally only bebe made by by feoffrnent
feoffment with
with livery
livery of seisin,
seisin, a
a ceremony in in which seisin
seisin was
passed transferor to
passed from transferor to transferee.
transferee.
(b)
(b) THE Legal REMAINDER
The LEGAL Remainder RULES
Rules
The validity
validity of contingent
contingent remainders in
in the
the early
early common law is is obscure.
obscure. However, inin
time
time their
their creation
creation was allowed at at common law but
but subject
subject to
to certain restrictive rules."
certain restrictive rules. These
rules are
rules are described
described here
here as
as the
the legal remainder rules.
legal remainder rules.
An argument can be made that that these

these rules
rules were not,
not, and should not have been,
should not received
been, received
into
into Ontario
Ontario asas part
part of the
the general
general adoption of English
English law since
since their rationales were obviously
their rationales obviously
irrelevant to
irrelevant to circumstances in
circumstances in Upper Canada at the end of the eighteenth century.
at the end of the eighteenth century. However, in
in a
a
few cases
cases these rules have been applied
these rules applied in
in Ontario,
Ontario, including
including a a case
case decided
decided in
in 1984;15
1984; it
it has
has
never
never been held
held or
or stated judicially that
stated judicially that they
they are
are inapplicable;
inapplicable; and itit is
is generally
generally assumed thatthat
they
they are
are applicable.
applicable.
The first16
first rule is
rule that there
is that there can be no remainder after
after aa grant
grant in
in fee
fee simple.17
simple. This
This rule
rule
appears
appears reasonable
reasonable even to to the
the modern mind where the the first
first grant
grant is
is an estate
estate in
in fee
fee simple
simple
absolute.
absolute. For example, ifif A purported
purported to
to grant
grant an estate
estate in
in fee
fee simple
simple to
to B with
with remainder to
to C in
in
fee
fee simple the
the remainder to to C would be void.
void. The rationale
rationale appears to to be that
that the
the grant
grant to
to B
n
11
Robinette, "Real
Robinette, "Real Property",
Property", 9 C.E.D.
C.E.D. (Ont.)
(Ont.) 176;
176; Baldwin v.
v. Wanzer;
Warner; Baldwin v.
v. Canadian Pacific
Pacific Ry.
Ry. Co.
Co. (1892),
(1892),
22 O.R. 612 (H.C.).
0.R.612(H.C).
12
12
1845,
1845, 8
8 &9
9 Vict.,
Vict, c.
c. 106
106 (U.K.),
(U.K.), s.
s. 6.
6.
13
13
Oosterhoffand Rayner, supra,
supra, note
note 2,
2, at
at 308,
308, where the relevant English
the relevant cases are
English cases are cited.
cited.
14
14
See,
See, for
for example,
example, S.F.C.
S.F.C. Milsom, Historical Foundations of
Historical Foundations the Common Law (2d
of the (2d ed.,
ed., 1981),
1981), at
at 192-99.
192-99.
15
15
Re Crow (1984),
(1984), 48 O.R. (2d)
(2d) 36 (H.C.).
(H.C.). For
For discussion
discussion about
about this
this case
case see
see infra,
infra, this
this ch.,
ch., sec.
sec. 2(e).
2(e).
16
16
The numbering of the the rules
rules is not related
is not related to
to their
their importance
importance or
or chronological
chronological development,
development, but it is
but it is convenient
convenient to
to
refer to the
refer to the rules
rules by number.
17
17
Applied in
in Re Chauvin (1920),
(1920), 18
18 O.W.N. 178
178 (H.C.).
(H.C.).
15
15
exhausts A's
exhausts A's interest
interest in the property
in the so that
property so that there
there is
is nothing
nothing left
left to
to give
give to
to C after
after B's
B's interest.
interest.
However, the rule was applied

the rule applied even where the the grant
grant to
to B was aa qualified
qualified fee
fee simple.
simple. Although A
can grant
grant aa determinable
determinable feefee simple retain an
simple and retain an interest
interest known as as a
a possibility
possibility of reverter
reverter or
or
a conditional
grant a
can grant conditional fee
fee simple
simple and retain
retain an interest
interest known as as a
a right
right of re-entry,
re-entry, A cannot at at
common law limit

limit aa remainder inin favour
favour of C to
to take effect on the
take effect the termination
termination of B's interest.
interest.
second rule
The second rule is
is that
that a
a
remainder must be supported by aa prior

remainder particular estate
prior particular estate of
of freehold
freehold created
created by the
the same
18
instrument.
instrument. It
It cannot be allowed to
to spring
spring up in
in the
the future
future after
after an hiatus...18
hiatus...
For example, if if A purports

purports toto convey anan interest
interest to
to B (who at at the
the time is
is aged 19)
19) if
if and
when B attains
attains 21,
21, the
the conveyance willwill be void at
at common law and B will will obtain
obtain no interest.
interest. On
the other hand,

the other hand, an
an interest
interest could
could have been validly
validly created
created if,
if, for
for example, A had conveyed to to X
for
for life,
life, remainder toto B in
in fee
fee simple
simple if
if and when B attains
attains 21.
21 As long
long as
. as B attains
attains 21
21 during
during the
the
lifetime
lifetime of X thethe contingent
contingent remainder would vest vest in
in interest
interest atat that
that time
time and would vestvest inin
possession on the
possession the death
death of A. In In this
this example, the
the remainder is is supported by a prior particular
a prior particular
estate freehold: X's life
estate of freehold: life interest.
interest.
The basic
basic idea
idea behind thisthis rule
rule was that
that there
there must,
must, at
at the
the time
time of grant,
grant, be
be an immediate
passage
passage of
of seisin.
seisin. This,
This, inin turn,
turn, was required
required since
since the
the method of conveying a a freehold
freehold estate in
estate in
land
land was originally
originally feoffment
feoffment withwith livery
livery of seisin.
seisin. A feoffinent
feoffment required
required thethe transferor
transferor at
at the
the
moment of feoffment
feoffment to to make aa symbolic delivery
delivery of
of seisin to the
seisin to the transferee.
transferee. This
This could
could only
only be
be
achieved
achieved if
if there
there existed
existed at at that
that time
time aa grantee
grantee capable
capable of receiving
receiving seisin.
seisin. In
In addition,
addition, this
this rule
rule
may be
be explained
explained by the the closely-related
closely-related reason that the
reason that the importance
importance of seisin
seisin within
within the
the feudal
feudal
system
system required
required that there always
that there always bebe someone with
with seisin
seisin since
since the
the person
person seised
seised of land
land was the
the
person
person subject
subject toto feudal
feudal obligations
obligations and the
the only person against
only person against whom certain
certain actions
actions relating
relating to
to
land
land could
could be
be brought.
brought. It It was,
was, therefore,
therefore, aa maxim ofof the
the common law law that
that seisin
seisin must not
not be
be in
in
abeyance.19
abeyance.
The third
third rule
rule is
is that
that a remainder must await
a remainder await the regular ending
the regular ending ofof the
the prior
prior particular
particular
estate.
estate. We have already already mentioned that that an interest
interest may be be made subject
subject to to aa condition
condition
subsequent
subsequent along
along with
with the
the retention by the
retention by the grantor
grantor of
of aa right
right of
of re-entry—a
re-entry —
a right
right to
to terminate
terminate the
the
estate
estate if
if the
the condition
condition is is broken. For example, A can convey
broken. For convey land
land to
to B for
for life provided that
life provided that B
does
does not
not marry C. C. However, pursuant
pursuant toto the
the common law rule under
law rule under consideration
consideration here,
here, A
cannot give
cannot give a a third
third party
party anan interest
interest that
that takes
takes effect
effect on thethe termination
termination of a prior estate
a prior estate by
reason of
reason of the
the operation
operation ofof a
a condition
subsequent. Assume, for for example,
example, that
that A conveys
conveys land to
land to
B for
for life
life on condition
condition that
that B does
does not
not marry C and if does marry C his
if B does his life
life estate
estate to
to terminate
terminate
18
18
Oosterhoff
and Rayner, note 2,
supra, note 2, at
at 392.
392.
19
19
In Savill
In Savill Brothers,
Brothers, Ltd
Ltd. v.
v. Bethel!,
Bethell, [1902]
[1902] 2
2 Ch.
Ch. 523 (C.A.),
(C.A.), it
it was held
held that
that this rule continued
this rule continued to
to apply
apply despite
despite the
the
fact that the
fact that the rationale
rationale for
for it
it had disappeared.
disappeared.
16
16
and
and an in fee
estate in
an estate fee simple in favour
simple in favour of D to
to take
take effect.
effect. The provision
provision in
in favour of D would be
void.
void.
is based on the
rule is
The rule the common law principle
principle that
that only
only the
the party
party from whom a a condition
condition
—
moves the grantor
moves—the or his heirs can —
grantor or his heirs—can take advantage of a condition broken. This principle was
take advantage of a condition broken. This principle
itself related to
itself related to the attitude towards the
the common law attitude passage of
the passage of seisin.
seisin. An estate
estate in
in remainder
regarded by the
was regarded the common law as as an estate
estate that
that was created
created by and that
that commenced upon the the
original livery of seisin.
original livery seisin. A grantor,
grantor, by the act of re-entry,
the act re-entry, would re-acquire
re-acquire that
that seisin
seisin which had
passed from him by the the original

original feoffment. But, according
feoffment. But, according toto the
the common law, law, itit was not
not
possible validly
otherwise possible
otherwise validly to interrupt the
to interrupt the passage
passage of seisin
seisin set
set in
in motion by thethe initial
initial act
act of
livery of seisin.
livery seisin.
Even atat common law this rule could easily

this rule easily be circumvented by appropriate
appropriate drafting.
drafting. For
example,
example, ifif A conveyed landland toto B for
for life
life or
or until
until B should
should marry C, C, remainder
remainder to to D in in fee
fee
simple, remainder to
the remainder
simple, the to D would be valid.
valid. B would take
take a determinable life
a determinable life estate;
estate; that
that is,
is, B's
B's
interest
interest may continue
continue for
for his life or
his life or may determine
determine sooner
sooner on the
the occasion
occasion of B's
B's marriage
marriage to to C.
C.
The limitation
limitation in favour of D would constitute
in favour constitute aa valid limitation by way of remainder since
valid limitation since the
the
event
event of B's marriage to
of B's marriage to C would not
not operate
operate to
to determine
determine B's
B's life
life estate
estate prematurely.
prematurely. It
It would
merely
merely mark the the duration
duration of B'sB's estate
estate soso that,
that, on the
the marriage,
marriage, B'sB's life
life estate
estate would end
regularly.20
regularly.
21
As stated in Anger and Honsberger's
stated in Honsberger s Law of
ofReal Properly,
Property, 21
[the]
[the] fourth common law remainder rule rule requires that a remainder vest
requires that vest during the
the
continuance of the particular estate
prior particular
the prior estate or
or at the moment that
at the that it
it determines.
22
The operation
operation of the rule is
the rule is explained
explained as
as follows:
follows: 22
20
In
In addition,
addition, if
if a
a right
right of
of re-entry
re-entry is
is now alienable
alienable by the
the grantor, a grantor
grantor, a grantor can
can circumvent the rule by reserving
the rule reserving a
a
right
right of re-entry
re-entry and
and then
then assigning
assigning that
that right
right to
to the
the third party.
third party.
21
21
supra, note
note 2,
2, at
at 394.
394.
22
Ibid.
Ibid. The rule
rule in
in Festing
Festing v.
v. Allen
Allen (1843),
(1843), 12
12 M. & W. 279,
279, was a a corollary
corollary to
to the
the fourth
fourth rule:
rule: "If
"If the
the remainder is is
to
to a
a class,
class, as in aa grant
as in grant 'to
'to A for
for life,
life, remainder
remainder to
to such
such of his
his children
children as
as attain
attain the 21 the
the age of 21', remainder will
the remainder
', will
be
be good asas to
to those
those of A's
A's children
children who are
are 21
21 at
at A's
A's death.
death. Children
Children who qualify
qualify thereafter
thereafter cannot
cannot take,
take, even
though
though they
they would not not be excluded under the
excluded under the class
class closing rules.": Oosterhoff
closing rules.": Oosterhoffandand Rayner,
Rayner, supra,
supra, note
note 2, at 394.
2, at 394.
The effect
effect ofof the
the fourth rule was ameliorated
fourth rule ameliorated in in one respect.
respect. It
It was established
established in
in Reeve v.v. Long (1695),
(1695),
33 Lev.
Lev. 408 "that
"that if
if an
an estate
estate be
be limited
limited byby will
will to
to a person for
a person for life with remainder
life with remainder to
to his
his child
child and he
he dies
dies before
before
the
the child
child is
is born
bom but
but while it is
while it is en ventre
ventre sa
sa mere,
mere, and
and itit is
is subsequently born, such
subsequently bom, such posthumous child
child is
is treated
treated asas
being born
being bom in the father's
in the father's lifetime
lifetime so
so as
as to
to make the
the remainder
remainder vestvest in
in time":
time": Oosterhoff and Rayner,
supra, note
note 2,
2,
at 401-02. This
at 401-02. This rule
rule was extended
extended by s. s. 45 of the
the Conveyancing and Law of of Property
Property Act,
Act, supra,
supra, note
note 6,
6, to
to inter
inter
vivos dispositions.
vivos dispositions.
17
17
The limitation
limitation may be so so worded as as to
to stipulate for aa gap,
stipulate for gap, inin which case
case it
it is void, as
is void, as in
in aa
grant
grant 'to
'to A for life, remainder to
for life, to B when he reaches
reaches age 2121 after
after A's death.'
death.' On the
the other
other hand,
hand, ifif
the gap may or

the or may not not occur atat the the determination
the time of the determination of of the
the prior
prior estate,
estate, the
the law permits
the
the remainderman to to wait and see
see until
until that
that time.
time. If
If the remainder is
the remainder is then vested,
vested, it
it is
is allowed to to
take
take effect; if it
effect; if is not,
it is not, it
it is
is void.
void. Hence, in in a grant 'to
a grant 'to A for
for life,
life, remainder to to B when he marries'
marries'
(B being a bachelor), remainder will
bachelor), B's remainder will be valid
valid if has married when A dies;
if he has dies; if
if he has not,
not, it
it
will fail.
will fail.
Where aa remainder
remainder is
is initially
initially valid
valid under this
this rule
rule but
but will
will be invalidated
invalidated if
if it
it does
does not
not
turn
turn out
out to
to vest
vest during
during or
or at
at the
the moment of determination
determination of the
the prior
prior estate, the validity
estate, the validity of the
the
remainder
remainder will
will depend on thethe date
date of termination
termination of thethe prior
prior estate.
estate. This
This may terminate
terminate
naturally, for
naturally, for example,
example, by the
the death
death of a prior life
a prior life tenant,
tenant, or
or it
it may occur
occur artificially.
artificially. For
For
example,
example, the
the prior
prior estate
estate could
could be destroyed
destroyed by forfeiture,
forfeiture, surrender,
surrender, merger or or disclaimer.
disclaimer.
13
Section
Section 35 of the
Act has
has partially
partially abolished
abolished artificial
artificial
destruction
destruction of contingent
contingent remainders:
remainders:
35.
35. Every contingent remainder is is capable of taking
taking effect
effect notwithstanding the
the determination
determination
by forfeiture,
forfeiture, surrender
surrender or
or merger of any preceding
preceding estate
estate of freehold.
freehold.
The abolition
abolition is
is only partial since
only partial since destruction
destruction of a prior estate
a prior estate may occur in
in other
other ways,
ways,
notably
notably disclaimer
disclaimer which isis not
not mentioned in in section
section 35.
35. In
In addition,
addition, section
section 35
35 does
does not
not apply
apply
to
to the
the natural
natural determination
determination of a prior estate.
a prior estate.
This
This rule,
rule, which isis closely related to
closely related to the
the second
second legal remainder rule,
legal remainder rule, rests,
rests, like
like the
the second
second
rule, on the
rule, the importance attached
attached by the
the common law to to seisin
seisin and thus
thus to
to the
the idea
idea that
that there
there
must always
always bebe someone withwith seisin.
seisin. The second
second and fourth
fourth legal
legal remainder
remainder rules
rules also
also carried
carried
out
out aa policy
policy of preventing
preventing thethe creation interests operating
creation of interests operating too
too far
far into
into the
the future.
future. However,
because of the
because the development of of uses
uses and the
the impact
impact of the
the Statute
Statute of
of Uses,24
Uses, they were not
they not an
effective
effective way of controlling
controlling perpetuities.
perpetuities. This
This policy
policy was more effectively
effectively carried
carried out
out by the
the
modern rule
rule against
perpetuities, the
the main principles
principles of which were developed
developed in in the
the last
last quarter
quarter
of
of the
the seventeenth
century.
(C)
(c) EQUITABLE INTERESTS UNDER USES
A use
use is the predecessor
is the predecessor of the
the modern trust.
trust. Like a trust,
Like a trust, it
it had the
the effect
effect of separating
separating
legal title
legal title from equitable
equitable or
or beneficial
beneficial entitlement.
entitlement.
There
There was a variety of reasons
a variety reasons for the development of the
for the the use.
use. For present purposes, and
present purposes,
by way of illustration,
illustration, it
it is
is sufficient
sufficient briefly to mention two objectives
briefly to objectives of landowners:
landowners: the
the desire
desire
to
to give
give land
land by will
will and the
the desire
desire to
to avoid
avoid feudal
feudal incidents.
incidents. By the
the end of the
the thirteenth
thirteenth century
century
23
Ibid.
ibu.
24
Infra,
Infra, note
note 26.
26.
18
18
itit became established

established that, apart from customs in
that, apart in particular
particular localities,
localities, real
real property
property could not be
devised by will.
devised will. However, this this prohibition could be
prohibition be circumvented by aa use. use. Assume, for for
example,
example, that that X wished his
his interest
interest in
in certain
certain land
land to
to go on his death, not to his eldest son, A, but
his death, not to his eldest son, A, but
to
to a a younger child,
child, B.
B. He could,
could, prior
prior to
to the
the enactment of the the Statute
Statute ofof Uses,
Uses, achieve
achieve his
his object
object
by conveying the land to
the land P, Q and R to
to P, to the use of himself
the use himself until
until his death and thereafter
his death thereafter to to the
the use
use
of B. Alternatively, if
B. Alternatively, if he
he did
did not
not at
at that
that time wish to to make a a final
final decision
decision he could direct
direct that
that
after
after hishis death
death itit be held
held toto such use as he
use as he should
should appoint.
appoint. So too,
too, by resort
resort to
to the
the device of a a
could a
use, could
use, a landowner avoidavoid incidents
incidents of tenure.
tenure. Assume that that X was the the owner of an estateestate in
in
fee simple and his

fee simple and his heir,
heir, A, was an infant
infant aged 10 years.
10 years. On the
the death
death of X, the fee simple estate
the fee simple estate
would pass pass by descent

descent to to A and onerous
onerous feudal
feudal incidents,
incidents, such
such asas relief,
relief, wardship and marriage,
marriage,
would become applicable.
applicable. To avoid this this result,
result, X could
could convey the the fee
fee simple estate
estate to
to P,
P, Q and
R to to the
the use
use of X until
until his
his death
death and thereafter
thereafter toto the use of A. On X's death,
the use death, the
the feudal
feudal incidents
incidents
would not not accrue
accrue since
since they
they occurred when a a person seised
seised of land
land died
died or
or when an infant
infant heir
heir
seised, and under this
became seised, this arrangement Q, Q, P and R were seisedseised of the
the land
land on the
the death
death of X.
In
In cases
cases where thethe holder
holder of aa legal
legal title
title refused
refused to
to honour his undertaking and carry
his undertaking carry out
out
the
the terms
terms of thethe use,
use, the
the common law courtscourts did not intervene.
did not intervene. Instead,
Instead, by the
the end of thethe
fifteenth
fifteenth century,
century, the
the Chancellor,
Chancellor, exercising
exercising an equitable jurisdiction, intervened
equitable jurisdiction, intervened toto protect
protect the
the
position of aa beneficiary
position beneficiary under a a use. It was accepted
use. It accepted that
that seisin
seisin and common law title title were
vested
vested inin feoffees
feoffees to uses (P,
to uses (P, Q and R in in the
the examples above).
above). However, the the feoffees
feoffees toto uses
uses
were required
required toto act in accordance with good conscience and thus
act in thus not to exercise
not to their common
exercise their
law rights
rights inin a inconsistent with
a manner inconsistent with thethe obligations
obligations they
they had undertaken under the the
conveyance to to uses.
uses. The rights
rights so
so acquired
acquired by a a beneficiary
beneficiary under a use were initially
a use initially regarded
regarded
as
as personal
personal in in nature
nature but
but they
they evolved intointo proprietary
proprietary interests.
interests. There thus
thus emerged an
equitable system of landowning.
equitable landowning.
Generally,
Generally, in in fashioning
fashioning this
this equitable
equitable system of landholding,
landholding, equity replicated the
equity replicated the system
at
at common law. However, in
law. in important respects
important respects equity departed from the
equity departed from the common law.
law. In
In
particular, none
particular, none of thethe four
four common law remainder rules rules applied
applied to
to equitable
equitable interests
interests under
uses.
uses. Those rules
rules could,
could, therefore,
therefore, easily
easily be circumvented merely by conveying land land to persons
to persons
to
to hold to the
hold to the use
use of another person or
another person or other
other persons
persons intended
intended to
to benefit
benefit from the
the land.
land. Those
interests
interests which could validly
validly exist
exist as
as equitable
equitable interests but which would have been void
interests but void at
at
common law as as infringing

infringing the
the remainder rules are
remainder rules are known as as equitable
equitable executory
executory interests.
interests.
(d)
(d) THE
The STATUTE
Statute OF
of USES
Uses
During the
the Tudor period
period the
the Crown responded to the development of uses
to the uses by getting
getting
Parliament to pass legislation
to pass legislation to
to thwart their utilisation
thwart their utilisation as
as a
a means of avoiding
avoiding feudal
feudal incidents.25
incidents.
25
J.H.
J.H. Baker,
Baker, "Introduction",
"Introduction", in
in J.H.
J.H. Baker,
Baker, ed.,
ed., The
The Reports
Reports of
of Sir Spelman, Vol.
Sir John Spelman, Vol. II,
II, Selden
Selden Society,
Society, vol.
vol. 94
(1977),
(1977), at
at 192.
192.
19
19
The practice
practice of putting
putting lands in use
lands in had so
use had so drastically reduced the
drastically reduced the incidence
incidence of these
these casual
casual
benefits
benefits [i.e.
[i.e. the
the feudal incidents], by ensuring
feudal incidents], ensuring that no sole
that no sole tenant
tenant ever
ever died
died seised,
seised, that
that they
they
became almost
almost obsolete.
obsolete. The Crown, always lordlord and never tenant,
tenant, obviously suffered
suffered the
the most in
in
this respect, gaining nothing

this respect, nothing in
in return.
return. The legislation
legislation of Henry VII and Henry VIII VIII concerning
concerning
uses therefore a direct
uses was therefore counter-attack on what was seen
direct counter-attack seen from above asas tax
tax evasion.
evasion.
The culmination
culmination of this
this legislation
legislation was the
the Statute
Statute of
of Uses,
Uses, 1535,26
1535, which has
has been re-
re-
27
enacted
enacted in
in Ontario and is still part
is still part of Ontario
Ontario law.27
law. As re-enacted,
re-enacted, itit provides,
provides, inter
inter alia,
alia, as
as
follows:
follows:
2.
2. Where any person stands
stands or
or is
is seized
seized of and inin lands
lands ... to
to the
the use,
use, confidence or
... or trust,
trust, of any
other
other person,
person, or
or of any body politic,
politic, ... in
in every
every such case
... case such person
person and body politic
politic ... shall
shall ...
from henceforth
henceforth stand
stand and be seized
seized ... of and in
in the
...the same lands
lands ... to
to all
all intents,
intents, constructions
... constructions and
purposes in
purposes in the
the law,
law, of and inin such like
like estates
estates as
as they had,
had, or
or shall
shall have, in in use, trust or
use, trust or
confidence
confidence of or
or in
in the
the same.
The main purpose

purpose of the
the Statute
Statute of
of Uses was prevention
prevention of
of the
the separation
separation ofof legal
legal and
equitable
equitable ownership.
ownership. The technique
technique used to to achieve
achieve this
this was "execution"
"execution" of thethe use.
use. The
Statute
Statute annexes to to the
the equitable
equitable interest
interest held
held by the
the beneficiary
beneficiary "the
"the actual
actual seisin
seisin and legal
legal
,,28
28
estate
estate" so
so that
that the
the legal
legal title
title acquired by thethe beneficiary
beneficiary pursuant toto the
the Statute
Statute is
is co-
co-
extensive
extensive with the equitable
with the equitable interest
interest granted
granted under the
the use.
use.
The Statute
Statute was designed
designed toto prevent
prevent avoidance of feudal
feudal incidents.
incidents. ItIt was probably
probably notnot
intended
intended to prevent avoidance of the
to prevent the legal
rules. Certainly,
Certainly, itit became established
established
that it
that it did
did not
not have this
this effect.
effect. The Statute
Statute said
said that
that uses
uses would be be executed
executed so that the
so that the
beneficiaries would become "seized
beneficiaries "seized ... of and in
... in such
such like
like estates
estates as
as they
they had,
had, oror shall
shall have,
have, in
in
use ..., of or
use ..., or in
in the
the same." It It became established
established that,
that, generally,
generally, the
the beneficiary
beneficiary under the the use
use
obtained
obtained a a legal
legal title
title equivalent
equivalent toto the beneficial interest
the beneficial interest given
given under
under the
the use:
use: itit was irrelevant
irrelevant
that
that the
the interest
interest was inconsistent
inconsistent with
with the
legal remainder rules. These new interests
interests became
29
known as as legal
legal executory interests.29
interests.
26
27 lien.
Hen. 8,
8, c.
c. 10
10 (U.K.).
(U.K.).
27
The Statute
Statute of
of Uses,
Uses, R.S.O.
R.S.O. 1897,
1897, c.
c. 331, in R.S.O.
reproduced in
331, reproduced R.S.O. 1980,
1980, App. A.
A. See, also, An Act respecting
See, also, respecting Real
Property,
Property, R.S.O.
R.S.O. 1897,
1897, c.
c. 330,
330, reproduced in
in R.S.O.
R.S.O. 1980,
1980, App. A.
28
Gamble v.
v. Rees (1850),
(1850), 6 U.C.Q.B. 396,
396, at
at 406 (C.A.).
(C.A.).
29
The process
process by which execution
execution of the
the use
use occurred
occurred in
in the
the case
case of executory
executory interests
interests gave rise
rise to
to theoretical
theoretical
difficulties
difficulties that
that were solved by statute
solved by statute (Oosterhoff and Rayner,
(Oosterhoffand Rayner, supra,
supra, note
note 2,
2, at
at 422-23):
422-23):
When thethe use

use is
is of a
a contingent
contingent remainder or or is
is otherwise
otherwise executory
executory ... it
... it cannot
cannot be
be executed
executed until
until
it
it vests
vests and itit cannot vest
vest unless
unless it has aa particular
it has particular estate
estate of freehold
freehold toto support
support it. For
it. For that
that reason,
reason, the
the
Ontario
Ontario Conveyancing and Law of of Property Act [supra, note 6,
[supra, note 6, s.
s. 34] provides that,
34] provides that, where byby any deed,
deed,
will
will or
or other
other instrument,
instrument, any land
land isis limited
limited toto uses,
uses, all
all uses
uses thereunder,
thereunder, express
express oror implied,
implied, immediate
or
or future,
future, contingent,
executory or
or toto be
be declared under any power contained
declared under contained inin the
the instrument,
instrument, shall
shall
take
take effect
effect as
as they
they arise
arise by force
force of thethe seisin
seisin originally
originally vested
vested in
in the person seised
the person seised to
to uses,
uses, and the
the
20
20
However, not all limitations

not all limitations in in a
a grant
grant to to uses
uses were treated
treated asas legal
legal executory interests.
interests.
30
Under the rule known as
the rule the rule
as the in Purefoy
rule in Purefoy v. v. Rogers3°
Rogers a a limitation
limitation contained
contained inin aa grant
grant to
to
uses which, at
uses the time of its
at the its inception,
inception, can possibly be valid
can possibly valid as
as aa legal
legal remainder is is treated
treated as
as
legal remainder rather
aa legal rather than
than as
as an
an executory
executory interest. Therefore, it remains subject
interest. Therefore, it remains subject to
to the
the
rules and is
legal remainder rules
legal is invalidated
invalidated ifif it
it turns
turns out
out to
to infringe
infringe those
those rules.
rules. Assume that
that land
land
is conveyed to
is to P,
P, Q and R to to the use of A for
the use for life, remainder to
life, remainder to B in
in fee
fee simple
simple if
if and when
attains the
he attains the age
age of 21. . Statute of
2 1 The Statute of Uses
Uses executes
executes thethe use
use so
so that
that P,
P, Q and R drop out out of
picture and A and B obtain
the picture
the obtain legal
legal interests. remainder will
interests. B's remainder will comply with the the legal
legal
remainder rules
remainder rules if
if B obtains
obtains 21 during the the lifetime
lifetime of A. It It is,
is, therefore,
therefore, treated
treated as
as a
a legal
legal
remainder and if if A happens to
to die before
die before B obtains 21 B's interest is
obtains 21 B's interest is invalidated.
invalidated.
The Statute
Statute ofof Uses does not
not execute allall uses.
uses. Two examples are are most important.
important. First,
First,
statute never applied

the statute
the to "active
applied to "active uses",
uses", a a use
use where,
where, by the
the terms
terms of the
the grant,
grant, active
active duties
duties
are
are imposed on the the "feoffees
"feoffees to
to uses"
uses" or
or trustees.
trustees. In
In this
this situation,
situation, the
the use
use is
is not
not executed,
executed,
legal
legal title
title is retained by the
is retained the trustees,
trustees, and thethe beneficiaries'
beneficiaries' interests remain equitable.
interests remain equitable. Even
after
after the
the Statute
Statute ofof Uses,
Uses, therefore,
therefore, the
the legal remainder rules
legal remainder rules had no application
application to
to such
such
equitable
equitable interests.
interests. Most modern trusts,
trusts, it
it should be pointed
pointed out,
out, are
are ones where the the trustees
trustees
have active
active duties
duties to perform and thus
to perform thus are
are unaffected
unaffected by thethe Statute
Statute of
of Uses.
Uses.
The second important

important example is is where there
there is
is a
a "double use"use" oror aa "use
"use upon a a use".
use".
This
This was established
established by the the courts
courts asas a generally available
a generally available method of circumventing
circumventing the the
Statute
Statute of
of Uses in in the
the second half
half of the
the seventeenth
century. By thisthis time Parliament had
obtained
obtained control
control from the the Crown over taxation,
taxation, the fiscal importance of feudal
the fiscal feudal incidents
incidents had
ended,
ended, and the the Statute
Statute ofof Uses
Uses had become unimportant as
as a
a mechanism for
for preserving
preserving
Crown revenues.
revenues. The operation
operation of a use upon aa use
a use use may be be illustrated
illustrated by an example.
Assume that
that X conveys Blackacre "to "to A inin fee
fee simple to to the
the use
use of B in in fee
fee simple to to the
the use
of C in
in fee
fee simple".
simple". The Statute
Statute of
of Uses
Uses executes
executes thethe first
first use—that
use that in —
in favour
favour of B—but
B but thatthat—
exhausts
exhausts its
its effect
effect with
with the
the result
result that
that B was left holding to
left holding to the
the use
use of,
of, or
or (as
(as it
it became usual
usual
to
to express
express it)
it) on trust
trust for
for C.
C. When this
this device
device became established,
established, thethe same result
result could be
achieved by conveying "to "to B in
in fee
fee simple,
simple, to
to the
the use
use of B inin fee
fee simple,
simple, in in trust
trust for
for C in
in fee
fee
simple" or
or even by conveying "unto "unto and to to the
the use
use of B in in fee
fee simple,
simple, in in trust
trust for
for C inin fee
fee
simple".
simple". In
In all
all these
these examples,
examples, B would hold hold the
the legal
legal estate
estate on trust
trust for
for C.
C.
continued existence
existence in
in him or
or elsewhere
elsewhere of
of any
any seisin
seisin to
to uses
uses or
or scintilla juris shall
scintilla juris shall not
not be necessary
necessary to
to
support oror give
give effect
effect to
to the
the future,
future, contingent
contingent or
or executory
executory uses,
uses, nor
nor shall
shall such seisin
seisin to
to uses
uses or
or
scintilla juris be deemed to
scintilla juris to be
be suspended
suspended oror to remain or
to remain or subsist
subsist in
in him or
or elsewhere.
elsewhere.
The reference
reference to to scintilla juris is
scintilla juris is due to
to the fact that,
the fact that, before
before the
the Statute
Statute of
of Uses,
Uses, the seisin of the
the seisin the
grantee
grantee to
to uses
uses supported contingent uses uses in
in remainder but, passage of the
but, upon passage Act, no estate
the Act, estate was left
left
in
in the
the grantee
grantee to to uses,
uses, so
so the
the courts
courts adopted the
the fiction
fiction that
that nevertheless
nevertheless a possibility of
a possibility of seisin,
seisin, scintilla
scintilla
juris, or
juris, or little
little spark of the
the law, remained in
law, remained in the grantee, which was sufficient
the grantee, sufficient to
to give
give effect,
effect, whenever
necessary,
necessary, toto contingent
contingent and other
other executory uses.
uses.
30
(1671), 2 Wms. Saund. 380.
(1671),2Wms.Saund.380.
21
21
This
This device of a a use
use upon a use enabled
a use enabled once more the the creation
creation of purely
purely equitable
equitable
interests,
interests, even where the the trustee
trustee had no active
active duties
duties to perform. These equitable
to perform. equitable interests
interests
under
under trusts
trusts were treated
treated the
the same as as equitable
equitable interests
interests under uses uses prior
prior toto the
the Statute
Statute of
of
Uses. Most importantly,
Uses. importantly, equity
equity did
did not
not apply any of the the four
four legal
legal remainder rules to these
rules to these
equitable
equitable interests
interests and itit became possible
possible once again to to create
create equitable
equitable executory
interests.
The most important aspect

important aspect of this
this development in the present context is the escape that
development in the present context is the that it
it
provided from the the rule

rule in
in Purefoy v.v. Rogers. Since thethe rule
rule in
in certain
certain circumstances treats treats a
a
legal
legal interest
interest as
as a
a legal
legal remainder rather
rather than
than a
a legal
legal executory
executory interest,
interest, it
it has
has no application
application
to
to an
an interest
interest that is exclusively
that is exclusively equitable.
equitable. Assume that that X conveys Blackacre
Blackacre "unto
"unto and to to the
the
use P, Q and R in
use of P, in trust
trust for
for A for
for life,
life, remainder inin fee
fee simple in in trust
trust for
for B,
B, if
if and when B
should attain
attain the
the age of 21 21 years".
years". Even if if A died
died before B attains
attains 21,
21, B's interest
interest will
will not
not
fail.
fail. Blackacre will
will be heldheld on a resulting trust
a resulting trust for
for X unless
unless and untiluntil B satisfies
satisfies the
the
contingency by attaining
attaining the
the age of 21.
21.
(e)
(e) SUCCESSIVE
Successive INTERESTS
Interests CREATED
Created BY WILL
by Will
It
It appeared that
that the
the Statute
Statute of
of Uses frustrated
frustrated landowners' ability
ability to
to dispose
dispose of land
land on
death
death through thethe device
device of aa use.
use. Indeed,
Indeed, it
it is
is often
often said
said that
that this
this was one of the the grievances
grievances
leading to
leading to the rebellion
the rebellion known as
as the Pilgrimage of Grace. In response, the Statute
the Pilgrimage of Grace. In response, the Statute ofof Wills,
Wills,
1540,31
1540, largely
largely restored
restored the
the power toto make wills
wills of real
real property.
property. The Act empowered owners
of land
land in
in fee
fee simple
simple to
to devise
devise all
all land
land held in socage
held in socage tenure
tenure and two-thirds
two-thirds of land
land held
held in
in
32
tenure knight service.
tenure by knight service. With the
the abolition
abolition of military
military tenure
tenure inin 1660,32
1660, all
all land
land became
freely
freely devisable.
devisable.
If
If real
real property
property was given
given by will
will subject
subject to
to a
a passive
passive use,
use, the use was executed as
the use as in
in an
inter vivos conveyance, although

inter vivos although the
the theoretical
theoretical explanation
explanation for
for this
this was debated.
debated. In addition,
In addition,
the
the courts
courts accorded to to limitations
limitations contained
contained in
in aa will
will that
that were not
not expressed
expressed as
as subject
subject to
to
uses
uses the
the same effect
effect as
as they
they would have done if uses had been so
if uses so expressed.
expressed. Accordingly,
whether oror not
not the
the language
language of uses
uses was used,
used, provision
provision could
could bebe made by will
will for
for interests,
interests,
described
described asas legal
legal executory devises,
devises, not
not complying with
with the
Like
Like inter
inter vivos
vivos conveyances, trusts
trusts can be created
created that
that are not executed
are not executed and turned
turned into
into
legal
legal devises.
devises. As with
with inter
inter vivos
vivos conveyances,
conveyances, this
this occurs
occurs where thethe Statute
Statute of
of Uses has
has no
application,
application, for
for example, where there
there is
is an
an active use or
active use or trust,
trust, or
or where aa use
use upon aa use
use is
is
created.
created.
31
31
32 Hen. 8, c. 1 (U.K.).
8, c. 1 (U.K.).
32
Tenures Abolition Act, 1660,
Abolition Act, 1660, 12
12 Cha.
Cha. 2,
2, c.
c. 24 (U.K.).
(U.K.).
22
If such
If such a
a trust is not
trust is not created,
created, subject
subject to
to an argument based
based on section
section 2(1)
2(1) of the
the Estates
Estates
Administration Act,33
Administration Act, a provision made by will
a provision will was, like
like an inter vivos conveyance, subject
inter vivos subject to
to
the rule
the rule in v. Rogers.
Purefoy v.
in Purefoy Rogers.
Section
Section 2(1) the Estates
2(1) of the Estates Administration
Administration Act provides
provides as
as follows:
follows:
—
2.—(l)
2. (1) All
All real
real and personal
personal property thatthat is
is vested
vested in
in a person without aa right
a person right in
in any other
other
person to take by survivorship,
to take survivorship, on the person's death,
the person's death, whether testate
testate or
or intestate
intestate and despite
despite any
testamentary disposition,
testamentary disposition, devolves to to and becomes vestedvested inin his
his or
or her
her personal
personal representative
representative
from
from time to time
time to time as
as trustee
trustee for
for the
the persons
persons by by law beneficially entitled
law beneficially entitled thereto,
thereto, and,
and, subject
subject toto the
the
payment of the the person's
person's debts
debts and so
so far
far as
as such property
property is
is not
not disposed of by deed,
deed, will,
will, contract
contract
or
or other effectual disposition,
other effectual disposition, it
it shall
shall bebe administered,
administered, dealt
dealt with and distributed
distributed asas if
if it
it were
personal property
personal property not so disposed of.
not so of.
This
This provision,
provision, the precursor of which was enacted in
the precursor in 1886,
1886, deals
deals with both testate
testate and
intestate succession.
intestate succession. It It follows
follows from section
section 2(1)
2(1) that
that legal
legal title
title to
to all
all of aa testator's
testator's or
or
intestate's
intestate's property, including real
property, including property, devolves on death
real property, death to
to the personal representative
the personal representative
and this
this legal
legal title
title is
is held
held by the
the personal
personal representative
representative as trustee. The persons beneficially
as trustee. beneficially
entitled
entitled under a a will
will oror under the intestacy rules
the intestacy rules constitute
constitute the
the beneficiaries this statutory
beneficiaries of this statutory
trust.
trust.
The effect
effect of an English provision equivalent
English provision equivalent to to section
section 2(1)
2(1) of the the Estates
Estates
Administration Act was considered
Administration considered in Robson.34 In
in Re Robson. this case,
In this case, aa testator
testator devised
devised certain
certain
freehold land, "The Oaks",
freehold land, Oaks", unto
unto and to to the
the use
use of his
his daughter
daughter during her her life
life and from and
after
after her
her decease
decease toto the use of such
the use such of her
her children
children in
in fee simple as
fee simple as should
should attain
attain the
the age
age of 21
21
years and if
years if more than
than one in in equal
equal shares
shares asas tenants
tenants in in common. The testator
testator died
died in
in 1905
1905
and the
the life tenant in
life tenant in 1915.
1915. At thethe date
date of her
her death
death she
she left
left four children surviving
four children surviving her,
her, the
the
two plaintiffs
plaintiffs who had at at that
that date
date each
each attained
attained the
the age
age of 21
2 1 and the
the two defendants,
defendants, both
both of
whom had not not attained
attained that
that age.
age. The court
court was asked to to determine
determine whether the the plaintiffs
plaintiffs were
entitled
entitled to
to "The Oaks" to to the
the exclusion
exclusion of thethe two infant
infant defendants.
defendants.
35
The testator
testator had died
died after the enactment of the
after the the English
English Land Transfer Act, 1897,
Transfer Act, 1897,
which provided,
provided, like
like section
section 2(1)
2(1) of the
the Ontario Estates Administration
Ontario Estates Administration Act,
Act, that
that on death
death real
real
estate devolved to
estate to and became vested
vested in
in the
the personal representatives.
personal representatives. Therefore,
Therefore, at
at the
the date
date of
of
the
the testator's
testator's death
death the
the limitations
limitations to
to the
the children
children did not take
did not take effect
effect at
at common law but, but,
arguably, took effect
arguably, took effect as
as equitable interests. However, the
equitable interests. the testator's executors had assented
testator's executors assented to
to
the
the devise
devise at time during
at some time during the
the life
life tenancy
tenancy soso that,
that, from the date of this
the date this assent,
assent, the
the
children's
children's interests
interests had become clothed
clothed with legal title.
with legal title. Nevertheless, the court
Nevertheless, the court held that the
held that the
33
33
R.S.O. 1990,
R.S.O. 1990, c.
c. E.
E. 22.
22.
34
[1916]
[1916] 1ICh.
Ch. 116.
116.
35
60 & 61
61 Vict.,
Vict, c.
c. 65
65 (U.K.).
(U.K.).
23
23
plaintiffs not entitled

plaintiffs were not to "The Oaks" to
entitled to to the
the exclusion
exclusion of the
the two infant
infant defendants. In
defendants. In
36
arriving at this conclusion,
arriving at this conclusion, Astbury J.
J. stated:36
stated
In
In the present case
the present case there
there was clearly
clearly an assent to at some time during the
to the devise at the life
life
tenancy. From the

tenancy. the date
date of this
this assent
assent the property vested in
the property in the life tenant and remaindermen
life tenant
according to the limitations

to the limitations of the
the will; but ... the
will; but the equitable
... equitable contingent remainders which, having
contingent remainders
regard toto the the Land Transfer
provisions of the
the provisions Transfer Act,
Act, were originally
originally created
created by the
the will
will retained their
retained their
initial destruction though clothed
initial immunity from destruction clothed from the date of such assent
the date assent with the
the legal
legal estate.
estate.
Had the
the limitations
limitations to
to the
the children
children not
not been treated
treated as as creating
creating purely
purely equitable
equitable
37
interests, they would, under the
interests, the rule
rule in
in Purefoy
Purefoy v. Rogers,37 have been treated
v. Rogers, treated asas legal
legal
contingent remainders since
contingent remainders since at
at their
their inception
inception they
they were capable
capable of complying with with the
the legal
legal
remainder rules.
rules. They would, therefore, have been required
therefore, have required toto comply with
with the
the fourth
fourth rule—
rule
that
that a
a remainder must vest vest during
during the
the continuance of the prior
continuance the prior particular estate
particular estate or
or at
at the
the
moment of its its determination.
determination. The interests
interests of the
the two plaintiffs
plaintiffs had soso vested
vested but
but those
those of the
the
38
defendants
defendants had not.not. Therefore,
Therefore, under the the rule
rule in
in Festing
Festing v.
v. Allen,38
Allen, the
the plaintiffs
plaintiffs would have
been entitled
been entitled to the exclusion
to the exclusion of the
the defendants.
defendants.
The Robson casecase is

is authority
authority forfor the proposition that
the proposition that where, on death,
death, legal title by
legal title
statute
statute devolves
devolves toto and becomes vestedvested in
in the personal representative,
the personal representative, aa limitation
limitation contained
contained
in
in a
a will
will need not
not comply with
with the
the fourth
fourth legal
legal remainder
remainder rule
rule and equitable
equitable interests
interests so
so
created
created by will retain their
will retain their initial
initial immunity from destruction
destruction although
although they
they may subsequently
be
be clothed
clothed with
with legal
legal title.
title. If
If this principle is
this principle is correct,
correct, it
it would seem to to be of general
general
application
application and itit should
should apply
apply toto each
each of the
the four
four legal remainder rules.
legal remainder rules.39
The effect
effect of
of section
section 2(1)
2(1) of the Estates Administration
the Estates Administration Act40
Act fell
fell to
to be considered
considered in
in the
the
recent Ontario
recent Ontario case
case of Re Crow.'"
Crow. Unfortunately,
Unfortunately, an argument based on section section 2(1)
2(1) was,
apparently,
apparently, not
not put
put to
to the
the court
court and Re Robson was not not cited.
cited. In
In Re Crow thethe testator
testator devised
devised
an
an undivided
undivided share
share of land
land to
to his
his grandson William forfor life
life with remainder to the children
to the children of
his grandsons Charles
his Charles and Joseph.
Joseph. Charles
Charles and Joseph
Joseph did
did have children but they
children but they were not
not
born until
born until after
after the
the life
life tenant
tenant William hadhad died.
died. At the
the death
death of the
the testator,
testator, the
the limitations
limitations
36
Re Robson, supra, note
Robson, supra, note 34,
34, at
at 124.
124.
37
Supra,
Supra, note
note 30.
30.
38
Supra,
Supra, note
note 22.
22.
39
As was pointed
pointed out
out in
in Re Robson,
Robson, supra,
supra, note
note 34,
34, a
a similar
similar view to that taken
to that taken by Astbury J. previously been
J. had previously been
taken
taken in
in two Australian
Australian decisions,
decisions, although
although in
in neither
neither of these
these cases the question
cases was the question of the
the effect
effect of a
a subsequent
subsequent
assent
assent or
or executor's
executor's deed discussed:
discussed: Re Beavis (1906),
(1906), 77 S.R.
S.R. (N.S.W.) 66 (S.C.);
(S.C.); Re Campion, [1908]
[1908] S.A.L.R.
S.A.L.R. 1
1
(F.C.,
(F.C., S.C.).
S.C.). See, also, Re Malin, [1912]
See, also, [1912] V.L.R.
V.L.R. 259,
259, at
at 263;
263; and Barrett
Barrett v. Barrett (1918),
v. Barrett (1918), 18
18 S.R.
S.R. (N.S.W.)
(N.S.W.) 637,
637,
at
at 640.
640.
40
Supra,
Supra, note
note 33.
33.
41
41
Supra,
Supra, note
note 15.
15.
24
capable of complying with the

were capable the legal
rules since
since Charles and Joseph
Joseph might
might
children born before
have had children before the death of
the death of William whose interests
interests would have vested during
during
prior particular
the prior
the estate. Therefore,
particular estate. Therefore, under the rule in
the rule in Purefoy
Purefoy v. v. Rogers thethe limitations
limitations
would be treated
treated as
as legal
legal remainders subject
subject to
to the
the legal
rules. As it
it turned out
out that
that
the interests
the the children
interests of the children of Charles
Charles and Joseph did did not
not vest
vest during,
during, oror at
at the
the moment of,of,
termination of the prior particular estate, these interests were void,

termination of the prior particular estate, these interests were void, unless
unless there
there was a a trust
trust
affecting them.
affecting them.
There were two possible

possible arguments thatthat there
there was such a a trust.
trust. First,
First, it
it was argued that
that
will created
the will
the created an express
express trust
trust under which the the trustees
trustees had active
active duties
duties toto perform, thus
thus
excluding the
excluding the operation
operation of thethe Statute
Statute of
of Uses and the rule in
the rule in Purefoy v. v. Rogers. This
argument was explicitly rejected

explicitly rejected on the basis that the executors
the basis that the executors had no active
active duties
duties at
at the
the
termination
termination of the
the life
life estate.
estate. The second possible
possible argument was that that based
based on section
section 2(1)
2(1) of
of
the
the Estates
Estates Administration Act which, as as mentioned above,
above, was not
not considered
considered by the the court.
court. It
It
was,
was, therefore,
therefore, held
held that
that the
the interests
interests of the
the children
children of Charles
Charles and Joseph were void. void.
2
The decision
decision inin Re Crow is is criticized
criticized in
in an
an editional
editional note
note in
in the
the Ontario Reports42
Reports* and inin
an annotation
annotation inin the
the Estates
Estates and Trusts
Trusts Reports.43
Reports. Nevertheless,
Nevertheless, itit remains a a decision
decision that
that
may be cited
cited in
in support
support of the
the view that
that the
the rule
rule in
in Purefoy
Purefoy v.
v. Rogers may apply
apply to
to gifts
gifts by
will as well as inter vivos conveyances and it demonstrates the danger that the
will as well as inter vivos conveyances and it demonstrates the danger that the complex and
and
archaic
archaic rules
rules summarized here here may produce unjustifiable
unjustifiable and capricious
capricious results.
results.
(1)
(0 WASTE
Waste
Where different persons are

different persons are entitled
entitled to
to successive
interests in
in property,
property, a
a system of rules
rules
is required to
is required to balance
balance the
the interests
interests of those
those in
in present
present possession
possession against
against the
the interests of those
interests those
who will
will or
or may become entitled
entitled to possession in
to possession in the
the future.
future. Outside
Outside of the
the law of trusts,
trusts, the
the
main body of lawlaw designed
designed to
to do this
this balancing
balancing isis the
the law of waste.44
waste.
Apart from laws—such —

laws such as as the nuisance, zoning by-laws or
the law of nuisance, or planning
planning controls—
controls
created
created inin the
the interests
interests of neighbouring
neighbouring land-owners
land-owners or or the
the general
general public,
public, the
the owner of an
estate
estate in
in fee
fee simple is is not
not generally
generally subject
subject to
to control
control in
in her
her or his possession
or his possession of the
the land.
land.
This is
is not
not surprising
surprising inin the
the case
case of an
an estate
estate in
in fee
fee simple
simple absolute,
absolute, since
since the
the owner of such
an estate
estate is
is in
in effect
effect absolute
absolute owner: "The holder
holder of [such
[such an estate]
estate] has, as an
has, as an incident
incident of his
his
estate,
estate, the right to
the right to exercise
exercise acts
acts of
of ownership ofof all kinds, including
all kinds, including the
the commission of waste,
waste,
such asas felling
felling trees,
trees, mining and pulling
pulling down buildings."45
buildings." Even where the the estate
estate is
is
42
(1984),
(1984), 48 O.R. (2d)
(2d) 36.
36.
43
T.G. —
T.G. Youdan, "Annotation—Future
"Annotation Future Interests
Interests and the
the Rule in v. Rogers: The Unnecessary Application
Purefoy v.
in Purefoy Application of
of
Archaic and Capricious
Capricious Rules"(1985), 17
17 E.T.R.
E.T.R. 3.
3.
44
See Oosterhoff and Rayner, supra,
note 2,
2, at
at 166-73.
166-73.
45
Ibid.,
Ibid., at
at 122.
122.
25
— where it
qualified—where
qualified it is
is determinable
determinable or or subject to aa condition
subject to condition subsequent—it
subsequent it seems that— that the
the
holder of the fee is
holder of the fee is generally
generally not
not impeachable for
for waste.46
waste. However, it
it has
has been said that the
said that the
holder
holder of an estate fee simple
in fee
estate in simple subject
subject to
to an executory gift
gift over "is
"is in
in the
the same position
position as
as aa
life tenant without impeachment for
life tenant for waste and may not not commit equitable
equitable waste,
waste, that
that is,
is,
wanton oror malicious

malicious acts,
acts, such as
as destruction
destruction of houses oror felling
felling of trees
trees left
left for
for ornament or or
4
shelter."47
shelter." In addition,
In addition, a a will or settlement
will or settlement may expressly prohibit waste and such aa provision
expressly prohibit provision
be enforced by injunction.
can be injunction.
The law of waste

waste has
has been developed mainly in in the
the context
context of possession
possession of land
land by
tenants for
tenants life, although even in
for life, this context
in this context the
the relevant
relevant statutory
statutory provisions
provisions are
are based
based on
early
early medieval English
English statutes"
statutes and there
there has
has been little
little recent
recent case-law.
case-law.
of Property Act49
The Conveyancing and Law of provides as
Act provides as follows:
follows:
29.
29. A dowress,
dowress, a
a tenant
tenant for
for life
life or
or for
for years,
years, and the
the guardian of the
the estate
estate of a
a minor;
minor; are
are
impeachable
impeachable for
for waste
waste and
and liable in
liable in damages to the person injured.
to the person injured.
30.
30. An estate
estate for
for life
life without impeachment of waste does
does not
not confer
confer upon the
the tenant
tenant for
for life
life
any legal
legal right
right to
to commit waste of the
waste the description
description known as
as equitable waste, unless
equitable waste, unless an
an intention
intention
to
to confer
confer the
the right
right expressly
expressly appears
appears by the
the instrument
instrument creating
creating the
the estate.
estate.
31.
31. Tenants inin common and jointjoint tenants
tenants are
are liable
liable to
to their
their co-tenants
co-tenants for
for waste,
waste, or, in the
or, in the
event
event of a
a partition,
partition, the part wasted may be assigned
the part assigned to
to the
the tenant
tenant committing the
the waste at
at the
the
value thereof to
to be estimated as if no waste had been
as if been committed.5°
committed.
32.
32. Lessees
Lessees making or or suffering
suffering waste on the
the demised premises without licence
licence of the
the lessors
lessors
are
are liable
liable for
for the
the full
full damage soso occasioned.
occasioned.
The essence
essence of "waste" is
is that
that it
it is
is an act
act that
that causes
causes injury,
injury, or
or does lasting
lasting damage, toto
the
the land.51
land. There are
are four
four types
types of waste:
waste: ameliorating,
ameliorating, voluntary,
voluntary, permissive
permissive and equitable.
equitable.
46
See
See Oosterhoff
Rayner, ibid.,
ibid., at
at 122;
122; B.M. Sparks,
Sparks, "A Decade of Transition in Future
Transition in Future Interests"
Interests" (1959),
(1959), 45
45
Va.
Va. L.
L. Rev.
Rev. 339,
339, at
at 351;
351; A.
A. Dunham, "Possibility —
Termination Fraternal or
Reverter and Powers of Termination—Fraternal
"Possibility of Reverter or Identical
Identical
Twins?" (1952),
(1952), 20 U.
U. Ch.
Ch. L.
L. Rev.
Rev. 215,
215, at
at 218-20; Re Gilbert,
Gilbert, [1959]
[1959] O.W.N. 294,
294, at
at 296.
296.
47
Oosterhoff
Rayner, supra,
supra, note
note 2,
2, citing
citing Turner
Turner v.
v. Wright
Wright (1860), G.F. & J.
2 De G.F.
(1860), 2 J. 234, at 246.
234, at 246.
48
Statute
Statute of Marlbridge, 1267,
ofMarlbridge, 1267, 52 Hen. 3,
3, c.
c. 23 (U.K.),
(U.K.), and Statute of Gloucester,
Statute of 1278, 6
Gloucester, 1278, 6 Edw. 1,
1, c.
c. 5
5 (U.K.).
(U.K.).
49
Supra,
Supra, note
note 6.
6.
50
The use
use of land
land by co-owners is
is discussed
discussed infra,
infra, ch.
ch. 6.
6.
51
51
See
See Drake v.
v. Wigle
Wigle (1874),
(1874), 24 U.C.C.P.
U.C.C.P. 405,
405, at (C.A.); Holderness v.
409, 419 (C.A.);
at 409, (1886), 11 O.R. 1 (C.A.);
v. Lang (1886), 1 1 (C.A.); and
1 and
McPherson v.v. Giles
Giles (1919),
(1919), 45 O.L.R.
O.L.R. 441 (H.C.).
(H.C.).
26
Ameliorating waste is defined

waste is defined as
as follows
follows by Anger and Honsberger's
Honsberger's Law of
of Real
Property:52
Property:
act which changes the

Any act the character
character of property
property is,is, technically,
technically, waste.
waste. Ameliorating waste is is that
that
which results
results in
in benefit
benefit and not inin an injury,
injury, so
so that
that it it in
in fact
fact improves the
the inheritance.
inheritance. Examples
of this kind are
this kind are the
the turning
turning of pasture land
of pasture land into
into arable
arable landland and vice
vice versa and the
the conversion of
rundown dwellings
dwellings into
into modern, productive shops. shops. Unless the the character
character of the property is
the property is
completely
completely changed, it
it is
is unlikely
unlikely that
that a
a court
court will
will award damages or
or grant
grant an injunction for
injunction for
ameliorating
ameliorating waste as as between a a life
life tenant
tenant and a remainderman.
a remainderman.
Permissive waste
Permissive waste connotes
connotes failure
failure to
to act,
act, for
for example,
example, allowing buildings
buildings to
to become
dilapidated by failing
dilapidated failing to
to repair.
repair. A tenant
tenant for
for life
life is,
is, it
it seems,
seems, not
not impeachable for
for such waste,
waste,
to repair
unless aa duty to
unless repair is
is provided by the
the instrument
instrument of grant."
grant.
Voluntary
Voluntary wastewaste connotes
connotes the the committing of a positive, wrongful action.
a positive, action. It
It may be,be, for
for
example,
example, an an act
act of voluntary
voluntary waste to to tear
tear down and remove a a building.
building. Although there there is is
little
little Canadian authority
Canadian authority on this point, it seems that it is also voluntary waste for a life tenant
this point, it seems that it is also voluntary waste for a life tenant
to
to open and work a a mine, but
but not to work an already
not to already open mine.54
mine. It It is
is also
also voluntary
voluntary waste
waste
for
for aa tenant
tenant toto cut
cut timber,
timber, and this
this is
is the
the aspect
aspect of waste that that has
has provoked the the most judicial
judicial
discussion.
discussion. It It has
has been said
said that
that whether thethe cutting
cutting of any kind kind of tree is waste depends on
tree is
whether the the act

act is
is such as a prudent farmer would do upon his
as a his own land,
land, having regard
regard toto the
the
land
land as as an
an inheritance,
inheritance, and whether there there is,
is, as
as a result, aa diminution
a result, diminution in in the
the value
value of the the
55
land.55
land. traditional approach has been to
The traditional to separate
separate trees
trees into
into timber and non-timber trees. trees.
Generally,
Generally, it it is
is an
an act
act of waste
waste to to cut
cut down timber
timber trees56
trees and whether trees trees are
are classified
classified asas
timber
timber trees
trees depends on local local custom and valuevalue inin the
the area.
area. Exceptionally,
Exceptionally, even timber timber trees
trees
may be be cut
cut without
without committing waste. waste. For example, it it has
has been heldheld not
not toto be waste to to clear
clear
land
land by the removal of timber
the removal timber trees,
trees, for
for the
the purpose
purpose of bringing
bringing it it into
into cultivation.57
cultivation.
A tenant
tenant for
for life
life is
is liable
liable for
for voluntary
voluntary waste,
waste, although he
he or
or she the term of the
she may by the the
58
grant
grant be
be made unimpeachable
unimpeachable for for such
such waste.58
waste.
52
note 2,
2, at
at 168.
168.
53
See
See Patterson
Patterson v.v. Central
Central Canada Loan and Savings Co. (1898),
Savings Co. (1898), 29 O.R.
O.R. 134
134 (Div.
(Div. Ct.); Currie v.
Ct); Currie v. Currie
Currie (1910),
(1910),
20 O.L.R.
O.L.R. 375
375 (H.C.);
(H.C.); Re Darch (1914),
(1914), 6 O.W.N. 107 see Morris v.
(H.C.). But see
107 (H.C.). Cairncross (1907),
v. Cairncross (1907), 14
14 O.L.R.
O.L.R.
544 (Div.
(Div. Ct.).
Ct).
54
See Toronto
Toronto Harbour Commissioners v. Yacht Club (1913),
v. Royal Canadian Yacht (1913), 15
15 D.L.R.
D.L.R. 106
106 (Ont.
(Ont. H.C.).
H.C.).
55
55
Lewis v.
v. Godson (1888),
(1888), 15
15 O.R.
O.R. 252 (Q.B.D.).
(Q.B.D.).
56
Currie
Currie v.
v. Currie,
Currie, supra,
supra, note
note 53.
53.
57
See
See Drake v.
v. Wigle,
Wigle, supra, note 51.
supra, note 5 1
58
See,
See, e.g.,
e.g., Re Hawkins (1920),
(1920), 19
19 O.W.N. 18
18 (H.C.).
(H.C.).
27
Where aa tenant
tenant for life is
for life is so
so exonerated forfor liability
liability for
for waste,
waste, there
there was no liability
liability for
for
waste at common law.
waste at law. Nevertheless,
Nevertheless, where the the waste amounts to to acts
acts of wanton destruction,
destruction,
the tenant for
the tenant for life
life could be restrained,
restrained, in
in equity,
equity, by injunction.
injunction. Activity
Activity of this
this character came
character
59
to called equitable
to be called equitable waste. Section 30 of the
waste. Section the Conveyancing and Law of of Property Act59
Act
sort of waste
makes such sort waste actionable
actionable at at common law as as well
well as
as in
in equity
equity although it it also
also
expresses
expresses the
the principle
principle that
that aa tenant
tenant for
for life
life may be expressly
expressly permitted by the the instrument
instrument ofof
grant even to
grant equitable waste.
to commit equitable waste.
The remedies available

available for
for waste are
are summarized as
as follows
follows by Anger and
60
Honsberger's of Real Property:6°
Honsberger 's Law of Property:
If
If a
a life
life tenant
tenant commits waste he is
is liable
liable in
in damages which generally
generally amount to
to the
the decrease
decrease in
in
the value
the value of the reversion, less
the reversion, less an allowance for
for immediate payment.
payment. In
In certain
certain cases,
cases, exemplary
damages may be be awarded. Alternatively,
Alternatively, or or in
in addition,
addition, an
an injunction
injunction may be
be granted
granted to prevent
to prevent
threatened
threatened or
or apprehended waste or or the
the repetition
repetition of waste.
waste. However, as as an injunction
injunction is is
discretionary,
discretionary, it
it may be
be refused
refused where the the waste is is minor and not
not likely
likely to
to be repeated.
repeated. If
If the
the
waste has
has resulted
resulted in
in a
a profit
profit to
to the
the life
life tenant, for example, by the
tenant, for the sale
sale of minerals
minerals oror timber,
timber,
the
the money can can be
be recovered
recovered by an an accounting.
accounting. Whether waste has has been committed is is aa
question
question of fact
fact and the
the onus isis on the plaintiff to
the plaintiff prove the
to prove the damage.
The law of trusts

trusts provides
provides a a different
different way of balancing
balancing thethe interests
interests of persons
persons with
with
successive
interests inin land.
land. Rather
Rather than
than giving the
giving the person entitled
person entitled to
to a possessory interest
a possessory interest the
the
right
right to
to exploit
exploit the
the land
land but
but then
then subjecting
subjecting that
that exploitation
exploitation toto the restrictions imposed by the
the restrictions the
law of waste,
waste, the
the law of trusts
trusts ordinarily61 separates management of the
ordinarily separates the land
land from enjoyment
of the
the benefit
benefit of thethe land.
land. Unlike a a legal
legal life
life tenant,
tenant, a
a life
life tenant under aa trust—an
tenant under trust —
an equitable
equitable
life tenant—
life tenant—is is ordinarily
ordinarily not not entitled
entitled to possession of land
to possession land subject
subject toto the
the trust.62
trust. Instead, the
Instead, the
trustees
trustees areare entitled
entitled to possession, although
to possession, although theythey are
are ordinarily
ordinarily notnot entitled personally to
entitled personally to
occupy the the land,
land, and the the tenant
tenant for
for life
life is
is entitled
entitled to
to the net income derived
the net derived from the the land.
land.
However, the the terms
terms of of the
the trust
trust may confer
confer anan entitlement
entitlement toto possession
possession on on the tenant for
the tenant for
life.63
life. In
In addition,
addition, it it seems thatthat the
the court
court has
has discretion
discretion toto give
give possession
possession to to an
an equitable
equitable
59
Supra,
Supra, note
note 6.6. This provision was first
This provision first enacted
enacted in
in Ontario
Ontario as
as s.
s. 17(3)
17(3) of Ontario Judicature
The Ontario
of The Judicature Act,
Act, 1881,
1881,
44 Vict.,
Vict., c.
c. 5
5 (Ont.).
(Ont.).
60
Oosterhoff
supra, note
note 2,
2, at
at 166-67.
166-67.
61
61
It
It should
should bebe noted that
that a
a trustee
trustee may also
also be
be a
a beneficiary instrument may confer
trust instrument
beneficiary and a trust particular powers on
confer particular
persons
persons other
other than
than the
the trustees.
trustees. Also,
Also, the
the trust
trust instrument
instrument may confer
confer on a beneficiary the
a beneficiary right of
the right possession and
of possession
the
the right
right to
to exercise particular acts
exercise particular acts of management.
62
See
See Taylor
Taylor v.
v. Taylor
Taylor (1875),
(1875), L.R.
L.R. 20 Eq. 297,
297, at 303; Whiteside
at 303; Miller (1868),
v. Miller
Whiteside v. 14 Gr.
(1868), 14 Gr. 393; Orford v.
393; Orford v. Orford
Orford
(1884),
(1884), 6
6 O.R.
O.R. 66 (RC.);
(H.C.); Re Cunningham (1917),
(1917), 12 (H.C.); Homfray
12 O.W.N. 268 (H.C.); Homfray v. Homjray (1936),
v. Homfray (1936), 51 B.C.R.
51 B.C.R.
287 (S.C.).
(S.C.).
63
See
See Hefferman
Hefferman v.
v. Taylor
Taylor (1888), parte Middleton,
(H.C.); Ex parte
15 O.R. 670 (H.C.);
(1888), 15 Qd. R 170,
[1983] Qd.
Middleton, [1983] 170, at
at 172.
172.
28
tenant for
tenant his giving
life "upon his
for life giving security
security or
or an appropriate undertaking to
appropriate undertaking to protect
protect the
the trustees
trustees
and preserve the property

preserve the for the
property for the benefit
benefit of those
those entitled after the
entitled after the life
life tenant's
tenant's death."64
death."
are subject
Trustees are
Trustees subject toto duties
duties and have powers relating
relating to
to the
the management of the the
property
property subject
subject to
to the
the trust.
trust. These powers and duties
duties are
are often
often expressly set out in the trust
expressly set out in the trust
instrument.
instrument. Subject
Subject to to the effect of the
the effect the trust
trust instrument,
instrument, the
the general
general law,
law, including
including thethe
provisions of the
provisions the Trustee
Trustee Act, provide relevant
Act, provide relevant powers and duties.65
duties. In
In the
the exercise
exercise of their
their
powers and duties,

duties, trustees
trustees are
are subject
subject to
to fiduciary
fiduciary obligations.
obligations. In
In particular,
particular, they are
are subject
subject
to
to aa duty to exercise
duty to exercise care
care and prudence and to to act
act impartially
impartially asas between a a tenant
tenant for
for life
life and
aa person
person with
with a
a remainder interest.
remainder interest.
(g)
(g) DEALINGS with SETTLED
Dealings WITH Settled ESTATES
Estates
At common law the holder of aa limited

the holder limited estate
estate can alienate
alienate his
his or
or her
her interest
interest but
but cannot
convey an estate
estate greater
greater than
than his
his or
or her own. If,
her own.66 If, for
for example,
example, A is is a
a tenant
tenant for
for life
life she
she can
can
alienate
alienate her
her estate
estate but
but all
all the
the grantee
grantee would acquire
acquire would be an an estate
estate pur autre
autre vie,
vie, an estate
estate
for
for the
the life
life of A.
A. Similarly, the
Similarly, the life
life tenant can lease or mortgage her
tenant can lease or mortgage her interest
interest but,
but, of course,
course,
any interest
interest so
so granted
granted will
will not
not bind the
the remainderman. More extended powers of disposition disposition
67
are
are conferred
conferred by by the
the Settled
Settled Estates
Estates Act67
Act which is, is, in
in the
the main, based on the the English
English Settled
Settled
68
Estates Act, 1877.68
Estates Act, 1877.
The Settled
Settled Estates
Estates Act confers
confers power to to make leases,
leases, without
without any application
application to
to court,
court,
for
for a
a term not
not exceeding 2121 years.69
years. In addition,
In addition, the
the Act enables
enables persons
persons with
with an interest"
interest in
in
any settled
settled estate
estate to
to apply
apply to
to the
the court,
court, and it
it confers
confers on the
the court
court power to
to authorize
authorize certain
certain
dispositions.
dispositions. For this purpose, "settled
this purpose, "settled estate"
estate" isis defined'
defined to to mean "land
"land and all
all estates
estates or
or
64
P. Butt,
P. Butt, Land Law (3d
(3d ed.,
ed., 1996),
1996), at
at 59-60.
59-60. See
See Taylor v. Taylor,
Taylor v. Taylor, supra,
supra, note
note 62;
62; Re Bagot's
Bagot's Sett.,
Sett., [1894]
[1894] 1
1
Ch.
Ch. 77.
77.
65
See
See Ontario
Ontario Law Reform
Reform Commission,
Commission, Report on the
the Law of Trusts (1984),
of Trusts (1984), ch.
ch. 4.
4.
66
See,
See, for
for example,
example, Re Chupryk (1980),
(1980), 110
10 D.L.R.
D.L.R. (3d)
1 (3d) 108
108 (Man.
(Man. C.A.).
C.A.).
67
R.S.O.
R.S.0. 1990,
1990, c.
c. S.7.
S.7.
68
40
40 & 4141 Vict.,
Vict., c.
c. 18
18 (U.K.).
(U.K.). The
The Ontario
Ontario legislation
legislation was
was first
first introduced
introduced by
by The Settled
Settled Estates
Estates Act, 1895, 58
Act, 1895, 58 Vict.,
Vict.,
c. 20
c. 20 (Ont.).
(Ont.). Earlier
Earlier English
English legislation previously applied
legislation previously in Ontario
applied in Ontario pursuant
pursuant toto The
The Judicature Act, R.S.O.
Judicature Act, R.S.O. 1887,
1887,
c. 44, s. 32(1)
c. 44, s. 32(1) which
which provided
provided that
that the
the High
High Court
Court should
should have
have the
the same jurisdiction as
same jurisdiction as the
the Court
Court ofof Chancery
Chancery inin
England
England hadhad on
on March
March 18th,
18th, 1865,
1865, inter alia, "in
inter alia, "in regard
regard to leases and
to leases and sales
sales of
of settled
settled estates...".
estates...". Further
Further the
the Act to
to
amend thethe law respecting
respecting the
the Lease and Sale
Sale of
of Settled Estates, 1890,
Settled Estates, 1890, 53
53 Vict.,
Vict., c. 14
c. 14 (Ont.),
(Ont.), contained provisions
contained provisions
regarding renewal clauses
regarding renewal clauses in
in leases
leases of
of settled
settled estates.
estates. These
These provisions
provisions were
were repealed
repealed byby s. 50
s. 50 of
of the
the 1895
1895 Act.
Act
69
Supra, note 67,
Supra, note 67, s.
s. 32.
32.
70
The
The persons
persons who may
may apply
apply are
are designated
designated by
by the
the Settled Estates Act,
Settled Estates ibid., s.18.
Act, ibid., s.18.
71
Ibid., s.
Ibid., s. 1(1).
1(1).
29
72
interests in land that
interests in that are the subject
are the subject of aa settlement".
settlement". "Settlement"
"Settlement" is,is, in turn, defined72
in turn, defined to to
mean "a "a statute, deed, agreement,
statute, deed, agreement, will
will oror other
other instrument,
instrument, oror any number or or such
instruments,
instruments, under or or by virtue
virtue of which land
land or
or any estate
estate or
or interest
interest in
in land
land stands
stands limited
limited to to
or
or in for any persons by way of succession,
trust for
in trust succession, including
including any such
such instruments affecting
affecting thethe
estates
estates of any one or or more of such persons exclusively".
exclusively". The Settled
Settled Estates
Estates Act applies,
applies,
therefore,
therefore, whether or or not
not the
the land
land is
is held
held on trust
trust where land
land is
is held
held for
for any interest
interest less
less than
than
an
an estate
estate in
in fee
fee simple absolute,
absolute, and is is not
not restricted
restricted to
to circumstances where there there is
is aa life
life
estate.
estate.
The Act enables

enables the
the court
court to
to authorize
authorize leases,
leases, sales
sales and mortgages of settled
settled land.
land. Sales
Sales
73
and mortgages are
are provided for in section
for in section 13:73
13
13.—(1)
13. —
(1) The court,
court, if
if it
it considers
considers it
it proper and consistent
consistent with a
a due regard for
for the
the interests
interests
of all
all parties
parties entitled
entitled under the
the settlement,
settlement, and subject
subject to
to the
the provisions
provisions and restrictions
restrictions in
in this
this
Act, may,
Act,
(a)
(a) from time toto time authorize
authorize aa mortgage of the
the whole oror any part
part of any settled
settled estate
estate
for
for the
the purpose of raising
raising money toto repair,
repair, rebuild
rebuild or
or alter
alter any existing
existing building
building upon
the
the estate,
estate, or
or otherwise to
to build
build upon or
or improve the
the same, oror for
for the
the purpose of raising
raising
money toto pay off
off and discharge
discharge wholly oror in
in part
part any encumbrance thereon;
thereon;
(b)
(b) from time
time to
to time
time authorize
authorize aa sale
sale of the
the whole or
or any part
part of any settled
settled estate
estate or
or of
any easement,
easement, right
right or privilege, of any kind,
or privilege, kind, over or
or in
in relation
relation toto the
the same,
same, or
or of any
timber not
not being ornamental timber growing on the the settled
settled estate;
estate;
(2)
(2) Such mortgage shall
shall be
be authorized
authorized where the
the court
court is
is of
of the
the opinion
opinion that
that the
the interests
interests of
of
the
the estate
estate or
or any part
part thereof
thereof or
or of the
the persons entitled the estate
to the
entitled to estate or
or any part
part thereof require, or
thereof require, or
will
will be substantially
substantially promoted by such mortgage.
Money arising
arising from dispositions
dispositions under the
the Act may, ifif the
the court
court thinks fit, be paid
thinks fit, paid to
to
trustees; otherwise
trustees; otherwise it
it is
is paid into court
paid into court and applied
applied as
as the court from time
the court time to time directs
to time directs to
to
specified
specified purposes,
purposes, including
including the purchase of other
the purchase other land
land to
to be
be settled
settled in
in the
the same manner as as
the land
the land in
in respect
respect of which the
the money was paid.74
paid.
72
s. 1(1).
Ibid., s. 1(1).
73
Leases
Leases are
are dealt
dealt with
with in
in the
the Settled
Settled Estates
Estates Act, ibid., ss.
Act, ibid., ss. 2-12.
2-12.
74
Ibid., s. 23.
Ibid., s. 23.
30
3.
3. REFORM
(a) INTRODUCTION
Introduction
The legal
legal remainder rules,rules, the
the law
law of waste
waste and the the Settled
Settled Estates
Estates Act deal deal with
with
different
different aspects
aspects of the
the law
law affecting
affecting successive
interests in
in land.
land. The remainder rules
rules purport
purport
to control
to the nature
control the nature of the successive interests
the successive interests that
that may be be created;
created; the
the law of waste controls
controls
the
the use
use of land
land by persons
persons entitled
entitled toto possession
possession of it it in
in circumstances
circumstances where others others will
will be
be
entitled to future
entitled to possession; and the
future possession; the Settled
Settled Estates
Estates Act provides
provides a a system forfor facilitating
facilitating
dealings with
dealings land subject
with land subject toto successive
successive interests,
interests, generally requiring court
generally requiring court involvement.
However, these
these three
three topics
topics can conveniently be dealt dealt with together
together for
for the purpose of
the purpose
consideration of reform.
consideration reform. The most importantimportant factor
factor that
that makes such joint joint treatment
treatment
appropriate
appropriate is the impact of the
is the the law of trusts
trusts on the
the three
three topics.
topics. Where successive
interests in
in
land
land are
are created
created under a a trust—as
trust as they
they normally are in in practice—the —
practice the legal remainder rules
are
are completely
completely circumvented;
circumvented; the law of waste is
the law is unimportant since since the
the trust
trust divorces
divorces
management of the the land
land from benefit
benefit from it it75 and makes provision
provision forfor the
the trustees'
trustees'
management powers and duties, duties, either

either expressly
expressly in in the
the terms
terms of the
the trust
trust or
or under thethe general
general
law of trusts;
trusts; and thethe Settled
Settled Estates
Estates Act is is similarly because of the
unimportant because
similarly unimportant the provisions
provisions
made for
for dealings
dealings with
with the
the land
land by the
the trustees.
trustees.
In this section,
In this section, we shall
shall outline
outline the
the reforms
reforms carried
carried out
out or
or proposed in
in other jurisdictions
other jurisdictions
affecting
affecting these
these three
three topics.
topics. We shall
shall then
then describe
describe the propose for
the system we propose for Ontario.
Ontario.
(b)
(b) OUTLINE
Outline OF
of REFORMS
Reforms IN
in OTHER
Other JURISDICTIONS
Jurisdictions
Nineteenth century
century English reforms dealt
English reforms dealt in
in separate
separate ways with
with the
the legal
legal remainder
rules and with
rules with facilitation
facilitation of dealings
dealings with
with land
land subject
subject to
to successive
successive interests.
interests. The law of
waste
waste was not
not reformed.
reformed.
The first
first reforms
reforms affecting
affecting the
the impact
impact of the
the legal
rules provided the
the model
for
for equivalent
equivalent reforms
reforms inin Ontario,
Ontario, and other jurisdictions. In
other jurisdictions. particular, section
In particular, section 8
8 of the
the Real
76
Property Act, 1845,76
Property Act, 1845, which abolished the artificial destruction of contingent remainders by
abolished the artificial destruction of contingent remainders by
forfeiture,
forfeiture, surrender
surrender or the model for
merger, was the
or merger, for what isis now section
section 35
35 of the
the Ontario
Ontario
77
Conveyancing and Law of of Property
Property Act.77
Act.
75
this is
However, this is not
not true
true of trusts
trusts under the
the English
English Settled
Settled Land Act,
Act, 1925,
1925, 15
15 & 16
16 Geo. 5, 18 (U.K.)
c. 18
5, c. (U.K.) under
under
which the
the tenant
tenant for
for life
life exercises powers as
exercises powers as a
a trustee
trustee but
but is
is also
also a
a beneficiary.
beneficiary. See infra,
infra, this
this ch.,
ch., sec.
sec. 3(b).
3(b).
76
88&9Vict.,c.
& 9 Vict., c. 106
106 (U.K.).
(U.K.).
77
Supra, note
note 6.
6.
31
31
78
The further
further reforms effected the Contingent Remainders Act,
effected by the Act, 187778
877 was copied in 1in
jurisdictions but
some jurisdictions but it
it has no Ontario counterpart.
counterpart. It
It abolishes thethe Rule in in Purefoy v.v.
9
Rogers,79 as
Rogers? as artificial
as well as destruction of contingent
artificial destruction remainders by disclaimer.
contingent remainders disclaimer. It
It did this
this
by providing in in effect
effect that contingent remainders should, if the particular estate
that contingent remainders should, if the particular estate determined
before
before the
the remainder vested,
vested, take
take effect
effect as
as an executory limitation,
limitation, if
if it
it was capable of being
being
valid as such."
valid as such.
The Land Transfer

Transfer Act,
Act, 1897,81
897, was the
1 the model forfor provisions in in other
other Commonwealth
jurisdictions, including
jurisdictions, including the the Ontario
Ontario provision
provision which is is now section
section 2(1)
2(1) of the
the Estates
Estates
82
Administration Act.82
Administration Act. It provided that
It provided that aa deceased person's property passed to to his
his or
or her
her
personal representatives
personal representatives who became trustees
trustees for
for the
the persons
persons beneficially
beneficially entitled. English
entitled. English
case-law
case-law established
established that
that this
this had the
the effect
effect of making equitable
equitable all
all interests
interests created
created by will,
will,
83
thus
thus excluding
excluding any application
application to to wills
wills of the
the legal remainder rules.83
The English
English 1925
1925 reforms" dealt comprehensively with various
reforms dealt various aspects
aspects of property
property law
including the legal
both the
including both legal remainder rules
rules and facilitation
dealings with land
land subject
subject to
to
successive interests. The scheme also
successive interests. also made the
the law of waste of greatly
greatly reduced importance.
importance.
These reforms
These reforms have generally not
generally not been followed in
in other
other jurisdictions.
jurisdictions.
the 1925
After the
After 1925 reforms,
reforms, the
the only
only freehold
freehold estate
estate that
that could exist
exist in
in England was a
a fee
fee
simple
simple absolute
absolute in possession. Where successive
in possession. successive interests are created,
interests are created, whether by will
will or
or inter
inter
85
vivos, these
vivos, these interests
interests are
are subject
subject to
to a
a trust:85
trust:
The scheme of of the

the [legislation]
[legislation] is
is to provide that
to provide that after
after 1925
925 only
only two kinds
1 kinds of
of legal estate can
legal estate can
exist,
exist, the
the fee
fee simple
simple absolute
absolute in and the
possession and
in possession the lease.
lease. Apart
Apart from
from leases,
leases, therefore,
therefore, all
all interests
interests
78
40 & 41
41 Vict.,
Vict, c.
c. 33 (U.K.).
(U.K.).
79
Supra, note
note 30.
30.
80
The drafting
drafting of the
the Act has
has been criticized
criticized in
in Megarry and Wade, supra,
supra, note
note 2,
2, at
at 1184,
184, n.
n. 66:
66:
1
The Act was notnot well

well drafted.
drafted. Its
Its main provision
provision did
did not
not seem to to fit
fit the case where no use
the obvious case use or will
or will
e.g., a
was employed, e.g., a grant
grant by deed toto A for
for life, remainder to
life, remainder first son
his first
to his son to
to attain
attain 21;
21; for
for in
in such
such a
a case,
case, if
if there
there
had been no particular
particular estate,
estate, the
the remainder could never have been
could never valid. Yet
been valid. Yet this
this type
type of case
case must surely
surely have
been intended
intended to
to be within
within the
the benefit
benefit of the
the Act.
Act. Nor did
did the
the Act provide
provide clearly
clearly for
for class
class gifts.
gifts.
81
81
Supra, note
note 35,
35, s.
s. 1(1).
1(1).
82
Supra, note
note 33.
33.
83
Re Robson,
Robson, supra,
supra, note
note 34.
34. See supra,
supra, this
this ch.,
ch., sec.
sec. 2(e).
2(e).
84
For
For detailed treatment of this
detailed treatment this legislation, see Megarry and Wade, supra,
legislation, see 2, at
note 2,
supra, note 123-40, 311-416,
at 123-40, 31 1-416, on which this
this
outline is based.
outline is based.
85
85
Ibid.,
Ibid., at 123-24. The relevant
at 123-24. relevant provisions,
provisions, s.s. 1(1), (3) of
(2), and (3)
1(1), (2), of the Property Act,
of Property
the Law of Act, 1925,
1925, 15
15 & 16
16 Geo. 5,
5,
c.
c. 20 (U.K.),
(U.K.), are
are quoted;
quoted; see
see infra,
infra, this
this ch.,
ch., sec.
sec. 3(c)(ii).
3(c)(ii).
32
derived out
derived fee simple must now be
the fee
out of the be equitable:
equitable: life
life interests,
interests, ... and the
... remainders or
the remainders or
reversion (even though in
reversion in fee
fee simple)
simple) expectant
expectant upon them, determinable fees fees ... and so
... so on,
on, must
all now be
all equitable interests.
be mere equitable interests. That is
is to
to say, in any such
say, in such cases
cases the
the fee
fee simple absolute
absolute in
in
possession,
possession, the legal estate,
the legal estate, is
is held
held upon trust
trust to
to give effect
effect to the lesser
to the lesser interest
interest inin equity.
equity. By
transitional provisions this
transitional provisions this scheme was applied
applied toto all
all such
such interests
interests existing
existing at
at January 1,1, 1926,
1926, as
as
well
well as
as to all future
to all future cases.
cases.
Because all
all future
future interests
interests in
in England are
are necessarily
necessarily equitable
equitable the
the legal
legal remainder
rules have no possible
rules possible application.
application.
There were also also various reforms in

various reforms nineteenth century England of the
in nineteenth the law affecting
affecting
dealings
dealings with
with land
land subject
subject to
to successive
interests. Some statutes
statutes dealt
dealt with
with particular
particular aspects
aspects
87
land management.86
of land management. Statutes
Statutes of more general
general application
application were passed
passed inin 185687
1856 and
88 9
1877,88
1877, thethe latter
latter statute
statute being the
the model on which the the Ontario
Ontario Settled
Settled Estates
Estates Act89
Ac? is is based.
based.
Like
Like the
the Ontario
Ontario Act,
Act, these
these statutes
statutes empowered the the tenant
tenant for
for life
life to
to grant
grant leases
leases for
for not
not more
than
than twenty-one years
years on specified
specified conditions
conditions and empowered the the court
court to
to authorize
authorize dealings
dealings
such
such as
as sales,
sales, mortgages,
mortgages, and leases
leases for
for more than
than twenty-one
twenty-one years.
years.
90
More radical reform was carried
radical reform carried out
out by the
the Settled
Settled Land Act,
Act, 1882:9°
1882:
The general
general scheme of the
the Act was to to give
give the
the tenant
tenant for
for life
life under the
the settlement
settlement wide powers of
dealing
dealing with the land
with the land free
free from thethe trusts
trusts of the
the settlement
settlement without the the consent
consent of the the other
other
beneficiaries, or application to
beneficiaries, or application to the court, just
the court, just as
as if he
if he were owner in fee simple; the rights of the
in fee simple; the rights the
beneficiaries
beneficiaries were protected
protected in
in the
the case
case of aa sale
sale by shifting
shifting the
the settlement
settlement from the the land to the
land to the
purchase-money, which had to to be
be paid
paid into
into court
court or
or into
into the
the hands of thethe trustees.
trustees. The purchaser
91
would have no concern with thethe trusts
trusts of the
the settlement.91
settlement.
The policies
policies expressed
expressed in in the
the 1882
1882 Act were continued
continued in the property
in the property reforms
reforms of 1925.
1925.
Except where aa trust
trust for
for sale
sale is created, every settlement
is created, settlement of land is dealt
land is dealt with
with byby the
the Settled
Settled
Land Act,
Act, 1925.92
1925. Partly
Partly because
because of provisions
provisions designed
designed to to overcome difficulties
difficulties of English
English
conveyancing practice,
practice, this
this Act is very
is very detailed
detailed and complicated. It
complicated. It will
will suffice
suffice for
for our
our
purpose to
purpose to highlight
highlight some of its its main features. First, aa comment should
features. First, should bebe made on the the
86
See,
See, for
for example,
example, Settled
Settled Estates
Estates Drainage Act,
Act, 1840,
1840, 3
3 & 4 Vict.,
Vict, c.
c. 55
55 (U.K.); Settled Estates
(U.K.); Settled Estates Drainage Act,
Act,
1845, 8 &9
1845, 8 9 Vict.,
Vict, c. (U.K.). See
c. 56 (U.K.). and Wade,
See Megarry and Wade, supra, note 2,
supra, note 2, at
at 313-14.
313-14.
87
Settled
Settled Estates
Estates Act,
Act, 1856,
1856, 19
19 & 20 Vict.,
Vict, c.
c. 120
120 (U.K.).
(U.K.).
88
Settled
Settled Estates
Estates Act,
Act, 1877,
1877, supra,
supra, note
note 68.
68.
89
Supra,
Supra, note
note 67.
67. See supra,
supra, this
this ch.,
ch., sec.
sec. 2(g).
2(g).
90
45 & 46 Vict.,
Vict, c.
c. 38 (U.K.).
(U.K.).
91
Megarry and Wade, supra, note 2,
supra, note 2, at
at 317.
3 17.
92
Supra,
Supra, note
note 75.
75.
33
bifurcated treatment
bifurcated treatment in the English
in the English 19251925 property legislation accorded to
property legislation to land subject
subject to
to
successive interests. The legislation
successive interests. legislation creates
creates two separate regimes: one,
separate regimes: one, applicable
applicable where thethe
is subject
land is
land subject toto aa trust
trust for
for sale, is dealt
sale, is dealt with
with inin the
the Law of of Property Act,
Act, 192593
1925 the
the other,
other,
applicable where there
applicable there isis no trust
trust for
for sale,
sale, is dealt with in
is dealt in the
the Settled
Settled Land Act.Act. A trust
trust for
for
sale
sale will
will ordinarily
ordinarily arise
arise because of express express provision
provision in in the
the instrument creating the
creating the
arrangement.
arrangement. The explanation
explanation for
for this
this extraordinary
extraordinary complexity
complexity lies
lies in
in English
English conveyancing
conveyancing
practice in
practice prior to
in times prior to the 1925 legislation
the 1925 produced two major ways of dealing
legislation which produced dealing with
with
successive
interests inin land,
land, a a duality
duality of treatment
treatment thatthat formed the the model for for the
the 1925
1925
legislation. These conveyancing practices
legislation. practices areare conveniently
conveniently outlined
outlined inin the
the following
following extracts
extracts
94
from Peter Butt's Land Law,94
Peter Butt's Law, an Australian
Australian text:
text:
The traditional
traditional form of settlement
settlement used by the
the landed classes
classes in
in England was known as as the
the strict
strict
settlement, the immediate purpose

settlement, the purpose of which was to to retain the family estates
retain the estates in the hands of
in the of
successive
successive eldest
eldest sons.
sons. Substantial
Substantial landholding brought with it it not only economic but but also
also
political power,
political power, and the
the perpetuation
perpetuation of the
the family estate
estate was a a crucial
crucial element in
in the
the perpetuation
perpetuation
of the
the family
family influence
influence and prestige....
prestige....
Put
Put simply,
simply, thethe desired
desired object
object of
of retaining
retaining the
the land
land within
within the
the family
family was achieved
achieved by
creating
creating aa life
life estate
estate in
in favour
favour of the
the settlor's
settlor's eldest
eldest son,
son, followed by estates
estates in
in tail
tail made toto the
the
settlor's
settlor's eldest
eldest and other
other sons according to to seniority,
seniority, with an ultimate remainder to
ultimate remainder to the
the heirs
heirs
general
general of the
the eldest
eldest son ... ...
During the
the 19th
19th century
century the
the trust
trust for
for sale
sale of land
land came to to be used more and more frequently
frequently
as
as an alternative
alternative to
to the
the strict
strict settlement
settlement when the the object
object was notnot so
so much to
to retain
retain the
the land
land in the
in the
family
family as to use
as to use it
it as
as aa fund for
for the
the benefit
benefit of the
the family
family asas aa whole. This type
type of settlement,
settlement,
known asas aa trader's
trader settlement
settlement because of its
's its use
use inin settling
settling fortunes
fortunes made in in commerce, was
achieved by conveying the the land

land to trustees upon trust
to trustees trust to
to sell
sell it
it and hold
hold the proceeds upon the
the proceeds the
desired
desired trusts,
trusts, thus providing aa simple means for
thus providing for the
the accurate
accurate division
division of the
the property.
property.
In
In addition,
addition, it
it became usual
usual to
to give
give the
the trustees
trustees power to
to postpone the
the sale,
sale, so
so that
that the
the land
land
could
could be
be retained,
retained, not
not only
only until
until a
a more favourable
favourable market arose,
arose, but
but also
also during
during such
such time
time as
as the
the
beneficiaries
beneficiaries preferred
preferred to
to enjoy
enjoy the
the land
land itself
itself rather
rather than
than its
its money value.
value.
The Settled
Settled Land Act,
Act, 1882
1882 applies
applies to to any "settlement"
"settlement" except
except where there
there is
is aa trust
trust for
for
sale.95
sale. A settlement
settlement is is defined,96 putting itit broadly,
defined, putting broadly, as
as any instrument under which land
instrument under land stands
stands
limited
limited inin trust
trust for
for (a)
(a) any persons
persons by way of succession,
succession, (b)
(b) an estate fee simple
in fee
estate in simple or or a
a
leasehold
leasehold estate
estate contingently
contingently on thethe happening of any event event oror (c) infant. Generally,
for an infant.
(c) for Generally,
the legal
the legal estate
estate is
is vested,
vested, not
not in the trustees
in the trustees of thethe settlement,
settlement, but in the
but in tenant for
the tenant for life.97
life. As
93
Supra,
Supra, note
note 85.
85.
94
Supra,
Supra, note
note 64,
64, at
at 207-11.
207-1 1
95
Supra,
Supra, note
note 90,
90, s.
s. 1(1),
1(1), (7).
(7).
%
96
Ibid.,
Ibid., s.
s. 1(1).
1(1). The definition
definition is
is quoted
quoted in full, infra,
in full, infra, this
this ch.,
ch., sec.
sec. 3(c)(ii).
3(c)(ii).
97
See Megarry and Wade, supra,
supra, note
note 2,
2, at
at 325-27.
34
Settled Land Act,

the Settled
under the Act, 1882, the tenant
1882, the tenant for
for life
life has
has various
various powers of dealing
dealing with the the
land generally
land exercisable without application
generally exercisable application to to court.
court. Some powers can be exercised exercised
unilaterally without
unilaterally without notice
notice to
to anyone;
anyone; other
other powers require the consent
require the consent of the the trustees
trustees or,
or,
failing that,
failing court approval;
that, court approval; but
but most powers, such as as power of sale,sale, lease
lease or
or mortgage, can be
exercised unilaterally by the
exercised unilaterally the tenant
tenant for
for life
life merely by givinggiving notice
notice of exercise
exercise to to the
the
trustees.98
trustees. In the exercise
In the exercise of these powers, the
these powers, the tenant
tenant for
for life
life is
is in
in an unusual position because
position because
he or
he or she
she is a beneficiary
is a beneficiary under the the settlement
settlement butbut also
also in
in the
the exercise
exercise of thethe powers is is a
a
99
trustee for
trustee for the
the other beneficiaries.99 In
other beneficiaries. In general,
general, the
the tenant
tenant for
for life's
life's statutory
statutory powers can be
widened
widened by express
express provision
provision of the
the settlement
settlement but
but they
they cannot be "ousted,
cannot be "ousted, curtailed
curtailed or
or
hampered".M
hampered". The trustees
'
trustees of a a settlement
settlement under the the Settled
Settled Land Act have a a subsidiary
subsidiary
position. However, they
position. they do have thethe important
important function
function of being the the persons
persons designated
designated toto
101
receive the purchase
receive the purchase money from aa purchaser
purchaser of landland subject
subject toto the
the settlement.
settlement. MI
As already
already mentioned, a a different
different scheme applies
applies where a a settlement
settlement is is subject
subject to
to a a trust
trust
for
for sale.
sale. In
In this
this case,
case, the
the relevant
relevant provisions
provisions areare in
in the
the Law ofof Property Act, Act, 1925.102
1925. Again,
Again,
the
the provisions
provisions are are detailed
detailed and complicated and again again only some of the the main points
points will
will bebe
outlined
outlined here.
here. ItIt should first
first be mentioned thatthat the
the term 'trust
'trust for
for sale'
sale' is
is misleading
misleading in in so
so far
far
as
as it
it suggests
suggests that
that the
the settlement
settlement will
will only
only be temporary.
temporary. A power to postpone sale
to postpone sale is
is implied
implied
by statute,
statute, unless
unless ousted
ousted by express
express provision,103
provision, and in
in many casescases the
the trust
trust for
for sale
sale will
will
continue
continue forfor aa long
long period
period of time.
time. The main difference
difference between a a trust
trust for
for sale
sale under thethe Law
of
of Property Act and a a settlement
settlement under the the Settled
Settled Land Act is is that
that inin a
a trust
trust for
for sale
sale all
all the
the
powers of dealing with the land are given to
of dealing with the land are given to the trustees.104
the trustees. They are given all the
are given all the powers that
that
both
both a a tenant
tenant for
for life
life and trustees
trustees would have under the the Settled
Settled Land Act, Act, 1925.105
1925. They have,
have,
therefore,
therefore, forfor example, full full powers of sale,sale, mortgaging and leasing,leasing, without (generally)
(generally)
consent
consent of or or notice
notice to to anyone.
anyone. In In addition,
addition, the proceeds of
the proceeds of sale
sale oror other
other capital
capital money is is
payable
payable to to them.
them. However, it it is provided, notwithstanding
is provided, notwithstanding any express provision to
express provision to the
the
contrary
contrary that
that such proceeds
proceeds of salesale or
or capital
capital money "shall
"shall not
not bebe paid
paid to
to oror applied
applied by the the
direction
direction of of fewer
fewer than
than two persons
persons as as trustees
trustees for
for sale,
sale, except
except where the the trustee
trustee is
is aa trust
trust
98
Ibid., at 358-77.
Ibid., at 358-77.
99
" Ibid.,
Ibid., at
at 319.
319.
100
100
Ibid., at 379.
Ibid., at 379.
101
101
Ibid.,
Ibid, at
at 377,
377, 402-03.
102
102
Supra, note
note 85.
85.
103
103 «...
Ibid.,
Ibid., s.
s. 25.
25.
104
104
Megarry note
supra, note 2,
2, at
at 385.
385.
105
105
Supra,
Supra, note
note 75,
75, s.
s. 28(1).
28(1).
35
106
corporation."1°6
corporation." There is
is also
also a provision dealing
a provision dealing with
with consultation
consultation with beneficiaries, but
beneficiaries, but
"the
"the provision is weak":'°7
provision is weak":
Although all the powers belong to

all the to the trustees, they must in
the trustees, in some casescases be exercised
exercised in in
accordance with with the

the wishes
wishes ofof the
the beneficiaries:
beneficiaries: in relation to
in relation to the
the exercise
exercise of all
all their
their powers
(and not merely their

(and their power of sale)
sale) the trustees must,
the trustees must, soso far
far as practicable, consult
as practicable, consult the persons
the persons
of full
full age for the time being beneficially
for the beneficially interested in possession in
interested in in the
the rents
rents and profits
profits of the
the
land
land until
until sale
sale ... and must,
... must, so
so far
far as
as is
is consistent
consistent with the general interests
the general interests of the
the trust,
trust, give
give
effect
effect to
to their
their wishes,
wishes, or
or to
to the
the wishes
wishes ofof the
the majority
majority in in terms
terms ofof value.
value. But ... this
...this provision
provision is is
confined
confined to to trusts
trusts for sale which either
for sale either are
are created
created by statute
statute oror show an an intention
intention that
that this
this
provision
provision is to apply.
is to apply. The majority
majority of express
express trusts
trusts for
for sale
sale are
are thereby
thereby excluded.
excluded. In
In any
any case,
case, a a
purchaser
purchaser is is not
not concerned to see that
to see that the
the trustees
trustees have complied with this this requirement,
requirement, though a a
108
beneficiary may restrain
beneficiary restrain a
a trustee
trustee who seeks to to sell
sell in
in breach
breach of it.108
it.
Although thethe position is not

position is not completely
completely clear,
clear, itit seems thatthat generally
generally the trustees'
the trustees'
powers cannot be cut express provision
cut down by express provision but
but they
they may be made subject subject to
to consent of
109
other
other persons.1°9
persons. Special provision is
Special provision is made by statute
statute for
for occupation
occupation of landland subject
subject to
to aa trust
trust
for
for sale:
sale: the trustees may permit
the trustees person with an immediate life
permit aa person life interest
interest in
in the
the whole
property
property toto occupy the property.11° Provision
the property. Provision is is also
also made for for delegation
delegation of powers to to
beneficiaries: trustees "may revocably and in
beneficiaries: trustees in writing delegate certain
writing delegate certain powers to the person of
to the person of
full age (not
full (not being
being merely an annuitant) who for
an annuitant) for the
the time
time being
being is beneficially entitled
is beneficially entitled inin
possession
possession toto the
the net
net rents
rents and profits
profits of the
the land
land for
for his
his life
life or
or any less
less period."
period."
Fundamental reform
reform of the
the English
English system was recommended by the the Law Commission
in
in 1989. proposed that
1989. The Commissioners proposed that the dual system (under
the dual (under which settlements
settlements fell
fell
within
within the
the purview of the
the Settled
Settled Land Act,
Act, while
while trusts
trusts for sale were governed by the
for sale the Law ofof
Property Act) be
Property Act) be abolished.
abolished. This
This could be
could be accomplished
accomplished by repealing
repealing the
the Settled
Settled Land Act.
Act.
Moreover, itit was recommended that that the
the trust
trust for
for sale
sale be replaced
replaced by a simpler and more
a simpler
suitable
suitable form of trust
trust under which trustees
trustees would have the the power (as(as opposed toto the
the duty)
duty) to
to
sell
sell lands
lands held
held on trust,
trust, coupled
coupled with
with aa power to to retain the land.111
retain the land. In
In England thethe recently
recently
106
106
Ibid.,
Ibid., ss.
ss. 2(i),
2(i), (ii),
(ii), 27(2).
27(2).
107
107
U.K.,
U.K., Law Commission, Transfer
Transfer of
of Land: Trusts
Trusts of 1989), at
181, 1989),
of Land (Law Comm. No. 181, at 4.
4.
108
108
supra, note
note 2,
2, at
at 397.
397.
109
109
Ibid.,
Ibid., at
at 394-95.
110
110
Ibid.,
Ibid., at
at 396.
396.
111
111
Ibid.,
Ibid., at
at 9.
9. A similar
similar position
position was previously
previously taken in the
taken in the Survey
Survey of the Land Law of
of the of Northern Ireland
Ireland (1971)
(1971) by a
a
working party
party of the Faculty of Law, The Queen's University,
the Faculty Belfast (Chair:
University, Belfast L.A. Sheridan)
(Chair: L.A. Sheridan) at 4, 34-36.
at 4,
36
112
enacted Trusts
enacted of Land and Appointments of
Trusts of of Trustees
Trustees Act,
Act, 1996112
1996 has adopted this
this basic
basic
approach.
approach.
Apart from Manitoba, no Canadian province province has carried

carried out
out any fundamental reform
113
affecting the
affecting legal remainder rules.
the legal rules. Only Prince Edward Island113
Island adopted legislation
legislation based
114
on the
the English
English Contingent Remainders Act, 1877,114
Act, 1877, other provinces either having no
other provinces either
legislation
legislation at
at all
all or,
or, like
like Ontario,
Ontario, having legislation
legislation similar
similar to
to section
section 88 of the
the English
English Real
115
115
Act, 1845.
Property Act, 1845.
So far
far as facilitation of dealings
as facilitation dealings with settled is concerned,
settled land is concerned, Manitoba has enacted
fundamental reform and aa measure of reform has been proposed in in British
British Columbia.
Otherwise,
Otherwise, most provinces legislation similar
provinces have legislation similar to
to Ontario's
Ontario's Settled Estates Act.116
Settled Estates Act. The
117
position
position is
is summarized as follows
as follows by Anger and Honsberger's Law of
of Real Property:117
Property:
118 1 19
[The
[The English
English Settled
Settled Estates Act, 1877]
Estates Act, 1877] was adopted
adopted inin British
British Columbia,118
Columbia, Ontario,119
Ontario, and,
and, in
in
120 rr-rt
part,
part, in
in New Brunswick.120
Brunswick. The Act was also held to
also held be applicable
to be applicable in
in Nova Scotia
Scotia by reason of
by reason of
121
the
the Judicature
Judicature Act121
Act which confers
confers on the
the Supreme Court
Court ofof that
that province all powers
province all powers exercisable
exercisable
122
by
by the English High Court
the English Court of
of Justice
Justice on October 1, 1884.122
October 1, 1884.
112
112
1996,
1996, c.
c. 47 (U.K.). Settled Land Act,
(U.K.). The Settled Act, c.
c. 47 (U.K.)
(U.K.) will
will continue to apply to
continue to to existing
existing settlements
settlements that
that fall
fall under
that Act.
that Act.
113
113
Real Property Act,
Act, R.S.P.E.I.
R.S.P.E.I. 1988,
1988, c.
c. R-3,
R-3, s.
s. 10.
10.
114
114
Supra,
Supra, note
note 78.
78.
115
115
Supra, note
note 76.
76. Such legislation
legislation was expressly
expressly enacted in New Brunswick: Property
enacted in Property Act,
Act, R.S.N.B. 1973,
1973, c.
c. P-19,
P-19,
s. 9. The English Act would have

s. 9. have been
been received
received into
into Alberta, British Columbia, Manitoba,
Alberta, British Manitoba, and Saskatchewan. See
supra, note
note 2,
2, at
at 404,
404, n.
n. 17
17 and at 71-74.
at 71-74.
116
116
Supra,
Supra, note
note 67.
67. See supra,
supra, this
this ch.,
ch., sec.
sec. 2(g).
2(g).
117
117
supra, note
note 2,
2, at
at 701-02.
118
Land (Settled
(Settled Estate)
Estate) Act,
Act, R.S.B.C.
R.S.B.C. 1979,
1979, c.
c. 215,
215, later
later rep.
rep. by S.B.C.
S.B.C. 1989,
1989, c.
c. 64,
64, s.
s. 8.
8.
119
119
Settled
Settled Estates
Estates Act,
Act, supra, note 67.
supra, note 67.
120
120
Trustees
Trustees Act,
Act, R.S.N.B. 1973,
1973, c.
c. T-15,
T-15, ss.
ss. 44-48.
121
121
S.N.S.
S.N.S. 1919,
1919, c.
c. 32,
32, ss.
ss. 15,
15, 16.
16. See now Judicature
Judicature Act,
Act, R.S.N.S.
R.S.N.S. 1989,
1989, c.
c. 240,
240, s.
s. 4.
4.
122
122
Re Baugild,
Baugild, [1954]
[1954] 3
3 D.L.R.
D.L.R. 586 (N.S.S.C.).
(N.S.S.C).
37
123
In Saskatchewan, an earlier
earlier version the English
version of the English statute,
statute, the
the Settled
Settled Estates
Estates Act,
Act, 1856,123
1856,
was held to
to be applicable
applicable under the
the rules reception of English
rules of reception English law,
law, it
it being
being thought suitable
suitable to
to
conditions
conditions in
in Saskatchewan. I24
In
In Manitoba, where there
there is
is no settled
settled estates
estates legislation,
legislation, it
it has been
been held
held that
that the
the court
court does
does
not
not have the
the inherent
inherent equitable jurisdiction to
equitable jurisdiction to empower the the life
life tenant
tenant to raise money for
to raise repairs
for repairs
on the
the security
security of a a mortgage which is is binding on the the remainderman. In In appropriate
appropriate
circumstances,
circumstances, however, the life tenant-or
the life tenant or the
the remainderman may seek seek or
or be
be compelled to to suffer
suffer
125
partition or sale under the
partition or sale under the Law of
ofProperty Act.125
Property Act.
Since
Since the
the publication
publication of thethe last
last edition
edition of Anger and Honsberger, fundamental reform, reform,
initiated
initiated by the
the Manitoba Law Reform Commission,126
Commission, has
has been carried
carried out
out in in Manitoba in in
127
the
the context
context of abolition
abolition of the the rules
rules against
against accumulations
accumulations and perpetuities.127
perpetuities. The
Commission considered that that the
the perpetuity rule existed
perpetuity rule existed primarily
primarily asas a a mechanism for for
balancing the interests of the creator of aa settlement
balancing the interests of the creator of settlement against
against the
the interests
interests of present
present and future
future
beneficial
beneficial owners. However, in in the
the context
context of trusts,
trusts, the
the Commission argued that that that
that
12
balancing is
balancing is now done effectively
effectively by the the rule
rule in
in Saunders v. v. Vautier128
Vautier *
as
as modified by
129
variation of trusts
variation trusts legislation.129
legislation. Under this
this body of law,
law, the
the interests
interests of beneficial
beneficial owners are are
protected by the
protected the ability
ability of sui juris beneficiaries
sui juris beneficiaries (where all all the
the beneficiaries
beneficiaries of a a trust
trust are
are
ascertained
ascertained and sui juris) to
sui juris) to terminate
terminate thethe trust
trust and by thethe court's jurisdiction to
court's jurisdiction to approve
variation
variation or
or termination
termination on behalf
behalf of beneficiaries
beneficiaries who areare unascertained
unascertained or or notnot sui juris. The
sui juris.
interests of the creator of the trust are protected by the requirement that
interests of the creator of the trust are protected the that the
the court
court consent
consent toto
variation
variation or
or termination.
termination.
The Commission alsoalso pointed

pointed out
out the
the rarity
rarity of successive
interests being created
created except
except
under aa trust.
under trust. When so
so created,
created, it
it is
is
more than
than likely
likely ... because a
... a testator
testator with his home-drawn will
with his has stumbled into
will has into them,
them, or
or a
a
draftsman
draftsman has
has made an an error.
error.
123
123
Supra, note
note 87.
87.
124
Re Moffat
Moffat Estate
Estate (1955),
(1955), 16
16 W.W.R. 314 (Sask.
(Sask. Q.B.).
Q.B.).
125
See Re Chupryk,
Chupryk, supra,
supra, note
note 66.
66.
126
Report on the
the Rules
Rules against
against Accumulations and Perpetuities
Perpetuities (1982).
(1982).
127
See
See The
The Perpetuities
Perpetuities and Accumulations Act,
Act, S.M. 1982-83-84,
1982-83-84, c. 43, now R.S.M.
c. 43, R.S.M. 1987,
1987, c. (also C.C.S.M.
c. P33 (also C.C.S.M.
c.
c. P33).
P33).
128
(1841),
(1841), 4
4 Beay.
Beav. 115,
115, [1835-42]
[1835-42] All
All E.R.
E.R. Rep. 58.
58.
129
The
The Trustee
Trustee Act, R.S.M. 1970,
Act, R.S.M. 1970, c.
c. T160, s.
s. 61,
61, as sub. by S.M. 1982-83-84,
rep. & sub.
as rep. 1982-83-84, c. 38, s.
c. 38, s. 4,
4, now R.S.M.
R.S.M. 1987,
1987,
c.
c. T60 (also
(also C.C.S.M., c.
c. T60),
T60), s.
s. 61.
61.
38
successive estates
Today's immediate and successive estates are
are created
created behind a
a trust,
trust, and are
are therefore
therefore
uniformly equitable.13°
uniformly equitable.
In this
In context, the Commission considered how the
this context, the balancing should continue to to be
achieved in in the rare
rare cases where common law successive interests
interests are
are created.
created. The reform
preferred was the abolition
preferred legal successive interests
abolition of legal interests and their
their replacement by statutory
trusts:131
trusts:
The Commission is is of the view that

the view that if
if section
section 61
61 is
is to
to perform thethe same 'balancing
'balancing role'
role' as
as the
the
perpetuity rule,
perpetuity rule, that
that it
it should apply
apply to the same degree
to the degree as that rule.
as that rule. This objective
objective can be achieved
in
in one of two ways. First,
First, the
the section
section 61 jurisdiction could be made applicable
61 jurisdiction applicable to
to all
all successions
successions
of
of limited
limited interest,
interest, whether common law or or behind a a trust,
trust, in
in equity.
equity. Alternatively,
Alternatively, one could
could
abolish
abolish common law or or legal
legal interests
interests by deeming them to to be held
held on trust
trust for
for the
the owners of the
the
estate.
estate.
The Commission recommends the the second alternative.

alternative. The abolition
abolition of common law estates
estates
has
has occurred
occurred elsewhere;
elsewhere; England and Wales abolished
abolished them in in 1925.
1925. The route
route therefore
therefore has
has been
taken
taken previously,
previously, and in
in this
this respect
respect differs
differs from the
the former which, to to our
our knowledge, isis without
132
precedence.132
precedence. The abolition
abolition of common law estates
estates is
is also
also the preferred choice
the preferred choice because
because it
it would
prevent the
prevent the occurrence
occurrence of the
the difficult problems that
difficult problems that can arise
arise as
as between common law lifelife tenant
tenant
and remainderman.
remainderman.
therefore recommends:
The Commission therefore
10.
10. That
That common law successive
successive estates be deemed to
estates be to be held
held on trust
trust for
for the
the owners of
those estates. The trustees
those estates. trustees would be
be the
the adult
adult and capacitated
capacitated estate beneficiaries, and
estate beneficiaries,
they would hold
they hold the
the legal
legal or
or other
other title
title to underlying property
the underlying
to the property in
in trust
trust for
for all
all vested
vested
and contingent beneficiaries,
beneficiaries, whether born,
born, capacitated,
capacitated, ascertained, or otherwise.
ascertained, or otherwise.
Reform of the
the law relating
relating to
to facilitation
facilitation of dealings with land subject to to successive
interests
interests was recommended by the the Law Reform Commission of British British Columbia in in its
its
Report on the Land (Settled

(Settled Estate)
Estate) Act.133
Act. This Act,134
Act, like
like the
the Ontario Settled Estates Act,135
Act,
36 1
is
is based on the
the English legislation
legislation culminating in in the
the Settled
Settled Estates Act,
Act, 1877.136
1877. Like the
the
130
Manitoba Law Reform Commission, supra,
supra, note
note 126,
126, at
at 12.
12.
131
131
Ibid.,
Ibid., at
at 58-59. The Commission's recommendation was implemented by The The Perpetuities
Perpetuities and Accumulations Act,
Act,
supra,
supra, note
note 127,
127, s.
s. 4.
4. See
See infra, this ch.,
infra, this sec. 3(c)(ii),
ch., sec. 3(c)(ii), (iv)
(iv) for discussion of the
for discussion the details
details of the
the provision.
provision.
132
This
This is the route
is the route that
that was later
later recommended by the Law Reform Commission of British
by the British Columbia in
in its
its Report
on the
the Land (Settled
(Settled Estate)
Estate) Act (1988).
(1988).
133
Ibid.
Ibid.
134
Land (Settled
(Settled Estate)
Estate) Act,
Act, supra,
supra, note
note 118.
118.
135
Supra,
Supra, note
note 67.
67.
136
136
Supra,
Supra, note
note 68.
68.
39
Ontario Act,
Ontario it gives
Act, it the tenant
gives the tenant for
for life to grant
life power to grant certain leases; otherwise
certain leases; otherwise transactions
transactions
the court.'
37
137
can only
can authorized by the
only be authorized court.
The Commission recommended that the Act should be

that the be repealed
repealed on thethe grounds that
that it is
it is
complex, difficult understand and unduly detailed

to understand
difficult to particular. In
detailed and particular. In two areas
areas in
in which the
the
—
landholding by infants
Act applies—landholding
Act applies infants and land
land held subject
subject to
to a
a trust—it
trust —
it was considered
considered
13
unnecessary that
unnecessary the Act be replaced
that the replaced by other legislation.
other legislation. As far as infants were
far as infants were concerned,138
concerned,
there is no need to
there is provide additional
to provide additional legislation
legislation to protect infants
to protect infants who hold
hold land,
land, or
or to
to empower
the courts
the courts to
to authorize
authorize transactions
transactions relating
relating to
to land infants. These issues
land owned by infants. issues are
are already
already
addressed
addressed by the
the Infants
Infants Act.
Act.
trust instrument
Where aa trust instrument does not provide appropriate
not provide appropriate administrative powers
powers, powers
administrative powers,
are supplied by the
are supplied the Trustee
Trustee Act.139
Act. It
It was true that the
true that the British
British Columbia Trustee
Trustee Act isis
140
out of date".14°
"decades out date". However, in the view of the
in the the Commission this
this did
did not
not necessitate
necessitate
new legislation
legislation pending a review of the
a review the Trustee
Trustee Act.
Act. Where the
the beneficiaries are all
beneficiaries are all
ascertained,
ascertained, sui juris, and in
sui juris, in agreement, the trust
agreement, the trust can be terminated,
terminated, and where there
there are
are
unborn, unascertained,
unborn, unascertained, oror non sui juris beneficiaries,
sui juris the court
beneficiaries, the court can approve a a variation,
variation,
including one dealing with
including one dealing with administrative
administrative powers, under the
the Trust
Trust and Settlement
Settlement Variation
Variation
ul
Act."1
Act
42
However, the
the position
position was different with respect
different with respect to
to legal successive interests:'
legal successive interests:
The only
only area
area of utility the Land (Settled
utility of the (Settled Estate)
Estate) Act relates
relates to administrative powers needed
to administrative
when land
land is
is held
held in
in a
a series
series of limited legal interests.
limited legal interests.
143
Three options
options for reform in
for reform in this
this context
context were considered.
considered. First,I43
First,
some antipodean jurisdictions have consolidated

antipodean jurisdictions consolidated settled
settled estates
estates legislation
legislation in
in legislation
legislation similar
similar to
to
the
the British
British Columbia Trustee
Trustee Act.
Act. Where there
there is
is a
a succession
succession of life
life interests
interests in
in the
the absence of aa
trust,
trust, the
the life
life tenant
tenant has
has the
the powers conferred
conferred on trustees.
trustees.
137
137
See supra,
supra, this
this ch.,
ch., sec.
sec. 2(g).
2(g).
138
138
Law Reform Commission of British Columbia, supra,
of British supra, note
note 132,
132, at
at 16.
16.
139
139
R.S.B.C.
R.S.B.C. 1979,
1979, c.
c. 414.
414.
140
140
Law Reform Commission of British
British Columbia, supra, note 132,
supra, note 132, at
at 19.
19.
141
141
R.S.B.C.
R.S.B.C. 1979,
1979, c.
c. 413 (title
(title am. by
by S.B.C.
S.B.C. 1989,
1989, c.
c. 64, s. 33)
64, s. 33) (formerly Trust Variation
(formerly Trust Variation Act).
Act).
142
142
Law Reform Commission of British Columbia, supra,
of British supra, note
note 132,
132, at
at 19.
19.
143
143
Ibid.
Ibid. For discussion
discussion of these
these reforms, see infra,
reforms, see infra, this
this ch.,
ch., sec.
sec. 3(b).
3(b).
40
option was rejected

This option because the
rejected because the administrative
administrative powers inin the
the British
British Columbia
Trustee Act are
Trustee are "decades
"decades out
out of date."144
date." The second option
second option was that
that "legislation might
"legislation might
145
provide a
provide a comprehensive scheme for for dealing
dealing with
with limited
limited legal
legal interests".145
interests". This was
rejected:146
rejected:
is uncommon today
It is
It today for
for people to create
people to create limited
limited legal
legal interests.
interests. For
For that
that reason,
reason, it
it would appear
appear
undesirable to enact
undesirable to enact legislation
legislation dealing
dealing with administrative that may be
administrative powers that be relied
relied upon in
in
to common law settlements

relation to
relation settlements of land.
land.
The third
third option, the one recommended, was that"'
option, which was the that
an
an amendment should be made to to the
the Trust
Trust Variation Act, to
Variation Act, provide that
to provide that a
a life tenant may apply
life tenant apply
to
to vary
vary the
the terms of the
the settlement.
settlement. ItIt should be sufficient
sufficient to
to provide that
that for
for the
the purposes of the
the
Trust
Trust Variation
Variation Act,
Act, a
a settlement land which involves
settlement of land involves limited
limited legal
legal interests
interests shall
shall be
be deemed to to
be
be a
a trust in favour of persons
trust in persons incapable
incapable of consenting to to an arrangement. In In this
this way, the
the court
court
will
will have adequate
adequate powers to to deal
deal with
with any administrative
administrative issue
issue that
that may arise
arise with respect
respect to
to life
life
tenants, others having limited

tenants, and others limited legal
legal interests
interests in
in land.
land.
The Australian
Australian treatment successive interests
treatment of successive interests amounts to to a
a patchwork of of partial
partial reform.
reform.
The law affecting the legal remainder rules has been dealt with in
affecting the legal remainder rules has been dealt with in a
a variety
variety of ways in
in the
the
different
different states
states but
but in
in all
all of them reform has been taken further
has been further than inin Ontario.
Ontario. In
In all
all states
states
except Queensland, successive

except successive interests
interests may be legal
legal oror equitable.'"
equitable. In New South Wales
In
and Western Australia, statutes provide that
Australia, statutes that legal
legal executory
executory interests149
interests may be created
created
the need for
without the for the
the instrument
instrument expressing
expressing a a use:15°
use:
44. —
44.—(2)
(2) Every limitation
limitation which may be
be made by way of useuse operating
operating under the
the Statute
Statute of
Uses or this Act may be made by direct
or this the intervention
direct conveyance without the intervention of
of uses.
uses.
144
144
Ibid.
Ibid.
145
145
Ibid.
Ibid.
146
Ibid.
Ibid.
147
Ibid.
Ibid.
148
148
All
All Australian jurisdictions have
Australian jurisdictions have provisions
provisions (equivalent
(equivalent to
to s.
s. 2(1)
2(1) of
of the
the Ontario
Ontario Estates
Estates Administration
Administration Act,
Act, supra,
supra,
note
note 33) that the
33) that the whole ofof the
the legal
legal estate a deceased person
estate of a person vests
vests in
in the personal representatives
the personal representatives on trust
trust for
for
those
those beneficially
beneficially entitled: Wills, Probate and Administration
entitled: Wills, Administration Act,
Act, 1898 (N.S.W.), s.
1898 (N.S.W.), s. 44;
44; Administration
Administration and
Probate Act,
Act, 1958
1958 (Vict.),
(Vict.), s.
s. 13;
13; Succession
Succession Act,
Act, 1981
1981 (Queensland),
(Queensland), s. s. 44;
44; Administration
Administration and Probate Act,
Act, 1919
1919
(S.
(S. Aus.)
Aus.) ss.
ss. 45,
45, 46;
46; Administration
Administration Act,
Act, 1903
1903 (W. Aus.), s. 8;
Aus.), s. 8; Administration
Administration and Probate Act,Act, 1935
1935 (Tas.),
(Tas.), s.
s. 4.
4.
Australian
Australian case-law
case-law has
has interpreted
interpreted this
this as
as having
having the
the result
result that
that testamentary
testamentary gifts
gifts are
are equitable
equitable so that the
so that the
legal
legal remainder
remainder rules
rules are
are inapplicable.
inapplicable. See
See note
note 39,
39, supra.
supra.
149
For consideration
For consideration of the meaning of
of the this term,
of this term, see
see supra this ch., sec. 2(d).
this ch., sec. 2(d).
150
150
Conveyancing Act,
Act, 1919
1919 (N.S.W.),
(N.S.W.), s.
s. 44(2).
44(2). The Property
Property Law Act, 1969 (W. Aus.),
Act, 1969 Aus.), s.
s. 39 is
is virtually
virtually identical.
identical.
41
41
More recent legislation in

recent legislation Wales151 and Victoria'52
in New South Wales Victoria has repealed
has repealed the
the Statute
Statute
153
of Uses153
of Uses so
so that
that equitable
equitable interests passive uses
interests under passive uses may be created
created without
without the
the need forfor
expressing
expressing a use upon a
a use a use. legal interests
use.154 Where legal interests are
are created,
created, all
all states
states make the legal
the legal
rules generally
remainder rules
remainder generally inapplicable
inapplicable by thethe adoption
adoption either
either of legislation
legislation based on the the
156
English
English Real Property Act, Act, 1845,155
845,1 section 8,
section 8, and the Contingent
the Contingent Remainders Act, 1877,156
Act, 1 877, or
or
157
legislation
legislation of equivalent
equivalent effect.157
effect.
More fundamental
fundamental reform
reform was enacted in in Queensland in in 1974,
1974, implementing
recommendations of thethe Queensland Law Reform Commission in its Report on Property Law
in its
581
Reform.158
Reform. Under these reforms, future
these reforms, future freehold
freehold interests
interests in
in land
land are
are necessarily
necessarily equitable.
equitable.
159
Sections
Sections 19 the Property Law Act,
19 and 30 of the Act, 1974,159
1974, do this
this by providing
providing as
as follows:
follows:
19.
19. After
After the
the commencement of this this Act the
the following estates
estates of freehold
freehold shall
shall be capable
capable of
being created
created and,
and, subject
subject to
to the
the provisions
provisions of this
this Act,
Act, of subsisting
subsisting in
in land—
land
(a)
(a) estate in fee
estate in fee simple;
simple;
(b)
(b) estate
estate for life or
for life or lives.
lives.
30.—(1)
30. (1) A future
future interest
interest in
in land
land validly
validly created
created after
after the
the commencement of
of this
this Act
Act shall
shall take
take
160
effect
effect as
as an equitable not a
equitable and not a legal
legal interest.
interest.
151
151
Imperial
Imperial Acts
Acts Application
Application Act,
Act, 1969
1969 (N.S.W.),
(N.S.W.), s.
s. 8.
8.
152
Imperial
Imperial Acts
Acts Application
Application Act,
Act, 1980
1980 (Via.),
(Vict.), s.
s. 5.
5. See,
See, also,
also, Imperial Acts
Acts Re-Enactment Act,
Act, 1980
1980 (Viet.),
(Vict.), s.
s. 6.
6.
153
153
Supra,
Supra, note
note 26.
26.
154
For discussion
discussion about
about the
the impact in
in New South Wales of the repeal of the
the repeal the Statutes
Statutes of
of Uses on the
the operation
operation of s.
s. 44
of the
the 1919
1919 Conveyancing Act,
Act, supra, note 150,
supra, note 150, see
see Butt,
Butt, supra,
supra, note
note 64,
64, at
at 163-64.
163-64.
155
155
Supra, note
note 76.
76.
156
156
Supra,
Supra, note
note 78.
78. See Conveyancing and Law of of Property Act, 1884 (Tas.),
Property Act, (Tas.), ss.
ss. 80(2),
80(2), 81;
81; Property Law Act,
Act, supra,
supra,
note
note 150,
150, s.
s. 26(1),
26(1), (2);
(2); Property Law Act,
Act, 1958
1958 (Viet.),
(Vict.), ss.
ss. 191,
191, 192.
192.
157
See
See Conveyancing Act,
Act, supra,
supra, note
note 150,
150, s.
s. 16(1);
16(1); Law of
of Properly
Property Act,
Act, 1936 (S. Aus.),
1936 (S. Aus.), s.
s. 25. This legislation
25. This legislation was
based on the
the recommendations of the
the English
English Real Property
Property Commissioners' Third
Third Report (1832).
(1832).
158
158
Queensland Law Reform Commission, Report on Property Law Reform (1973).
(1973).
159
1974,
1974, No. 76.
76.
160
160
Ibid., s.
Ibid., s. 30(1)
30(1) as
as am. by 1986,
1986, No. 26, s. 4(1)
26, s. 4(1) Sch.
Sch. Section
Section 30(2) the future
in the
prohibited in
30(2) prohibited the registration
future the registration of the
the
interest
interest of a
a remainderman. Section
Section 30(3) provided that
30(3) provided that s.
s. 30 should not retrospective effect:
not have retrospective effect:
30. —
30.—(3)
(3) This
This section
section shall
shall not
not apply
apply to
to any future
future interest—
interest
(a)
(a) created
created before
before the
the commencement of this arose or
interest arose
that interest
this Act whether that arises before
or arises before or
or
after
after the
the commencement of this
this Act;
Act; or
or
(b)
(b) created
created or
or arising
arising by virtue [which deals
section 22 [which
virtue of section the abolition
with the
deals with abolition of
of estates
estates tail].
tail].
42
(4) In this
(4) In section "future
this section interest" means—
"future interest" means
(a)
(a) aa legal contingent remainder;
legal contingent remainder; and
(b)
(b) legal executory interest.
aa legal interest.
reforms are
These reforms are complemented by the the repeal
repeal of the
the Statute
Statute of
of Uses,
Uses, the
the consequences
of which are
of are spelled
spelled out161
out by section 7 of the
section 7 the Act:
Act:
(1) Interests in
(1) Interests land which under the
in land the Statute
Statute of
of Uses
Uses could
could before
before the
this
Act have been created

Act created as
as legal
legal interests
interests shall
shall after
after the
this Act be capable
capable of
of
being created as equitable
created as equitable interests.
interests.
(2)
(2) Notwithstanding subsection
subsection (1),
(1), an equitable
equitable interest
interest in
in land
land shall,
shall, after
after the
the commencement
of
of this Act, only be capable
this Act, capable of being validly
validly created
created in any case
in case in
in which an equivalent equitable
equitable
interest
interest in property real
in property real or
or personal
personal could
could have been validly
validly created
created before
before such commencement.
In
In Queensland the
the legal rules no longer
remainder rules
legal remainder longer have any application
application and aa remainder
or
or executory
executory interest
interest necessarily
necessarily takes
takes effect
effect as equitable interest
as an equitable interest whether or
or not
not aa use
use or
or
trust is
trust expressed. Moreover, because of the
is expressed. the repeal
repeal of the
the Statute
Statute of
of Uses even a
even a passive trust
passive trust
of land
land may be created the need to
created without the to express
express a use upon aa use.
a use use.
The Australian
Australian states
states deal
deal with the
the facilitation
dealings with land
land subject
subject toto
successive interests inin three
three different
different ways.162
ways. First, New South Wales163
First, Wales and South
164
Australia164
Australia have legislation
legislation similar
similar to
to Ontario's
Ontario's Settled Estates Act'65
Settled Estates Act under which the the tenant
tenant
for
for life
life has
has power unilaterally
unilaterally to
to grant certain leases
grant certain leases but
but otherwise
otherwise the
the concurrence of the the
Tasmania' 66
court
court is
is required
required for
for the exercise of powers
the exercise powers affecting
affecting the
the settled land. Second,
settled land. Second, Tasmania
and
and Victoria167
Victoria have legislation
legislation based
based on
on the English Settled
the English Settled Land Act,
Act, 1882,168
1882, under which
various powers, such as
various powers, as sale,
sale, leasing
leasing and mortgaging,
mortgaging, are conferred on the
are conferred the tenant
tenant forfor life
life
without need for for application

application to to court.
court. However, in in Victoria
Victoria the
the tenant
tenant for
for life
life needs the
the
concurrence of the the trustees
trustees for
for the
the exercise
exercise of most powers and in
of most in Tasmania the
the trustees
trustees have
161
161
This
This provision
provision does not
not alter the effect
alter what would, even without it, be the
it, effect of the repeal of the
the repeal the Statute of Uses.
Statute of Uses. See
See
H.
H. Tarlo,
Tarlo, "Property
"Property Law Reform inin Queensland" (1974),
(1974), 8
8 U. L.J. 205,
U. Queensland L.J. 205, at
at 211.
21 1.
162
For
For a
a review
review of this
this legislation,
legislation, see
see A.J.
A.J. Bradbrook,
Bradbrook, S.V.
S.V. MacCallum, and A.P. Australian Real Property
A.P. Moore, Australian Property
Law (1991),
(1991), at
at 455-59, 467-84.
455-59, 467-84.
163
163
Conveyancing and Law of
ofProperty
Property Act,
Act, 1898
1898 (N.S.W.),
(N.S.W.), ss.
ss. 37-81.
164
164
Settled
Settled Estates
Estates Act,
Act, 1880
1880 (S.
(S. Aus.).
Aus.).
165
165
Supra,
Supra, note
note 67.
67.
166
166
Settled
Settled Land Act,
Act, 1884
1884 (Tas.).
(Tas.).
167
Settled
Settled Land Act,
Act, 1958
1958 (Viet.).
(Vict).
168
168
Supra, note
note 90.
90.
43
power to refer matters

to refer matters to
to court.
court. Third,
Third, Queensland and Western Australia
Australia have repealed
repealed
previous legislation based on the
previous legislation the English
English 1882
1882 Act.
Act. Instead,
Instead, land
land subject
subject to
to successive
successive
interests is assimilated
interests is the law of trusts.
assimilated with the trusts. A wide range
range of powers affecting
affecting the
the land
land is
is
conferred trustees and where there

conferred on trustees there are
are no trustees
trustees but
but the
the land
land is
is subject
subject to
to a
a settlement the
the
169
powers are
same powers are conferred the tenant
conferred on the tenant for
for life.I69
life.
The reform
reform of successive interests in
successive interests in New Zealand
Zealand is is similar
similar to
to the
the reforms in in the
the
170
Australian
Australian states.
states. The Statute of
Statute of Uses was repealed as long ago as
repealed as long as 1905;170
1905; legal
legal executory
171
interests
interests may be created
created without
without the
the need forfor any use;I71
use; the
the legal
rules have been
172
abolished by a
abolished a provision
provision similar
similar to
to the
the English
English Contingent Remainders Act, Act, 1877;172
1877; and
dealings settled land
dealings with settled land are
are facilitated
facilitated by the
the application
application of powers of trustees
trustees to
to a
a tenant
tenant
173
for
for life
life under aa settlement
settlement where there
there are
are no trustees.I73
trustees.
174
In
In the
the United States,
States, the
the legal
rules have generally
generally been abolished.174
abolished. In
In some
jurisdictions this
jurisdictions this was done by express
express statutory provisions; in
statutory provisions; in others,
others, it
it was done by judicial
judicial
175
decision.
decision. The Restatement of of Property175
Property states
states that
that the
the rules
rules are
are not
not part
part of American law.
law.
(C)
(c) REFORM
Reform IN
in ONTARIO
Ontario
(i)
(i) General
In
In considering
considering possible reforms we have
possible reforms have had four
four closely
closely related
related points
points in
in mind.
mind. First,
First,
we have
have aimed forfor simplicity,
simplicity, avoiding
avoiding complexity
complexity where possible.
possible. Second, reform should
Second, reform should
provide
provide aa fresh
fresh start
start so
so that
that archaic
archaic concepts
concepts and terminology areare wholly removed.
removed. For
example, inin New Zealand most of the problems caused
the problems by the
caused by the legal
legal remainder
remainder rules
rules have
been solved
been solved but
but in
in aa way that
that requires
requires continued
continued understanding
understanding of the
the old
old system.
system. The point
point
176
is
is well
well made by a a New Zealand text:I76
text:
169
See
See Trustees
Trustees Act,
Act, 1962,
1962, No. 78 (W. Aus.),
Aus.), s.
s. 109(1);
109(1); Trusts
Trusts Act
Act 1973,
1973, No. 24 (Queensland),
(Queensland), s.
s. 6.
6.
170
Property Law Act,
Act, 1905
1905 (N.Z.),
(N.Z.), s.
s. 121
121 and 5th
5th Sch.
Sch. See,
See, also,
also, Property Law Act,
Act, 1952
1952 (N.Z.),
(N.Z.), s. 46.
s. 46.
171
171
Property Law Act,
Act, 1952
1952 (N.Z.),
(N.Z.), s.
s. 14.
14.
172
Ibid.,
Ibid., s.
s. 20.
20.
173
Trustee
Trustee Act,
Act, 1956
1956 (N.Z.),
(N.Z.), s.
s. 88.
88.
174
See American Law of of Property (1952),
(1952), Vol.
Vol. 1,
1, at
at 518-20; J. Johanson, Wills,
J. Dukeminier and M. Johanson, Wills, Trusts
Trusts and
Estates
Estates (4th
(4th ed.,
ed., 1990),
1990), at
at 644-45; O.L.
O.L. Browder,
Browder, "Future Interest Refo►m"
"Future Interest Reform" (1960),
(1960), 35 N.Y.U.L.
N.Y.U.L. Rev.
Rev. 1255,
1255, at
at
1259-60;
1259-60; Sparks,
Sparks, supra,
supra, note
note 46,
46, at 350-51.
at 350-51.
175
American Law Institute,
Institute, Restatement
Restatement of
of the
the Law of
of Property
Property (1936)
(1936) §240.
§240.
176
176
G.W. Hinde,
Hinde, D.W. McMorland, and P.B.A. Sim, Land Law (1978),
P.B.A. Sim, at 349-50.
(1978), at 349-50.
44
present-day law
The present-day law of [New Zealand] governing future
future interests
interests other
other than
than reversions
reversions is
is a
a
patchwork derived
derived from thethe characteristics
characteristics of and thethe distinctions
distinctions between remainders
remainders and
interests, together
executory interests, together with
with certain
certain statutory
statutory modifications
modifications which have greatly
greatly simplified
simplified the
the
effect the law.
effect of the law. Nevertheless, the old
Nevertheless, the old terminology is is retained
retained in
in the
the present-day statutory
statutory
provisions
provisions and thethe modern law can therefore
therefore be explained only by reference
reference to
to the
the underlying
underlying
principles.
principles.
Third,
Third, we have taken taken account of the the fact
fact that
that legal
legal successive
interests are
are very
very rarely
rarely
created. Where they
created. they are created, it is usually
are created, it is usually where an arrangement has
an arrangement has been made without
legal
legal advice
advice or
or where a
a professional
professional advisor
advisor has
has done so
so by mistake.
mistake. Invariably,
Invariably, where a a
person wishes to
person to create
create successive
interests aa skilled professional draftsperson
skilled professional draftsperson will
will use
use a trust.
a trust.
It
It is
is therefore
therefore only
only in rare cases
in rare cases that
that the
the three
three branches of law considered
considered inin this —
this section—the
section the
legal remainder rules,
legal rules, the
the law of waste and the the Settled
Settled Estates —
Estates Act—have
Act have any application
application
where land
land is
is subject
subject to to successive
interests. This is is because the
the use
use of aa trust
trust circumvents thethe
legal remainder rules and generally
generally confers
confers on the the trustees
trustees powers of management over over the
the
land
land asas well
well asas powers to to carry
carry out
out dealings
dealings with the the land.
land. In
In general,
general, we think
think that
that the
the law
should, unless
should, unless there
there isis a
a compelling
compelling reason
reason toto the
the contrary,
contrary, provide similar consequences for
provide similar for
the
the settlement
settlement created
created mistakenly or or without the the benefit
benefit of skilled
skilled advice
advice asas would have
occurred
occurred if if a
a skilled
skilled draftsperson
draftsperson had devised the the transaction.
transaction. This point
point favours
favours therefore
therefore the
the
application
application of a trust even where the
a trust the settlor
settlor has
has not
not so
so provided.
provided.
Fourth,
Fourth, we have
have also
also noted
noted that
that the
the trust
trust arrangements provided by skilled
arrangements provided skilled draftspersons
draftspersons
generally
generally avoid
avoid the
the need for
for applications
applications toto court.
court. As we have already
already stated,
stated, trustees
trustees are
are
generally
generally given
given aa wide range
range of administrative powers, including
administrative powers, including such powers as as power toto
sell
sell or
or mortgage trust property. Although any system should provide
trust property. provide adequate
adequate protection
protection for
for
the
the interests
interests of beneficiaries,
beneficiaries, this
this should be done where possible
should be possible without
without the
the inconvenience
inconvenience
and expense of court
court intervention.
intervention.
We turn
turn now to
to consider
consider the
the case
case for
for reform of the
the three
three bodies
bodies of law considered
considered in
in
this
this section.
section.
First,
First, we consider
consider that
that the
the case for reform, indeed abolition,
case for abolition, of the
the legal
rules
is
is overwhelming. As we have already already shown, the rationales for
the rationales for these
these rules are completely
rules are completely
unrelated to
unrelated to modern Ontario.
Ontario. Indeed, they never had had any relevance
Indeed, they relevance in Ontario or
in Ontario or Upper
Canada. It It is
is true
true that
that they
they do notnot usually
usually cause practical difficulty
cause practical difficulty because they
they can
can be
be
completely circumvented by the the device
device ofof a
a trust
trust and usually
usually are
are so
so circumvented.
circumvented. But there
there
is
is no point
point in
in the
the retention
retention inin the
the law of rules
rules which can be be so
so avoided,
avoided, particularly
particularly when the
the
rules,
rules, like
like these,
these, areare complex, difficult
difficult to learn and easily
to learn easily forgotten.
forgotten. Moreover, the the
application
application of thethe rules
rules is
is capricious,
capricious, occurring
occurring only
only where by accident
accident a professional has
a professional has so
so
drafted
drafted anan arrangement that that a
a rule
rule is
is attracted
attracted or
or where a a lay
lay person
person has
has similarly
similarly attracted
attracted the
the
application
application of a a rule.
rule. Where one one of the rules does
the rules apply, the
does apply, the consequence may be be extremely
extremely
45
serious, wholly invalidating

serious, invalidating a provision. As was said
a provision. said by a
a commentator in
in relation
relation to
to the
the
177
recent case of Re Crow:177
recent case Crow:
intention was reasonable and clearly

testator's intention
The testator's expressed and the
clearly expressed the decision
decision frustrating
frustrating it
it should
be
be a
a matter
matter for
for serious
serious concern.
concern. It
It was caused by the the application
application of rules
rules which for
for several
several
hundred years have not
not had functional in the
justification in
functional justification the land their origin
land of their origin and which in in Canada
178
have never
never had any useful purpose. I78
useful purpose.
179
extent of abolition
The extent these rules
abolition of these rules in
in other jurisdictions varies.179
other jurisdictions varies. But itit is
is fair
fair to
to say
say
that in
that in nearly
nearly all
all American jurisdictions,
jurisdictions, in
in all
all the
the Australian
Australian states
states and in
in New Zealand
reform has
reform has been taken
taken considerably
considerably further
further than
than in
in Ontario.
Ontario. Moreover, the the rules
rules were
comprehensively abolished in England, the
abolished in the land
land of their
their origin,
origin, in
in 1925,
1925, and whenever this this
area the law has

area of the has in times been comprehensively reviewed total
in modern times total abolition
abolition of the the
rules has
rules has been recommended. In In Manitoba, inin particular, this recommendation was speedily
particular, this speedily
implemented by legislation.
legislation.
Quite
Quite simply,
simply, there is no argument for
there is retention of the
for retention the legal remainder rules
legal remainder rules and the
the
case
case for their abolition
for their abolition is
is overwhelming.
The case
case for
for reform of the
the law dealing
dealing with the obligations of persons
the obligations persons in in possession
possession of
land
land subject
subject to to successive
successive interests—the
interests —
the law of waste—is
waste is less —
less starkly
starkly obvious.
obvious. However,
there
there is little modern case-law on the
is little the application the law of waste
application of the waste toto aa tenant
tenant for
for life
life and
the
the bulkbulk of the existing case-law deals
the existing deals with
with problems,
problems, suchsuch as cutting timber,
as cutting timber, that
that
preoccupied the
preoccupied the rural societies of earlier
rural societies earlier generations. chief reason
generations. The chief reason for
for this
this lack
lack of modern
case-law is
case-law is the rarity of successive
the rarity successive interests existing outside
interests existing outside of trusts.
trusts. Trusts
Trusts law provides
provides aa
more contemporary system for for dealing with the
dealing with the use
use of land
land subject
subject toto successive
interests and
itit is, indeed, the

is, indeed, the system that
that is invariably chosen by the
is invariably the settlor
settlor or testator who has
or testator has the
the
advantage
advantage of of skilled
skilled professional
professional advice.
advice.
The law concerning

concerning dealings
dealings with land
land subject to successive
subject to successive interests
interests is
is in
in Ontario
Ontario
mainly set
set out
out in
in the
the Settled
Settled Estates
Estates Act,I8°
Act, which is
is clearly in need of reform.
clearly in reform. We agree
agree with
with
177
177
Supra,
Supra, note
note 15.
15.
178
178
Youdan, supra,
supra, note
note 43,
43, at
at 3.
3. See,
See, also, Perpetuities, Saunders
A.J. McClean, "The Rule Against Perpetuities,
also, Al v. Vautier,
Saunders v. Vautier, and
and
Legal
Legal Future
Future Interests
Interests Abolished" (1983),
(1983), 13
13 Man. L.J.
L.J. 245,
245, at
at 265;
265; A.M. Sinclair,
Sinclair, "The Law of Real
Real Property
Property of
of
New Brunswick: Some Proposals"
Proposals" (1968),
(1968), 18 U.N.B. L.J.,
18 U.N.B. L.J., at
at 5-7;
5-7; American Law of
of Property,
Property, supra,
supra, note
note 174,
174, at
at
518-19; F.R. Crane, "The

518-19; F.R. Crane, "The Law of Real Property in
Real Property in England and the the United
United States:
States: Some Comparisons" (1961),
(1961), 36
Ind.
Ind. L.J.
L.J. 282,
282, at
at 292;
292; S.M. Fetters, Contingent Remainders" (1967),
"Destruction ity of Contingent
Fetters, "Destructibility 21 Ark.
(1967), 21 Ark. L.L. Rev.
Rev. 145,
145,
at
at 146.
146.
179
179
See
See the
the outline
outline of reforms
reforms in
in other jurisdictions supra,
other jurisdictions supra, this
this ch.,
ch., sec.
sec. 3(b).
3(b).
180
180
Supra,
Supra, note
note 67.
67.
46
the view of the

the British Columbia Law Reform Commission concerning legislation
the British legislation similar
similar to
to
the Ontario Act:181

the Ontario Act:
Certainly, the Land (Settled

Certainly, the (Settled Estates)
Estates) Act should not not be retained in
be retained in its
its current
current form. It
It is
is complex,
drafted legislation,
intricately drafted
intricately legislation, difficult
difficult to
to comprehend and little
little used today.
today. Like much nineteenth
nineteenth
century legislation,
century legislation, it addresses in
it addresses in detail
detail issues
issues relating
relating to
to procedure which modernmodem legislation
legislation
leave to
would leave resolved by the
to be resolved the Rules of Court,
Court, and it
it defines
defines the
the kinds
kinds of transactions
transactions that
that may
be
be authorized
authorized with excruciating
excruciating particularity.
particularity. If
If one were to to approach thethe Land (Settled
(Settled Estate)
Estate)
Act with
with aa view to redrafting it, all
to redrafting it, all of its
its provisions
provisions could be replaced
replaced with a a single
single section
section which
permitted
permitted the
the courts
courts to authorize the
to authorize the exercise
exercise of any power necessary
necessary for
for the
the management or or
administration settled land.
administration of settled land.
For the reasons we have already

the reasons already summarized, the
the Law Reform Commission of British British
*2
Columbia did
did not
not favour
favour such a
a replacement of the
the Land (Settled
(Settled Estate)
Estate) Act.182 Instead,
Instead, it
1
Act. it
recommended an an amendment to the variation

to the variation of trusts
trusts legislation
legislation so
so that
that it
it would apply to to
common law settlements.
settlements.
For
For two reasons,
reasons, we differ
differ from the
the approach adopted by the the Law Reform Commission
British Columbia. First,
of British First, we consider
consider the
the expense and inconvenience
inconvenience of litigation
litigation should
should bebe
avoided unless
unless court
court intervention
intervention is is necessary inin the
the circumstances of a a particular
particular case.1"
case.
Secondly,
Secondly, one of the premises of the
the premises the reasoning
reasoning of thethe Law Reform Commission of British British
Columbia is is inapplicable
inapplicable inin Ontario.
Ontario. The British
British Columbia Commission recognized
recognized that
that in
in
the
the Commonwealth, the the "thrust
"thrust of reform" has been to
of reform" has been to repeal settled estates legislation
repeal settled estates legislation and to
to
make the
the administrative powers applicable
administrative powers applicable to
to trusts
trusts apply
apply also
also to
to settled
settled land
land that
that is
is not
not
type of reform was considered'
85
subject
subject to
to a trust.184 This
a trust. This type considered
not
not a
a particularly
particularly useful
useful thing
thing to
to do,
do, however, if,
if, as
as in
in British
British Columbia, the
the legislation
legislation that
that
confers
confers these
these administrative is decades out
administrative powers is out of date.
date.
By contrast,
contrast, the
the Ontario
Ontario Law Reform Commission has has already
already reviewed the
the law of
86
86
of Trusts.'
1
trusts,
trusts, and in
in particular
particular trustees'
trustees' administrative powers, in
administrative powers, in the
the Report on the
the Law of Trusts.
We therefore
therefore recommended that that the proposed revised
the proposed revised Trustee
Trustee Act should include
include a a
comprehensive list list of powers for
of powers for trustees,
trustees, including
including trustees
trustees of
of settled
settled land,
land, and we set
set out
out
181
181
British Columbia,
Columbia, supra, note 132,
supra, note 132, at
at 16.
16.
182
Supra,
Supra, note
note 118.
118.
183
183
Compare Ontario
Ontario Law Reform Commission, supra, note 65,
supra, note 65, at
at 234.
234.
184
184
British Columbia,
Columbia, supra, note 132,
supra, note 132, at
at 16.
16.
185
185
Ibid.,
Ibid., at
at 20.
20.
186
Supra,
Supra, note
note 65.
65.
47
187
the recommended powers.'"
the powers. These recommendations would give give trustees
trustees aa full
full range of
powers toto deal with and

deal with and manage trust
trust property,
property, including
including powers
powers of
of sale, mortgaging and
sale, mortgaging
188
leasing land. They would apply
leasing land. apply to
to every trust,188
trust, subject
subject to
to any contrary provision in
contrary provision in the
the trust
trust
instrument.
instrument.
The three areas of law

three areas law considered
considered inin this section could
this section could be
be improved by distinct
distinct sets
sets of
reform.
reform. For example, the the legal
rules could
could be directly
directly abolished
abolished (and the
the option
option of
of
creating
creating successive
interests as as legal
legal or
or equitable
equitable thus
thus continued)
continued) and thethe settled
settled estates
estates
189
legislation modernized.189 However, we consider
legislation modernized. consider it preferable to
it preferable to make aa single reform dealing
single reform dealing
with
with the problems in
the problems in all
all three
three areas.
areas. Expressed broadly,
broadly, the
the reform we recommend is is that
that
there should be aa trust
there trust whenever successive
interests in
in land
land are
are created.
created. Accordingly, if if no
trust
trust is
is expressly
expressly created,
created, a a statutory trust will
statutory trust will apply.
apply. This reform would make sectionsection 35
35 of
of
the Conveyancing and Law of
the Property Act redundant and that
of Property provision should
that provision should therefore
therefore bebe
repealed.
repealed.
By dealing
dealing in
in aa unified
unified way with
with the
the problems caused
caused by legal
legal successive
interests, the
the
proposed reform has
proposed has the
the advantage of simplicity.
simplicity. It
It would also
also remove altogether
altogether from the the
law the
the concepts
concepts and terminology
terminology relating
relating to
to legal
legal remainders
remainders and legal
legal executory
interests.
Moreover, this
this reform would not not introduce
introduce a a new and unfamiliar
unfamiliar system.
system. It
It would simply
simply
make applicable
applicable to
to those
those rare
rare cases
cases where successive
successive legal
legal interests
interests are
are created
created the
the system
system
invariably
invariably chosen by seniors
settlors with
with skilled professional advice.
skilled professional advice. ItIt may be added that that the
the
proposed system
system is,
is, in
in general
general terms,
terms, the
the one chosen by those
those Commonwealth jurisdictions
jurisdictions—
England, Queensland,
Queensland, and Manitoba—which
Manitoba which in — in modern times
times have reformed the the law relating
relating
to common law successive
to successive interests.
interests. Since
Since this
this reform would cause cause the
the implication
implication of a a
comprehensive range
range of trustees'
trustees' administrative powers, itit would reduce
administrative powers, reduce the
the need for
for court
court
190
intervention.19°
intervention.
187
187
Ibid.,
Ibid., ch.
ch. 4.
4.
188
188
The recommendations extended
extended to
to trusts
trusts of land
land presently
presently subject
subject to
to the
the Settled Estates Act,
Settled Estates supra, note
67, and it
it
was recommended (Ontario

(Ontario Law Reform Commission, supra, supra, note
note 65,
65, at
at 234-35) that this Act should
that this should be
be made
inapplicable
inapplicable to
to settlements
settlements of land
land by way of trust.
trust. The Commission did did not
not deal with common law settlements,
deal with settlements,
considering
considering that
that it
it would be
be more appropriate
appropriate to
to deal
deal with them "in
with them "in the
the context
context of a review of land
a comprehensive review land
law" (ibid,
law" (ibid, at
at 236).
236).
189
189
See McClean, supra,
supra, note
note 178,
178, at
at 266.
266. See,
See, also, Glenn, "Perpetuities
J.M. Glenn,
also, J.M. "Perpetuities to Purefoy: Reform by Abolition
to Purefoy: Abolition in
in
Manitoba" (1984),
(1984), 62 Can. Bar Rev.
Rev. 618.
618.
1
190
190
This
This is
is assuming the implementation of the
assuming the the Commission in
recommendations made by the
the recommendations in its Report on the
its Report the Law
of
of Trusts,
Trusts, supra,
supra, note
note 65.
65.
The proposed reform would also

proposed reform the advantage of assimilating
also have the the law of
assimilating the real and
of real personal property:
and personal property:
see
see A.
A. Pottage,
Pottage, "Law Com. 181:181: Reforming Trusts
Trusts of Land" (1989), 52 Mod. L.
Land" (1989), L. Rev. 683, at
Rev. 683, at 684.
684. The rationales
rationales
for
for distinct
distinct bodies
bodies of law applying
applying to
to real personal property
real and personal property are
are largely derived from
largely derived historical forces
from historical forces that
that are
are
no longer
longer relevant.
relevant. The assimilation
assimilation of the bodies of law
the two bodies law is
is a pervasive theme of the
a pervasive the Ontario
Ontario Law Reform
Commission's Report on on Administration
Administration ofof Estates
Estates of Persons (1991).
of Deceased Persons (1991).
48
It may be
It be argued
argued that
that the proposed reform will
the proposed will remove a a settlor's
settlor's choice of creating
creating
191
legal successive
legal interests and will
will thus
thus frustrate
frustrate rather
rather than
than facilitate
facilitate settlors'
settlors' intentions.191
intentions.
However, the proposal will
the proposal will facilitate
facilitate settlors'
settlors' intentions
intentions by the removal of the
the removal the legal remainder
legal remainder
rules which may occasionally
rules occasionally frustrate
frustrate them.
them. InIn addition,
addition, it
it is
is extremely rarerare that
that a
a well-
well-
settlor would purposefully
advised settlor
advised purposefully create
create legal
legal successive
interests. Moreover, the the law of
trusts
trusts allows
allows aa settlor
settlor substantial
substantial choice
choice over
over the
the terms
terms of the
the arrangement created. In
arrangement created. In
particular, the trustees'
particular, the administrative powers and duties
trustees' administrative duties implied
implied by law only only take
take effect
effect
subject
subject toto any expression of the the settlor's
settlor's contrary
contrary intention.
intention.
shall now sketch

We shall sketch in
in general
general terms
terms the
the way the proposed statutory
the proposed statutory trust
trust would have
an
an impact
impact on the
the problems caused by common law successive
interests. Then,
Then, we shall
shall deal
deal
with
with various points of detail
various points the proposed scheme.
detail concerning the scheme.
The statutory
statutory trust
trust would have the result that
the result that the
the successive
interests created
created would take
take
effect
effect in
in equity,
equity, thus
thus making the the legal
rules obsolete.
obsolete. In
In addition,
addition, we recommend
192
that the Statute
that the Statute ofof Uses192
Uses be repealed
repealed soso that
that legal
legal executory
executory interests
interests would also also become
obsolete
obsolete and trusts,
trusts, whether activeactive or
or passive,
passive, could
could be created
created without
without the the need forfor
expressing
expressing a a use
use upon a a use.
use. Since
Since the
the law dealing
dealing with
with the
the use
use of settled
settled land
land and
management of it it would be derived
derived from trusts
trusts law,
law, the
the law of waste
waste would be unimportant
unimportant
with
with respect
respect to
to the
the obligations
obligations of a beneficiary in
a beneficiary in possession.
possession. Finally,
Finally, since
since the
the law of trusts,
trusts,
along
along with
with the
the full
full range
range of administrative
administrative powers proposed in in our Report on the the Law of of
Trusts,
Trusts, would apply whenever property property isis subject to successive
subject to successive interests,
interests, dealings
dealings with
with settled
settled
land
land would be facilitated,
facilitated, generally
generally without
without the
the need for court intervention.
for any court intervention. The new
193
system would taketake the place of that
the place that provided inin the
the Settled
Settled Estates
Estates Act,193
Act, and we recommend
that
that that
that Act be
be repealed.
repealed.
We turn
turn now to
to consider
consider details
details of
of the
the proposed statutory trust.
statutory trust.
(ii)
(ii) Transactions to
to which Statutory Trust Will Apply
It
It will
will first to consider
first be convenient to relevant definitions
consider relevant definitions in
in other
other legislation
legislation and in
in
The present
present Ontario
Ontario Settled
Settled Estates
Estates Act194
Act applies
applies to
to any settled
settled estate,
estate, which is is
defmed195
defined as
as "land
"land and all
all estates
estates or
or interests in land
interests in land that
that are
are the
the subject
subject of aa settlement".
settlement".
191
191
See
See McClean, supra,
supra, note
note 178,
178, at
at 266.
266.
192
192
Supra,
Supra, note
note 27.
27.
193
193 o
Supra,
Supra, note
note 67.
67.
194
194
Ibid.
Ibid.
195
195
Ibid., s. 1(1).
Ibid.,s. 1(1).
49
Settlement, in
Settlement, in turn, is defined
turn, is defined asas a "statute, deed,
a "statute, deed, agreement,
agreement, willwill or
or other
other instrument,
instrument, oror any
number of such instruments,
instruments, under or virtue of which land
or by virtue land oror any estate
estate oror interest
interest in
in land
land
stands limited
stands limited toto or
or in
in trust for any persons
trust for any persons by way of succession
succession ...".196
...". As Megarry and
197 198
Wade197 state in
Wade state in relation
relation to
to the
the equivalent
equivalent definition
definition in
in the
the English
English Settled
Settled Land Act,
Act, 1882:198
1882:
"Thus,
"Thus, every
every grant
grant oror devise
devise of a a limited
limited interest
interest (e.g.
{e.g. for
for life
life ... or
...or for
for a
a conditional
conditional or
or
determinable
determinable fee)
fee) created
created aa succession,
succession, and therefore
therefore aa settlement."
settlement."
In
In England,
England, successive
interests inin land
land are
are dealt
dealt with by a a combination of thethe Law ofof
199 200
Property
Property Act,
Act, 1925199
1925 and the
the Settled
Settled Land Act,
Act, 1925200
1925 in
in the
the detail
detail and complexity thatthat is
is
characteristic of the
characteristic the 1925
1925 property legislation. The former
property legislation. former Act restricts
restricts the
the types
types of estates
estates
and interests
interests in
in land
land that
that may exist
exist at
at common law,law, thus resulting in
thus resulting in successive
successive freehold
freehold
interests
interests being
being equitable;
equitable; thethe latter
latter Act,
Act, defining
defining "settlement"
"settlement" forfor the
the purpose of that
that Act, is
Act, is
built
built on the
the definition
definition that
that formed the the model forfor the
the Ontario Settled
Settled Estates
Estates Act but
but is
is
expressed
expressed inin much greater
greater detail.
detail.
Section
Section 1(1),
1(1), (2)
(2) and (3)
(3) of the ofProperty
the Law of Act, 1925
Property Act, provide as
1925 provide as follows:
follows:
1.—(1)
1. (1) The only
only estates
estates in
in land
land which are
are capable of subsisting
subsisting or
or of being conveyed or
or created
created
at
at law are—
are
(a)
(a) an
an estate
estate in
in fee
fee simple
simple absolute
absolute in possession;
in possession;
(b)
(b) aa term of years
years absolute.
absolute.
(2)
(2) The only
only interests
interests or
or charges in
in or
or over land
land which are
are capable
capable of subsisting
subsisting or
or of being
conveyed or
or created
created at law are—
at law are
(a)
(a) an
an easement,
easement, right,
right, or privilege in
or privilege in or
or over land
land for
for an interest
interest equivalent to an estate
equivalent to estate in
in
fee
fee simple
simple absolute
absolute or
or a
a term of years
years absolute;
absolute;
(b)
(b) aa rentcharge
rentcharge in possession issuing
in possession issuing out
out of or
or charged on land
land being either
either perpetual
perpetual or
or
for
for a
a term of years
years absolute;
absolute;
(c)
(c) aa charge by way of legal
legal mortgage;
(d)
(d) land
land tax,
tax, title
title rentcharge,
rentcharge, and
and any
any other
other similar
similar charge
charge on land
land which is
is not
not created
created by
an
an instrument;
instrument;
(e)
(e) rights
rightsof entry
entry exercisable
exercisable over
over or
or in
in respect
respect of a years absolute,
legal term of years
a legal absolute, or
or
annexed, for
for any purpose,
purpose, to
to a
a legal rent charge.
legal rent charge.
196
196
Ibid.
Ibid.
197
197
The
The Law of
of Real
Real Property
Property (5th
(5th ed.,
ed., 1984),
1984), at
at 318
3 18 [footnote
[footnote omitted].
omitted].
198
198
Supra,
Supra, note
note 90.
90.
199
199
Supra,
Supra, note
note 85.
85.
200
Supra,
Supra, note
note 75.
75.
50
(3) other estates,

All other
(3) All estates, interests,
interests, and charges in
in or
or over land
land take
take effect as equitable
effect as equitable interests.
interests.
(1) and (4)

Subsections (1)
Subsections (4) of
of section
section 1 of the
the Settled
Settled Land Act,
1 Act, 1925 provide
provide as
as follows:
follows:
(1) Any deed,

1.—(1)
1. will, agreement
deed, will, agreement for
for a
a settlement
settlement or other agreement,
or other agreement, Act of Parliament,
Parliament, oror
other instrument,
other or any number of instruments,
instrument, or instruments, whether made or or passed
passed before
before or
or after,
after, or partly
or partiy
after, the
partly after,
before and partly
before the commencement of this
this Act,
Act, under oror by virtue
virtue of which instrument or or
instruments
instruments any land
land after the commencement of this
after the this Act,
Act, stands
stands for the time being—
for the being
(i)
(i) limited201
limited in
in trust202
trust for
for any persons
persons by way of succession;
succession; or
or
(ii)
(ii) limited
limited in
in trust
trust for
for any person in possession—
in possession
(a)
(a) for
for an entailed
entailed interest
interest whether or not capable of being barred
or not barred or
or defeated;
defeated;
(b)
(b) for
for an estate
estate in
in fee
fee simple or for aa term of years
or for years absolute,
absolute, subject
subject to
to an executory
executory
limitation,
limitation, gift,
gift, or
or disposition
disposition over on failure
failure of his
his issue
issue or
or in
in any other
other event;
event;
(c)
(c) for
for a
a base
base or
or determinable fee
fee or
or any corresponding interest in leasehold
interest in leasehold land;
land;
(d)
(d) being
being an
an infant,
infant, for
for an
an estate
estate in
in fee
fee simple
simple or
or for
for a
a term
term of
of years
years absolute;
absolute; or
or
(iii)
(iii) limited in
limited in trust
trust for person for
for any person for an estate
estate in
in fee
fee simple
simple or
or for
for a
a term of years
years absolute
absolute
contingently
contingently on the
the happening of any event;
event; or
or
(iv)
(iv) [repealed
[repealed by Married Women (Restraint
(Restraint upon Anticipation)
Anticipation) Act,
Act, 1949,
1949, s.
s. 1(4),
1(4), Sch.
Sch. 2];
2];
(v)
(v) charged,
charged, whether voluntarily
voluntarily or
or in
in consideration
consideration of marriage or or by way of family
arrangement,
arrangement, and whether immediately
immediately or or after
after an interval,
interval, with the
the payment of any less
less
period, or
period, or of any capital,
capital, annual,
annual, or periodical sums for
or periodical for the
the portions,
portions, advancement,
maintenance,
maintenance, or
or otherwise
otherwise for
for the benefit of any persons,
the benefit persons, with
with or
or without
without any term
term of
of
years
years for
for securing
securing or raising the
or raising the same;
creates
creates or
or is
is for
for the purposes of this
the purposes this Act a
a settlement
settlement and is
is in
in this
this Act referred
referred to
to as
as a
a settlement,
settlement,
or
or as
as the
the settlement,
settlement, as
as the
the case requires ...
case requires ...
(4)
(4) An estate
estate or
or interest
interest not
not disposed
disposed of by a a settlement
settlement and remaining
remaining inin or
or reverting
reverting to
to the
the
settlor,
settlor, or
or any person
person deriving
deriving title
title under him,
him, is for the
is for the purpose
purpose of this
this Act an estate
estate or
or interest
interest
comprised in in the
the subject
subject of the
the settlement
settlement and coming to to the settlor or
the settlor or such person under
such person under oror by
by
virtue of the
virtue the settlement.
settlement.
The Queensland
Queensland reform
reform did
did not
not make the
the statutory
statutory trust
trust apply
apply in
in all
all cases
cases where
successive
successive interests are created.
interests are created. It
It applies
applies only
only to
to "future interests" and that
"future interests" that term is
is
201
For discussion
discussion about
about the
the effect
effect of this
this word,
word, see
see J.
J. Hill,
Hill, "The Settled 1925: Unresolved
Settled Land Act 1925: Unresolved Problems"
(1991),
(1991), 107
107 L.Q. Rev. 596,
L.Q. Rev. 596, at
at 598-99.
598-99.
202
The reference
reference to
to a trust is
a trust unimportant since
is unimportant since provisions
provisions of
of the
the Law of
of Property
Property Act, 1925, supra,
Act, 1925, supra, note
note 85,
85, have
have the
the
consequence that
that generally
generally the
the interests
interests mentioned can
can only
only exist
exist under
under trusts. See Megarry and Wade, supra,
trusts. See supra,
note 197,
note 197, at
at 344-45.
344-45.
51
.203
restrictively 30(1) and (4)
restrictively defined. Section 30(1) 1974 Property Law Act
(4) of the 1974 Act203 provide as
as
follows:
30. —
30.—(1)(1) A future
future interest
interest in
in land
land validly
validly created
created after
after the
this Act shall take
shall take
effect as an equitable
effect as equitable and not
not a
a legal
legal interest.
interest.
(4)
(4) In this section
In this section "future
"future interest"
interest" means—
means
(a)
(a) legal contingent remainder;
aa legal remainder; and
(b)
(b) aa legal
legal executory interest.
interest.
This
This definition
definition can be criticized
criticized for
for keeping alive
alive the
the terminology of "legal
"legal contingent
remainder" and "legal
"legal executory interest".
interest". It
It is
is also
also restricted
restricted in
in its reach. One commentator
its reach.
204
has criticized
criticized the definition's failure
the definition's failure to
to extend toto all
all future interests:2°4
interests:
205
The proposal
proposa1205 isis confined
confined to
to legal
legal contingent
contingent remainders
remainders and legal
legal executory
executory interests,
interests, but
but
the
the reason
reason for
for this
this limitation
limitation is
is not
not clear.
clear. It
It would, surely,
surely, be preferable
preferable for
for the
the clause
clause to
to apply to
apply to
all
all future
future interests
interests of whatever kind,
kind, including
including reversions
reversions and vested
vested remainders.
remainders. The possibility
possibility
of
of confusion
confusion would then then be
be greatly
greatly lessened
lessened and thethe situation
situation would be be the
the same as as in
in England
where all
all remainders and reversions
reversions (other
(other than
than upon terms of years)
years) must fall
fall into
into the
the class
class of
future
future interests,
interests, the
the legal
legal estate
estate being
being vested
vested in
in some person
person as trustee.
as trustee.
Section 4(1)
4(1) of thethe Manitoba Perpetuities Act' provides that
Perpetuities and Accumulations Act2°6 that
"[s]uccessive
"[successive legal
legal interests... take effect
interests... take effect in
in equity behind a trust....".
trust....".
207
Section 11 of the
the Act207
Act defines
defines "successive legal
legal interest":
interest":
1.
1. In
In this
this Act ... 'successive
'successive legal
... legal interest'
interest' includes
includes
(a)
(a) the
the first
first or particular interest,
or particular interest,
(b)
(b) any following
following interest,
interest, whether the
the following interest
interest is
is future,
future, vested
vested or
or
contingent
contingent or
or is
is an executory
executory interest,
interest, or
or a
a determinable
determinable oror defeasible
defeasible interest,
interest, or
or
any interest over thereupon,
any interest over thereupon, and
(c)
(c) aa general
general or
or special
special power of
of appointment,
appointment,
203
Supra,
Supra, note
note 159.
59.
1
204
Tarlo,
Tarlo, supra,
supra, note
note 161,
6 at
1 at 211.
2
1 , 1 1
205
The comment was made withwith reference
reference to the recommendation of
to the of the Reform Commission,
Queensland Law Reform
the Queensland
supra,
supra, note
note 158,
158, which was implemented by the
implemented by Act, 1974,
the Property Law Act, 1974, supra,
supra, note
note 159.
159.
206
Supra,
Supra, note
note 127.
127.
207
Ibid.,
Ibid., as
as am. by S.M.
S.M. 1990-91,
1990-91, c.
c. 1,
1, s.
s. 205.
205.
52
but does not

but not include
include the
the interests
interests of
of landlords
landlords and
and tenants
tenants within
within the
the meaning of
of The
Landlord and
and Tenant Act or
or the
the Residential
Residential Tenancies Act
We agree
agree with
with the
the basic
basic thrust
thrust of the provision but
the Manitoba provision but there
there are
are some difficulties
difficulties
with
with it the following
it and we make the following comments. First,
First, we agree
agree that
that the
the succession
succession of interests
interests
created by a
created landlord and tenant
a landlord relationship should not
tenant relationship not be subjected
subjected to
to the
the statutory
statutory trust.
trust.
However, we would add that that aa leasehold

leasehold interest
interest created
created by that
that relationship
relationship is is capable of
being subject matter

the subject
being the matter of successive
interests which should
should come within
within the
the definition.
definition. For
example,
example, if
if L leases
leases land
land to
to T for
for twenty-five years
years the
the arrangement should not not come within
within
the
the definition
definition but
but if
if T then grants
grants the
the lease
lease to
to A for
for life,
life, remainder to
to B,
B, that
that arrangement
arrangement
should come within
should the definition.
within the definition.
Second, the
the definition retains concepts and terminology of the
definition retains the system that
that should
should bebe
made obsolete.
obsolete. This has thethe disadvantageous effect
effect of requiring
requiring continued
continued understanding
understanding of
that
that system.
system. More importantly,
importantly, itit is
is arguable
arguable that
that the
the nature
nature of the
the definition
definition has
has the result
the result
that the legislation
that the legislation fails
fails to
to validate
validate interests
interests that
that would have had no validity
validity under the
the legal
legal
208
remainder rules.
remainder rules. This point has
This point has been made by Professor
Professor McClean:208
McClean:
These provisions
provisions are
are open to to two interpretations.
interpretations. It
It may be be that
that in
in the
the interpretation
interpretation of any
document, which on its its face
face purports
purports to
to create
create successive
successive legal
legal interests,
interests, one immediately assumes
aa vesting
vesting of legal
legal title
title in
in trustees
trustees inin accordance with section
section 4(3)
4(3) ... Whatever the
... the difficulties
difficulties that
that
arise
arise from this
this approach,
approach, it it has
has one great
great advantage.
advantage. It implication abolishes
It by implication abolishes the
the common law
rules relating
rules relating to
to the
the creation
creation of legal
legal interests....
interests....
The other possible interpretation

other possible interpretation of thethe legislation
legislation is that one must first
is that first decide
decide whether or or
not
not valid
valid successive
successive legal
legal interests
interests have
have been
been created.
created. The legislation
legislation itself
itself does not say
does not say how that
that
is
is to be done.
to be done. One must assume,assume, therefore,
therefore, that
that common law rules rules continue
continue to to apply.
apply. IfIf according
according i
to those rules
to those rules no valid
valid interest
interest was created
created then
then the
the legislation
legislation turning
turning legal
legal into
into equitable
equitable would
be inapplicable
be inapplicable for for there
there would be be no legal
legal interest
interest created
created in in the
the first
first place.
place. Unfortunate though
this result may be,
this result be, the
the language of the the legislation
legislation tends
tends toto support
support thethe second interpretation.
interpretation.
Section
Section 4(1)4(1) states
states that
that 'successive
'successive legal
legal interests
interests take
take effect
effect inin equity
equity asas interests
interests behind a a trust.'
trust.'
That,
That, itit seems,
seems, assumes a a valid
valid series
series of successive
successive legal
legal interests.
interests. That interpretation
interpretation isis reinforced
reinforced
by the reference to
the reference to executory
executory interests
interests inin the
the definition
definition of successive
successive legal
legal interests
interests in
in section
section 1.
1
That assumes that that one has

has toto go through
through thethe process
process of of deciding
deciding whether or or not
not there
there is
is a
a valid
valid
legal
legal executory interest
interest before
before it
it is
is then
then turned
turned into
into an
an equitable
equitable interest
interest under thethe provisions
provisions of
section
section 4. 4.
Third,
Third, even apart
apart from the
the fundamental point
point made by Professor
Professor McClean, certain
certain
arrangements which should
should be included
included arguably are are omitted
omitted from the the definition.
definition. For
example, aa determinable
example, determinable fee
fee simple
simple along
along with
with aa possibility
possibility of reverter or
of reverter or a
a fee
fee simple
simple subject
subject
to
to a
a condition
subsequent along
along with
with a
a right
right of re-entry
re-entry do not not appear
appear to
to come within
within the
the
209
specific
specific inclusions
inclusions mentioned in in paragraphs
paragraphs (i)
(i) and 00209
(ii) (although these arrangements
(although these arrangements may,
208
Supra, note
note 178,
178, at
at 267-68.
267-68.
209 „ _,
See
See Glenn, supra,
supra, note
note 189,
189, at
at 666,
666, n.
n. 96.
96.
53
53
perhaps, be held
perhaps, held to be included
to be included since they do involve
since they involve an element of successiveness
successiveness of
the definition
interests and the
interests definition does not to be conclusive).
not purport to conclusive). Another example where there
there
is greater danger that
is perhaps an even greater that the
the arrangement would notnot come within
within the
the definition
definition
of "successive
"successive legal
legal interest"
interest" is
is where land
land is
is granted contingently
contingently on the
the happening of anan
210
210
event:
.
event:
Here too
too there
there will
will usually succession, although sometimes there
usually be an element of succession, there may not;
not; for
for it
it
is
is possible
possible for
for the
the settlor
settlor to
to direct
direct that
that the
the rents
rents and profits
profits shall
shall meanwhile be accumulated for
for the
the
eventual
eventual beneficiary, the limits
beneficiary, within the limits allowed by the
the rule
rule against
against accumulations.
accumulations.
Finally,
Finally, we question
question whether powers of appointment should be expressly expressly included
included in in
the
the definition.
definition. Where they are part of an arrangement that
are part that includes
includes successive
interests, the
the
arrangement should give give rise
rise to the statutory
to the trust but
statutory trust but this
this does
does not
not require
require any express
express
mention of powers of appointment.
appointment. Paragraph (iii) (iii) of the
the Manitoba definition
definition appear to to deem
"a
"a general
general oror special
special power of appointment" to to be
be aa "successive
"successive legal
legal interest"
interest" whether oror not
not
aa succession
succession of interests
interests isis created.
created. The English
English 1925
1925 legislation
legislation in general makes powers of
in general of
211
appointment equitable211
equitable but
but this
this was done as part of the
as part the policy
policy of facilitating
facilitating conveyancing.
conveyancing.
212
It is not necessary in
It is not necessary in order
order to
to deal
deal with
with the
the problems created
created by successive
successive legal
legal interests212
interests
and it it does not

not appear
appear that
that it
it is
is necessary
necessary in
in order
order to
to facilitate
facilitate conveyancing in in Ontario.
Ontario.
In
In determining the best way of expressing
the best expressing thethe transactions
transactions to to which the the statutory
statutory trust
trust
will
will apply
apply we have particularly taken account of the
particularly taken the following
following factors.
factors. First,
First, the
the relevant
relevant
provisions should avoid using
provisions using concepts
concepts and terminology deemed from the the system intended
intended toto
be
be made obsolete.
obsolete. Second,
Second, thethe provisions
provisions should
should be drafted
drafted soso that
that the
the statutory
statutory trust
trust will
will
apply
apply to to arrangements thatthat could
could notnot be valid
valid as
as common law interests.
interests. Third,
Third, the
the provisions
provisions
should avoid the the detail
detail and complexity of, for example,
of, for example, the the English
English provisions.
provisions. In particular,
In particular,
the
the interests,
interests, such
such as
as easements
easements and mortgages,
mortgages, set set out
out in
in section
section 1(2)
1(2) of the
the Law ofof Property
Act,
Act, 1925
1925 should
should not
not give
give rise
rise to
to the
the statutory
statutory trust.
trust. But explicit their exclusions
explicit mention of their exclusions is is
not
not necessary
necessary since
since they
they would not not be thought
thought to to come within
within the
the concept of successive
successive
interests.
interests. Conversely,
Conversely, explicit
explicit inclusion
inclusion of most of the the interests
interests elaborately
elaborately setset out
out inin
section 1(1)
section 1(1) of the Settled
of the Settled Land Act,
Act, 1925213
1925 is
is not
not necessary
necessary since
since they would be considered
considered
to
to come within
within that
that concept.214
concept. However, where
where the the statutory
statutory trust
trust should
should apply to to an
arrangement and it it is reasonably arguable
is reasonably arguable that
that it
it does
does not
not give to successive
rise to
give rise interests, the
successive interests, the
arrangement should
should bebe explicitly
explicitly mentioned.
mentioned.
210
210
supra, note
note 197,
197, at
at 344.
344.
211
211
Law of
of Property Act,
Act, 1925,
1925, supra,
supra, note
note 85,
85, s.
s. 1(7).
1(7).
212
See
See Megarry and Wade, supra,
supra, note
note 197,
197, at
at 491-92.
213
Supra,
Supra, note
note 75.
75.
214
See,
See, also,
also, Megarry and Wade, supra,
supra, note
note 197,
197, at
at 343.
343.
1
54
We recommend formulations
formulations along the
the following
following lines:
lines:
(1) Whenever successive

(1) successive interests
interests in
in land
land are
are created
created aa trust will be deemed to
trust will to occur
occur in
in
those cases where a

those cases trust would otherwise not
a trust not have been created.
created. Accordingly, the
the
estate
estate in fee simple
in fee simple oror leasehold
leasehold interest
interest (as
(as the
the case
case may be)be) in
in the
the land
land will
will be
held
held on trust
trust to
to give effect to the successive interests in
give effect to the successive interests in equity.
equity.
(2)
(2) A leasehold
leasehold interest
interest of a
a tenant
tenant and the reversionary interest
the reversionary interest of a
a landlord
landlord will
will be
be
deemed not
not to
to be successive
interests in
in land.
land.
(3) Without prejudice

(3) prejudice toto the
the generality
generality of the
the expression
expression "successive
"successive interests
interests in
in land"
land" the
the
following will, for avoidance of doubt, be
following will, for avoidance of doubt, be deemed to be successive interests in
to successive interests in land:
land:
(a)
(a) aa determinable
determinable feefee simple
simple along
along with
with the
the possibility
possibility of reverter (and
of reverter (and equivalent
equivalent
interests
interests in
in leasehold
leasehold land);
land);
(b)
(b) a
a fee
fee simple
simple subject
subject to
to condition
subsequent along
along with
with the right of re-entry
the right re-entry (and
(and
equivalent
equivalent interests
interests in
in leasehold
leasehold land);
land); and
(c)
(c) "springing
"springing interests",
interests", that
that is
is interests
interests subject
subject to
to conditions precedent, even where
conditions precedent,
no prior
prior interest
interest is
is conferred
conferred on another person.
another person.
At this point, we should

this point, should comment on the the effect
effect of the
the minority
minority of an owner of land.
land. At
common law aa minor can can hold aa legal
legal or
or equitable
equitable interest
interest in
in land
land but
but even where the the minor
has
has an absolute
absolute interest
interest the
the land
land is
is not
not readily
readily marketable since
since any disposition
disposition by a a minor is is
voidable at the minor's option.

voidable at the minor's option. The solution adopted
solution adopted in England
in England was to provide that a
to provide that a minor
215
cannot hold
hold aa legal
legal estate
estate in land215 and to
in land to make thethe machinery of the the Settled
Settled Land Act,
Act,
716 717 _
1925216
1925 into operation
come into operation when there
there is
is a purported conveyance of land
a purported land to
to a
a minor.217
minor. This
This
218
218
approach would be be continued under thethe recent proposals made by the
recent proposals the Law Commission:
Commission:
Minority
Minority will
will remain
remain a a disability
disability and anan attempted
attempted conveyance
conveyance to to a
a minor will
will take
take effect
effect as
as a
a
declaration
declaration of trust,
trust, the
the land
land being held
held by the
the relevant
relevant trustee or trustees
trustee or the new system.
trustees under the system.
Where the
the conveyance is is made inter
inter vivos,
vivos, the
the grantor
grantor will
will hold the
the land as trustee
land as trustee for
for the
the minor.
minor.
Where thethe disposition
disposition is testamentary, the
is testamentary, representatives of the
the personal the settlor
settlor will
will act
act as
as
trustees.
trustees. Where land
land is
is conveyed to to a
a minor jointly
jointly with
with an
an adult,
adult, the
the adult
adult will
will hold
hold the
the land
land on
trust
trust for
for himself
himself and the minor, as
the minor, joint tenants
as joint tenants or
or as
as tenants in common according
tenants in according toto the
the terms
terms of
the
the conveyance.
215
Law of
of Property Act,
Act, 1925,
1925, supra, note 85,
supra, note 85, s.
s. 1(6).
1(6).
216
Ibid.,
Ibid., s.
s. (1)(ii)(d).
(l)(ii)(d).
217
See,
See, also,
also, Land (Settled
(Settled Estates) Act, supra,
Estates) Act, supra, note
note 118,
1 18, s.
s. 4.
4.
218
Law Comm. No. 181,
181, supra,
supra, note
note 107,
107, at
at 15.
15.
55
In
In Ontario, legal estate
Ontario, a minor can hold a legal estate in
in land and dealings with any interest
interest in
in land
a minor are
of a facilitated by court intervention under section 59 of the
are facilitated Children 's Law Reform
the Children's
19
Act.219
Act} It It provides as follows:
59.-0)
59. (1) Upon application by the
application by parent of aa child
the parent child or
or any other
other person,
person, the
the Ontario Court
(General Division)
(General Division) by order require or
order may require or approve, or both,
approve, or both,
(a)
(a) the disposition
the or encumbrance of all
disposition or all or part of the
or part the interest
interest of the
the child
child in
in land;
land;
(b)
(b) the sale of the
the sale the interest
interest of the
the child in personal
child in personal property;
property; or
or
(c)
(c) the payment of
the all or
of all or part
part of any money belonging
of any belonging to
to the
the child
child or
or of the
the income from
from
any property
property belonging toto the child, or
the child, both.
or both.
(2)
(2) An order shall be
order shall be made under subsection
subsection (1)
(1) only where the
the Court is
is of the
the opinion that the
that the
disposition, encumbrance, sale
disposition, or payment is
sale or is necessary
necessary or proper for
or proper for the
the support or
or education of
the
the child
child or will substantially
or will substantially benefit
benefit the
the child.
child.
(3)
(3) An order subsection (1)
order under subsection (1) may be
be made subject
subject to
to such conditions
conditions as
as the
the Court
Court considers
considers
appropriate.
appropriate.
(4)
(4) The Court shall
shall not
not require
require or a disposition
or approve a disposition or
or encumbrance of the
the interest
interest of a
a child
child
in
in land
land contrary
contrary to a term of the
to a the instrument
instrument by which the
the child
child acquired
acquired the
the interest.
interest.
(5)
(5) The Court,
Court, where it
it makes an order
order under subsection
subsection (1),
(1), may order
order that
that the
the child
child or
or another
another
person named in
person in the
the order
order execute necessary to
execute any documents necessary to carry
carry out the disposition,
out the disposition,
encumbrance, sale
sale or
or payment.
(6)
(6) The Court by order
order may give
give such directions
directions as
as it considers necessary
it considers necessary for
for the
the carrying
carrying out
out of
an order
order made under subsection
subsection (1).
(1).
(7)
(7) Every document executed in in accordance with
with an order
order under this
this section
section is
is as
as effectual
effectual as
as if
if
child by whom it
the child
the it was executed
executed was eighteen
eighteen years
years of
of age
age or,
or, if
if executed
executed by another person in
another person in
accordance with the

the order,
order, as
as if
if the
the child it and had been eighteen
had executed it
child had eighteen years
years of age
age at the
at the
time.
time.
(8) person incurs

(8) No person incurs or
or shall
shall be
be deemed to
to incur
incur liability in accordance
by making aa payment in
liability by accordance
with
with an order
order under clause
clause (1)(c).
(l)(c).
Generally, we think
think that
that it
it is preferable if
is preferable facilitated without the
in land can be facilitated
if dealings in the
need for
for the expense and inconvenience of court
court intervention. Also, we think
intervention. Also, think it
it appropriate that
that
the
the statutory
statutory "fall-back"
"fall-back" solution
solution should generally mirror the sorts of arrangements made by
the sorts
persons with skilled
persons skilled professional persons ordinarily utilise
professional advice and such persons trust in
utilise a trust in giving
giving
valuable property to
valuable to minors.
minors.
Nevertheless, we do not make any recommendation with respect to landholding by

respect to
minors. This topic principles of land
topic does not concern the basic principles law. Rather,
land law. it concerns the
Rather, it the
219
R.S.O.
R.S.O. 1990, c. C.12.
1990,c.C12.
56
rights protections of persons

rights and protections persons under legal
legal disability.
disability. Any reform would be more
appropriately that general

considered from that
appropriately considered perspective.
general perspective.
(iii) Nature of
(iii) the Statutory
of the Statutory Trust
We havehave no doubt
doubt thatthat two characteristics
characteristics of the English system
the English system should not not be
be
introduced
introduced in in Ontario. First, there
Ontario. First, there is
is no justification
justification for
for the
the dual
dual system under which some
settlements
settlements notnot subject to a
subject to trust for
a trust for sale
sale are
are governed by thethe rules
rules in
in the
the Settled
Settled Land Act,
Act,
1925 and settlements
1925 subject to
settlements subject to aa trust
trust for
for sale
sale are
are governed by the the Law of of Property Act,
Act,
220
1925.220
1925. This
This dual
dual system has has not
not been adopted
adopted in in any other jurisdiction. Even in
other jurisdiction. in England the
the
Settled Land Act option
Settled option isis virtually never purposefully chosen.
virtually never purposefully chosen. And in in its
its recent
recent report,
report, the
the
Law Commission recommended "that "that it
it should no longer
longer bebe possible
possible to
to create
create Settled
Settled Land
Act settlements
settlements and that,
that, consequently,
consequently, all all successive
interests should
should fall
fall under the
the new
x » 221
221
system".
system .
Second,
Second, the
the statutory
statutory trust
trust should not
not be a
a trust
trust for
for sale,
sale, asas provided presently
presently in
in
England under the provisions of the

the provisions the Law of of Property Act,
Act, 1925.
1925. That arrangement is is
inappropriate with respect to land that ordinarily is intended to be held indefinitely.

inappropriate with respect to land that ordinarily is intended to be held indefinitely. It
It is
is
confusing
confusing to
to the
the people
people involved inin the
the arrangement and it it may create
create inappropriate
inappropriate results.
results.
222
As was stated
stated in the Survey of
in the of the
the Land Law ofofNorthern Ireland,222
Ireland,
[t]he
[t]he objection
objection to
to imposing a a trust
trust for
for sale
sale in
in all
all cases
cases isis that in many cases
that in cases it
it is
is not
not what the
the
parties
parties want,
want, for
for the
the trust
trust involves
involves an
an obligation
obligation toto sell
sell with
with aa mere power to to postpone.
postpone. Since this
this
exercised unanimously,
power must be exercised unanimously, a a single
single trustee
trustee could
could force
force a
a sale
sale against the wishes
against the wishes of
of the
the
majority.
majority.
The English
English Law Commission has
has also
also recommended replacement
replacement of the
the statutory
statutory trust
trust for
for
223
sale:223
sale:
We confirm our initial preference for

initial preference for a
a single
single trust
trust of land
land to
to apply toto both concurrent and
successive
interests in
in land. interests themselves
land. The interests themselves will
will be
be unchanged:
unchanged: thethe difference
difference lies
lies in
in the
the
trust
trust machinery.
machinery. Under the the new system,
system, trustees
trustees will the legal
hold the
will hold legal estate trust with
estate on trust with a
a power toto
sell
sell and a
a power to
to retain the land,
retain the land, and,
and, as
as at
at present,
present, it
it will
will always be possible to
be possible to convey the
the legal
legal
estate
estate free
free of equitable
interests.
220
For
For criticism
criticism see,
see, for
for example, G.A. Grove, "Conveyancing and the Property Acts of 1925"
the Property (1961), 24 Mod. L.
1925" (1961), L.
Rev.
Rev. 123;
123; R.
R. Maudsley, "Escaping the
the Tyranny of Common Law Estates"
Estates" (1977),
(1977), 42 Mo. L.
L. Rev. 355.
355.
221
221
181, supra,
Law Comm. No. 181, supra, note
note 107,
107, at
at 12.
12.
222
Supra,
Supra, note
note 111,
111, at
at 35.
35. See,
See, also,
also, O.R. Marshall,
Marshall, "A Critique
Critique of the
the Property Legislation of Western Nigeria"
Property Legislation Nigeria"
(1965),
(1965), 1 Nigeria
1 L.J. 151.
Nigeria L.J. 151. Under the
the present
present English
English system
system a
a statutory
statutory trust
trust for sale occurs
for sale occurs when land
land is
is held
held by
by
joint tenants
joint tenants or
or tenants
tenants in
common.
in
223
223
Law Comm. No. 181,
181, supra,
supra, note
note 107,
107, at
at 9.
9.
57
57
The recommendation
recommendation of the Law Commission that
of the that the
the land
land will be held
will be held "on
"on trust
trust with a
a
224
power to sell and a
to sell to retain"
a power to retain" has
has been criticized
criticized by one commentator:224
commentator:
final point
A final point is
is that
that the throughout refers
the Report throughout refers to the land
to the land as
as being held
held with
with power to to
retain and power to
retain to sell.
sell. This seems odd. odd. In
In theory,
theory, itit should be a a trust
trust to
to retain
retain oror sell:
sell: there
there
should be an underlying obligation of some sort.
underlying obligation Trustees must exercise
sort. Trustees exercise powers unanimously and
if
if they
they are
are divided
divided then
then they
they must have some guidance as as toto what they should do. do. The obvious
obvious
answer is that they
answer is that they do not
not sell
sell if
if they
they are
are divided
divided and this
this shows a
a trust
trust to
to retain
retain with
with aa power to
to
sell.
sell. It
It may bebe replied
replied that
that on an application
application to
to the
the court
court the
the discretion
discretion is
is such that
that it
it is
is irrelevant
irrelevant
that
that there
there is
is such aa trust.
trust. Yet it it is
is wrong toto assume that
that all
all cases
cases will
will end up in in court, particularly
court, particularly
as regards successive
as regards successive interest
interest trusts.
trusts. Nor isis it
it likely
likely that
that the
the court
court will
will want to to interfere
interfere with
with
trustees' decisions
trustees' decisions where the the trustees
trustees are
are independent at at least
least where occupation
occupation by a a beneficiary
beneficiary is is
not involved.
not involved.
We recommend that that under the proposed new system,

the proposed system, the
the statutory
statutory trust
trust will
will be
be a
a trust
trust to
to
—
hold—or
hold or retain—the
retain —
the land. In general, the statutory trust will be subject
land. In general, the statutory trust will subject to
to all
all of the
the rules
rules of
of
general
general trusts law. Among other
trusts law. other things, the trustees
things, the trustees will have the
will have the usual range of trustees'
usual range trustees'
administrative
powers, including
including a
a power of sale.
sale.
(iv)
(iv) Determination of
of Statutory
Statutory Trustees
Since
Since the
the statutory
statutory trust
trust will
will apply
apply in
in circumstances
circumstances where a
a trust
trust has
has not
not been expressly
expressly
created
created it is necessary to have rules determining
it is necessary to have rules determining who should be the trustees.
should be the trustees. We have
have
considered
considered three possible approaches.
three possible approaches.
225
First,
First, the
the English
English Law Commission recommended as
as follows:225
follows:
Where successive
interests are
are created,
created, the
the trustees
trustees will
will be
be either
either those persons appointed
those persons appointed by
by
the
the settlor
settlor or,
or, failing
failing this,
this, whoever hashas the
the legal
legal estate
estate currently
currently vested
vested in
in him.
him. Where
necessary,
necessary, the
the court
court will
will have recourse
recourse to
to the
the power which it it currently possesses under
currently possesses under
[section
[section 41
41 of the
the Trustee
Trustee Act].
Act].
Under this
this approach,
approach, the
the trustees
trustees in
in a
a disposition
disposition by Will will be
Will will the personal
be the personal
representatives and,
representatives and, in
in an
an inter
inter vivos
vivos transaction, the settlor
transaction, the settlor will
will become trustee:226
trustee:
Thus ifif A purports

purports to
to convey land to X for
land to for life,
life, remainder to in fee
to Y in simple, X and Y can
fee simple, can
only
only have equitable
interests. It
It follows
follows that
that A has not disposed of
not disposed of the
the legal estate and
legal estate and will
will
hold
hold it
it on trust for X and
trust for and Y.
Y. A may useuse the
the normal statutory appoint trustees
to appoint
statutory powers to trustees in his
in his
place
place or
or appoint
appoint another
another trustee
trustee to
to act
act with
with him.
him.
224
R.
R. Smith,
Smith, "Trusts
"Trusts of Land Reform" [1990]
[1990] Cony.
Conv. 12,
12, at
at 15.
15.
225
181, supra,
Law Comm. No. 181, supra, note
note 107,
107, at
at 17.
17.
226
Smith, supra,
Smith, supra, note
note 224,
224, at
at 22.
22.
58
possible approach is
A second possible is to
to make thethe tenant
tenant for life (or
for life (or other
other person
person beneficially
beneficially
entitled to possession
entitled to possession of the
the land) the trustee.
land) the trustee. A variant of this
variant this approach is is a
a combination of
the tenant
the tenant for
for life
life having
having powers of dealing
dealing with
with the
the land
land along
along with
with another
another person or
person or other
other
persons having a
persons a limited
limited trustee role. This
trustee role. This approach is is essentially
essentially that
that adopted by the
the English
English
227
Settled Lands Acts
Settled Acts of 1882 and 1925227
of 1882 1925 and of legislation
legislation in in Queensland and Western
Austral ia.228
Australia.
The third
third approach is
is that
that adopted inin Manitoba, under which trustees
trustees are
are all
all the
the adult
adult
229
and capacitated
capacitated beneficiaries
beneficiaries of the
the statutory
statutory trust.229
trust
In
In considering
considering the
the most suitable
suitable approach, we have assumed that that typically
typically the
the issue
issue will
will
arise
arise in
in a
a family
family context.
context. Often,
Often, the
the settlement
settlement will
will be created
created by aa will
will and the
the tenant
tenant for
for life
life
will
will often
often be
be a
a surviving
surviving spouse
spouse and the
the other
other beneficiaries
beneficiaries will
will be children
children of the
the testator.
testator.
All
All three
three of the
the approaches considered
considered have the
the advantage that that they
they enable
enable the
the statutory
statutory
trustees
trustees ordinarily
ordinarily to
to be determined without the the need forfor court
court intervention.
intervention. Of the
the three
three
approaches,
approaches, we have decided
decided that
that the
the Manitoba approach shouldshould bebe adopted
adopted in
in Ontario.
Ontario. In
In aa
case
case where the
the transferor
transferor to
to testator
testator has
has not
not made provision
provision forfor powers toto deal
deal with the
the land
land
being
being given
given toto any particular person or
particular person persons (which typically
or persons typically will
will be the
the case
case where
successive
interests in
in land
land are
are created
created without aa trust)
trust) it
it is,
is, we believe,
believe, preferable
preferable that
that all
all
capacitated
capacitated beneficiaries should
beneficiaries should bebe involved in the decision-making. In
involved in the decision-making. In most cases,
cases, they will
they will
be able
able to
to agree
agree on the
the decisions
decisions that
that need to
to be taken.
taken. IfIf they
they cannot agree,
agree, the
the matter
matter should
be resolved
be resolved by the
the court.
court.
Accordingly, we recommend that

Accordingly, that the
the trustees
trustees of the
the statutory
statutory trust
trust will
will be
be the
the adult
adult and
capacitated
capacitated beneficiaries
the statutory
statutory trust.
trust.
(v)
(v) Interrelationship
Interrelationship between Statutory Trust,
Trust, General Law of
of Trusts,
Trusts, and
Express Terms of Settlement
210
We have already
already mentioned23°
mentioned that
that one reason
reason why we differ
differ from the
the approach adopted
by the
the Law Reform Commission of British British Columbia inin its
its Report on the
the Land (Settled
(Settled
23
Estates)
Estates) Act231
Act is
is that
that the
the Ontario
Ontario Law Reform Commission has already reviewed the
has already the law of
212
trusts,
trusts, and in
in particular
particular trustee's
trustee's administrative
powers, in
in the
the Report on the
the Law of
of Trusts.232
Trusts.
227
See supra,
supra, this
this ch.,
ch., sec.
sec. 3(b).
3(b).
228
See
See supra,
supra, this
this ch.,
ch., sec.
sec. 3(b).
3(b).
229
See supra,
supra, this
this ch.,
ch., sec.
sec. 3(b).
3(b).
230
See
See supra,
supra, this ch., sec.
this ch., sec. 3(c)(i).
3(c)(i).
231
231
Supra,
Supra, note
note 132.
132.
232
Supra,
Supra, note
note 65.
65.
59
revised Trustee
proposed revised
The proposed Trustee Act will
will give
give trustees
trustees aa full range of powers to
full range to deal
deal with and
manage trust property, including
trust property, sale, mortgaging
including powers of sale, mortgaging and leasing
leasing land.
land. These powers
would apply to trust, subject
to every trust, to any contrary
subject to provision in
contrary provision the trust
in the trust instrument.
instrument. We now
confirm
confirm that
that the
the proposed statutory
statutory trust
trust should be
be subject
subject to
to the revised Trustee
the revised Trustee Act.
Act.
Accordingly, we recommend that, that, subject to the

subject to recommendation below relating
the recommendation relating to
to
occupation
occupation of land,
land, the
the statutory
statutory trust
trust should be
be subject
subject to
to the
the general
general law of trusts,
trusts, including
including
provisions of the
the provisions
the revised Trustee
the proposed revised Trustee Act.
Act.
(vi) Protection of Purchasers

(vi)
Since the statutory

Since the statutory trust
trust will,
will, subject
subject toto any special
special provision,
provision, constitute
constitute a a trust
trust within
within
the
the general
trusts, we recommend that that the
the provisions
provisions recommended in in the
the Report on
233
the
the Law ofof Trusts233
Trusts relating
relating to
to the protection of purchasers
the protection purchasers apply to purchasers from trustees
to purchasers trustees
of the
the statutory trust. Putting
statutory trust. Putting it
it broadly,
broadly, these
these provisions
provisions may be summarized by three three points.
points.
(1) As we have already

(1) already stated,
stated, the
the trustees
trustees are
are given a a comprehensive rangerange of administrative
administrative
powers,
powers, including
including a a power of sale;
sale; (2)
(2) subject
subject to (3), purchasers are entitled to
to point (3),
point purchasers are entitled to assume
that
that trustees
trustees have the the powers they they purport
purport toto exercise
exercise and thatthat they
they areare exercising
exercising them
properly;
properly; (3) but this
(3) but this protection
protection is is not
not available
available toto a purchaser who has
a purchaser has actual
actual notice234
notice that
that
235
the
the trustees
trustees do notnot possess
possess the
the power or or that
that they
they are
are exercising
exercising itit improperly.235
improperly. These
provisions are,
provisions are, we think,
think, as
as apt
apt in relation to
in relation the statutory
to the statutory trust
trust as
as toto express
express trusts
trusts and
therefore
therefore we do not not recommend any special special modification
modification to to them.
(vii) of Land by Beneficiary

(vii) Occupation of Beneficiary
Where successive
successive common law interestsinterests are created under the
are created the present
present law,
law, some
person —
person—for
for example,
example, the
the tenant
tenant for
for life—is
life —
is entitled
entitled to
to both
both possession
possession of and enjoyment
from the
the land.
land. Where successive
interests exist
exist under aa trust,
trust, the
the trustees
trustees have possession
possession and,
and,
moreover, beneficiaries
moreover, beneficiaries do not
not have a right of occupation
a right occupation unless
unless the
the terms
terms of the
the trust
trust so
so
provide. The statutory
provide. statutory trust
trust will
will therefore prevent beneficiaries
therefore prevent beneficiaries from having
having a right of
a right
possession, unless
possession, unless special provision is
special provision is made for that purpose.
for that purpose.
233
Ibid.,
Ibid., at
at 169-70,
169-70, and see
see recommendations 78 and 79,
79, at
at 183.
183.
For this
this purpose,
purpose, "purchaser"
"purchaser" is is widely defined.
defined. The draft revised Trustee
draft revised Act defines
Trustee Act purchaser as
defines purchaser as "a
"a
purchaser for value, and includes
for value, includes aa mortgagee
mortgagee and
and any
any other person who for
other person for value
value has
has received an interest
received an in or
interest in or
claim upon trust
trust property":
property": ibid.,
ibid., at
at 480.
480.
234
Under recommendations made in in the
the Report on Administration
Administration of of Deceased Persons,
Estates of
of Estates Persons, supra,
supra, note
note 190,
190,
at
at 261,
261, purchasers
purchasers would also
also be
be bound by any restrictions provided by
restrictions provided by a will if, and to
a will if, to the extent that,
the extent that, the
the
restrictions
restrictions are
are noted
noted on the
the estate
estate trustee
trustee certificate.
certificate.
235
However, even aa purchaser
purchaser with
with actual
actual notice receives protection
impropriety receives
notice of impropriety the trust
if the
protection if property was held
trust property held by
by
an intervening purchaser
an intervening purchaser without actual impropriety: Report
notice of impropriety:
actual notice the Law of
Report on the Trusts, supra,
of Trusts, supra, note
note 65,
65,
recommendation 79,
79, at
at 183.
183.
60
the Report on the

In the
In the Law of of Trusts
Trusts the
the Commission's recommended administrative
administrative
powers included provision for
included provision for trustees t0236
trustees to
purchase or
purchase or rent living accommodation or
rent living or construct
construct a a house on land
land held
held by them for
for the
the purpose
of
of providing
providing a
a home for
for the
the person
person entitled
entitled to
to the
the income of the
the money expended in
in respect
respect of the
the
purchase, or
purchase, or to
to the
the income to to be expended inin respect
respect of the
the rent,
rent, or
or to
to the
the income of either
either the
the land
land
or the money expended in
or the in respect
respect of the purchase or
the purchase or construction,
construction, if
if in
in any case
case under this
this clause,
clause,
the
the person
person for
for whom thethe living
living accommodation is is provided consents
consents thereto.
thereto.
This
This power does notnot explicitly
explicitly relate
relate to
to retaining
retaining a
a residence
residence included
included in
in the
the property
property
originally
originally settled.
settled. Nevertheless,
Nevertheless, it
it seems that
that it
it would implicitly
implicitly empower trustees
trustees to
to permit
permit
the use of such
the use of such property
property as
as a
a residence.
residence.
At most,
most, this
this provision
provision gives
gives the
the trustees
trustees a
a power; it
it does
does not
not give
give any beneficiary
beneficiary any
entitlement
entitlement to
to possession,
possession, or
or even occupation,
occupation, of the
the land.
land. In
In addition,
addition, it
it extends
extends only
only to
to the
the
use of land
use land as
as aa residence.
residence. It
It does not permit occupation of land
not permit land for
for aa business,
business, such
such as
as
farming.
farming.
This
This is
is one area
area where there
there is
is a
a strong
strong argument thatthat special
special provision
provision should
should be made
for
for the
the proposed statutory
statutory trust.
trust. Generally,
Generally, we havehave taken
taken thethe view that
that the
the statutory
statutory trust
trust
should
should be be assimilated
assimilated with express
express trusts.
trusts. As well
well as
as having thethe advantage of simplicity,
simplicity, this
this
position will
position will generally
generally facilitate
facilitate the purpose of the
the purpose the settlor
settlor or
or testator.
testator. However, in in this
this context
context
the
the position
position may be different.
different. A settlor
settlor or
or testator
testator who creates
creates successive
interests without
without a a
trust
trust is
is likely
likely to
to have acted
acted without
without skilled
skilled professional
professional advice
advice and such a a person may well well
assume thatthat the
the tenant
tenant for
for life
life (or
(or other
other person
person with
with a a present
present interest)
interest) is
is entitled
entitled toto
occupation
occupation and possession
possession of the the land,
land, as,
as, indeed,
indeed, is
is the
the case
case under the present law.
the present law. InIn these
these
circumstances,
circumstances, we consider
consider itit appropriate,
appropriate, and recommend, that that aa right
right of possession
possession should
should
237
be
be conferred
conferred on a a beneficiary
beneficiary with
with a present, vested
a present, vested interest
interest in
in the
the land.237
land.
236
Report
Report on the Law of
on the of Trusts,
Trusts, ibid.,
ibid., at
at 501
501 (s.
(s. 35(k)
35(k) of
of draft Revised Trustee
draft Revised Trustee Act).
Act). See,
See, also,
also, ibid.,
ibid., at
at 245-46,
245-46, 307.
307.
237
See,
See, also,
also, the recommendations of
the English
English Law Comm. No.
No. 181,
181, supra,
supra, note
note 107,
107, at
at 24.
24.
CHAPTER 4
QUALIFIED ESTATES AND

INTERESTS IN LAND
In chapter
In chapter 3
3 we touched on the the fact
fact that
that interests
interests in
in land
land may bebe absolute
absolute or
or qualified.
qualified.
There
There are
are two distinct
distinct categories
categories of qualified
qualified interests
interests which are
are generally
generally referred
referred to
to as,
as,
respectively, determinable
respectively, determinable interests
interests and interests
interests subject
subject to
to a
a condition
subsequent. The
difference
difference between them isis a
a matter
matter of wording:1
wording:
It
It will
will be
be seen
seen that
that the
the difference
difference is
is really
really one of of words; the
the determining event
event may be worked into into
the
the limitation
limitation in
in such
such aa way asas to
to create
create either
either aa determinable
determinable [interest],
[interest], or
or [an
[an interest]
interest] defeasible
defeasible by
condition
condition subsequent,
subsequent, whichever the the grantor
grantor wishes.
wishes. The question
question isis whether thethe words limit
limit the
the
utmost
utmost time
time of continuance
continuance of thethe estate,
estate, oror whether they
they mark an
an event
event which,
which, ifif it
it takes
takes place
place in
in the
the
course
course of that
that time,
time, will
will defeat
defeat an
an estate
estate already
already granted;
granted; in
in the
the first
first case
case the
the words taketake effect
effect as
as a
a
limitation,
limitation, in
in the
the second as as a
a condition.
condition. A limitation
limitation marks the
the bounds or or compass of the the estate,
estate, a
a
condition
condition defeats
defeats the estate before
the estate before it
it attains
attains its
its boundary.
boundary.
A determinable
interest is
is suggested
suggested by words such as as "as long as",
"as long as", "until"
"until" or
or "while"
"while"
whereas an
whereas an interest
interest subject
subject toto aa condition
subsequent is is suggested
suggested by words such as as
"provided
"provided that"
that" oror "on condition
condition that."
that." However, the
the type
type of interest
interest created
created depends on the
the
construction the instrument
construction of the instrument asas a
a whole.2
whole. Thus,
Thus, all
all of the
the words and thethe way in
in which they
they
are arranged is relevant.3
are arranged is relevant.
The distinction
distinction between thethe two types
types of interests
interests is,
is, therefore,
therefore, a
a matter
matter of wording and
itit is
is a
a fine
fine one at
at that.4
that. Nevertheless,
Nevertheless, very
very important
important consequences
consequences depend on the the distinction.5
distinction.
First,
First, a a determinable
interest ends automatically
automatically when thethe determining
determining event
event occurs
occurs whereas
i
R. Megany and H.W.R. Wade, The Law of
R. of Real Property (5th
(5th ed.,
ed., 1984),
1984), at
at 69-70 [footnotes
[footnotes omitted].
omitted].
2
See
See A.H. Oosterhoff and W.B. Rayner,
Rayner, eds., of Real Properly
eds., Anger and Honsberger's Law of (2d ed.,
Property (2d ed., 1985),
1985),
at
at 305-06.
3
See
See P.
P. Devonshire, "Possibilities
"Possibilities of Reverter
Reverter and Rights Condition Broken:
for Condition
Rights of Re-entry for Modem Context
Broken: The Modern
for
for Determinable and Conditional
Conditional Interests
Interests in
in Land" (1990),
(1990), 13 L.J. 650.
13 Dalhousie L.J. also, B.
See, also,
650. See, ZifF, Principles
B. Ziff, Principles
of Property
of Property Law (2d
(2d ed.,
ed., 1996)
1996) at
at 204-06.
204-06.
4
See
See Oosterhoff
Rayner, supra,
supra, note
note 2,
2, at
at 126.
126.
5
In
In addition
addition to
to the
the differences
differences mentioned inin the text, one of the
the text, legal remainder
the legal remainder rules —
rules—the rule that
the rule a remainder
that a remainder
must await
await the
the regular
regular ending
ending of
of the
the prior —
prior particular estate—applies
particular estate applies to
to an
an interest
interest subject
subject to
to a
a condition
condition
subsequent but not to
subsequent but not to a
a determinable
determinable interest.
interest.
61 ]
[[61]
62
interest subject
an interest to aa condition
subject to condition subsequent does not automatically end when the
the condition
condition is
is
broken: "If
broken: the event which gives
"If the gives rise
rise to
to defeasance occurs,
occurs, the
the estate
estate may be ended if,
if, and
only if,
only the right
if, the right of entry is exercised."6
entry is exercised."
Second, the consequence of invalidity

Second, the invalidity of
of the
the determining
determining event
event or
or condition,
condition, asas the
the case
case
may be,be, is
is markedly different. If a condition subsequent is
different. If a condition subsequent is void, the
void, the condition isis struck
struck down
and the
the interest
interest is
is left
left free
free of the condition. if
the condition. If aa determining event isis invalid,
invalid, the
the whole gift
gift
fails.
fails.
Third,
Third, certain provisions which would be invalid
certain provisions invalid as
as conditions
conditions subsequent will
will be valid
valid
as
as determining
determining events.
events. For example, if property is
if property is given subject
subject to
to aa condition
the holder
that the
that holder of the
the estate
estate does not
not become bankrupt the the condition isis void whereas an estate
estate
determinable upon bankruptcy may be created.'created. Similarly,
Similarly, aa condition
condition inin general
general restraint
restraint of
Q
marriage is
marriage void whereas it
is void it is
is generally possible to
generally possible to make an estate
estate determinable
determinable on marriage.8
marriage.
Fourth,
Fourth, at
at common law it it seems that
that the rule against
the rule perpetuities did
against perpetuities did not apply to
to aa
possibility of reverter
possibility reverter taking
taking effect
effect on the
the determination
determination of an estate.
estate. It
It did,
did, however, apply
apply to
to
aa right
right of re-entry.
re-entry. This distinction
distinction was criticized
criticized by the
the Commission in in our Report on the
the
Rule Against Perpetuities:9
Perpetuities'.
Whether aa donor
Whether donor uses the technical
uses the technical language
language of
of a
a condition
subsequent or
or the
the language
language of
of limitation,
limitation,
the
the property
property is
is tied
tied up indefinitely for the remote future in exactly the same
up indefinitely for the remote future in exactly the same way and therefore if
and therefore if the
the
rule affects the right of
rule affects the right of re-entry,
re-entry, it should
should also
it also affect
affect the possibility of
the possibility of reverter
reverter in
in order
order to
to free
free the
the
property
property from
from this remote interest. To have aa difference in result depending on a mere
this remote interest. have difference in result depending on a mere matter
matter of
of
words does
words does not
not seem
seem to
to make sense
sense and
and brings
brings the
the law
law into
into disrepute,
disrepute, as
as well
well as
as acting
acting as
as a
a snare
snare for
for
the
the draftsman.
draftsman.
The Commission's recommendations were implemented by section 15(1) of the

section 15(1) the
Perpetuities Act
Perpetuities Aet'° which provides that aa possibility
provides that possibility of reverter the determination of any
reverter" on the
determinable
interest in
in real
real oror personal property is
personal property subject to
is subject to the
the rule
rule against
perpetuities, as
as
modified by the
modified the Act in
in the
the same way as as a right of entry.12
a right entry. Both types
types of interest are subject
interest are subject to
to
aa perpetuity period
perpetuity period which is the shorter of the normal period
is the shorter of the normal period of relevant
relevant lives
lives in
in being
being and
twenty one years
years or
or forty
forty years.
years.
6
6
supra, note
note 2,
2, at
at 306.
306.
77
See
See Megarry and Wade, supra, note 1, at
supra, note at 74.
74.
1 ,
88
Ibid.,
Ibid., at 73-74.
at 73-74.
9
Report No.
No. I1 (1965),
(1965), at
at 33.
33.
10
10
R.S.O. 1990,
1990, c. P.9 (first
c. P.9 (first enacted
enacted S.O.
S.O. 1966,
1966, c.
c. 113,
13, s.
1 s. 15(1)).
15(1)).
11
11
It
It also
also refers
refers to
to a
a possibility
possibility of resulting
resulting trust
trust on the
the assumption that possibility
assumption that possibility of reverter is not
reverter is not an apt term
an apt term to
to
describe the grantor'

describe the grantor' ss entitlement
entitlement arising
arising as
as a
a determination
determination of a determinable
of a determinable interest
interest under aa trust.
trust.
12
12
It
It also refers to
also refers to an
an equitable right in
equitable right personal property
in personal property on the that right
the assumption that entry is
right of entry is not an apt
not an apt term
term
with
with respect
respect to personal property.
to personal property.
63
Apart from the

Apart the reform made to the operation
to the operation of the perpetuity rule,
the perpetuity rule, the
the other
other practical
practical
consequences continue
continue to to flow from the characterization of something as
the characterization as a a determinable
interest
interest or interest subject
or an interest subject toto a a condition subsequent. However, as
condition subsequent. as we have mentioned, the the
difference
difference between the the two is is aa mere matter wording. There is
matter of wording. is no difference
difference between the the
grantor's objective
grantor's objective in in both types of arrangement which is
both types that the
is that the grantee'
grantee' s s estate
estate should
come toto an end on the the occurrence

occurrence of a particular event!'
a particular event. The only
only possible
possible justification for
justification for
the
the two different
different verbal
verbal arrangements, with their
their different
different practical
practical consequences, is
is that
that the
the
grantor
grantor who knows how to to use the right
use the right words is is able to signal
able to signal the set of desired
the set desired
consequences. However, this
consequences. this is justification. Many grantors
not aa compelling justification.
is not grantors (including
(including those
those
with professional
with professional drafters)
drafters) fail
fail to
to signal sufficiently clearly
signal sufficiently clearly which sortsort of interest
interest they
they intend
intend
to create. Moreover, even where the
to create. the words habitually
habitually used to to describe
describe one sortsort of interest
interest isis
used there
used there is
is aa danger that
that the practical consequences of that
the practical type of interest
that type interest were notnot inin fact
fact
intended.
intended. In
In this
this situation,
situation, one court
court may accord the the words used theirtheir normal effect
effect and thethe
grantor's
grantor's intention
intention thereby frustrated. Another court
thereby be frustrated. court may treat the words used in
treat the in
unorthodox fashion
fashion in in order
order to to arrive
arrive atat the result considered desirable,
the result desirable, in in the process
the process
diminishing any certainty
diminishing certainty that
that that particular forms of words will
that particular will in
in fact
fact lead
lead to particular
to particular
14
consequences.
consequences.
difficulties associated
The difficulties associated with
with the
the present
present law
law are well illustrated
are well illustrated by Re McColgan.15
McColgan. A
house was given
given by will
will to
to the
the testator'
testator' ss executors
executors and trustees
trustees "to
"to hold asas aa home for
for Mary
Kovalchik ... until
until her
... her death or until
death or until she
she is
is not
not residing
residing therein personally". This
therein personally". This wording on
any orthodox view was apt apt to produce aa determinable
to produce determinable interest,
interest, not
not an interest
interest subject
subject to
to a
a
condition
subsequent. However, it it was arguable
arguable that
that the
the reference
reference to to "residing
"residing therein
therein
personally" uncertain and therefore
personally" was uncertain therefore void.
void. If
If this
this was so so and if if the
the limitation
limitation was
interpreted
interpreted as a determinable
as a determinable interest,
interest, Mary Kovalchik would take take no interest
interest atat all.
all. The court
court
avoided this result
avoided this result by holding that a condition
holding that a condition subsequent
subsequent was created
created and that
that the
the
uncertainty
uncertainty of the
the condition
condition left
left Mary Kovalchik with with aa life
life interest
interest free
free of any condition.
condition.
There is
is also justification for
also no justification for the position under the
the position present law that
the present that a
a condition
condition
subsequent
subsequent may be be invalid
invalid as repugnant to
as repugnant to the
the interest
interest granted
granted or
or as
as against
against public policy but
public policy but
that the
that the same result
result may be achieved by drafting the arrangement as
drafting the as a
a determinable
determinable interest.
interest.
This point
This point was well made by Professor
well Professor Glanville
Glanville Williams:16
Williams:
Another case
case where the
the law has
has become lost
lost in
in mere words isis in the famous distinction
in the between
distinction between
`but'
'but' and `until'—a
'until' —
a distinction
distinction that
that an
an Irish judge considered
Irish judge considered to
to be
be 'little
'little short
short of disgraceful
disgraceful to
to our
13
13
See
See Devonshire, supra, note
Devonshire, supra, note 3,
3, at
at 654;
654; A. (1991), 4 Can.
Property Law" (1991),
A. Brudner, "The Unity of Property Can. J. L. Juris.
J. L. Juris. 3;
3;
G. Williams,
G. Williams, "Language and the the Law" (1945),
(1945), 61
61 L.Q. Rev. 71;
L.Q. Rev. 71; L.W. Waggoner, "Reformulating the
the Structure
Structure
of Estates:
Estates: A Proposal
Proposal for
for Legislative
Legislative Action" (1971-72),
(1971-72), 85
85 Harv.
Harv. L. Rev. 729,
L. Rev. at 736.
729, at 736.
14
14
See,
See, also,
also, A.
A. Dunham, "Possibility —
Reverter and Powers of Termination—Fraternal
"Possibility of Reverter or Identical
Termination Fraternal or Identical Twins"
(1952),
(1952), 20 U.
U. of Ch. L.
L. Rev.
Rev. 215,
215, at
at 216-217.
15
15
(1969),
(1969), 4 D.L.R.
D.L.R. (3d)
(3d) 572 (Ont.
(Ont. H.C.).
H.C.).
16
16
Supra, note
note 13,
13, at
at 79.
79.
64
17
17
jurisprudence.'
jurisprudence.' If A gives
If property on trust
gives property trust to
to B,
B, 'but
'but if
if B marries
marries then to C',
then to C, the
the gift
gift to
to C is
is struck
struck
out because
out because it it tends
tends to
to induce
induce B to
to remain
remain unmarried, and the procreation of legitimate children
unmarried, and the procreation of legitimate children is is
regarded
regarded asas a public interest.
a public this form of
interest. Thus on this of words B willwill take
take absolutely.
absolutely. But if if the
the words used
were 'on trust
were 'on for B until
trust for he marries
until he marries and thenceforth
thenceforth for C , the
for C' ,the gift
gift would be valid
valid and
and B would lose lose
the property
the property ifif he were to marry. The difference
to many. difference isis supposed to to be between a a gift
gift subject
subject to to aa
condition subsequent and a a determinable limitation.
limitation. Yet thethe intention
intention in
in each casecase isis that
that B shall
shall
enjoy the property

enjoy the property until
until he marries
marries and that
that thereafter
thereafter C shall
shall enjoy
enjoy it. Thus the
it. the referent
referent ... is
... is the
the
same.
same. If
If the referent is
the referent is the
the same the
the meaning must be be the
the same.
same. And if if it
it is
is against
against public
public policy
policy toto
tolerate the
tolerate situation when one form of words is
the situation is used,
used, it
it must necessarily
necessarily be against
against public
public policy
policy toto
tolerate the
tolerate situation when the
the same situation the other
other form of words is is used.
used. No amount of subtle subtle distinguishing
distinguishing
between the emotional nuances
the emotional nuances of
of the
the two forms
forms ofof words cancan affect
affect this
this proposition.
proposition.
For
For all
all these reasons we recommend that
these reasons that the
the continuing
continuing distinctions
distinctions between a a
determinable
interest and an interest
interest subject
subject to
to a
a condition
subsequent should
should be
be abrogated.
abrogated. This
This
abrogation
abrogation should
should apply
apply to
to interests
interests held
held under trusts
trusts as
as well
well as
as common law interests
interests and
should
should extend
extend toto interests
interests in
in personal
personal asas well
well as real property.
as real property. This
This abrogation
abrogation should
should be
be
achieved,
achieved, we recommend, by providing
providing that
that language
language that
that at
at common lawlaw would create
create a
a
18
determinable
interest will
will instead
instead create
create an interest
interest subject
subject to
to a
a condition
condition subsequent.18
subsequent.
We have given particular consideration

given particular consideration to to the
the fact
fact that
that under the the present
present law some
arrangements
arrangements are valid when drafted
are valid drafted as
as determinable
determinable interests
interests but
but invalid
invalid when drafted
drafted asas
interests
interests subject
subject toto condition subsequent. Our proposal
condition subsequent. proposal will
will have the the effect
effect of preventing
preventing thethe
creation
creation of such
such arrangements as
arrangements as valid interests. In general,
valid interests. In general, we consider this aa reasonable result
consider this reasonable result
since,
since, as
as Professor argued, the
Professor Williams argued, public policy
the public policy argument applies
applies whatever
whatever the
the form in in
which the
the interest
interest is
is granted.
granted. However, one type type of arrangement,
arrangement, the the protective
protective trust,
trust, should
should
receive special
receive special treatment.
treatment. One element of a protective trust
a protective trust is
is aa life
life interest
interest determinable
determinable on
events
events such
such asas bankruptcy
bankruptcy or or attempted
attempted alienation
alienation and thethe arrangement would be be invalid
invalid ifif
treated as
treated as an interest
interest subject
subject to
to conditions
conditions subsequent.
subsequent. Protective
Protective trusts
trusts are
are commonly used;
used; they
they
involve
involve complex policy
policy arguments;
arguments; and theythey were thethe subject
subject of the
the recommendations for for their
their
regulation made by the

regulation the Ontario
Ontario Law Reform Commission in in the Report on the
the Report the Law of
of Trusts.19
Trusts.

Accordingly, that notwithstanding
notwithstanding our
our main recommendations,
recommendations, protective
protective
trusts
trusts should
should remain
remain valid
valid subject to our recommendations made in
subject to in the
the Report on the
the Law of
of
Trusts.
Trusts.
17
17
Re King (1892),
(1892), 29 L.R.
L.R. Jr.
Jr. 401,
401, at
at 402,per
402, per Porter
Porter M.R.
M.R.
18
18
See,
See, also,
also, the
the reform
reform effected
effected in
in Kentucky: Ky Acts 1960,
1960, ch. 1674. See
ch. 1674. O.L. Browder, "Future
See O.L. "Future Interest
Interest Reform"
(1960),
(1960), 35
35 N.Y.W.L. Rev.Rev. 1255,
1255, at
at 1262;
1262; Waggoner, supra,
supra, note
note 13,
13, at
at 734.
734. See,
See, also,
also, Devonshire,
Devonshire, supra,
supra,
note
note 3,
3, at
at 680-82;
680-82; B.
B. Ziff,
Ziff, supra,
supra, note
note 3,
3, at
at 211-12.
21 1-12.
19
19
(1984), at
(1984), at 362-65.
CHAPTER 5
5
THE RULE IN SHELLEY'S

CASE
1.
1. HISTORICAL DEVELOPMENT, RATIONALES, AND THE PRESENT LAW
Before discussing
discussing thethe Rule in in Shelley's
Shelley's Case,'
Case, two technical
technical expressions
expressions must be
explained:
explained: "words of purchase"and "words of limitation". limitation". Words of purchase identifyidentify the
the
person toto whom an estate
estate is
is given.
given. The word "purchase" is is misleading to the modern reader
to the reader
since
since it
it does not
not imply that
that the person bought the
the person the estate;
estate; instead,
instead, it
it means a a person who
obtains estate
obtains the estate
the otherwise
otherwise than
than by descent,
descent, that
that is,
is, otherwise than inheritance
inheritance on the
the
intestacy the owner of the
intestacy of the the estate.
estate. Words of limitation
limitation describe
describe the
the nature
nature of the
the estate
estate
given
given to
to the
the person.
person. At common law, for some unimportant exceptions,
law, except f9r exceptions, the
the only
only words
of limitation
limitation apt
apt to create an estate
to create estate inin fee
fee simple were the the words "and hishis [or
[or her]
her] heirs".2
heirs".
Accordingly,
Accordingly, in in a
a grant
grant "to
"to X and hishis heirs",
heirs", the
the words "to"to X" are
are words of purchase and the the
words "and hishis heirs" are words of limitation.
heirs" are limitation.
(1581),
(1581), 1 Co.
1 Co. Rep.
Rep. 93b. eds., Anger & Honsberger's
93b. See A.H. Oosterhoff and W.B. Rayner, eds., Honsberger's Law ofof Real
Property (2d
(2d ed.,
ed., 1985)
1985) at
at 405-16; B. Ziff and M.M. Litman, "Shelley's
B. Ziff "Shelley's Rule in
in a
a Modern Context:
Context: Clearing
Clearing the
the
`Heir'
'Heir'" (1984),
(1984), 34 U.T.L.J.
U.T.L.J. 170.
170.
2
The position
position has
has now been changed by statute.
statute. The Conveyancing and Law of
of Property Act,
Act, R.S.O.
R.S.O. 1990,
1990, c.
c.
C.34,
C.34, s.
s. 5,
5, provides as follows:
5. —
5.—(1)(1) In
In a
a conveyance, it
it is
is not
not necessary,
necessary, in
in the
the limitation
limitation of an
an estate
estate in
in fee
fee simple,
simple, to
to use
use the
the
word 'heirs'.
'heirs'.
(2)
(2) For
For the
the purpose of such
such limitation,
limitation, it
it is
is sufficient
sufficient in a conveyance to
in a to use the words 'in
use the 'in fee
fee
simple'
simple' or
or any other
other words sufficiently
sufficiently indicating
indicating the
the limitation
limitation intended.
intended.
(3) Where no words of limitation

(3) limitation are
are used,
used, the
the conveyance passes
passes all
all the estate, right,
the estate, title, interest,
right, title, interest,
claim and demand that

that the
the conveying parties
parties have in,
in, to, or on the
to, or property conveyed, or
the property or expressed
expressed or or
intended so
so to
to be,
be, or that they
or that they have power to to convey in,
in, to
to or
or on the
the same.
(4)
(4) Subsection
Subsection (3)
(3) applies
applies only
only if
if and as
as far
far as
as a
a contrary intention does
contrary intention not appear from the
does not the
conveyance, and has
has effect
effect subject
subject to the conveyance and to
the terms of the
to the the provisions
to the provisions therein
therein
contained.
contained.
(5)
(5) This section
section applies
applies only to
to conveyances made after 1st day of July,
the 1st
after the July, 1886.
1886.
Section
Section 26 of the
the Succession
Succession Law Reform Act,
Act, R.S.O. 1990, c.
R.S.O. 1990, S.26 provides:
c. S.26 provides:
26.
26. Except when a a contrary
contrary intention
intention appears
appears by will, where real
the will,
by the property is
real property is devised
devised to
to a
a person
person
without
without words of limitation,
limitation, the
the devise passes the
devise passes fee simple
the fee simple or the whole of
or the of any
any other
other estate
estate or
or interest
interest
that
that the
the testator
testator had power toto dispose
dispose of by will
of by will in
in the
the real
real property.
property.
[[65]
65 ]
66
Shelley's Case was described

in Shelley's
The Rule in described as
as follows
follows in
in the
the modern Ontario
Ontario case
case of Re
Rynard:3
Rynard:
The rule provides that

rule provides the ancestor
that where the ancestor by gift
gift or
or conveyance takes
takes an estate
estate of freehold,
freehold,
and
and in
in the
the same gift or conveyance an estate
gift or estate is
is limited,
limited, either
either mediately
mediately or
or immediately,
immediately, toto his
his
heirs
heirs in or in
fee ... or
in fee ... in tail, in such
tail, in such cases the
cases the words 'to his heirs' are words of
'to his heirs' are of limitation of the
limitation the estate
estate
purchase.
not words of purchase.
and not
Assume thatthat Blackacre

Blackacre is is conveyed or or devised
devised toto A for
for life,
life, remainder to to the
the heirs
heirs of A.
has the
Rule has
The Rule the effect
effect that
that A ("the
("the ancestor") takes not
ancestor") takes not only
only a a life
life estate but also
estate but also an estate
estate in
in
fee
fee simple.
simple. In In addition,
addition, the
the life estate merges with
life estate the estate
with the estate in
in fee
fee simple, leaving A with
simple, leaving with an
an
estate
estate in fee simple. If Blackacre is
in fee simple. If Blackacre is conveyed or
or devised
devised to
to A for
for life,
life, remainder to
to B for
for life,
life,
remainder to
remainder to the heirs of A (subject
the heirs (subject toto the
the effect
effect of the reasoning in
the reasoning in Re Rynard),
Rynard), the
the Rule
applies
applies soso that
that A obtains estate in
obtains an estate in fee
fee simple
simple but
but because
because of the the interposed
interposed life
life estate
estate given
given
to B there
to is no merger.
there is merger. The result
result will
will be
be that
that Blackacre
Blackacre isis held
held for
for A for life, remainder to
for life, to B
for life, remainder to

for life, to A in fee simple.
in fee simple.
The Rule is a rule

is a rule of law,
law, not
not merely a rule of construction,
a rule construction, so
so that
that it
it is
is irrelevant
irrelevant that
that
the
the grantor
grantor intended
intended A to have only
to have only aa life
life estate.
estate. However, there is an initial
there is initial question
question of
construction
construction which is is whether the
the grantor
grantor in referring to
in referring to the
the heirs
heirs of A, or like words, was
or like
referring
referring to the "whole inheritable
to the inheritable issue
issue taking
taking in
in a course of succession"4
a course succession" as as opposed toto a
a
group such
such as
as the
the intestate
intestate successors
successors of A.A. Only in the former case
in the case does thethe Rule apply.
apply. As
Lord Macnaghten saidsaid in
in Van Grutten
Grutten v. Foxwel1,5
v. Foxwell,
the question
the question now inin every
every case
case must be the expression
be whether the expression requiring
requiring exposition,
exposition, be it
it 'heirs'
'heirs'
or
or 'heirs
'heirs of the
the body', or any other
body', or other expression
expression which may have the the like
like meaning isis used asas the
the
designation
designation of a a particular
particular individual
individual or a particular
or a particular class
class of
of objects,
objects, or
or whether, on the
the other
other
hand, it includes
hand, it includes the line of succession
the whole line succession capable
capable of inheriting.
inheriting.
The Rule only applies where the

only applies the estate
estate given
given to the "ancestor"
to the "ancestor" is
is an
an estate
estate of freehold
freehold
and itit thus
thus only
only applies
applies to limitations affecting
to limitations affecting real
real property.
property. The Rule
Rule applies
applies to
to equitable
equitable as
as
well
well asas to
to legal
legal interests
interests but the interests
but the interests limited
limited to
to the "ancestor", and to
the "ancestor", to the heirs, must be
the heirs, be of
the same quality:
the quality: both
both legal
legal or
or both
both equitable.
equitable.
3
(1981),
(1981), 31
31 O.R.
O.R. (2d)
(2d) 257,
257, at
at 259 (C.A.).
(C.A.).
4
Van Grutten
Grutten v.
v. Foxwell,
Foxwell, [1897]
[1897] A.C. 658,
658, at
at 684 (H.L.).
(H.L.).
5
Ibid., at
Ibid, at 677.
677. However, itit may be that this initial
that this question of construction
initial question construction is differently, according
is answered differently, to
according to
whether the
the instrument
instrument is is a
a deed or
or a
a will (R. Megany
will (R. Megarry and H.W.R. Wade, The Law of of Real Property (5th ed.,
Property (5th ed.,
1984),
1984), at
at 1163
1 163 [footnotes
[footnotes omitted]):
omitted]):
In aa conveyance
In conveyance inter
inter vivos
vivos the
the only words to
to attract were 'heirs'
the Rule were
attract the 'heirs' or 'heirs' followed
or 'heirs' followed by words
of procreation.
of procreation. The Rule did
did not apply to
to 'heir'
'heir' in the singular,
in the singular, for 'heir' was not
for 'heir' an apt
not an apt word of
limitation for
limitation for an
an estate
estate of inheritance.
inheritance. In
In a
a will,
will, on the
the other the testator's
other hand, the testator's intentions
intentions were
regarded to
regarded this extent,
to this extent, that
that it
it was a
a question of construction the remainder was intended
construction whether the intended to be
to be
given
given to
to the heirs generally
the heirs generally or or to
to a
a persona designata,
designata, i.e.
i.e. one specific
specific person.
person. In the former
In the former case
case the
the
Rule applied;
applied; in
in the
the latter
latter it
it did not.
did not.
67
The Rule
Rule inin Shelley's
Shelley's Case hashas been described
described asas "one of the
the deepest mysteries of the the
f% "7
common law"6
law" and a a variety
variety of suggestions have been made as
of suggestions as to
to the
the rationale
rationale for
for it.7 One it.
possibility
possibility is
is that
that the
the Rule was designed to prevent the
to prevent the avoidance of feudal
feudal incidents.
incidents. It
It was
8
for granted by Wilson J.A.
taken for in Re Rynard that
J. A. in that this
this was the
the Rule's rationale:8
Rule's rationale:
The rule its origins

rule had its origins inin an even more ancient rule of law that
ancient rule that whenever an an ancestor
ancestor
received an estate for life,
estate for life, his
his heir
heir could not under the
not under the same conveyance receive receive an estate
estate 'by
'by
purchase' but only 'by descent'.
purchase' but only 'by descent'. The reason for this
reason for this was that in feudal times the lord of the
that in feudal times the lord the manor
received the
the fruits his seigneury only when there
fruits of his there was a a descent of land
land upon the heir. If
the heir. If this
this
descent
descent were avoided by a purported gift
a purported gift to
to the heir on the
the heir the death of thethe life
life tenant,
tenant, the
the lord
lord was
viewed as having, in
as having, in effect,
effect, been defrauded. Accordingly, the rule in
the rule in Shelley's
Shelley 's Case denied the the
effect
effect of a
a remainder giftgift to
to the
the heirs
heirs of A and treated
treated the
the gift
gift of a life
life estate
estate to
to A with
with remainder
to
to his
his heirs
heirs on hishis death asas aa gift
gift to
to A absolutely,
absolutely, his
his heirs
heirs taking only by descent
descent on his
his death.
death.
Thus were the the incidents
incidents of feudal
feudal tenure preserved to
tenure preserved to the
the lord
lord of the
the manor and the the invidious
invidious
intent
intent of the
the conveyancer frustrated.
frustrated.
The Rule may also also be viewed as as aa rule

rule designed to to avoid
avoid perpituitous
perpituitous arrangements.
arrangements.
The medieval origin of the
origin the Rule may be explained by the the general
general non-acceptance at at the
the time
time
of contingent remainders. Since
contingent remainders. Since aa gift
gift to
to the
the heir
heir of aa living person is
living person is necessarily
necessarily contingent,
contingent,
the
the Rule had the positive effect
the positive effect of treating
treating a purported but
a purported but invalid
invalid contingent
contingent remainder as as
creating
creating aa valid
valid interest
interest for
for the
the "ancestor".
"ancestor". However, contingent remainders became accepted
contingent remainders accepted
in
in the
the sixteenth
sixteenth century,
century, subject
subject toto certain
certain restrictive
restrictive rules.
rules. An explanation
explanation for
for the
the continued
continued
vigour of the
the Rule may lie lie in
in the
the nature
nature of the the limitations
limitations that
that attracted
attracted the
the Rule.
Rule. The Rule
applied
applied where therethere was a a limitation
limitation to to the
the "heirs"
"heirs" of the the ancestor
ancestor but,
but, because of the the
principle of primogeniture, such reference could not
principle of primogeniture, such reference not be to
to a
a group of persons
persons identified
identified at at the
the
death
death of the
the "ancestor"
"ancestor" butbut must have been to to aa line
line of generations
generations of of heirs.
heirs. It
It is
is difficult to
difficult to
determine what would have been the the nature

nature of the the interests
interests of such successive
successive heirs
heirs if
if the
the
Rule had not
Rule not applied.
applied. Moreover, such interests,
interests, ifif valid
valid and if if unaffected
unaffected by thethe Rule,
Rule, would
have created
created perpituitous
perpituitous arrangements of an extreme kind. kind. The Rule may be be viewed,
viewed,
therefore,
therefore, as
as a
a rule
rule against
against perpetuity.
perpetuity.
principle of primogeniture has been abolished

The principle abolished for
for over
over a
a century
century in
in Ontario9
Ontario and
the
the natural
natural meaning of "heirs"
"heirs" is
is now the
the intestate
intestate successors the "ancestor".
successors of the "ancestor". This is
is
expressly provided for
expressly provided for in
in wills.
wills. Section
Section 27 of the
the Succession
Succession Law Reform Act,")
Act, replacing
replacing
earlier
earlier legislation,
legislation, provides
provides as
as follows:
follows:
6
A.W.B. Simpson, A History
History of
of the
the Land Law (2d
(2d ed.,
ed., 1986),
1986), at
at 96.
96.
7
See Simpson, ibid.,
ibid., at
at 96-100; Ziff Liitman, supra,
and Liitman,
ZifTand supra, note 1, at
note 1, at 251; Institute, Restatement
251; American Law Institute, Restatement of
of
the
the Law, Second: Property:
Property: Donative Transfer:
Transfer: Tentative
Tentative Draft 10 (March 30,
No. 10
Draft No. 30, 1987),
1987), at
at 174-85.
8
Re Rynard,
Rynard, supra,
supra, note
note 3,
3, at
at 259-60.
259-60.
9
An Act to
to Abolish the
the Rights of
of Primogeniture, 1851,
85
1 1 , 5, Vict.,
144 & 15,
1 Vict., c.
1 c. 6
6 (RC.).
(U.C.).
10
10
Supra, note
note 2.
2.
68
27. Except when aa contrary

contrary intention
intention appears by the the will,
will, where property
property is
is devised or or
bequeathed to
bequeathed to the
the 'heir'
'heir' or
or 'heirs'
'heirs' of the
the testator
testator or
or of another person,
person, the words 'heir'
'heir' or
or 'heirs'
'heirs'
to whom the
the person to
mean the the beneficial
beneficial interest
interest in
in the property would have gone under the
the property the law of
Ontario if the
Ontario if testator or the
the testator other person had died intestate.
the other intestate.
this changed meaning to

Because of this to the
the word "heirs",
"heirs", one might have expected
expected that,
that, at
at
least case of wills,

the case
in the
least in wills, the
the Rule would have become obsolete.
obsolete. However, the
the modern
Ontario Court
Ontario Court of
of Appeal case
case of
of Re Rynard"
Rynard shows that
that this
this has
has not
not occurred.
occurred.
The testator, in Re Rynard, died in

testator, in in 1934.
1934. By her her will
will she provided that
she provided that her
her son,
son,
subject to
should, subject
Kennedy, should, to the
the payment of of certain annuities, have the
certain annuities, the use
use of her
her farmlands
during
during his
his life that after
life and that after his
his death
death $1,500
$1,500 was to paid out
to be paid out of thethe lands
lands toto her
her son,
son,
Bernard, and the
Bernard, the balance
balance was to to go "to the heirs
"to the heirs of my son, son, Kennedy". She further
further provided
that
that Kennedy was not to sell or
not to sell or mortgage his interest and
his interest and that
that it
it was determinable
determinable "should
"should
any creditor attempt to
creditor attempt to seize,
seize, attach
attach or
or sell
sell his
his life
life estate",
estate", and inin that his life
that event his life estate
estate was
possessed by Bernard.
to become possessed
to Bernard. Kennedy argued that the Rule in
that the in Shelley's
Shelley's Case applied
applied so
so
that he was absolutely
that entitled to
absolutely entitled to the
the farmlands.
farmlands.
12
At first instance Walsh J.
first instance12 J. held
held that
that the inapplicable. Among other
the Rule was inapplicable. other things,
things, he
he
1
relied
relied on section
section 31 the Wills
31 of the Wills Act,13
Act, which was thethe predecessor to
predecessor to section 27 of the
section 27 of the
Succession Law Reform Act.
Succession Act. The provision
provision had the
the effect,
effect, he considered,
considered, that
that the
the word
"heirs",
"heirs", in the absence
in the absence of indication
indication toto the contrary, meant Kennedy's intestate
the contrary, intestate successors
successors
and thus
thus did
did not
not refer to the
refer to the whole line
line of succession.
succession.
The Court of Appeal agreed that the

agreed that the Rule in Shelley's Case was inapplicable
in Shelley's inapplicable but but
rejected
rejected the reason given
the reason given by Walsh J. J. In particular, it
In particular, it was held
held that
that section 3 1 of the
section 31 the Wills
Wills Act
was "intended
"intended merely to to negate
negate the
the principle primogeniture"14 and that
principle of primogeniture" that it
it did
did not
not affect the
affect the
applicability
applicability of the Rule
of the Rule in
in Shelley's
Shelley's Case. Despite this,
Case. Despite this, the
the Court of Appeal held held that
that the
the
testator in referring
testator in referring to to the heirs of Kennedy was not
the heirs referring "to
not referring the whole of [his]
"to the [his]
15
inheritable
inheritable issue".15
issue". The Court of Appeal reliedrelied on thethe fact that Kennedy's life
fact that life interest
interest was
determinable
determinable so so that
that the
the Rule would not not have "the
"the effect
effect of turning
turning his
his life
life estate
estate into
into aa fee
fee
simple
simple absolute
absolute with
with all the incidents
all the incidents that
that adhere
adhere in in law toto such an interest".16
interest". The fact
fact that
that
this
this life
life estate
estate was determinable
determinable was also also considered, independently of its
considered, independently its significance
significance in in
17
interpreting
interpreting the
the testator's
testator's intention, a ground
intention, a ground for
for holding
holding the
the Rule inapplicable:17
inapplicable:
n
11
Supra,
Supra, note
note 3.
3.
12
12
Re Rynard (1979),
(1979), 27 O.R. (2d)
(2d) 619 (H.C.).
(H.C.).
13
13
R.S.O.
R.S.O. 1970,
1970, c.
c. 499.
499. At the the will
the time the will was made, The Wills Act, R.S.O.
Wills Act, R.S.O. 1929, c. 149
1929, c. 149 was in
in force.
force.
14
14
Re Rynard,
Rynard, supra,
supra, note
note 3,
3, at
at 262.
262. For
For criticism
criticism of this reasoning, see
this reasoning, see Ziff and Litman,
Ziffand supra, note
Litman, supra, note 1,
1, at
at 190-94.
190-94.
15
15
Re Rynard,
Rynard, supra,
supra, note
note 3,
3, at
at 264.
264.
16
16
Ibid.,
Ibid., at
at 265.
265. For
For criticism,
criticism, see
see Ziff and Litman,
Ziffand Litman, supra,
supra, note
note 1, at 190-91.
1, at 190-91.
17
17
Rynard, supra,
Re Rynard, note 3,
supra, note 3, at
at 266.
266.
69
[Kennedy] has something less

[Kennedy] less than
than aa complete life
life interest
interest in
in this
this case.
case. He has,
has, in
in fact,
fact, aa
life interest
determinable life interest and itit cannot on the
the basis
basis of [the
[the provisions
provisions of thethe will]
will] be
be said that
said that
Kennedy and his his 'heirs'
'heirs' together
together have thethe entirety.
entirety. Accordingly, apartapart altogether
altogether from the the
question whether or
question or not
not the
the testator
testator intended
intended when she the word 'heirs'
used the
she used 'heirs' to
to refer
refer to
to the
the whole
inheritable issue of
inheritable issue of Kennedy, the
the rule
rule would be inapplicable
inapplicable on this
this ground.
the reasoning
Unfortunately, the
Unfortunately, the Court of Appeal on this
reasoning of the this point
point as
as an independent ground
of decision
decision adds further
further to
to the
the confusion surrounding the
the Rule.
Rule. Commentators have described
described
itit as "clearly incorrect"18
as "clearly incorrect" for
for the
the following
following reasons:
reasons: 19
First,
First, there
there is
is clear
clear authority
authority that
that the rule applies
the rule applies to to determinable life life estates.
estates. Secondly, the
Secondly, the
court
court falls
falls prey
prey to
to the
the common misconception that
misconception that merger is an
is an integral part
integral part of Shelley's
Shelley's rule.
rule.
Merger forms no part part of that

that rule,
rule, although
although it it may operate
operate after
after Shelley
Shelley has
has transformed the the
20
interests
interests created in the
created in the instrument.
instrument. Challis2°
Challis describes the
describes interrelationship between Shelley's
the interrelationship Shelley's rule
rule
and the
the doctrine
doctrine of merger in in the
the following terms: 'If
following terms: 'If the
the subsequent
subsequent limitation
limitation toto the
the heirs
heirs
follows
follows immediately,
immediately, without
without thethe interposition
interposition of any mesne estate, estate, upon thethe prior
prior freehold, the
freehold, the
freehold
freehold isis generally
generally merged in in the
the inheritance
inheritance in in possession.
possession. If If any estate
estate sufficient
sufficient to prevent
to prevent
merger isis interposed,
interposed, oror if,
if, by any reason
reason of any other
other circumstances,
circumstances, merger is prevented from
is prevented
taking
taking place,
place, he takes
takes two distinct
distinct estates,
estates, aa freehold
freehold inin possession
possession and an inheritance
inheritance inin
remainder.'
remainder.'
2.
2. REFORM
Whatever thethe uncertainties

uncertainties about
about the
the rationales
rationales for the creation
for the creation and continuance of the the
Rule in Shelley's Case in
in Shelley's in medieval and Tudor England, it it is
is clear
clear that
that there
there is
is no rationale
rationale
that justifies its
that justifies its continued
continued existence
existence in in the law of Ontario.
the law Ontario. In In addition,
addition, change in the intestacy
in the intestacy
laws and consequent change in the common meaning of the
in the the word "heirs",
"heirs", along
along with
with the
the rule
rule
of construction
construction expressed in in section
section 27 of thethe Succession Law Reform Act,21 Act, could have been
used toto sustain
sustain the
the view that
that the
the Rule had become obsolete,obsolete, at at least
least in
in the
the case
case of wills.
wills.
1
However, thisthis view was rejected
rejected by the the Ontario Court of Appeal in in Re Rynard22
Rynara and
abrogation
abrogation of thethe rule
rule requires
requires legislation.
legislation. It
It is true that
is true that the
the Rule is is not
not often
often invoked and,and,
even where it it is,
is, the
the Rule isis rarely
rarely applied,
applied, but
but this
this does not not mean that it does not
that it not cause
cause
harm:"
harm:
Individuals
Individuals continue
continue to
to be victimized by Shelley,
be victimized notwithstanding that
Shelley, notwithstanding the courts
that the courts almost
almost
invariably
invariably conclude that
that the
the conveyance in
in question
question is not caught by the
is not rule. They are
the rule. are victims
victims of
of
18
18
Ziff and Litman, supra,
Ziffand supra, note
note 1,
1, at
at 189.
189.
19
19
Ibid.,
Ibid., at
at 189-90.
189-90.
20
Law of
of Real Properly
Property (3d
(3d ed.,
ed., 1911),
191 1), at
at 153.
153.
21
21
Supra,
Supra, note
note 2.
2.
22
Supra,
Supra, note
note 3.
3.
23
Ziff and Litman,
Ziffand Litman, supra,
supra, note
note 1,
1, at
at 171.
171.
70
the financial
the psychological costs
financial and psychological costs of litigation,
litigation, and because
because the
the rule
rule appears to
to be
be devoid of
social it cannot
utility it
social utility cannot help
help but
but breed cynicism inin the
the litigants.
litigants.
24
The Rule has been judicially
judicially held inapplicable in in Alberta24
Alberta but otherwise reform has not
25
in Canada.
been carried out in Reform has been widespread in in other jurisdictions.
jurisdictions.25 The Rule
has been abolished in in nearly all jurisdiction of the
all jurisdiction the United States;26
States; in
in nearly all
all states
states of
27 28 29
Australia; in New Zealand;28
Australia;27in Zealand; and in
in England.29
England. The English provision, section 1131 3 1 of the
30
of Property Act,
Law of 1925, is
Act, 1925,3° is as
as follows:
Where by by any instrument

instrument coming intointo operation
operation after
after the
the commencement of this this Act an an interest
interest
in any property
in property is is expressed
expressed to
to be given toto the
the heir
heir or heirs or
or heirs or issue
issue or
or any particular
particular heir
heir or
or any class
class
of
of the
the heirs
heirs or
or issue
issue of any person in in words which, butbut for
for this
this section
section would, under the the rule
rule of law
known as as the Rule in
the Rule in Shelley's
Shelley's case, have operated
case, have operated to ive to
to give to that
that person
person an interest
interest in
in fee
fee simple
simple or
or
an
an entailed
entailed interest,
interest, such
such words shall operate in equity I as
shall operate in equity as words of
words of purchase
purchase and not
not of
of limitation,
limitation,
and shall
shall bebe construed
construed and have effect
effect accordingly,
accordingly, and in in the
the case
case of an interest
interest in
in any property
property
expressed
expressed to to be given to to an heir
heir or
or heirs
heirs or
or any particular
particular heir
heir or
or class
class of heirs,
heirs, the
the same person or or
persons
persons shall
shall take
take as
as would inin the
the case
case of freehold
freehold land
land have answered that that description
description under the the
general law in
general law in force
force before
before the
the commencement of this this Act.
Act.
24
Re Simpson,
Simpson, [1927]
[1927] 4 D.L.R.
D.L.R. 817 (Alta.
(Alta. S.C.,
S.C., App. Div.),
Div.), aff
aff d on other
other grounds [1928]
[1928] S.C.R. 329; Re Budd
S.C.R 329;
(1958),
(1958), 12
12 D.L.R.
D.L.R. (2d)
(2d) 783 (Alta.
(Alta. S.C.).
S.C.).
25
Various commentators have
Various have urged
urged abolition
abolition of the
the Rule.
Rule. See, for example,
See, for example, Ziff
Ziff and Litman,
Litman, supra,
supra, note
note 1;
1;
A.M. Real Property

Sinclair, "The Law of Real
A.M.Sinclair, Property of New Brunswick:
Brunswick: Some Proposals"
Proposals" (1968), 18 U.N.B L.J.
(1968), 18 L.J. 1.;
1.;
J.A. Webster,
J.A. Relic North Carolina
Webster, "A Relic Carolina Can Do Without—The
Without—The Rule in Shelley's Case" (1966),
in Shelley's (1966), 45 N.C.L. Rev. 3.
3.
26
See J.V.
J.V. Orth,
Orth, "Requiem forfor the
the Rule in Shelley's Case" (1989),
in Shelley's (1989), 67 N.C.L. Rev. 681;
681; J.J. Dukeminier and
S.M. Johanson,
Johanson, Wills, Trusts and Estates
Wills, Trusts Estates (4th
(4th ed.,
ed., 1990),
1990), at
at 703;
703; American Law Institute,
Institute, supra,
supra, note
note 7,
7,
at
at 273-77.
27
Queensland: Property Law Act
Queensland: Property Act 1974,
1974, No. 76,
76, s.
s. 28; South Wales:
28; New South Wales: Conveyancing
Conveyancing Act
Act 1919,
1919, s.
s. 17;
17; Victoria:
Victoria:
Property Law Act,

Act, 1958,
1958, s. 130; Western Australia:
s. 130; Australia: Properly
Property Law Act,
Act, 1969,
1969, s.
s. 27.
27.
The Queensland reform

reform implemented a recommendation of
a recommendation the Queensland Law Reform Commission, Report on
of the
Property Law Reform (1973).
Property (1973).
For
For discussion
discussion of the reforms, see
Australian reforms,
the Australian C.J. Rossiter,
see M.A. Neave, C.J. Stone, eds.,
Rossiter, and M.A. Stone, eds., Sackville
Sackville &
Neave's Property
Property Law: Cases and Materials (4th ed. 1988),
(4th ed. at 185-86;
1988), at 185-86; P.
P. Butt,
Butt, Land Law (3d ed., 1996)
(3d ed., 1996) at
at 120;
120;
G.W. Hinde, D.W. McMorland, and P.B.A.
P.B.A. Sim,
Sim, Land Law (1978),
(1978), at
at 331.
331.
28
Property
Property Law Act,
Act, 1952 (N.Z.),
(N.Z.), s.
s. 22.
22.
29
The abolition
abolition of the
the Rule in
in Shelley's
Shelley's Case,
Case, supra, also recommended for
1, was also
note 1,
supra, note for Northern
Northern Ireland
Ireland in
in the
the
Survey of
Survey the Land Law of
of the of Northern Ireland
Ireland (1971)
(1971) by
by a
a working party
party of the Faculty of Law, The Queen's
the Faculty
University,
University, Belfast
Belfast (Chair:
(Chair: L.A.
L.A. Sheridan)
Sheridan) (report to the
(report to the Director
Director of Law Reform for Northern Ireland),
for Northern Ireland),
at
at 105-07.
105-07.
30
15
15 & 16
16 Geo.
Geo. 5,
5, c.
c. 20 (U.K.).
(U.K.).
31
31
The reference
reference to
to operation
operation "in
"in equity" is because
equity" is because of the the English
the scheme of the legislation that
English legislation that successive
successive
interests necessarily occur
interests necessarily occur under a
a trust.
trust.
71
71
Similarly, we recommend that

Similarly, Rule in
the Rule
that the in Shelley's
Shelley 's Case be
be abrogated.
abrogated. InIn one respect,
respect,
we disagree
disagree with
with the position taken
the position taken inin England. The English provision,
provision, in
in its
its concluding
concluding part,
part,
reference to
requires aa reference
requires to heir
heir or
or heirs to mean the
heirs to the person
person who would have been the the heir
heir under
32
rules of inheritance.
the common law rules
the Section 27 of the
inheritance. Section the Ontario Succession Law Reform Act32 Act
already provides that,
already provides that, subject
subject to
to contrary
contrary intention,
intention, a reference to
a reference to heir
heir or
or heirs
heirs of the
the testator
testator
or person means the
or another person person who would have taken
the person taken on the
the intestacy
intestacy of the
the testator
testator or
or
other person.
the other
the It thus
person. It thus embraces as as "heirs"
"heirs" the persons who would under the
the persons the modern law
take an intestacy.
take This inclusion
intestacy. This inclusion of all
all of the
the intestate
intestate successors
successors accords with the the intention
intention aa
grantor
grantor would most likely
likely have inin modern Ontario.
Ontario.
Accordingly, we further
further recommend that
that in
in the
the context of the
the abrogation
abrogation of the
the Rule in
in
Shelley's Case references

Shelley's references to
to the heir or
the heir or heirs
heirs of a person should in
a person in the
the case
case of inter vivos
inter vivos
conveyances, as
as well as
as wills,
wills, mean the
the intestate
intestate successor or successors of the person.
the person.
32
Supra,
Supra, note 2.
2.
CHAPTER 66
CO-OWNERSHIP
1.
1. SUMMARY OF THE PRESENT LAW
(a)
(a) NATURE
Nature AND
and TYPES of CO-OWNERSHIP
Types OF Co-ownership
Chapters
Chapters 33 to
to 5
5 of this
this report
report dealt
dealt with
with successive
interests in
in land
land in
in which the
the
enjoyment of property
property is
is divided temporally. Co-ownership is
divided temporally. is concerned with the
with the
simultaneous
simultaneous possession
possession of the
the same piece
piece of land
land by one or
or more persons.'
persons.
The two main types

types of co-ownership are joint tenancy and tenancy in
are joint in common. The
fundamental concept
concept behind joint
joint tenancy is
is that or more people
that two or people together
together own the the same
interest.
interest. This
This was traditionally
traditionally expressed
expressed by saying joint tenants
saying joint tenants were seised
seised "per mie et et per
tout",
tout\ meaning that "each joint tenant holds the
that "each joint tenant holds the whole and holds nothing,
holds nothing, that
that is,
is, he holds
holds the
the
whole jointly
jointly and nothing
nothing separately".2
separately". This
This fundamental concept gives gives rise
rise toto two main
features:
features: the
the four
four unities
unities and the right of survivorship.
the right survivorship.
The four unities that

four unities that must be be present
present forfor the
the creation continuation of a
creation and continuation joint tenancy
a joint tenancy
are
are the
the unities possession, interest,
unities of possession, interest, title,
title, and time.
time. The unity "refers to
possession "refers
unity of possession the fact
to the fact
that
that each joint tenant
each joint tenant isis entitled,
entitled, concurrently
concurrently with with the
the other joint tenants,
other joint tenants, to possession of the
to possession the
whole ofof the
the land
land that
that is
is the
the subject
subject ofof the joint tenancy".3
the joint tenancy". The unity of
unity of interest
interest requires
requires that
that the
the
interest
interest of each joint
joint tenant
tenant be "the
"the same in in extent, nature and duration".4
extent, nature duration". For
For example,
example, there
there can
be joint tenancy
be no joint tenancy if if one person's interest
one person's interest isis indefeasibly vested and another's
indefeasibly vested is subject
another's is subject to
to aa
condition
subsequent.
The unity
unity of
of title
title means that
that each joint tenant's
each joint tenant's title
title must be derived from the
be derived the same
document or
or occurrence.
occurrence. The unity
unity of time means that
of time that each joint tenant's
each joint tenant's title at the
title must vest at
must vest the
same time.
time. However, unity
unity of
of time
time is
is not
not required
required for
for a joint tenancy
a joint tenancy created will or
created by will or by aa
Interests
Interests may be be held
held in
in a
a combination cf successive concurrent interests.
and concurrent
successive and For example,
interests. For land may be
example, land be conveyed
to
to X for
for life,
life, remainder
remainder to
to Y and
and Z in
in fee
fee simple
simple as joint tenants.
as joint tenants.
2
Coke upon Littleton
Littleton (19th
(19th ed.,
ed., 1832),
1832), at
at 186a.
186a.
3
E.E.
E.E. Gillese,
Gillese, ed.,
ed., Property
Property Law: Cases, Materials (2d
Text and Materials
Cases, Text ed., 1990),
(2d ed., at 18.12.
1990), at 18:12.
4
R.
R. Megarry and H.W.R. Wade, The of Real Property (5th
The Law of (5th ed., 1984), at
ed., 1984), at 420.
420.
73 ]
[[73]
74
conveyance employing aa use. use. For

For example,
example, a joint tenancy
a joint tenancy may bebe created
created by a
a gift
gift by will
will of
land to the
land to children born
the children to A,
born to A, even though the
the children's
children's interests
interests will
will each vest
vest at
at the
the time of
their respective births.
their respective births.
right of survivorship
The right survivorship (or jus accrescendi as
(or jus as it
it is
is often
often called)
called) is
is the
the right
right of the
the
surviving joint tenants
surviving joint to take
tenants to take the
the interest
interest of a
a pre-deceasing jointjoint tenant.
tenant. However, in in theory
theory
this is
this a misleading
is a misleading way of expressing the right:
expressing the right: the
the death
death of of one joint
joint tenant
tenant does
does not
not cause
an interest to pass
interest to pass to, or be taken
to, or taken by,
by, the
the survivors;
survivors; they
they are
are left
left as
as before
before but
but simply share
share
their ownership with one less person.
their with one less person. As Latham C.J. put it in the Australian
C.J. put it in the Australian High Court case
case
of
of Wright
Wright v.
v. Gibbons,5
Gibbons,
[i]f
[i]f one tenant
tenant dies
dies his
his interest
interest is
is extinguished.
extinguished. He falls
falls out,
out, and the
the interest
interest of the
the surviving joint
surviving joint
tenant is correspondingly
tenant is correspondingly enlarged.
enlarged.
As we shall
shall discuss
discuss below, a joint tenancy may be
a joint be converted
converted into
into a
a tenancy in
in common
(which
(which carries right of survivorship)
carries no right survivorship) by a a process
process known as as severance.
severance. However,
severance
severance may notnot be
be effected
effected by will,
will, so
so that
that if
if a joint tenant
a joint tenant purports
purports to
to devise
devise his
his or
or her
her
interest
interest in
in the
the property
property by will, the surviving
will, the joint tenants
surviving joint tenants will
will benefit
benefit from the
the right
right of
of
survivorship
survivorship and the
the devisee will take
devisee will nothing.
take nothing.
A tenancy
tenancy in in common differs
differs from a joint tenancy in
a joint in two main ways.
ways. First,
First, the
the only
only
unity
unity that
that is
is required
required is
is unity possession.6 Unlike joint
unity of possession. joint tenants,
tenants, tenants
tenants in
in common have
distinct, separate interests

distinct, separate interests so
so that
that there
there is
is no reason
reason why they
they should unity of interest,
should have unity interest,
title, or time.
title, or time. Tenancy in
in common does require unity of possession.
does require unity of possession. Tenants
Tenants in
in common have
equal
equal rights
rights of possession
possession over the the whole of thethe land.
land. Otherwise,
Otherwise, they
they would notnot be
be co-
co-
owners at at all.
all.
Secondly,
Secondly, tenants in common do not
tenants in not have a
a right
right of survivorship.
survivorship. When one tenant
tenant in
in
common dies,
dies, his
his or her interest
or her interest in
in the
the land
land does not
not pass
pass to
to the
the surviving
surviving tenants
tenants in
in common
but
but forms part the deceased's
part of the estate and passes
deceased's estate passes in
in accordance
accordance with
with the
the will
will or
or intestacy
intestacy
rules.
rules.
Two other
other forms of co-ownership
co-ownership are
are no longer
longer important
important and,
and, indeed,
indeed, probably no
longer
longer exist
exist in
in Ontario.
Ontario. Tenancy by the
the entireties an arrangement that
entireties was an that at
at one time
time applied
applied
to
to married persons.
married persons.
At common law, law, when property

property was conveyed to to a
a husband and wifewife in
in any estate
estate in
in such
such aa way
that had
that had they
they been strangers
strangers they
they would have
have taken
taken as joint tenants,
as joint they took
tenants, they took rather
rather as
as tenants
tenants by
the
the entireties.
entireties. This
This was so
so because
because of the
the doctrine
doctrine of unity
unity of legal personality, according
legal personality, according to to which
husband and wife wife were considered
considered in in law as
as one: to the
one: to four unities
the four unities of time,
time, title,
title, interest
interest and
possession
possession was added a a fifth
fifth unity, the person.
unity of the
unity, unity person. The unity
unity was soso complete thatthat neither
neither
55
(1949), 78 C.L.R. 313, at 323.
(1949),78C.L.R.313,at323.
6
It
It should
should be
be noted
noted that
that the
the other unities may be
other unities be satisfied also. The fact
satisfied also. fact that all four
that all four unities
unities are present does
are present does not
not
mean that
that the
the arrangement isis necessarily
necessarily a joint tenancy.
a joint tenancy.
75
spouse was regarded as having even a

regarded as a potential
potential share
share in
in the property, both
the property, both were seised
seised together
together as
as
individual of the
one individual the whole, that is, of the
that is, the entirety.
entirety. They were,
were, in
in other
other words, together
together tenants
tenants of
the entirety.
the this flows one of the
entirety. From this the most important
important features
features of aa tenancy by
by the
the entireties:
entireties: its
its
unseverability.
unseverability. And it it follows
follows from this this unseverability
unseverability that
that the
the right
right of survivorship is is
indestructible.?
indestructible.
Q
In some provinces
In provinces tenancies
tenancies by thethe entireties
entireties have been explicitly
explicitly abolished.8
abolished. In In
England9
England and Australia,10
Australia, the married women's property
the property legislation,
legislation, which substantially
substantially
diminished
diminished the unity of husband and wife,
the concept of unity wife, has
has been treated
treated asas removing thethe basis
basis
of tenancy
tenancy by thethe entireties
entireties and consequently
consequently of impliedly
impliedly abolishing
abolishing that
that form of co- co-
ownership.
ownership. The same position
position was taken
taken inin Ontario
Ontario until the decision
until the decision inin Campbell v. v.
Sovereign Securities
Securities & Holdings Co.," Co., when the
the Court of Appeal approved the the view that
that
tenancy
tenancy by the
the entireties
entireties could still
still be created
created in
in Ontario.
Ontario. Since
Since the
the decision
decision in that case
in that case the
the
12 13
Family Law Reform Act'2
Act and more recently
recently the
the Family Law Act13
Act have replaced
replaced the
the Married
Women's Property Act"
Act and have re-stated
re-stated the
the abrogation
abrogation of the
the concept of unity
unity of husband
and wife.
wife. Section
Section 6415
64 of thethe Family Law Act provides
provides as
as follows:
follows:
64.—
64.—(1)
(1) For all purposes of the
all purposes the law of Ontario,
Ontario, a
a married person
person has aa legal
legal personality that is
personality that is
independent,
independent, separate
separate and
and distinct
distinct from
from that
that of his or
of his or her
her spouse.
spouse.
(2)
(2) A married person
person has
has and shall
shall be
be accorded
accorded legal
legal capacity
capacity for
for all
all purposes and inin all
all
respects as
respects as if
if he or
or she
she were an
an unmarried person
person and,
and, in particular, has the
in particular, the same right
right of action
action
in
in tort
tort against
against his
his or
or her spouse as
as if
if they were not
not married.
married.
(3)
(3) The purpose of subsections
subsections (1)
(1) and (2)
(2) is
is to
to make the
the same law apply,
apply, and apply
apply equally,
equally,
to
to married
married men and married
married women and to to remove any difference
difference in
in it
it resulting
resulting from any
common law rule
rule or
or doctrine.
doctrine.
7
J.M.
J.M. Glenn,
Glenn, "Tenancy
"Tenancy By The Entireties:
Entireties: A Matrimonial Regime Ignored"
Ignored" (1980),
(1980), 58
58 Can.
Can. Bar Rev. 711,
71 1, at
at 715.
715.
88
See,
See, for
for example, Law of
ofProperty
Property Act,
Act, R.S.A.
R.S.A. 1980,
1980, c.
c. L-8,
L-8, s.
s. 5.
5.
9
See
See Megarry and Wade, supra, note 4,
supra, note 4, at
at 461.
461.
10
10
See Registrar
Registrar General of 1V.S.W.
ofN.S. W. v.
v. Wood (1926),
(1926), 39 C.L.R.
C.L.R. 46.
46.
11
11
[1958]
[1958] O.R.
O.R. 441,
441, aff
afTdd [1958]
[1958] O.W.N. 414 (C.A.).
(C.A.). The Campbell case
case was restrictively in Re Demaiter &
treated in
restrictively treated
Link,
Link, [1973]
[1973] 3
3 O.R. 140
140 (Co.
(Co. Ct.).
Ct). Note also
also s.
s. 13(2) the Conveyancing and Law of
13(2) of the Property Act,
of Property R.S.O. 1990,
Act, R.S.O. 1990,
c.
c. C.34,
C.34, which provides
provides that
that s.
s. 13
13 applies
applies "notwithstanding that one of such
"notwithstanding that such persons
persons isis the spouse of another
the spouse another of
of
them".
12
12
R.S.O.
R.S.O. 1980,
1980, c.
c. 152, rep. by S.O.
152, rep. S.O. 1986,
1986, c.
c. 4,
4, s.
s. 71.
71.
13
13
R.S.O. 1990,
R.S.O. c. F.3.
1990.C.F.3.
14
14
R.S.O.
R.S.O. 1970,
1970, c.
c. 262, rep. by S.O.
262, rep. S.O. 1978,
1978, c.
c. 2,
2, s.
s. 82.
82.
15
15
First
First enacted
enacted as
as The Family Law Reform Act,
Act, 1975,
1975, S.O. c. 41,
1975, C.
S.O. 1975, 41, s.
s. 1.
1.
76
One commentator has has argued16

argued thatthat the predecessor to
the predecessor to this
this provision—section
provision —
section 1 of
of the
the 1
Family Law Reform Act

17
Reform Act17—did — •
not necessarily
did not necessarily abrogate
abrogate tenancy
tenancy by the the entireties.
entireties. The
argument goes as follows. The provision

as follows. provision clearly
clearly removes aa husband's marital
marital rights
rights over his
his
wife's property so
wife's property that, among other
so that, other things,
things, the provision abrogates his
the provision his common law rightright
the parties'
during the
during joint life
parties' joint life times
times to
to the
the control
control and enjoyment over property
property held
held as
as tenants
tenants
entireties. However, that leaves
the entireties.
by the However, that leaves the
the husband and wife on an equal footing so
and wife on an equal footing so that,
that, in
in
accordance
accordance with section 64(3)
with section 64(3) of the
the Family Law Act,
Act, section
section 64(1)
64(1) has
has no application
application to
to aa
tenancy the entireties.
tenancy by the entireties.
Against
Against this,
this, it
it can be strongly
strongly argued thatthat the
the unity
unity of husband and wife
wife was the
the basis
basis
18
of
of tenancy
tenancy by the
the entireties
entireties and that
that the basis has
the basis has been clearly
clearly removed.18
removed. In
In addition,
addition,
survival of tenancy by the
survival the entireties
entireties is
is inconsistent
inconsistent with
with the
the very
very widely shared assumption
that
that husbands and wives can hold land land as joint tenants
as joint tenants and that
that they
they can sever
sever their joint
their joint
tenancies convert them into
tenancies and convert into tenancies
tenancies inin common.
Mention should be made here here of aa common law rulerule that,

that, like
like tenancy by the
the entireties,
entireties,
is related to
is related to the
the concept
concept of unity
unity of husband and wife.
wife. This
This is
is the
the rule
rule of construction
construction (which,
(which,
for
for convenience,
convenience, may be be referred
referred to
to as
as the rule in
the rule in Re Jupp19)
Jupp ) that,
that, in
in the
the absence of a a contrary
contrary
intention,
intention, aa conveyance or or gift
gift by will
will to
to husband and wife and a a third
third party
party gave the the
husband and wife
wife only
only half
half and the
the third
third party
party took
took the
the other
other half.
half. In
In England,
England, it
it was held
held in
in
20
Re Jupp2°
Jupp that
that the rule survived
the rule survived the passing of the
the passing the Married Women's Property Acts Acts and the
the
21
rule was subsequently abrogated
rule abrogated by section
section 37 of the
the Law of of Property Act,1925,21
Act, 1925, which
provides:
provides:
37. A husband and wife shall,

37. shall, for
for all
all purposes
purposes of acquisition
acquisition of any interest
interest in property, under a
in property, a
disposition
disposition made or
or coming into
into operation
operation after
after the
the commencement of thisthis Act,
Act, be treated
treated as
as two
persons.
persons.
In
In Ontario,
Ontario, it
it is
is strongly
strongly arguable
arguable that
that the
the basis this rule
basis of this rule has
has been removed by
section
section 64(1) the Family Law Act but
64(1) of the but the
the argument might be made that
that section
section 64(3),
64(3), by
limiting the
limiting the purpose of section
purpose section 64(1)
64(1) to
to producing equality between husbands
producing equality between husbands and wives,
wives,
16
16
Glenn,
Glenn, supra,
supra, note
note 7.
7.
17
17
Supra,
Supra, note
note 15.
15.
18
18
This position
position isis consistent
consistent with
with s.
s. 13(2)
13(2) of the
the Conveyancing and Law of of Property Act,
Act, supra,
supra, note
note 11.
11.
Section
Section 13(1)
13(1) creates
creates a presumption in
a presumption in favour
favour of tenancy
tenancy in
in common rather
rather than joint tenancy
than joint tenancy where land
land is
is
transferred
transferred to
to two or
or more persons.
persons. Section
Section 13(2)
13(2) provides
provides that:
that:
—
13.—(2)
13. (2) This
This section
section applies
applies notwithstanding
notwithstanding that
that one of such persons
persons is
is the
the spouse of another
another of
them.
them.
19
19
(1988),
(1988), 39 Ch.D. 148.
148. See
See D. Costa, "Co-ownership under
D. Mendes da Costa, under Victorian
Victorian Land Law" (1961-62),
(1961-62), 3
3 Mel.
Mel.
U.L. Rev. 137,
U.L. Rev. 137, 306,
306, 433,
433, at
at 166.
166.
20
Ibid.
Ibid.
21
21
15
15 & 16
16 Geo. 5,
5, c.
c. 20 (U.K.).
(U.K.).
77
section 64(1)
makes section 64(1) inapplicable
inapplicable to
to a construction that
rule of construction
a rule that equally
equally affects
affects husbands and
wives and affects rights of both of them vis-a-vis

the rights
affects the third parties.2
vis-a-vis third parties.
The fourth
fourth kind
kind of co-ownership that at one time could exist
that at exist was coparcenary. This This
occurred
occurred where at at common law or or by custom land
land descended on intestacy
intestacy not,
not, as
as usually
usually was
the
the case, a single
to a
case, to single heir
heir but
but to
to two or persons. For
or more persons. For example,
example, if
if a
a person
person died
died intestate
intestate
only by two daughters,
survived only
survived daughters, the
the daughters
daughters took as as coparceners.
coparceners. In
In Ontario,
Ontario, coparcenary
on intestacy23
intestacy is
is expressly
expressly abrogated by section
section 14
14 of the Estates Administration
the Estates Administration Act24
Act which
has the effect
has the effect that
that if
if real
real property
property becomes vested in
vested in two or
or more persons
persons on intestacy,
intestacy, they
they
take as tenants
take as tenants inin common.
(b)
(b) CREATION
Creation OF
of CO-OWNERSHIP
Co-ownership
At common law there

there was a presumption of joint
a presumption joint tenancy (rather
(rather than tenancy in
in
common) so
so that
that a
a transfer
transfer of
of title
title to
to co-owners
co-owners produced
produced a joint tenancy
a joint tenancy if
if the
the four
four unities
unities
were satisfied
satisfied and an intention
intention toto create
create aa tenancy in in common was not not established.
established. However,
in
in at
at least
least three
three sets
sets of circumstances equityequity took a a different
different view and presumed a a tenancy in in
common ratherrather than

than a joint tenancy,
a joint tenancy, and to to some extent
extent this
this equitable
equitable position
position remains
remains
relevant
relevant today.25
today. First,
First, where two or or more persons advance money on mortgage, mortgage, itit is
is
presumed in in equity
equity that
that their
their title
title as
as mortgagees is is held
held as
as tenants
tenants inin common. Second,
Second, itit is
is
the
the orthodox view that that partnership
partnership property
property is is presumed in in equity
equity to
to be held
held by partners
partners asas
tenants in
tenants in common. A different position might appear to have been taken by Middleton J. in
different position might appear to have been taken by Middleton J. in
16
the
the briefly
briefly reported
reported case
case of Harris v. v. Wood26
Wood where he stated stated as
as follows:
follows:
Partners
Partners carry
carry on business jointly, and upon the
business jointly, the death
death of one partner
partner the
the whole partnership
partnership
estate
estate vests
vests in
in the
the survivor.
survivor. The surviving
surviving partner then asserts
partner then asserts in his own name the
in his the rights
rights ofof the
the
firm.
firm. It,
It, therefore,
therefore, follows thatthat the
the style
style of cause
cause should be be amended ... The more material
... material
question
question isis as
as to
to the
the ability
ability of
of the
the surviving partner to
surviving partner to give
give aa good title
title if
if the
the defendant
defendant is
is entitled
entitled
to
to a
a reconveyance. It It is
is admitted
admitted that
that the
the transaction
transaction was a partnership transaction,
a partnership transaction, and itit follows
follows
22
Compare the
the reasoning
reasoning inin Re Jupp,
Jupp, supra, note 19,
supra, note 19, and see,
see, also, the argument mentioned
also, the mentioned above in relation to
in relation to
tenancy
tenancy by the
the entireties.
entireties.
23
Coparcenary also
also occurred
occurred when thethe owner of of an
an entail
entail died
died without
without having the entail
barred the
having barred entail and
and was survived
survived by
female
female heirs.
heirs. Although no new estates
estates tail
tail can be be created
created in
in Ontario
Ontario after
after May 27,
27, 1956
1956 (Conveyancing and Law
of
of Property
Property Act,
Act, supra,
supra, note
note 11,
11, s.
s. 4)
4) it
it is
is still unlikely, that
extremely unlikely,
possible, although extremely
still possible, persons
that persons might take as
take as
coparceners
coparceners under
under an
an entail
entail created
created prior
prior to
to May 27,27, 1956.
1956. See Gillese, supra, note
Gillese, supra, note 3, at 18:10.
3, at 18:10.
Coparcenary is
is mentioned in in current
current Ontario
Ontario statutes:
statutes: Limitations R.S.O. 1990,
Act, R.S.O.
Limitations Act, 1990, c. L.15, s.
c. L.15, s. 11; Partition Act,
11; Partition Act,
R.S.O.
R.S.O. 1990,
1990, c.
c. P.4,
P.4, s.
s. 2;
2; Settled
Settled Estates
Estates Act,
Act, R.S.O.
R.S.O. 1990,
1990, c.
c. S.7,
S.7, s.
s. 18(2).
18(2).
24
R.S.O.
R.S.O. 1990,
1990, c.
c. E.22.
E.22. In
In addition,
addition, descent
descent upon intestacy
intestacy to heir was abolished
the common law heir
to the abolished by the
the Act to
to
Abolish
Abolish the
the Right
Right of
of Primogeniture,
Primogeniture, 1851,
1851, 14&
14 & 15
15 Vict.,
Vict, c.
c. 6
6 (U.C.).
(U.C.).
25
See
See Malayan Credit
Credit Ltd v.
v. Jack Chia — MPH Ltd.,
- MPH Ltd., [1986]
[1986] A.C. 549 (P.C.).
(PC).
26
(1915),
(1915), 77 O.W.N. 611,
61 1, at
at 612-13 (H.C.).
(H.C.). In
In Hegerman v. Rogers, [1971]
v. Rogers, [1971] 33 O.R. (H.C.), Wright J.
O.R. 600 (H.C.), J. took
took Harris
Harris
v.
v. Wood as as holding
holding that
that partners take partnership
partners take partnership land
land as joint tenants;
as joint felt bound to
he felt
tenants; he to follow the decision,
follow the decision,
although
although hehe argued
argued that
that it
it was wrong; but he finally
but he decided that
finally decided of title
taking of
that taking title as
as joint tenants was irrelevant
joint tenants irrelevant since
since
the joint tenancy

the joint tenancy had been
been severed.
severed. See,
See, also,
also, Higgins v. Orson Ins.
Higgins v. Co. (1981),
Ins. Co. O.R. (2d)
(1981), 36 O.R. (2d) 79
79 (H.C.).
(H.C.).
78
... that
... that the property, upon the
the whole property, the dissolution
dissolution of the partnership, became vested in
the partnership, in the
the surviving
partner
partner ...
...
II had some doubt whether [section

[section 13]
13] of the
the Conveyancing and Law of of Property Act affects
affects
the matter in
the matter in hand.
hand. On consideration,
consideration, II do not
not think
think it
it does.
does. The fact
fact that
that the
the transaction
transaction is
is a
partnership transaction,
partnership transaction, and that
that the
the property
property was conveyed to to the
the partners,
partners, as
as partners,
partners,
sufficiently
sufficiently demonstrates that
that the
the holding is
is as joint tenants
as joint tenants and not
not as
as tenants
tenants in
in common.
Although the reasoning in

the reasoning in Harris v.
v. Wood isis somewhat confusing,
confusing, it
it seems that
that it
it is
is not
not
in
in fact
fact inconsistent
inconsistent with the the traditional
traditional view that
that partners
partners are
are presumed in in equity
equity to to take
take
property as
partnership property
partnership as tenants
tenants inin common. The findings
findings inin Harris
Harris v.
v. Wood that
that in
in litigation
litigation
involving
involving thethe partnership
partnership thethe surviving partner represents
surviving partner represents the
the firm
firm and that
that the
the surviving
surviving
partner is
partner is able
able to
to convey title
title to partnership property
to partnership property involve
involve only
only the
the view that
that the
the partners
partners
were joint
joint tenants
tenants at
at common law and that that the
the surviving partner became at
surviving partner at common law the the
sole
sole owner by survivorship.
survivorship. This
This does not
not imply that
that the
the survivor
survivor did
did not
not hold the
the property
property on
trust
trust for
for himself and the the estate
estate of the
the deceased partner
partner as
as tenants
tenants in
in common in in equity.
equity.
The third
third situation
situation where equity equity presumes a a tenancy
tenancy inin common is is where the the purchase
purchase
price
price for
for the property is
the property provided unequally.
is provided unequally. For example, assume that that A and B purchase
property,
property, A paying
paying seventy-five
seventy-five percent
percent and B twenty-five percent, and title
twenty-five percent, title is
is put
put in in the
the
name of of B alone.
alone. Subject
Subject to proof of aa contrary
to proof contrary intention,
intention, B would hold the the property
property on a a
resulting
resulting trust
trust for
for A and B as tenants in
as tenants in common with with A having a a seventy-five
seventy-five percent
percent shareshare
and B aa twenty-five
twenty-five percent
percent share.
share. A similar
similar result
result would follow
follow if if title
title had been put put inin the
the
names of A and B. B. Subject
Subject to to the
the effect
effect of section
section 13 13 of thethe Conveyancing and Law of of
21
Property Act,27
Property Act, A and B would be joint tenants
be joint tenants atat common law but but they
they would hold title title on
trust for
trust for themselves
themselves as tenants in
as tenants in common in in the proportions described
the proportions described above.
above. It It is
is not
not clear
clear
what the
the position
position is is if
if title
title is
is put
put in the name of A alone
in the alone but
but A and B contributed equally to
contributed equally to
the price. It
the purchase price. It is
is clear
clear that
that A would, in in the
the absence of proof of a a contrary
contrary intention,
intention,
hold title
hold title on a resulting trust
a resulting trust for
for A and B. B. What is is not
not clear
clear is
is whether in in equity
equity A and B are are
28
joint tenants
joint tenants or or tenants
tenants in in common with with equal
equal shares.
shares. In In Delehunt v. v. Carmody28
Carmody the the High
Australia, relying
Court of Australia, relying on the the indirect
indirect effect
effect of a provision equivalent
a provision equivalent to to section
section 13 13 of the
the
Conveyancing and Law of of Property Act,Act, held
held that
that A and B were equitable
equitable tenants
tenants in in common
with equal
equal shares.
shares. InIn fact,
fact, it
it is strongly arguable
is strongly arguable that,
that, even apart
apart from the the indirect
indirect effect
effect of
section
section 13,
13, a
a beneficial
beneficial tenancy
tenancy in
in common is
is presumed to
to be created
created when interests
interests are
are
29
created under aa resulting
created under resulting trust,
trust, whether those
those interests
interests are unequal or
are unequal or equal.29
equal.
We have
have made several references to
several references to section
section 13 the Conveyancing and Law of
13 of the of
Property
Property Act.3°
Act. In
In circumstances
circumstances in it applies
in which it applies this
this provision
provision reverses
reverses the
the common law
27
Supra,
Supra, note
note 11.
11.
28
28
(1986),
(1986), 161
161 C.L.R.
C.L.R. 464.
464.
29
See
See J.
J. Maxton,
Maxton, "Beneficial joint tenancies:
"Beneficial joint problems", [1987]
recurring problems",
tenancies: some recurring N.Z.L.J. 382;
[1987] N.Z.L.J. 382; S.M.
S.M. Bandali,
Bandali,
"Injustice
"Injustice and
and Problems
Problems of
of Beneficial
Beneficial Joint
Joint Tenancy"
Tenancy" (1977),
(1977), 41
41 Cony.
Conv. 243,
243, at
at 254-55.
254-55.
30
Supra, note 11.
Supra, note 1 1
79
presumption and creates

presumption creates a
a presumption in
in favour
favour of tenancy in common. It
tenancy in It provides as
as
follows:
follows:
—
13.—(1)
13. (1) Where by any letters patent, assurance
letters patent, assurance oror will,
will, made and executed after the 1st
after the 1st day of
July, 1834,
July, 1834, land
land has
has been or
been or is granted, conveyed or
is granted, or devised
devised to
to two oror more persons,
persons, other
other than
than
executors
executors oror trustees, in fee
trustees, in fee simple
simple or for any less
or for less estate,
estate, it
it shall
shall be considered
considered that
that such persons
such persons
took or as tenants
or take as tenants in
in common and not not as joint tenants,
as joint unless an intention
tenants, unless intention sufficiently
sufficiently appears
appears
on the
the face
face of the
the letters
letters patent,
patent, assurance oror will,
will, that
that they are
are to
to take
take as joint tenants.
as joint tenants.
(2)
(2) This
This section
section applies
applies notwithstanding that
that one of such persons
persons is the spouse of another
is the another of
of
them.
them.
3
In addition, section
In addition, section 14
14 of the
the Estates
Estates Administration Act,31
Act, which has
has been mentioned
mentioned
above in
in the
the context
context of the
the abolition
abolition of coparcenary,
coparcenary, provides:
provides:
14.
14. Where real
real property
property becomes vested
vested under this
this Act in
in two or
or more persons
persons beneficially
beneficially
entitled
entitled under this
this Act,
Act, they
they take
take as
as tenants
tenants in
in common in in proportion
proportion to
to their
their respective
respective rights,
rights,
unless
unless in the case
in the case of aa devise
devise they take otherwise
they take under the
otherwise under the will
will of the
the deceased.
deceased.
In
In addition,
addition, section
section 14
14 of the
ofProperty Act provides:
provides:
14.
14. Where two oror more persons
persons acquire
acquire land
land by length
length of possession,
possession, they
they shall
shall be considered
considered
to
to hold as
as tenants
tenants in
in common and not
not as joint tenants.
as joint tenants.
Section
Section 1313 of the
Property Act applies
applies only to "land".
only to "land". The
common law presumption in in favour
favour of joint
joint tenancy
tenancy has
has therefore
therefore not
not been altered
altered with
with
respect to
respect to pure
pure personalty.32
personalty. Consequently,
Consequently, where there
there is
is a
a composite gift
gift to
to two or
or more
persons consisting
persons consisting of both land
land and pure
pure personalty there will
personalty there will be a presumption of joint
a presumption joint
tenancy with respect
respect to
to the
the personalty
personalty and a
a presumption of tenancy in respect
in common with respect
to the
to the land.33
land.
It
It appears
appears that
that section 13 does
section 13 does not
not apply
apply to
to partnership
partnership property. Section 23 of
property. Section of the
the
Partnership
Partnership Acts34
Acts provides
provides as
as follows:
follows:
23.
23. Where land
land or
or any heritable
heritable interest partnership property,
therein becomes partnership
interest therein property, unless the
unless the
contrary
contrary intention
intention appears, it is
appears, it is to
to be
be treated
treated as between the
as between including the
partners, including
the partners, the representatives
representatives
of aa deceased partner, and also
deceased partner, also asas between the partner and his
heirs of aa deceased partner
the heirs his or her executors
or her executors
or administrators as
or administrators as personal or
personal or movable and not
not real
real or heritable estate.
or heritable estate.
31
31
Supra, note 24.
Supra, note 24.
32
32
Compare s.
s. 14
14 of the
the Estate
Estate Administration
Administration Act, applies to
ibid., which applies
Act, ibid., "real property".
to "real property'
33
See
See Re Gamble (1906),
(1906), 13
13 O.L.R.
O.L.R. 299 (H.C.).
(H.C.).
34
34
R.S.O.
R.S.O. 1990,
1990, c.
c. P.S.
P.5.
80
land which is
Since land partnership property
is partnership property is is treated
treated as as between the the partners
partners as as if
if it
it is
is
personal property, section

personal property, section 13
13 does not
not apply and as
as far as
far as common law title is concerned the
law title is concerned the
common law presumption
presumption in in favour
favour of joint
joint tenancy continues.35
continues. This, it must be emphasized,
This, it
does not affect the
not affect the equitable presumption in
equitable presumption in favour
favour of tenancy
tenancy in in common, affecting
affecting thethe
equitable interests
equitable interests of the parties. Even with respect
the parties. respect toto land,
land, section
section 1313 of the
the Conveyancing
and Law of Property Act does
of Property does notnot apply
apply in all circumstances
in all circumstances in in which persons
persons become co- co-
it only
since it
owners since only applies
applies where land land is
is "granted,
"granted, conveyed or or devised" by "any letters letters
patent, assurance or will". There are

patent, assurance or will". There are two main situations outside the scope of this provision.
situations outside the scope of this provision.
it was held
First, it
First, held inin Campbell v. v. Sovereign Securities
Securities & Holding Co.36 Co. that
that a a written
written contract
contract
for the purchase of land
for the land is not an "assurance"
is not "assurance" within
within the
the section
section and that
that therefore
therefore the the section
section
does notnot apply in the determination
in the determination of the the effect
effect of such a a contract.
contract. Second, co-ownership
arise because
may arise because of such doctrines
doctrines or or remedies as proprietary estoppel,
as proprietary estoppel, constructive
constructive trust trust or
or
resulting trust,
resulting trust, in
in circumstances where the the co-ownership is not derived
is not derived from any instrument
instrument
at all.
at all.
(C)
(c) THE
The USE
Use OF
of LAND
Land BY
by CO-OWNERS
Co-owners
(i)
(i) Accounting for
for Benefits
Benefits of Occupation
unity of possession
The unity possession isis an essential
essential characteristic joint tenancy
characteristic of both joint tenancy and tenancy
tenancy
in common: each
in each co-owner hashas the
the same right to possession of the
right to possession of the whole of the property. It
of the property. It is
is
therefore aa general
therefore general rule
rule that a co-owner does
that a does not
not have an obligation to account
obligation to account toto other
other co-
co-
owners for
for the
the benefits derived from possession.
benefits derived possession.
Mere occupation by aa co-owner will

will not
not impose a a liability
liability to
to account even if if the
the occupation is is
sole or one co-owner has made more by his

sole or his or her occupation.
or her occupation. This
This is
is so
so because the non-
because the
occupying co-owner cannot,
cannot, by failing
failing to
to exercise his or
exercise his or her right to
her right to occupation,
occupation, establish
establish a
a claim
claim
37
for
for compensation against another co-owner who is
against another lawfully exercising
is lawfully exercising his or her
his or her own rights.37
rights.
There are exceptional situations

are exceptional in which one co-owner may be required
situations in to account
required to account to
to
other
other co-owners for
for the
the benefits occupation for what is
benefits of occupation—for —
is often
often referred
referred to
to as
as "occupation
rent".
rent".
a.
a. Ouster
Ouster
Liability
Liability to
to pay an occupation rent occurs when one co-owner has
rent occurs has unlawfully
unlawfully "ousted"
"ousted"
another.
another. Clearly,
Clearly, ouster
ouster includes actual expulsion.
includes actual expulsion. It probably also
It probably includes violent
also includes violent or
or
threatening
threatening conduct on the part of one that
the part it intolerable
that makes it intolerable for
for the
the other
other to remain.38 It
to remain. It
35
Compare Harris v.
v. Wood, supra,
supra, note
note 26,
26, at
at 613.
613.
36
Supra,
Supra, note
note 11.
11.
37
Gillese,
Gillese, supra,
supra, note
note 3,
3, at
at 18:
18: 11-12.
1 1-12.
38
Dennis v.
v. McDonald, [1981]
[1981] 11 W.L.R.
W.L.R. 810 (Fam.
(Fam. Div.), [1982] 1 All
varied [1982]
Div.), varied All E.R.
1 E.R. 590 (C.A.).
(C.A.).
81
81
may extend further to

extend further to cases party's conduct (whether
cases where one party's (whether oror not
not violent)
violent) "made
conditions intolerable"39 for the other
conditions intolerable" for the other or
or even to
to cases
cases where the
the circumstances (whether
circumstances (whether or
or
not fault
not fault is
is attributed
attributed to either party)
to either party) makes it
it intolerable
intolerable or
or unreasonable for
for the parties
the parties
40
to possess
jointly to
jointly the property.
possess the property.
b.
b. Agreement
co-owners may make one

An agreement between co-owners one liable
liable to
to account.
account. There
There are
are two main
types
types of such
such agreement. First, the co-owners may have agreed to
First, the to one having sole
sole possession
possession
the terms of making rental
on the rental or
or other payments. Second, one co-owner may have agreed to
other payments. to
act
act as
as agent
agent or,
or, as
as it is often
it is often put
put in
in archaic
archaic language in in this
this context,
context, as
as bailiff
bailiff of the
the other
other co-
co-
owner with responsibility to
with responsibility to account toto the
the latter for her
latter for her or his share
or his share of the
the profits
profits of the
the land.
land.
c.
c. The "Statute
"Statute of
ofAnne"
Statute provides for

Statute provides for an accounting in certain circumstances.
in certain circumstances. The relevant
relevant provision,
provision,
which was first passed in
first passed in England in
in 170441
1704 and is is often
often referred
referred to
to as
as the
the "Statute
"Statute of Anne",
ofAnne",
has re-enacted in
has been re-enacted in Ontario
Ontario as
as section
section 122(2)
122(2) of thethe Courts of of Justice
Justice Act,42
Act, which
provides:
provides:
122. —
122.—(2) (2) An action
action for
for an accounting may be brought by a joint tenant
a joint tenant or
or tenant
tenant in
in common,
or
or his
his oror her
her personal
personal representative,
representative, against
against a co-tenant for
a co-tenant for receiving
receiving more than
than the
the co-tenant's
co-tenant's
just share.
just share.
It
It is
is well
well established
established that
that under this provision,
this provision,
aa co-owner must account

account to
to his
his fellows
fellows for
for benefits receives, as
benefits which he receives, as co-owner,
co-owner, from third
third
43
parties,
parties, but
but not
not for
for benefits
benefits which he
he takes from the
the soil
soil as
as a
a result
result of his
his own exertions.43
exertions.
For example,
For in
in Henderson v. Easson one co-owner,
v. Easson44 co-owner, who was inin sole
sole occupation
occupation and
and
farmed the
the property,
property, was not
not liable
liable to
to account
account for
for the profits obtained.45
the profits obtained. In
In Osachuk v.v.
39
Baker v.
v. Baker (1976),
(1976), 24 R.F.L.
R.F.L. 145,
145, at
at 149
149 (B.C.S.C.).
(B.C.S.C).
40
See Dennis v.
v. McDonald, supra,
supra, note
note 38,
38, at
at 816;
816; Moss v.
v. Moss (1986),
(1986), 5
5 R.F.L. (3d) 62 (Nfld.
R.F.L. (3d) U.F.C.). Contrast
(Nfld. U.F.C.). Contrast
Carkeek v. Tate-Jones,
Carkeekv. Tate-Jones, [1971]
[1971] V.R. 691
691 (S.C.); Belcher v. Belcher
(S.C.); Belcherv. Belcher (1980),
(\9S0), 19
19 R.F.L.
R.F.L. (2d)
(2d) 352 (B.C.S.C.).
(B.C.S.C).
41
41
4 Anne, c.
c. 16
16 (U.K.),
(U.K.), s.
s. 27.
27.
42
R.S.O. 1990, c. C.43.
1990,c.C43.
43
43
Mendes da Costa , supra,
supra, note
, note 19,
19, at
at 140.
140.
44
44
87 D.L.R. (3d) 370 (Sask.
D.L.R. (3d)
(1851),
(1851), 17
17 Q.B.
Q.B. 701.
701. For
For a
a similar
similar modern Canadian case, see Reid v.
case, see Reid (1978),
v. Reid (1978), 87 (Sask.
Q.B.).
Q.B.).
45
There are
are a
a number of authorities
authorities that deal with a
that deal co-tenant's liability
a co-tenant's to account
liability to account for profits realized
for profits realized from
exploitation
exploitation of
of the
the property. are summarized as
property. Some of them are by the
follows by
as follows the Alberta Institute of Law Research
Alberta Institute Research
and Reform, Partition Sale (Report No. 23,
Partition and Sale 23, 1977), at 30-31:
1977), at 30-31
82
46
Osachuk husband and wife
Osachuk46 wife were co-owners of a a house divided
divided into
into two apartments.
apartments. On
their separation
their the husband remained in
separation the in sole
sole occupation
occupation of one apartment and the the other
other
apartment subsequently
apartment subsequently became vacant.
vacant. It
It was held
held that
that the
the husband was not
not liable
liable to
to account
for
for the benefit of his
the benefit sole occupation or for the rents that
his sole occupation or for the rents that might have been obtained from thethe
vacant
vacant apartment.
apartment.
d.
d. Waste
The law of waste applies

applies to
to co-owners, section
section 31
3 of the
1 of
AH
Act47
Property Act providing:
providing:
31 .
—
31.—Tenants
Tenants in
in common and jointjoint tenants
tenants are
are liable
liable to
to their
their co-tenants
co-tenants for
for waste,
waste, or,
or, in
in the
the
event
event of a
a partition,
partition, the part wasted may be assigned
the part assigned to
to the
the tenant
tenant committing the
the waste at
at the
the
value
value thereof
thereof to be estimated
to be estimated as
as if
if no waste had been
been committed.
However, thethe law of waste

waste curtails
curtails the
the enjoyment of land
land by a
a co-owner less
less stringently
stringently
48
than it
than it does
does that
that of a
a tenant
tenant for
for life:48
life:
Unlike
Unlike a a life
life tenant
tenant or
or a
a lessee,
lessee, a
a co-tenant
co-tenant in
in fee
fee simple
simple may use
use the property in
the property in the
the same manner
as
as would an owner who did did not
not share title with co-owners,
share title co-owners, subject
subject only
only to
to aa duty
duty to
to act
act
reasonably.
reasonably. A co-owner can cut cut mature timber which is is not
not of special
special value
value as
as ornamental timber
... Similarly,
... Similarly, a a co-tenant
co-tenant can develop and operate
operate mines.
mines. Therefore,
Therefore, if these acts
if these acts are
are not
not waste,
waste,
what acts
acts would constitute
constitute waste as co-tenants? The answer is,
as between co-tenants? is, any conduct which would
unreasonably
unreasonably diminish
diminish the
the value
value of the property. Malicious conduct would be
the property. be included.
included.
Ontario
Ontario authority,
authority, it
it may be added, emphasis on whether the
places emphasis
added, places the act
act of the
the co-owner
amounts to
to destruction
destruction of the property. Spragge V.C.
the property. V.C. stated
stated in
in Dougall v.
v. Foster:49
Foster:
[A]ssuming thatthat a a co-tenant

co-tenant may reasonably
reasonably exploit the land,
exploit the land, even ifif its
its value
value is
is thereby reduced, must he
thereby reduced,
account to
to his
his co-tenants for any
co-tenants for any profits?
profits? The English
English courts
courts permitted
permitted anan accounting
accounting in in [Job
[Job v.
v. Potion
Potton
(1875),
(1875), L.R.
L.R. 20 Eq. Eq. 84]
84] and
and Glyn v.v. Howell,
Howell, [1909]
[1909] 1 Ch.
1 Ch. 666.
666. There
There are
are a
a multitude
multitude of cases
cases inin the
the United
United
States,
States, and in the overwhelming majority
in the majority of them the the co-tenant
co-tenant was required
required toto account for any
account for any profits
profits
derived
derived from activities
activities which permanently
permanently reduced
reduced the
the value
value of the
the land.
land. Authority
Authority on the
the point
point inin Canada isis
thin,
thin, and inconsistent.
inconsistent. In In Rice
Rice v.
v. George (1873),
(1873), 20 Gr.Gr. 221
221 ... the
...the court held that
court held that a
a co-tenant
co-tenant was not not
required
required to
to account
account for profits realized
for profits realized from the sale of timber.
the sale timber. In
In Curtis
Curtis v.
v. Coleman (1875),
(1875), 22 Gr.Gr. 561
561 ...
...
the court
the court required
required a a co-tenant
co-tenant to
to account
account for derived form
profits derived
for profits form the
the sale
sale of plaster
plaster from plaster
plaster beds
beds on the
the
land.
land.
These authorities
authorities raise
raise the issue whether
the issue whether the profits came within
the profits within the
the Statute of Anne,
Statute of Anne, supra, note 41.
supra, note 41. They may
also
also be
be viewed
viewed as
as raising
raising the
the issue
issue whether the
the activity in question
activity in question amounted to to waste. See infra,
waste. See infra, this
this ch.,
ch.,
sec.
sec. 1(d).
1(d).
46
(1971),
(1971), 18
18 D.L.R.
D.L.R. (3d)
(3d) 413 (Man. C.A.).
C.A.).
47
Supra,
Supra, note
note 11.
11.
48
Alberta
Alberta Institute
Institute of Law Research
Research and Reform,
Reform, supra,
supra, note
note 45,
45, at
at 30.
30.
49
(1853),
(1853), 4
4 Gr.
Gr. 319,
319, at
at 327.
327.
83
It is clear
It is that a
clear that a tenant in common has not an unlimited
tenant in unlimited power to
to do as
as he will
will with the
the estate;
estate; for
for
though the
the court
court is
is slow to interfere between tenants
to interfere in common, yet
tenants in yet where one commits any act act
amounting to will be restrained
to destruction, he will restrained ...
...
And in
in that
that case
case the
the digging clay for
digging of clay for making bricks
bricks was restrained.
restrained.
e.
e. Equitable
Equitable Accounting
It is sometimes argued that

It is that there
there is
is a general equitable
a general jurisdiction to
equitable jurisdiction to make allowances
between co-owners.5°
co-owners. It It appears,
appears, however, that
however, that this jurisdiction only applies
this jurisdiction applies in
in partition
partition and
sale
sale or
or analogous proceedings51
proceedings and even in
in such
such proceedings
proceedings the
the court's
court's power to
to order
order
52
payment of occupation rent rent may be be limited52
limited to to the
the situation
situation where the the party
party to be charged
to be
claims
claims an allowance in in respect
respect of outgoings related
related toto the
the property.
property. Moreover, it it seems that
that aa
claim
claim for
for contribution
contribution inin respect
respect of certain
certain outgoings willwill not
not open the
the claimant up to to being
charged
charged with
with occupation rent. In
occupation rent. In Mastron v. v. Cotton53
Cotton it
it was held
held that
that a joint tenant
a joint tenant was
entitled
entitled to
to credit
credit for
for making mortgage payments and paying paying taxes,
taxes, and for repairs, but
for repairs, but that
that
she
she would only be allowed such credit
only be allowed such credit on account of interest, taxes, and repairs if
account of interest, taxes, and repairs if she
she
submitted
submitted to to an
an allowance
allowance for for use
use and occupation.
occupation. Claiming an an allowance for for payment of
mortgage principal
mortgage principal did
did not
not similarly render her
similarly render her liable
liable to
to occupation
occupation rent.
rent.
The rationale
rationale that
that has been suggested
suggested forfor this
this special
special treatment
treatment of payments of
mortgage principal
principal is
is that
that they
they increase
increase the
the capital
capital value
value of the
the co-owner's
co-owner's equity
equity in
in the
the
property.54
property. However, this rationalization is
this rationalization is unconvincing since
since a a claim for
for the
the cost
cost of
improvements which have increased
increased the
the capital
capital value
value of the
the property
property does
does give rise to
give rise to
liability
liability for
for occupation
occupation rent.
rent. In
In Australian
Australian cases
cases co-owners have been entitled entitled to
to obtain
obtain
reimbursement, without
reimbursement, without becoming liableliable for
for occupation rent, for
occupation rent, for "rates
"rates and roadmaking
roadmaking
56
charges"55
charges" and mortgage payments,
payments, rates
rates and taxes,
taxes, and fire
fire insurance premiums.56 The
insurance premiums.
rationale in
rationale in these
these cases
cases was that
that the payments were in
the payments respect of joint
in respect joint liabilities
liabilities of the
the co-
co-
owners. InIn some Canadian casescases co-owners have been held held entitled
entitled to
to credit
credit for
for various
various
50
See
See Law Reform Commission of
of British
British Columbia, Report on Co-ownership ofof Land (1988)
(1988) at 10, 16-18;
at 10, 16-18; R.P.
R.P.
Meagher, W.M.C. Gummow, and J.R.F.
J.R.F. Lehane,
Lehane, Equity:
Equity: Doctrines
Doctrines and Remedies (2d ed., 1984),
(2d ed., 1984), at
at 635-36.
635-36.
51
51
See
See Mastron v. Cotton, [1926]
v. Cotton, [1926] 11 D.L.R. 767,
767, at
at 768 (Ont. S.C., App. Div.).
(Ont. S.C., See, also,
Div.). See, the discussion
also, the discussion by
A.J.
A.J. Bradbrook, S.V.
S.V. MacCallum, and
and A.P.
A.P. Moore, Australian
Australian Real Property Law (1991),
(1991), at 316.
at316.
52
See,
See, for
for example,
example, Osachuk v. v. Osachuk, supra,
supra, note 46. But the
note 46. in Mastron v.
statement in
the statement Cotton, supra,
v. Cotton, supra, note
note 51,
51,
quoted infra, suggests
quoted infra, suggests the
the possibility
possibility of
of some flexibility.
flexibility.
53
Supra,
Supra, note
note 51.
5 1 See,
See, also,
. also, Osachuk v.
v. Osachuk, supra,
supra, note
note 46.
46.
54
See
See Osachuk v. ibid., at
v. Osachuk, ibid., at 435.
435.
55
55
Carkeek v.
v. Tate-Jones, supra, note
Tate-Jones, supra. note 40.
40.
56
Scapinello
Scapinello v. Scapinello, [1968]
v. Scapinello, [1968] S.A.S.R.
S.A.S.R. 316.
316.
84
57
payments without the the court
court adverting
adverting to
to liability
liability for
for occupation rent.57
rent. The best
best view may be
court has
the court
that the
that has flexibility in determining
flexibility in determining whether allowance of credit
credit for
for payments by a a co-
co-
owner should open that that co-owner upup to
to liability
liability for
for occupation rent.
rent. In
In the
the leading Ontario
58
case of Mastron v.
case v. Cotton,58
Cotton, Ferguson J.A.
J.A. expressed the relevant principle
the relevant principle as
as giving
giving the
the
court such
court such flexibility:
flexibility:
While the
the general
general rule
rule is
is that
that one joint
joint tenant,
tenant, unless
unless ousted by his his co-tenant,
co-tenant, may not
not sue
sue
another for
another use and occupation,
for use occupation, it it seems clear
clear that
that when the joint tenancy is
the joint is terminated by a Court
order for
order for partition
partition or
or sale, the Court may in
sale, the in such proceedings make all
such proceedings just allowances and should
all just
give
give such directions as will
directions as will do complete equity
equity between the
the parties
parties ... ...
What is just and

is just and equitable
equitable depends
depends on thethe circumstances
circumstances of of each
each case.
case. For instance
instance if
if the
the
tenant
tenant in
in occupation claims for for upkeep and repairs,
repairs, the
the Court,
Court, as
as a
a term of such allowance,
allowance, usually
usually
requires
requires that
that the
the claimant shall
shall submit to
to an allowance for for use
use and occupation ... Again, if if one
...
tenant
tenant has
has made improvements
improvements which have increased
increased the
the selling
selling value
value of the
the property,
property, the
the other
other
tenant cannot
tenant cannot take the advantage
take the advantage ofof increased price without submitting to
increased price to an allowance for
for the
the
improvements ... And, once again,
... again, when, asas here,
here, one tenant
tenant has
has paid
paid more than
than his
his share
share of
encumbrances, he is is entitled
entitled to
to an allowance for
for such surplus.
surplus.
These allowances being made as as equitable

equitable allowances, there
there may asas a matter of course
course be
be
circumstances
circumstances under which theythey should not
not be
be made. For instance,
instance, the
the circumstances
circumstances may indicate
indicate
that
that the
the improvements were made or or tile
t{ie surplus
surplus payments were made or or intended
intended to
to be made asas
gifts
gifts by one tenant
tenant to
to the
the other....
other....
In
In cases
cases where a a co-owner is is required
required to pay occupation rent,
to pay rent, no clear
clear principle
principle has
has
emerged
emerged for measuring the occupation rent
for measuring the occupation rent payable.
payable. In
In Irrsack
Irrsack v.
v. Irrsack59
Irrsack the
the amount
ordered was one-half
one-half of the rent "that
the rent "that these
these premises
premises would attract".attract". In
In Dennis v. v.
60
McDonald,6°
McDonald, in in the
the context
context of a jurisdiction with
a jurisdiction with a rent control
a rent control system providing
providing forfor rent
rent of
some properties
properties atat a
a "fair rent" without
"fair rent" without account
account being
being taken
taken of scarcity,
scarcity, itit was held
held that
that a
a co-
co-
tenant
tenant inin possession
possession should reference not
pay compensation by reference
should pay not to
to a market rent
a market rent but
but "a
"a fair
fair
61 62
rent
rent ... eliminating
... eliminating the
the scarcity
scarcity element".61
element". In In Leake v.v. Bruzzi,62
Bruzzi, the
the court
court inin effect
effect treated
treated the
the
occupation
occupation rentrent as
as equivalent
equivalent to to the interest element
the interest element of thethe mortgage payments made by the
the
57
Crooks v.v. Crooks (1977),
(1977), 30 R.F.L.
R.F.L. 351
351 (B.C.S.C.)
(B.C.S.C.) (payments
(payments for
for mortgage, taxes, fire insurance,
taxes, fire insurance, improvements,
and repairs
repairs but
but not
not entitled
entitled to
to credit
credit for rates); Sawyers v.
for water and sewer rates); v. Sawyers (1978),
(1978), 3 3 R.F.L.
R.F.L. (2d)
(2d) 158
158 (Ont.
(Ont.
H.C.) (payments relating
H.C.) relating to notes and mortgage in
to promissory notes respect of
in respect of purchase
purchase of property,
property, taxes,
taxes, insurance,
insurance,
repairs,
repairs, maintenance, and improvements); Smith v. (1978), 6 R.F.L.
v. Davis (1978), (2d) 378 (B.C.S.C.)
R.F.L. (2d) (B.C.S.C.) (payments
(payments for
for
mortgage, taxes,
taxes, insurance,
insurance, improvements).
58
Supra, note
note 51,
51, at
at 768.
768.
59
(1978),
(1978), 93
93 D.L.R.
D.L.R. (3d)
(3d) 139
139 (Ont.
(Ont. H.C.).
H.C).
60
Supra,
Supra, note
note 38 (C.A.).
(C.A.).
61
Ibid.,
Ibid., at
at 593.
593.
62
[1974]
[1974] 11 W.L.R. 1528 (C.A.). See
1528(C.A). Suttill v. Graham, [1977]
SeeSuttillv. [1977] 11 W.L.R.
W.L.R. 819, at 821 (C.A.).
819,at821 (C.A.).
85
co-tenant in
co-tenant possession. In
in possession. In Baker v. v. Baker,63
Baker, Craig
Craig J.
J. said
said that
that "occupation rent is
"occupation rent is not
not
necessarily measured by either the rental value of the property or the rent which an ousted
necessarily either the rental value of the property or the rent
owner may have to pay for
to pay for accommodation elsewhere" and decided that that "[h]aving
"[hjaving regard
regard to
to
all the circumstances"
all the circumstances" itit was 'just' to fix
"'just' to fix the
the occupation rent
rent in
in this
this case
case at
at $125 a
a month,
that
that is,
is, the
the same amount as as the
the mortgage payments [made by the co-tenant in
the co-tenant possession]".
in possession]".
f/ The Family Law Act
The Family Law Act64Act creates

creates special
special rules
rules and confers
confers on the
the court
court special powers in
special powers in
relation to
relation to aa matrimonial home,65
home, whether or or not
not the
the home is is owned by the
the spouses66
spouses as as co-
co-
owners. Although section
owners. section 19
19 of
of the provides that
the Act provides that both
both spouses
spouses have anan equal
equal right
right to
to
possession of the
possession the matrimonial home, thatthat entitlement
entitlement may be affected
affected by a
a separation
separation agreement
or
or court
court order.
order. In
In particular,
particular, the
the court
court may order
order that
that one spouse
spouse have exclusive possession of
exclusive possession of
67
the
the home.67
home. Obviously,
Obviously, there
there is
is aa practical
practical interrelationship
interrelationship between one spouse's
spouse's exclusive
exclusive
possession of the
possession of the home and other claims between the spouses.68
and other claims between the spouses.
69
As pointed
pointed out
out by the
the Supreme Court of Canada in in Lamb v. v. Lamb„69
Lamb,, an exclusive possession
exclusive possession
order
order may affect
affect the
the quantum of support thatthat should be ordered.
ordered. If
If the
the dependent spouse is is granted
granted
possession
possession of a a home, the
the financial
financial needs of that
that spouse may be significantly
significantly reduced.
reduced. Where the the
other
other spouse hashas an interest
interest in the home, that
in the that spouse isis already
already indirectly
indirectly providing
providing for
for one of the
the
major living
living costs
costs of the
the dependent spouse.
spouse. The relationship between the
relationship between the equalization
equalization claim
claim under
Part II of the
Part the Act and an order for for exclusive
possession of a a matrimonial home is is perhaps
perhaps less
less
obvious,
obvious, but
but often
often no less
less significant.
significant. In
In particular,
particular, orders
orders for
for possession
possession in in favour of a a spouse
who does not not have an ownership interest
interest in
in the
the home may affectaffect the
the other
other spouse's
spouse's ability
ability to
to
satisfy
satisfy an equalization
equalization claim through the the payment of a a monetary sum.
Section
Section 24 of the
the Family Law Act gives
gives the court considerable
the court considerable flexibility
flexibility in
in devising
devising
appropriate
appropriate orders
orders relating
relating to
to the
the matrimonial home. The court
court may, among other
other things,
things,
63
63
Supra, note
note 39,
39, at
at 154.
154.
64
Supra, note
note 13.
13.
65
"Matrimonial home" is
is defined
defined in the Family Law Act,
in the Act, ibid.,
ibid., s.
s. 18.
18.
66
It
It is
is Part
Part II
II of the
the Family Law Act,Act, ibid.,
ibid., which deals with possession
deals with matrimonial home. The general
the matrimonial
possession of the general
definition
definition of "spouse" in s. 1(1)
"spouse" ins. 1(1) applies
applies toto determine who is Part II.
is covered by Part It stipulates
II. It stipulates that a spouse
that a is "either
spouse is "either
of aa man and woman who, (a) (a) are

are married
married to to each other,
other, or together entered
(b) have together
or (b) into a
entered into a marriage
marriage that
that is
is
voidable
voidable oror void,
void, in
in good faith
faith on the
the part
part of the
the person asserting
asserting a a right under this
right under Act". Therefore,
this Act". Therefore, persons
persons who
cohabit
cohabit without
without going
going through any marriage ceremony are Part II:
not covered by Part
are not II: B. T.G. Youdan,
B. Hovius and T.G.
The Law of of Family Property
Property (1991)
(1991) atat 580.
580. For discussion occupational rights
about occupational
discussion about cohabitees, see
rights of cohabitees, see ibid.,
ibid.,
at
at 580-85.
67
For
For further
further discussion,
discussion, see
see infra,
infra, this
this ch.,
ch., sec.
sec. 1(e).
1(e).
68
Hovius and Youdan, supra,
supra, note
note 66,
66, at
at 607.
607.
69
(1985), 46 R.F.L. (2d) 1 (S.C.C.).
(1985),46R.F.L.(2d)l(S.C.C).
86
—
21.—(1)(c)
21. (l)(c) direct
direct a to whom exclusive
a spouse to the matrimonial home is
exclusive possession of the is given
to make periodic
to periodic payments to
to the
the other
other spouse;
spouse;
(e)
(e) order
order a
a spouse to
to pay for
for all
all or part of the
or part the repair
repair and maintenance of the
the matrimonial
matrimonial
home and of other liabilities arising
other liabilities arising in
in respect
respect of it, or
or to
to make periodic
it, periodic payments to
to
the other spouse for
the other for those
those purposes ... ...
(ii)
(ii) for Expenditures Related to
Claiming for to Property
In certain circumstances one co-owner can obtain

In certain reimbursement from other
obtain reimbursement other co-owners
with to expenditures
respect to
with respect expenditures relating
relating to
to the
the property.
property. In
In numerous casescases reimbursement has
has
70 7 72 73
been obtained
obtained for
for mortgage payments, improvements, taxes,72 fire insurance premiums,73
payments," improvements,71 taxes, fire insurance premiums,
upkeep and repairs,74
upkeep repairs, and expenses litigation with
expenses from litigation with a
a third
third party.75
party.
Where the
the expense relates
relates to
to a joint obligation
a joint obligation of the
the parties
parties it
it appears
appears that the claim
that the claim for
for
reimbursement may be
reimbursement be made at at any time
time since
since the right of reimbursement is
the right is a
a right
right of
76
contribution analogous
contribution analogous to
to that co-sureties and co-insurers.76
that between co-sureties co-insurers.
Although it has been suggested that

it has that there
there is
is aa general
general equitable jurisdiction to
equitable jurisdiction to account
account
as
as between co-owners, it
between co-owners, it appears that outside
appears that outside of the
the right contribution mentioned above,
right of contribution above,
right of reimbursement may be claimed only
the right
the only in proceedings for
in proceedings for partition sale or
partition and sale or
70
See Mastron v. v. Cotton,
Cotton, supra, 51; Scapinello
note 51;
supra, note Scapinello v.v. Scapinello,
Scapinello, supra, note 56;
supra, note 56; Osachuk v. v. Osachuk, supra,
supra,
note 46;
note Leake v.
46; Leake v. Bruzzi, supra, note
Bruzzi, supra, note 62;
62; Leippi
Leippi v.
v. Leippi, [1977] 2 W.W.R. 497 (Man. C.A.);
Leippi, [1977] C.A.); Kimmel v.
v. Kimmel
(1977), 5 R.F.L.
(1977), 5 R.F.L. (2d)
(2d) 203 (Ont.
(Ont. H.C.); v. Crooks,
H.C.); Crooks v. Crooks, supra,
supra, note
note 57;
57; Zelezniak v. Senkiw, [1978]
Zelezniak v. [1978] 5
5 W.W.R.
187
187 (Man. Q.B.);
Q.B.); Sawyers v. v. Sawyers,
Sawyers, supra,
supra, note 57; Smith
note 57; Smith v.
v. Davis,
Davis, supra,
supra, note 57; De Freitas
note 57; Freitas v.
v. De Freitas
Freitas
(1979),
(1979), 10
10 R.F.L. (2d) 238 (Ont.
R.F.L. (2d) (Ont. C.A.);
C.A.); Manley v. v. Schiller (1980), 18
Schiller (1980), 18 R.F.L.
R.F.L. (2d)
(2d) 109
109 (B.C.S.C.);
(B.C.S.C); Yee v. Yee
Yee v.
(1990),
(1990), 25 R.F.L.
R.F.L. (3d)
(3d) 366 (Ont.
(Ont. C.A.).
C.A.).
71
71
See Handley v. (1899), 30 S.C.R.
v. Archibald (1899), S.C.R. 130
130 at
at 141;
141; Mastron v.v. Cotton,
Cotton, supra,
supra, note
note 51;
51; at 768; Nemeth v.
at 768; v.
Nemeth (1967),
(1967), 64 D.L.R.
D.L.R. (2d) (B.C.S.C); Crooks v.
(2d) 377 (B.C.S.C.); v. Crooks,
Crooks, supra,
supra, note
note 57; v. Sawyers,
57; Sawyers v. Sawyers, supra,
supra,
note 57;
note 57; De Freitas
Freitas v.
v. De Freitas,
Freitas, supra,
supra, note 70; Smith
note 70; Smith v.
v. Davis,
Davis, supra,
supra, note
note 57;
57; Manley v.v. Schiller,
Schiller, supra,
supra,
note 70;
note 70; Re Kneebone and Matheson (1981),
andMatheson (1981), 124 D.L.R.
D.L.R. (3d)
(3d) 538 (P.E.I.
(P.E.I. S.C.).
S.C.).
72
See Mastron v.
v. Cotton,
Cotton, supra, note 51;
supra, note 5 1 Nemeth v.
; v. Nemeth,
Nemeth, supra,
supra, note
note 71;
7 1Scapinello
; v. Scapinello,
Scapinello v. Scapinello, supra,
supra, note
note
56;
56; Carkeek v.
v. Tate-Jones,
Tate-Jones, supra,
supra, note
note 40;
40; Kimmel v.v. Kimmel, supra,
supra, note
note 70;
70; Crooks v.
v. Crooks, supra,
supra, note
note 57;
57;
v. Sawyers, supra,
Sawyers v. supra, note
note 57;
57; Smith
Smith v.
v. Davis,
Davis, supra, note 57;
supra, note 57; Zelezniak v. Senkiw, supra,
Zelezniak v. supra, note
note 70;
70; Re
Kneebone and Matheson, supra,
supra, note
note 71.
7 1
73
73
See Scapinello
Scapinello v.
v. Scapinello,
Scapinello, supra,
supra, note
note 56;
56; Crooks v.
v. Crooks,
Crooks, supra,
supra, note
note 57;
57; Smith v.
v. Davis,
Davis, supra,
supra, note
note 57;
57;
Sawyers v.
v. Sawyers,
Sawyers, supra,
supra, note
note 57;
57; Re Kneebone and Matheson, supra,
andMatheson, supra, note
note 71.
71.
74
See
See Mastron v.
v. Cotton,
Cotton, supra,
supra, note
note 51; v. Nemeth, supra,
51; Nemeth v. supra, note 71; Crooks v.
note 71; v. Crooks,
Crooks, supra,
supra, note
note 57;
57;
Kimmel v. Kimmel, supra,
v. Kimmel, supra, note
note 70;
70; Sawyers v.
v. Sawyers,
Sawyers, supra,
supra, note 57; Zelezniak
note 57; Zelezniak v. Senkiw, supra,
v. Senkiw, supra, note
note 70.
70.
75
See Gage v.
v. Mulholland (1869),
(1869), 16
16 Gr.
Gr. 145.
145.
76
See
See P.D.
P.D. Maddaugh and J.D.
J.D. McCamus, The
The Law of Restitution (1990),
of Restitution (1990), at
at 199.
199.
87
rationale for
proceedings.77 A rationale
analogous proceedings. for denying relief
relief while co-ownership lasts
lasts was given
78
by Brett in Leigh v.
Brett M.R. in v. Diciceson:78
Dickeson:
The cost
cost of the
the repairs
repairs to the house was a
to the a voluntary
voluntary payment by thethe defendant partly
partly for
for the
the
benefit
benefit of himself and partly
partly for
for the
the benefit
benefit of his
his co-owner; but
but the
the co-owner cannot reject
reject the
the
benefit the repairs,
benefit of the repairs, and if
if she is
is held to
to be liable
liable for
for a proportionate share
a proportionate share of the
the cost,
cost, the
the
defendant
defendant will
will get
get the
the advantage of the
the repairs
repairs without
without allowing
allowing his
his co-owner any liberty to
liberty to
decide whether she

decide she will refuse or
will refuse adopt them.
or adopt them.
Maddaugh and McCamus comment as

as follows79
follows on this rationale:
this rationale:
The analysis
analysis offered
offered by Brett
Brett M.R. would account
account for
for the
the denial
denial of relief
relief where thethe repairs
repairs or
or
improvements are are unnecessary
unnecessary oror of no use
use to
to this
this inactive
inactive co-tenant.
co-tenant. But where, for for instance,
instance, the
the
repairs
repairs in
in question
question may be viewed as as an unavoidable burden of ownership, on what policy policy basis
basis
should recovery be
should recovery be denied?
denied? A more comprehensive
comprehensive explanation
explanation for the "no liability"
for the rule would
liability" rule
be
be that
that the relationship of co-owners generates
the relationship generates a a number of complex cost cost allocation
allocation problems
which ought,
ought, for
for reasons
reasons of convenience,
convenience, to be resolved
to be resolved on the
the basis
basis of
of mutual
mutual agreement.
agreement. Where
the
the co-tenants
co-tenants cannot agreeagree on such fundamental questions,
questions, partition
partition is
is an appropriate
appropriate and
available
available solution
solution to
to their
their problems. At that point, an accounting will
that point, will be
be taken
taken in
in order
order to prevent
to prevent
the unjust enrichment of one co-tenant

the unjust co-tenant at
at the the other.
the expense of the other.
Accounting at
at the
the time of partition
partition or
or sale
sale is justified on the
is justified the basis
basis that,
that,
... the
...the benefit
benefit conferred
conferred isis now, in
in effect,
effect, aa liquid
liquid asset
asset in
in the
the hands of the
the co-tenant.
co-tenant. This being
so,
so, the
the benefited
benefited co-tenant
co-tenant will unfairly prejudiced
not be unfairly
will not prejudiced by the
the imposition
imposition of liability
liability and,
and,
accordingly,
accordingly, a a restitutionary
restitutionary liability
liability to
to account arises.
arises.
Two comments should be be made on reimbursement

reimbursement for for improvements. First,
First, it
it is
is
established
established inin Australia80
Australia that
that aa co-owner's claim claim for
for an allowance arising
arising from
improvements creates
creates a proprietary
a proprietary
O 1
interest, in the nature of an "equity", but this view has
interest, in the nature of an "equity", but this has not
not
been accepted
accepted in in Canada.8I
Canada. Secondly, thethe measure of compensation with respect respect to to
improvements is is the
the amount of the
the outlay
outlay to
to the
the extent that the
extent that the value the property
value of the property has
has been
82
improved.82
improved
77
See
See supra,
supra, this
this ch.,
ch., sec.
sec. 1(c)
1(c) and infra,
infra, sec.
sec. 1(e).
1(e).
78
(1884),
(1884), 15 Q.B.D. 60, at 65.
15Q.B.D.60,at65.
79
Supra,
Supra, note
note 76,
76, at
at 746-47.
80
See Brickwood v. Young (1905),
Brickwoodv. (1905), 2 C.L.R.
C.L.R. 387.
387.
81
81
See
See Ruptash & Lumsden v. v. Zawick,
Zawick, [1956]
[1956] S.C.R. Gillese, supra,
347; Gillese,
S.C.R. 347; note 3,
supra, note at 18:30-31.
3, at 18:30-31. But see
see
A.H.
A.H. Oosterholf
Oosterholf and
and W.B. Rayner, eds., Anger and Honsberger's
Rayner, eds., Honsberger's Law of
of Real
Real Property
Property (2d
(2d ed.
ed. 1985),
1985), at
at 800-01,
800-01,
which describes
describes the
the Australian position as
Australian position representative of Canadian
as representative Canadian law.
law.
82
See
See Bradbrook,
Bradbrook, MacCallum, and Moore, supra,
supra, note
note 51, at 462.
51, at See, also,
462. Sce, Rayner, supra,
also, Oosterhoff supra, note
note 81,
81,
at
at 800-01; Re Kneebone
Knee bone and Matheson, supra,
supra, note
note 71,
71, at
at 543.
543.
88
Before leaving
Before leaving this
this summary of the the present
present law,
law, comment should be made on the the
cases dealing
multitude of cases
multitude dealing with
with spouses
spouses and unmarried cohabitees
cohabitees inin which a a variety
variety of
doctrines
doctrines is to determine
is used to determine that
that parties
parties have beneficial
beneficial interests
interests not corresponding with
with
legal
legal title.
title. The effect
effect of these doctrines
these doctrines may be to create beneficial ownership or
be to create beneficial or to
to adjust
adjust the
the
size of the
size of the beneficial
beneficial shares
shares of co-owners.
co-owners. Two doctrines
doctrines can conveniently
conveniently be briefly
briefly
mentioned.
mentioned.
First,
First, the
the presumption of resulting
resulting trust
trust has the
the effect
effect that
that parties
parties are
are presumed to
to have
83
beneficial interests proportionate
beneficial interests proportionate to
to the
the contributions
contributions toto the
the purchase price
price of the property."
the property.
In cases payments of mortgage installments
In some cases installments have been treatedtreated as
as equivalent
equivalent to
to
contributions
contributions toto the purchase price
the purchase price and in in other
other cases,
cases, where one partyparty pays the
the mortgage
installments,
installments, contributions
contributions by thethe other party have also
other party also been treated
treated as
as equivalent
equivalent to
to
contributions to
contributions to the
the purchase price.
price. Finally,
Finally, the
the making of improvements to to property
property have,
have,
again,
again, been treated
treated as
as equivalent
equivalent to
to contributing
contributing toto the
the purchase.
purchase.
Second, the
Second, the principle
principle of unjust
unjust enrichment has has in
in recent
recent years
years largely
largely displaced
displaced the
the
presumption of resulting
resulting trust
trust as
as a
a means of affording
affording redress
redress in
in circumstances
circumstances such as as those
those
described
described above."
above. The principle
principle of unjust
unjust enrichment applies
applies when (1)
(1) one party
party is
is enriched,
enriched,
(2)
(2) the
the other
other party
party suffers
suffers aa corresponding deprivation,
deprivation, and (3) (3) there
there is
is an absence of any
juristic reason
juristic reason—such—
such asas a a contract
contract or
or disposition
disposition of law—for
law for the —
the enrichment.
enrichment. The
establishment
establishment of unjust
unjust enrichment gives the court
gives the court considerable
considerable flexibility
flexibility in
in determining
determining the
the
appropriate
appropriate remedy. Sometimes, the the claimant
claimant will
will obtain
obtain aa beneficial
beneficial interest
interest in property by
in property
virtue
virtue of the
the imposition
imposition of a a constructive
constructive trust;
trust; other
other times
times the
the claimant
claimant will
will obtain
obtain aa personal
personal
remedy soso that
that he or
or she
she receives
receives an amount of money.
There has
has rarely
rarely been consideration the interrelationship
consideration of the interrelationship between these
these developments
in presumptive resulting
in presumptive trusts and unjust
resulting trusts unjust enrichment,
enrichment, on thethe one hand,
hand, and the
the traditional
traditional
85
principles
principles affecting
affecting the
the entitlements
entitlements of co-owners,
co-owners, on the
the other
other hand.85
hand.
83
For detailed
detailed treatment,
treatment, see
see Hovius and Youdan, supra,
supra, note
note 66,
66, chs.
chs. 5,
5, 6.
6.
84
For
For detailed
detailed treatment,
treatment, see
see Hovius and Youdan, ibid.,
ibid., ch.
ch. 7.
7.
85
But see
see Ruff
Ruff v.
v. Strobel
Strobel (1978),
(1978), 86
86 D.L.R.
D.L.R. (3d)
(3d) 284 (Alta.
(Alta. S.C.,
S.C., App. Div.);
Div.); Paterson
Paterson v.v. Paterson (1979),
(1979), 108
108
D.L.R. (3d)
(3d) 234 (Man.
(Man. Q.B.);
Q.B.); Vandongen v. v. Royal (1990),
(1990), 38 E.T.R.
E.T.R. 69 (Ont.
(Ont. Dist.
Dist. Ct.);
Ct); Maddaugh and
McCamus, supra,
supra, note
note 76,
76, at
at 745-47
745-47 (in
(in relation
relation to
to improvements).
improvements). Compare thethe Australian
Australian case
case of Muschinski
Muschinski v.
v.
Dodds (1985),
(1985), 160160 C.L.R.
C.L.R. 583.
583. Cohabitees
Cohabitees purchased
purchased land
land atat a
a cost
cost of $20,000,
$20,000, partly
partly for
for aa home and partly
partly for
for a
business.
business. The total
total cost
cost of purchasing and
of purchasing and improving
improving the the land
land was about
about $27,750
$27,750 of
of which the
the woman spent
spent about
$25,250
$25,250 andand the
the man about
about $2,500.
$2,500. Title
Title to
to the
the land
land was putput in both their
in both their names as
as tenants
tenants inin common. It It was held
held
that
that the
the presumption of resulting
resulting trust
trust arising
arising out
out of
of the
the provision
provision by by the
the woman of the
the whole of the purchase
of the purchase price
price
was rebutted
rebutted by thethe evidence
evidence which showed the the parties'
parties' intention that each of
intention that of them should
should have
have a a one-half
one-half
beneficial
beneficial interest.
interest. However, it it was also held, by aa majority,
also held, that each
majority, that party was entitled
each party entitled to
to be
be repaid
repaid the
the amount
of his
his or
or her
her contribution.
contribution. The result
result was thatthat the
the disproportionate
disproportionate financial
financial contributions
contributions were reflected
reflected in
in the
the
amount to to which each
each was entitled
entitled toto be
be repaid
repaid but
but they
they shared
shared equally
equally inin any enhancement in in value.
value. Deane J. J.
(with
(with whom Mason J. J. agreed,
agreed, Gibbs C.J. C.J. having
having a a different reason for
different reason for the
the same conclusion)
conclusion) putput the
the decision
decision on
the basis of
the basis of unconscionability.
unconscionability. The principle,
principle, hehe stated
stated (at
(at 623):
623):
operates
operates where the
the substratum
substratum of
of a joint relationship
a joint relationship or without attributable
is removed without
or endeavour is attributable blame and
and
where the
the benefit
benefit of money or
or other
other property
property contributed
contributed by one party the basis
party on the for the
basis and for the purposes
purposes of
of
the
the relationship
relationship or
or endeavour would otherwise
otherwise bebe enjoyed
enjoyed by the
the other in circumstances
party in
other party circumstances inin which it
it
89
89
Two comments may be made concerning this. this. First,

First, courts
courts have often
often distinguished
distinguished
between
between payments before and payments after separation so that the former is treated
payments before and payments after separation so that the former is treated as
as altering
altering
beneficial
beneficial entitlements
entitlements whereas the
the latter
latter is
is treated
treated as
as relevant
relevant to
to the
the traditional
traditional accounting
accounting
between co-owners."
co-owners. Second, the traditional
Second, the traditional principles
principles relating
relating to
to accounting
accounting between co- co-
properly be treated
owners may properly as based
treated as based on the principle of unjust
the principle unjust enrichment (although
(although they
they
developed before
were developed the articulation
before the articulation of unjust
unjust enrichment as as part
part of Canadian law)
law) and their
their
development is capable of being guided by reference

is capable reference to
to that
that principle.
principle.
(d)
(d) SEVERANCE
Severance OF
of JOINT
Joint TENANCY
Tenancy
(i)
(i) Severance by Act of the
the Parties
Parties
a.
a. Introduction
Introduction
The main feature

feature which distinguishes joint tenancy
distinguishes joint tenancy from tenancy in in common is is the
the right
right
of
of survivorship
survivorship which isis an incident
incident of joint
joint tenancy.
tenancy. However, joint
joint tenants
tenants are
are not
not bound toto
maintain
maintain their
their co-ownership
co-ownership as joint tenancy:
as joint tenancy: they
they may convert
convert it
it into
into aa tenancy
tenancy in
in common
by the
the process
process known as as severance.
severance.
In
In a
a frequently
frequently quoted passage,
passage, Sir
Sir W. Page Wood V.C. described
described severance in
in
87
Williams
Williams v.
v. Hensman:87
Hensman:
A joint
joint tenancy
tenancy may be severed
severed inin three
three ways: in in the
the first
first place,
place, an
an act
act of any one of the the persons
persons
interested
interested operating
operating upon his his own share
share may create
create aa severance asas to
to that
that share.
share. The right
right of each
joint-tenant is
joint-tenant is a
a right
survivorship only in in the
the event of no severance having taken taken place
place of thethe
share
share which is is claimed under the the jus accrescendi. Each one is is at
at liberty
liberty to
to dispose
dispose of hishis own
interest
interest in
in such
such aa manner as as to
to sever
sever it
it from the —
joint fund—losing,
the joint fund losing, of course,
course, atat the
the same time,
time,
his
his own right
right to
to survivorship.
survivorship. Secondly, a joint tenancy may be severed
a joint severed by mutual agreement.
And, inin the
the third
third place,
place, there
there may be a a severance by any course of dealing dealing sufficient
sufficient to
to intimate
intimate
that the interests of all were mutually treated as
that the interests of all were mutually treated as constituting a
constituting a tenancy
tenancy in in common. When the
the
severance
severance depends on an inferenceinference of this kind without any express
this kind express act
act of severance,
severance, itit will
will not
not
suffice
suffice to rely on an
to rely an intention,
intention, with respect to that particular share, declared only
with respect to that particular share, declared only behind
behind the
the backs
backs
of the persons interested.
the persons interested.
Although there
there isis some authority
authority maintaining
maintaining that the second and third
that the third methods
88
mentioned inin Williams
Williams v.v. Hensman areare two distinct
distinct methods of severance,"
severance, it is convenient
it is to
convenient to
divide
divide severance
severance into
into two main categories.
categories. First,
First, there
there is
is severance
severance by destruction
destruction of one of
the
the four
four unities
unities (that
(that is,
is, the
the first
first category
category in
in Williams
Williams v. Second, there
v. Hensman). Second, there isis severance
severance
was not
not specifically
specifically intended
intended or
or specially
specially provided that
that that party should
other party
that other should so enjoy it. The content
so enjoyit. content of the
the
principle
principle is
is that,
that, in
in such
such a
a case,
case, equity
equity will
will not
not permit
permit that other party
that other to assert
party to assert or
or retain the benefit
retain the benefit of the
the
relevant
relevant property
property to to the
the extent
extent that
that it unconscionable for
it would be unconscionable for him so to do.
so to do.
86
See,
See, for
for example,
example, Robertson v.
v. Robertson
Robertson (1972),
(1972), 6
6 R.F.L.
R.F.L. 35 (Ont.
(Ont. C.A.).
C.A.).
87
(1861),
(1861), 1 John & H.
1 H. 546,
546, at
at 557-58.
88
88
See Burgess v.
v. Rawnsley,
Rawnsley, [1975]
[1975] Ch.
Ch. 429 (C.A.).
(C.A.).
90
or implied
by express or implied agreement (that
(that is,
is, the
the second and third
third categories
categories in
in Williams
Williams v.
v.
Hensman).
Hensmari).
b.
b. Destruction of
of One of
of Four Unities
Unities
the same way that

In the
In that a joint tenancy
a joint tenancy may only be be created
created if
if the
the four
four unities
unities are
are present,
present,
so
so a joint tenancy
a joint tenancy cannot continue to to exist
exist if
if one of the
the four
four unities
unities is
is destroyed.
destroyed. The unity
unity of
time relevant only
is relevant
time is only toto the
the creation
creation of a joint tenancy
a joint tenancy and destruction
destruction of the the unity
unity of
possession
possession would cause
cause co-ownership to to end altogether,
altogether, since
since unity
unity of possession
possession is is the
the one
unity
unity required
required for
for a
a tenancy inin common. Consequently, a joint tenancy may be severed,
a joint severed, and
so converted
so converted into a tenancy
into a tenancy in destruction of either
in common, by destruction either the
the unity
unity of
of title
title or
or the
the unity
unity
of interest.
interest.
Therefore,
Therefore, ifif a joint tenant
a joint tenant alienates
alienates her
her or
or his
his interest
interest to
to aa third
third party,
party, the
the third party
third party
takes
takes the
the interest
interest asas a
a tenant in
tenant in common since unity of title is broken.
since unity of title is broken. Even where no
where no
alienation
alienation occurs
occurs atat common law, law, severance
severance may take take place
place in in equity.
equity. For example,
severance
severance in
in equity
equity will
will be effected
effected by aa specifically enforceable contract
specifically enforceable contract by a joint tenant
a joint tenant to
to
alienate
alienate his
his or
or her interest:89
interest:
This
This is
is an
an example of the the application
application of the
the general
general principle
principle that
that if
if a
a decree
decree of
of specific
specific
performance isis available the promisee will
available the be regarded
will be regarded as
as having acquired
acquired an
an equitable
equitable interest
interest
from the
the date
date of the
the making of the
the contra&
contract or
or covenant.
covenant.
Similarly,
Similarly, there
there will
will be severance
severance in
in equity
equity where a joint tenant
a joint tenant declares
declares a
a trust
trust of her
her or
or
his
his interest.
interest.
Where severance
severance occurs
occurs in
in equity,
equity, but not at
but not at common law,
law, the
the right
survivorship will
will
continue
continue to
to exist at common law but
exist at but not
not in
in equity. that A and B were joint
equity. Assume that joint tenants.
tenants. A
declares
declares a trust of her
a trust her interest
interest for
for the
the benefit
benefit of C.C. B then
then dies.
dies. At common law,law, A becomes
sole owner of the
sole the property
property but
but she
she holds
holds title
title on trust
trust for
for C as
as to a one-half share and
to a one-half share and for
for the
the
estate
estate of B as to the
as to the other
other one-half share.
share.
Where aa joint
joint tenant
tenant does
does an
an act
act affecting
affecting his
his or
or her
her interest,
interest, but
but which falls
falls short
short of
total
total alienation
alienation at
at common law or or in
in equity,
equity, it
it is
is not
not always
always clear
clear whether there
there has been
has been
severance.
severance. Different types of transactions
Different types transactions may bebe conveniently
conveniently considered in turn.
considered in turn.
89
A.J. McClean, "Severance of Joint
A.J. McClean, Joint Tenancies"
Tenancies" (1979),
(1979), 57 Can. Bar Rev.
57 Can. Rev. 1,
1, at
at 14.
14.
Compare the
the effect
effect of the
the granting
granting of an
an option.
option. InIn Re McKee and National
National Trust
Trust Co.
Co. (1975),
(1975), 56 D.L.R.
D.L.R. (3d)
(3d) 190
190
(Ont.
(Ont. CA.),
C.A.), a joint tenant
a joint tenant husband granted
granted the joint tenant
the joint tenant wife
wife an option
option to his interest
purchase his
to purchase interest in
in the joint
the joint
tenancy.
tenancy. It
It was held
held that
that the
the option, by itself,
option, by itself, did
did not
not effect
effect a severance unless
a severance unless and until it was exercised.
until it exercised. See
See
McClean, ibid.,
ibid, at
at 15.
15.
91
91
First, the granting

First, the granting of a life estate
a life estate by a joint tenant
a joint tenant holding
holding anan estate
estate in
in fee
fee simple has
given rise to some diversity
rise to view, one view introducing
diversity of view, introducing the
the idea
idea of a
a temporary suspension
suspension
Professor McClean describes
90
90
of the joint tenancy.
the joint tenancy. Professor describes these
these views as
as follows:
follows:
Littleton stated
Littleton stated that
that ifif a joint tenant
a joint tenant created
created a a life
life estate
estate and
and either
either the
the grantor
grantor or
or his
his co-owner dieddied
during
during the
the currency
currency of that that estate,
estate, the
the right
survivorship diddid not
not operate,
operate, and the
the heirs
heirs of the
the
deceased co-owner succeeded to to his
his interest.
interest. Coke agreed
agreed but
but added
added thethe comment that
that ifif the
the life
life
91
tenant
tenant died
died before
before the joint tenants,
the joint tenants, the
the right
survivorship is is revived on hishis death.9I
death. This
This is
is
sometimes described
described as as aa temporary suspension of joint joint tenancy,
tenancy, and therefore
therefore of the
the right
right of
of
survivorship,
survivorship, during
during thethe term of thethe inferior
inferior estate.
estate. Such modern authority
authority as
as there
there is
is favours
favours the
the
view that
that there
there is
is a
a severance
severance when the the life
life estate
estate is
is granted,
granted, but
but the
the texts
texts do not
not squarely
squarely face
face the
the
issue
issue of whether it it is
is total
total or
or temporary.
temporary.
Although the
the Alberta
Alberta Appeal Division
Division in
in Sorenson v.v. Sorenson92
Sorenson heldheld that
that there
there was no
severance
severance when one joint
joint tenant
tenant granted
granted a
a life
life estate
estate to
to the
the other,
other, the
the grant
grant of a a life
life estate
estate
93
does
does destroy
destroy "the
"the unity
unity of interest
interest and the
the immediate joint
joint right
right to
to possession"93
possession" and and it
it ought
ought
to
to be treated
treated as
as bringing
bringing about
about a
a complete severance."
severance.
A similar
similar variety
variety of views have been suggested
suggested with respect
respect to
to the
the granting
granting of aa lease
lease of
her
her or
or his
his interest
interest by a joint tenant
a joint tenant of an estate
estate in
in fee
fee simple.
simple. However, the the "preponderance of
the
the later
later authorities
authorities supports
supports the
the view that
that the
the granting
granting of the
the lease
lease effects
effects aa complete
95
severance".95
severance". This
This seems correct
correct in
in principle
principle since
since the
the grant
grant of aa lease,
lease, like
like a
a life
life estate,
estate,
destroys
destroys "the unity of interest
"the unity interest and the
the immediate joint
joint right
right to
to possession".96
possession".
It
It is
is clear
clear that
that the
the creation
creation by one joint
joint tenant
tenant of aa non-possessory encumbrance, such such as
as
aa rentcharge
rentcharge or or easement,
easement, affecting
affecting his
his or
or her
her interest
interest does not
not effect
effect a
a severance.
severance. However,
the
the effect
effect of a a mortgage is is less
less straightforward.
straightforward. At common law the the granting
granting of a a mortgage
severed
severed the joint tenancy since
the joint since the
the common law mortgage took took effect
effect by way of a a
conveyance of title from mortgagor to
conveyance of title from mortgagor to mortgagee.97
mortgagee. The uncertainty
uncertainty has has arisen because in
arisen because in
some jurisdictions
jurisdictions statute provides for
statute provides for mortgages taking
taking effect not by way of conveyance but
effect not
QQ
98
by way of security,
security, asas aa charge against
against the
the mortgagor's title.
title. Until recently, aa mortgage
Until recently,
90
Ibid.,
Ibid., at 7.
2X1.
91
91
For Ontario
Ontario approval
approval of this
this view,
view, see
see Power v.
v. Grace,
Grace, [1932]
[1932] O.R. 357,
357, at
at 360 (C.A.).
(C.A.).
92
(1977),
(1977), 90 D.L.R. (3d)
(3d) 26 (Alta.
(Alta. App. Div.).
Div.).
93
93
McClean, supra,
supra, note
note 89,
89, at
at 9.
9.
94
Ibid.,
Ibid., at
at 10.
10.
95 „ .
Ibid.,
Ibid., at
at 8.
8.
%
96
Ibid., at 9.
Ibid.,al9.
97
Ibid.,
Ibid., at
at 12.
12.
98
Ibid.
Ibid.
92
Registry Act99
the Registry
under the in Ontario
Act in Ontario took
took effect
effect by way of conveyance whereas one under the
the
100
Titles Act'°°
Land Titles Act took effect as
took effect as a
a charge.
charge. As was explained inin the
the Report on the
the Law of
of
Mortgages:'
Mortgages: 01
Prior to
Prior the enactment of the
to the the Land Registration Reform Act, 1984, upon registration
Act, 1984, registration of a a mortgage
of
of land
land registered
registered under thethe Registry Act, legal
legal title
title to
to the
the land
land was actually
actually transferred
transferred toto the
the
lender. Accordingly,
lender. Accordingly, a a mortgage contained
contained words of conveyance. By contrast,
contrast, under thethe land
land titles
titles
system
system inin Ontario,
Ontario, governed by the Titles Act, title
the Land Titles title is
is not,
not, in
in law,
law, transferred
transferred toto the
the lender,
lender,
whatever thethe form of the
the instrument; rather, aa security
instrument; rather, security agreement merely creates
creates aa 'charge'
'charge' against
against
102
the
the land.1°2
land. Accordingly, there is
Accordingly, there is no requirement of a
requirement of a conveyance of any estate to create an
of any estate to create an
enforceable
enforceable security
security interest.
interest. The charge isis merely registered
registered against
against the
the title
title and the
the borrower
remains the
remains the registered
registered legal
legal owner.
The position
position is is now the
the same in in Ontario
Ontario with respect
respect to
to aa mortgage of land
land subject
subject to
to
the
the Registry
Registry Act asas under the
the land
land titles
titles system.
system. The Land Registration
Registration Reform Act1°3
Act provides
provides
104
that
that aa mortgage is a "charge"
is a "charge" on property
property and section
section 6(1)
6(1) provides
provides that
that "[a]
"[a] charge does
does
not
not operate
operate as
as a
a transfer
transfer of the
the legal
legal estate
estate in
in the
the land
land to
to the
the chargee".I°5
chargee". It
It has been held inin
106
Australia106
Australia that
that legislation equivalent to
legislation equivalent to the
the Ontario
Ontario Land Titles
Titles Act and Land Registration
Registration
Reform Act,
Act, has
has the
the effect
effect that
that a a mortgage does not sever a
not sever joint tenancy.
a joint tenancy. This
This view has,
has,
107
moreover, been applied
applied inin Canada.1°7
Canada.
99
R.S.O. 1990,
1990, c.
c. R.20.
R.20.
100
100
R.S.O.
R.S.O. 1990, c. L.5.
1990, c. L.5.
101
101
Ontario Law Reform Commission, Report on the
the Law of
ofMortgages (1987),
(1987), at
at 17.
17.
102
102
Land Titles
Titles Act,
Act, supra,
supra, note
note 100,
100, s.
s. 93.
93.
103
R.S.O.
R.S.O. 1990,
1990, c.
c. L.4.
L.4.
104
104
Defined by ibid.,
ibid., s.
s. 1.
1.
105
105
The Land Registration
Registration Reform Act,
Act, ibid.,
ibid., s.
s. 6(3) provides:
6(3) provides:
6.
—
6.—(3)
(3) Despite
Despite subsection
subsection (1),
(1), a
a chargor
chargor and
and chargee
chargee are
are entitled
entitled to
to all
all the
the legal
legal and
and equitable
equitable rights
rights and
remedies that would be
remedies that be available
available to
to them if
if the
the chargor had transferred
chargor had the land
transferred the land to
to the
the chargee
chargee by way of
mortgage, subject
mortgage, subject to
to a proviso for
a proviso for redemption.
redemption.
In
In Lyons v. v. Lyons,
Lyons, [1967]
[1967] V.R. 168
168 (S.C.)
(S.C.) it
it was argued that
that an
an equivalent provision "meant that
equivalent provision that the
the mortgagee
was still in substance
still in substance vested
vested with title,
title, and therefore
therefore it
it followed
followed that the mortgage severed the
that the joint tenancy.
the joint tenancy. The
court
court held
held that
that the
the section
section did
did not
not go asas far
far as
as vesting
vesting title
title in
in the
the mortgage,
mortgage, and
and that
that that
that was the
the crucial
crucial question
question
in
in deciding
deciding if if there
there had been aa severance":
severance": McClean, supra,
supra, note
note 89,
89, at
at 13).
13).
106
Lyons v.
v. Lyons,
Lyons, supra,
supra, note
note 105,
105, not
not accepting
accepting the
the contrary
contrary argument advanced by Mendes da Costa,
Costa, supra,
supra,
note
note 19,
19, at
at 447-54.
107
107
Re Foort and Chapman (1973),
(1973), 37 D.L.R.
D.L.R. (3d)
(3d) 730 (B.C.S.C.). v. Sorenson,
(B.C.S.C). Compare Sorenson v. Sorenson, supra,
supra, note
note 92,
92, at
at
at
at 35-36.
35-36. See McClean, supra,
supra, note
note 89,
89, at
at 12-13.
12-13.
93
93
Generally, destruction of one of the

Generally, severance by destruction the four unities
unities occurs when one joint
joint
tenant alienates
tenant alienates his
his or
or her interest.
interest. However, it will also occur
it will also occur when aa joint tenant
joint tenant changes his
his
or
or her
her interest
interest by increasing
increasing it.1°8it.
c.
c. Severance by Agreement
109
The English Court of Appeal in v. Rawnsley109
in Burgess v. Rawnsley took the
the position
position that
that the
the second
third methods of severance described in Williams v. Hensmanii°
and third described in Williams v. Hensman were in fact
in fact distinct
distinct
severance. As Professor McClean summarized it:111
methods of severance. it:
Rule 22 encompassed express

express agreement, be be it
it an express agreement to to sever,
sever, or
or be it
it an express
express
agreement notnot in
in itself
itself directed
directed to
to severance as as such, inference of severance
but from which an inference
such, but severance
could
could be
be drawn. Rule 3 3 on the
the other
other hand covered circumstances not not involving
involving any agreement,
agreement, but
but
where itit could be inferred
inferred that
that the
the parties
parties formed a a 'common intention'
intention' to their property
to hold their property as
as
tenants
tenants in
in common.
as Professor
However, as Professor McClean goes
goes on to
to comment:112
comment:
These distinctions
distinctions are
are difficult to follow.
difficult to follow. In In every
every case under Rules 22 and 33 the
case under the issue
issue is
is whether
the parties did something from

the parties did something from which it can be inferred that they intended to treat their interest
it can be inferred that they intended to treat their interest as
as
aa tenancy in in common. Whatever the the supporting
supporting evidence,
evidence, one is is really
really looking for
for an agreement,
and it is nonetheless
it is nonetheless an
an agreement if if it
it is referred to
is referred to as a 'common intention'.
as a intention'.
The easy case is where the

case is parties make an express agreement directed
the parties directed to
to the
the point
point of
severance.
severance. Otherwise,
Otherwise, the
the question
question is
is whether the
the court
court can infer
infer an agreement to to sever or
or
whether the parties by their
the parties their conduct treated
treated themselves as tenants in
as tenants in common.
Nothing
n
1
would bebe gained
gained by here reviewing comprehensively the
here reviewing the case-law on thisthis
topic.113
topic. However, itit should be emphasized thatthat in borderline cases
in borderline cases the
the determination
determination whether
an agreement to to sever
sever has
has occurred
occurred depends on the the court's evaluation of
court's evaluation of a range of
a wide range
relevant facts.
relevant facts. The Ontario casecase of Robichaud v. v. Watson114
Watson may be taken
taken asas illustrative.
illustrative.
Raymond Robichaud and the the defendant June Watson began cohabiting
cohabiting in
in 1971
1971 and in in that
that
year they bought aa home as joint tenants.

as joint tenants. They separated
separated in 1974, when Watson and the
in 1974, the
couple's
couple's children
children remained in in England after
after the
the family
family had gone there for a
there for a holiday.
holiday.
108
108
See
See McClean, ibid.,
ibid., at
at 5.
5.
109
109
Supra, note
note 88.
88.
110
Supra, note
note 87.
87.
111
Supra, note
note 89,
89, at
at 15-16.
15-16.
"2
112 „.,
Ibid., at 16.
Ibid., at 16.
113
113
For aa detailed review,see McClean, ibid.,
detailed review,see ibid., at
at 18-25.
18-25.
114
1
(1983),
(1983), 147 D.L.R. (3d)
147 D.L.R. (3d) 627 (Ont.
(Ont. H.C.).
H.C.).
94
Robichaud returned to to Canada and lived

lived in
in the jointly-owned home until
until his
his death in
in 1979.
1979.
During the period between 1974 1974 and 1979
1979 Robichaud made improvements to to the property,
all outgoings, including mortgage payments, and received rent from tenants.
paid all tenants. In 1975
1975
instructed an Ontario lawyer "to
Watson instructed "to do whatever was necessary to to recover her equity inin
115
the property".115
the property". The lawyer wrote to
to Robichaud asking Robichaud to
to contact him to
to discuss
Watson's obtaining of the
obtaining her "net equity out of"116 the home. Robichaud, also,
also, instructed a lawyer
the two lawyers conducted inconclusive negotiations:117

and the negotiations:
[The two lawyers]

lawyers] then negotiations on aa without
then began negotiations without prejudice
prejudice basis.
basis. The negotiations
negotiations were
aimed atat settling
settling the
the claim
claim of June Watson for for her
her equity
equity inin the
the house and herher claim
claim for
for the
the value
of
of her
her household furnishings and car. June
household furnishings and car. June Watson testified that she had
testified that she had no idea at this time as
idea at this time as to
to
the value of her share.
the value share. She was notnot interested
interested inin the
the property
property as as such and was content that that
Robichaud taketake over as as long asas she
she got
got her fair
fair share
share out
out of the
the house. On behalf
behalf of Mr.
Robichaud, [his[his lawyer]
lawyer] had made a a cash
cash offer
offer of settlement
settlement by letter
letter of November 1, 1, 1976.
1976. The
offer
offer was eventually
eventually rejected
rejected by June Watson and her her solicitor
solicitor as
as being inadequate.
inadequate. No further
further
offers
offers were exchanged and negotiations
negotiations ceased.
ceased. [Robichaud's lawyer] testifiedtestified that
that he and hishis
client,
client, Robichaud, discussed
discussed the
the possibility
possibility of taking partition proceedings but
taking partition but Robichaud lacked
lacked
the
the financial
financial retainer
retainer to
to go ahead at
at the
the time.
time.
There were no further

further negotiations nor were any legal
negotiations nor legal proceedings
proceedings taken
taken by either
either party
party up
to
to the time of Robichaud's death.
the time death.
It was held that

It that the prior to
joint tenancy had been severed prior
the joint to the
the death of Robichaud. In
In
coming toto this
this conclusion Griffiths
Griffiths J.
J. took account of a wide range of relevant
circumstances:118
circumstances:
II have concluded thatthat the negotiations carried

the negotiations carried on between the the parties
parties through their solicitors in
their solicitors in
this case
this case clearly
clearly indicated that each
indicated that regarded themselves as
each regarded as tenants
tenants in in common, thatthat their
their interests
interests
had been severed

severed and what was at at issue
issue in
in the negotiations was the
the negotiations the value
value only
only of their
their respective
respective
interests.
interests. June Watson instructed
instructed herher solicitor
solicitor toto conduct negotiations solely with a
negotiations solely a view to to
obtaining
obtaining payment to
to him of the
of the value
value of her
her beneficial
beneficial interest
interest in
in the
the property.
property. She wanted cash
cash
and upon receiving
receiving the
the appropriate
appropriate amount she she would have
have released
released herher interest
interest in
in the property to
the property to
Robichaud. That the parties considered
the parties considered their
their interests
interests severed
severed isis further
further evidenced by the the fact
fact that
that
Robichaud enjoyed sole possession of the
sole possession property and paid
the property paid all
all mortgage payments and other other
expenses necessary
necessary to maintain title
to maintain title from 1974
1974 to his death.
to his death. June Watson never again again visited
visited the
the
property nor did
property did she
she make any payments
payments on account of the the mortgage or or municipal taxes
taxes before
before
Robichaud's death.
Robichaud's death.
Three points should be emphasized about severance by agreement. First,

First, severance may
be effected it is
effected informally. The agreement may be express or inferred and it is not required to
to be
115
Ibid.
Ibid. These are
are the
the words of the judge, Griffiths
the judge, Griffiths J.
J.
116
Ibid.
Ibid. These are
are the
the words used
used in
in the lawyer's letter.
the lawyer's letter.
117
117
Ibid., at 631.
Ibid.,2X62,\.
118
118
Ibid.,
Ibid., at
at 636.
636.
95
or be evidenced
in, or
made in, evidenced by,
by, any particular
particular form.
form. It
It has been suggested119
suggested that
that the
the Statute
Statute of
of
Frauds12°
Frauds applies to an agreement
applies to an agreement to
to sever.
sever. However, the
the Statute
Statute is
is concerned with the
with the
bringing of actions
bringing to enforce
actions to contracts. Severance is
enforce contracts. not within
is not within the
the ambit of the
the Statute
Statute since
since
"automatically effects
it "automatically
it effects aa severance"121
severance" the need for
without the for enforcement by action
action or
or
otherwise.
otherwise.
Second, severance
severance by agreement between the parties effects
the parties effects severance
severance inin equity
equity but not
but not
at
at common law. For
law. For example, if
if A and B,
B, originally
originally joint
joint tenants,
tenants, agreed
agreed that they should
that they should
hold
hold their
their interests
interests asas tenants
tenants in that agreement would not affect
in common, that affect their joint tenancy
their joint tenancy
at
at common law.law. If,
If, therefore,
therefore, A died,
died, B would bebe sole
sole owner atat common law but but would hold
hold
that
that title
title on trust
trust for
for A's estate
estate as
as to
to a
a one-half
one-half share
share and for
for himself asas to
to the
the other
other one-half
one-half
share.
share.
The third point that

third point that should be emphasized is is that parties may effect
that parties effect aa severance
severance by
122 For
122
course of conduct even where they
course they do not
not realize
realize that
that that
that is
is what they
they are
are doing.
doing. For
example, joint
joint tenants
tenants may believe
believe themselves
themselves already
already to
to be tenants
tenants inin common or or they
they may
not
not appreciate
appreciate the
the difference
difference between joint
joint tenancy and tenancy in in common. Nevertheless,
Nevertheless,
their
their conduct may show that that they
they were treating themselves in
treating themselves in ways that
that the recognizes as
the law recognizes as
characteristic
characteristic of tenants
tenants in
in common, and this
this conduct may effect
effect a
a severance.
severance.
(ii)
(ii) Severance by Unilateral
Unilateral Act
Although there
there are
are aa few authorities
authorities stating
stating the
the contrary,
contrary, it
it appears
appears that—apart
that apart from —
pursuant
pursuant toto statutory provision —
statutory provision—severance
severance may not not be effected
effected by a a mere declaration
declaration of
intention.123
intention. However, severance
severance of a joint tenancy does
a joint does not
not depend on the the agreement of allall
the joint tenants.

the joint tenants. It
It is
is clear
clear that
that one joint
joint tenant,
tenant, without
without consent
consent of or
or even notice
notice to
to the
the other
other
joint tenants,
joint tenants, may engage in a transaction
engage in a transaction which destroys one of the four unities and thus
destroys one of the four unities and thus
severs
severs the joint tenancy.
the joint tenancy.
At common law,law, if
if a joint tenant
a joint tenant wished to
to sever
sever the joint tenancy
the joint tenancy unilaterally
without
alienating
alienating his
his or
or her
her interest,
interest, he or
or she
she had to
to resort
resort to artifice. For example, he or
to some artifice. or she
she
could convey his
his or her interest
or her interest to
to a
a compliant
compliant third party on the
third party the understanding
understanding that
that it
it would
be conveyed back again.

be again. Alternatively,
Alternatively, he
he or
or she
she could
could convey his
his or her interest
or her interest to
to a a third
third
119
119
McClean, supra,
supra, note
note 89,
89, at
at 16-17.
16-17.
120
120
R.S.O.
R.S.O. 1990,
1990, c.
c. S.19.
S.19. Section
Section 4 provides
provides as
as follows:
follows:
4.
4. No action
action shall
shall be
be brought
brought ... to
... charge any person upon any contract
to charge contract or lands, tenements
sale of lands,
or sale tenements oror
hereditaments,
hereditaments, or
or any interest
interest in
in or
or concerning them ... unless
... the agreement
unless the upon
upon which the
the action
action is
is
brought,
brought, or
or some memorandum or note thereof
or note thereof is
is in
in writing
writing and signed by the
and signed party to
the party to be
be charged
charged therewith
therewith
or
or some person thereunto by
person thereunto by him lawfully
lawfully authorized
authorized byby the party.
the party.
121
121
Burgess v.
v. Rawnsley, supra,
supra, note
note 88,
88, at
at 444.
444.
122
122
McClean, supra,
supra, note
note 89,
89, at
at 17-18.
17-18.
123
123
For aa review
review of
of the
the authorities, see McClean, ibid.,
authorities, see ibid., at
at 25-31.
25-31
96
party
party to hold itit on
to hold trust for
on trust for him oror her.
her. However, in in Ontario,
Ontario, as
as well
well as
as in
in other jurisdictions,
other jurisdictions,
is unnecessary to
itit is to resort to such strategems
resort to strategems since
since statute
statute provides
provides that
that the
the owner of an
124
interest in
interest in land
land may make a a conveyance to to himself oror herself.124
herself. A joint
joint tenant
tenant may,
therefore, make a
therefore, a conveyance of his his or
or her
her interest
interest to
to himself oror herself.
herself. He oror she
she will
will then
hold
hold under a a different
different instrument
instrument from the the other joint tenant,
other joint tenant, thus
thus destroying
destroying unity
unity of
of title
title and
125
severing the
so severing
so the joint tenancy.125
joint tenancy.
Not only
only may severance be carried
carried out
out without
without the
the agreement or or consent
consent of the joint
the joint
tenants, it
tenants, it can be done eveneven without
without the
the giving
giving of notice
notice to
to them. For example, in in Re
Murdoch and Barty126
Barry aa husband and wife were jointjoint tenants
tenants of aa cottage
cottage property.
property. Shortly
Shortly
her death
before her
before death the wife conveyed a
the wife a one-half
one-half interest
interest in
in the
the property
property toto herself
herself with
with the
the
intention of severing
expressed intention severing the joint tenancy.
the joint tenancy. By her
her will
will she
she left
left her
her entire
entire estate
estate to
to her
sister.
sister. The husband had no knowledge of the the execution
execution of the
the deed of conveyance by his his wife
wife
until
until after
after her
her death.
death. It
It was held
held that
that the joint tenancy
the joint tenancy was severed
severed from the time of the
the time of the
making of thethe conveyance by by the
the wife.
wife.
(iii)
(iii) Severance by Operation of Law
In
In the
the same way that that an act
act of the
the parties
parties may sever
sever a joint tenancy
a joint tenancy by destruction
destruction of
one of the
the four
four unities, severance
unities, severance may also occur because of
also occur some event or action of
event or action of a
a third
third
party causing
party causing destruction
destruction of a unity. For example, the
a unity. the bankruptcy
bankruptcy of a joint tenant
a joint tenant has
has the
the
effect of severing
effect severing the joint tenancy as
the joint as does the
the making an order
order for
for partition.
partition. InIn addition,
addition,
127
section 26 of the
section the Family Law Act127
Act deems aa severance
severance toto have occurred
occurred when a a spouse
spouse dies
dies
owning an an interest
interest in
in a
a matrimonial
matrimonial home with with aa person
person other
other than
than the
the other
other spouse:
spouse:
26. —
26.—(l)
(1) If
If a
a spouse
spouse dies
dies owning an interest
interest in a matrimonial
in a matrimonial home as
as a joint tenant
a joint tenant with
with a
a third
third
person and not
person not with the
the other
other spouse,
spouse, the joint tenancy shall
the joint be deemed to
shall be to have been
been severed
severed
immediately before
before the
the time
time of death.
death.
Severance may also

also occur when a a judgment creditor
creditor of a tenant takes
joint tenant
a joint takes steps
steps to
to
execute
execute the judgment against
the judgment against property
property of the
the debtor.
debtor. The difficult
difficult question
question is
is at
at what stage
stage of
128
the process Ontario Court of Appeal held
held that
1
the process severance
severance occurs.128
occurs. In
In Power v.
v. Grace'29
Grace the
the Ontario that
124
124
of Property Act,
Act, supra,
supra, note
note 11,
1 s.
s. 41.
1 41,
125
125
See
See McClean, supra, note 89,
supra, note 89, at
at 6.
6. Where the jointly owned property
the jointly property is
is a
a matrimonial
matrimonial home, severance
severance by
conveyance toto oneself
oneself does
does not
not amount toto disposing
disposing of or
or encumbering an interest
interest in
in a
a matrimonial home and isis
not
not therefore
therefore subject
subject to
to the restrictions provided
the restrictions provided by the
the Family Law Act, supra, note
13, s.
s. 21:
21: Horne
Home v.
v. Home
Estate
Estate (1987),
(1987), 8
8 R.F.L.
R.F.L. (3d)
(3d) 195
195 (Ont.
(Ont. C.A.).
C.A.).
126
126
(1975),
(1975), 64 D.L.R.
D.L.R. (3d)
(3d) 222 (Ont.
(Ont. H.C.).
H.C.).
127
127
Supra, note
note 13.
13.
128
128
See
See Ontario
Ontario Law Reform Commission, Report on the of Judgment Debts and Related Matters
the Enforcement of Matters
(1981),
(1981), at
at 24-25.
129
129
Supra,
Supra, note
note 91.
91.
97
the
the mere filing
filing of a writ with
a writ with the
the sheriff
sheriff is not enough. Concerning what steps
is not steps are
are sufficient,
sufficient,
Grant
Grant J.A.
J.A. said:130
said:
The effect
effect of
of the
the authorities
authorities isis ... that,
... that, until
until execution
execution against
against the
the lands
lands is
is actually
actually commenced by
advertisement ... oror probably by an actual
... actual seizure
seizure upon the
the lands
lands themselves ... there is no such
there is
... such
effect
effect wrought upon the the title
title or
or interest
interest of the joint tenant
the joint tenant (the
(the judgment debtor)
debtor) as
as will
will operate
operate to
to
sever
sever the joint tenancy.
the joint tenancy.
Severance by operation
operation of law should be be considered
considered in in the
the context
context of one other
other area
area of
of
law.
law. Where one joint
joint tenant
tenant unlawfully
unlawfully kills
kills another
another aa rule
rule of public policy prevents
public policy prevents the killer
the killer
from obtaining
obtaining a a benefit
benefit from the killing. The right
the killing. right of survivorship
survivorship takes
takes effect
effect at
at common
law but
but the killer holds
the killer holds the
the property
property as as aa constructive
constructive trustee
trustee so
so that,
that, in
in a
a two-person joint
two-person joint
tenancy,
tenancy, the killer holds the
the killer the property
property on trust,
trust, as
as to
to half
half for
for himself or herself and as
or herself as to
to the
the
other
other half
half for
for the
the estate
estate of the
the victim.
victim. The effect
effect of this
this is
is that
that the
the unlawful killing
killing does
does not
not
itself
itself cause
cause aa severance butbut aa severance in in equity
equity will
will ordinarily
ordinarily be a a consequence of the the
131
imposition
imposition of the
the constructive
constructive trust.131
trust.
132
In
In the
the Report on Administration of of Estates
Estates of
of Deceased Persons,132
Persons, the
the Commission
explicitly
explicitly addressed the
the application
application of the public policy
the public policy rule
rule to joint bank accounts
to joint accounts and
recommended that
that the
the same rule
rule should apply as
as in
in the
the case
case of joint
joint tenancy:
tenancy:
With respect
respect to joint bank accounts,
to joint accounts, we seesee no reason
reason why the the general
general approach that that is
is taken to
to
joint tenancy
joint tenancy should
should not
not apply.
apply. Accordingly, we recommend that, that, where, in in the
the case
case of a joint
a joint
bank account,
account, one joint
joint tenant killed another,
tenant has killed another, and thethe court
court has
has applied the public
applied the public policy rule,
policy rule,
the joint tenant
the joint tenant who has has unlawfully
unlawfully caused
caused the
the death
death should hold the the whole bank account as as
constructive trustee, with
constructive trustee, with his
his beneficial
beneficial interest
interest held
held in
in trust
trust for
for himself
himself and the beneficial interest
the beneficial interest
of the
the victim
victim held
held in
in trust
trust for
for the persons entitled
the persons entitled to
to share
share in the estate
in the estate of
of the
the victim.
victim. We further
further
recommend thatthat there

there should
should be
be a prima facie
a. presumption that
facie presumption that the
the beneficial
beneficial interests
interests are
are equal.
equal.
(e)
(e) PARTITION
Partition OR
or SALE
Sale
unity of
The unity is essential
possession is
of possession essential to
to both joint tenancy and tenancy
both joint tenancy inin common.
Consequently, the
the division
division of the
the land between the
land between the co-owners,
co-owners, or sale of the
or sale the land
land and division
division
of the
the proceeds
proceeds of
of sale,
sale, terminates
terminates the
the co-ownership.
co-ownership.
130
130
Ibid., at 362.
Ibid., at 362.
131
131
See Schobelt v. Barber (1966),
See Schobelt v. (1966), 60
60 D.L.R.
D.L.R. (2d) 519 (H.C.);
(2d) 519 (H.C.); T.G. Youdan, "Acquisition
T.G. Youdan, "Acquisition of Property by
of Property by Killing"
Killing"
(1973),
(1973), 89
89 L.Q.
L.Q. Rev.
Rev. 235,
235, at
at 249-50,
249-50, 253-55; Maddaugh and
253-55; Maddaugh and McCamus, supra, note
McCamus, supra, 76, at
note 76, at 488-90; Ontario Law
488-90; Ontario Law
Reform
Reform Commission,
Commission, Report
Report on Administration
Administration of
of Estates
Estates of Persons (1991),
of Deceased Persons (1991), at
at 155.
155.
132
132
/&</., at
Ibid., at 158.
158.
98
Apart from tenancy

tenancy by entireties,
entireties, co-owners were always free free to
to partition
partition the
the land by
133
agreement between themselves. 133 However, in in the
the early
early common law, law, in
in the
the absence
absence of such
such
agreement, partition could only be obtained in
agreement, partition in coparcenary, a a form of co-ownership created
created
operation of law.
by operation law. This was extended by statute134
statute in
in sixteenth
sixteenth century England to joint
to joint
tenancy and tenancy
tenancy inin common. At about the the same time
time the
the Court of Chancery "developed
its jurisdiction in
its jurisdiction this area.
in this area. The Chancery jurisdiction
jurisdiction superseded in in practice
practice the
the writ
writ of
partition given
partition given by thethe old
old statutes."135
statutes." In
In Ontario,136
Ontario, jurisdiction over partition
jurisdiction partition was first
first
7
the Court of King's Bench and the the County Courts
Courts inin 1832.1
1
conferred
conferred on the 1832. 7 Jurisdiction
Jurisdiction was
138
additionally conferred
additionally conferred on the the Court of Chancery in in 1850.138
1850. Originally,
Originally, thethe court's
court's
jurisdiction to
jurisdiction to order
order partition
partition did
did not
not extend to
to ordering a sale
sale of the
the property and division
division of
139
the proceeds. That power was progressively
the proceeds. progressively introduced in in nineteenth
nineteenth century legislation.139
legislation.
Partition Act.'
4°
140
The court's jurisdiction over partition
court's jurisdiction partition and sale
sale is
is now regulated
regulated by the
the Partition Act.
Sections
Sections 2 and 3 as follows:
3 provide as follows:
2.
2. All joint tenants,
All joint tenants, tenants
tenants in
in common, and coparceners,
coparceners, all
all doweresses, and parties
parties entitled
entitled to
to
dower,
dower, tenants
tenants by thethe curtesy,
curtesy, mortgagees or or other
other creditors
creditors having liens
liens on,
on, and all
all parties
parties
interested
interested in,
in, to
to or
or out
out of,
of, any land
land in
in Ontario,
Ontario, may be compelled to to make oror suffer
suffer partition
partition or
or
sale
sale of the
the land,
land, or
or any part
part thereof,
thereof, whether the
the estate
estate is
is legal
legal and equitable
equitable or
or equitable
equitable only.
only.
3.—(1)
3. (1) Any person
person interested
interested in
in land
land in
in Ontario,
Ontario, or
or the
the guardian of a a minor entitled
entitled to
to the
the
immediate possession of
immediate possession of an
an estate
estate therein,
therein, may bring
bring an
an action
action or
or make an an application
application for
for the
the
partition of such land
partition land or
or for the sale
for the sale thereof under the
thereof under the directions
directions of the
the court
court if
if such sale is
sale is
considered
considered by the
the court
court to
to be more advantageous to to the parties interested.
the parties interested.
133
133
An agreement toto partition
partition land
land comes within s. 4 of the
within s. the Statute
Statute of
of Frauds,
Frauds, supra,
supra, note
note 120,
120, so
so that
that ordinarily
ordinarily
enforceability
enforceability depends on the the agreement being in in or being evidenced
or being evidenced by writing. In addition,
writing. In addition, s.
s. 9 of the
the
Conveyancing and Law of of Property Act,
Act, supra,
supra, note
note 11,
1 1, provides:
provides:
9.
9. A partition
partition of land,
land, an exchange of land, an assignment
land, an assignment of a
a chattel
chattel interest
interest inland,
in land, and aa surrender
surrender in
in
writing
writing of land
land not
not being
being an interest
interest that might by law have been created
that might created without
without writing,
writing, are
are void at
at law,
law,
unless
unless made by deed.
deed.
134
134
1539,
1539, 31
31 Hen. 8,
8, c.
c. 1
1 (U.K.);
(U.K.); 1540,
1540, 32 Hen.
Hen. 8,
8, c.
c. 32 (U.K.).
(U.K.).
135
B. Laskin, Cases and Notes in
B. Laskin, in Land Law (1958),
(1958), at
at 401.
401.
136
For aa review of the
the legislation,
legislation, see
see Silva
Silva v.
v. Silva
Silva (1990),
(1990), 30 R.F.L.
R.F.L. (3d)
(3d) 117 (Ont.
(Ont. C.A.),
C.A.), at
at 121-23.
121-23.
137
137
An Act
Act to
to Provide for
for Partition ofReal Estates
Partition of Estates 1832,
832, 2 Will.
1 Will. 4,
4, c.
c. 35
35 (U.C.).
(U.C.).
138
138
An Act
Actfor
for the
the more effectual
effectual Administration
Administration of
ofJustice
Justice in the Court
in the Court of
of Chancery in
in Upper Canada, 1850,
1850, 13
13 & 14
14
Vict.,
Vict, c.
c. 50 (U.C.).
(U.C.).
139
See Ontario
Ontario Power Co.
Co. v.
v. Whattler
Whattler (1904),
(1904), 7
7 O.L.R.
O.L.R. 198
198 (Div. Ct.); Re Hutcheson and Hutcheson, [1950]
(Div. Ct.); [1950] 2
2
D.L.R. 751 (Ont. C.A.).
751(Ont.C.A.).
140
140
Supra,
Supra, note
note 23.
23.
99
(2)
(2) Where the land is
the land is held
held in joint tenancy
in joint tenancy or
or tenancy
tenancy in
in common oror coparcenary by reason of
aa devise
devise or intestacy, no proceedings
or an intestacy, proceedings shall be taken
shall be until one year after
taken until after the
the decease of the
the
testator
testator or person dying intestate
or person in whom the
intestate in the land
land was vested.
vested.
natural meaning of section

The natural section 3(1) has been cut
3(1) has cut down by judicial
judicial decision
decision and a a
141
restrictive view taken
restrictive taken of the persons who may bring
the persons bring an application
application forfor the partition."' It
the partition. It
seems toto be
be well
well established that all
established that all applicants
applicants must have "an estateestate in
in possession
possession oror have thethe
right to
immediate right to its possession".142 For
its possession". For example, it has been held
it has held that
that aa mortgagee of the the
interest of one co-owner, who had not
interest not gained
gained an enforceable
enforceable right
right to possession, had no
to possession,
standing
standing toto apply."'
apply. Similarly,
Similarly, a a co-owner entitled
entitled in
in remainder subject
subject toto a prior life
a prior life interest
interest
may not
not apply
apply for partition against
for partition against thethe .co-owner remainderman,144 even though the
co-owner remainderman, partition
the partition
sought
sought would not not affect the position
affect the position of the the tenant
tenant for
for life.I45
life. In
In addition,
addition, the
the Partition
Partition Act
only
only applies
applies asas between concurrent
concurrent owners so so that
that aa tenant
tenant for
for life
life may notnot obtain
obtain partition
partition
against
against persons
persons with
with remainder interests146
interests and,
and, conversely,
conversely, such persons may not not obtain
obtain
147
partition
partition against
against a tenant for
a tenant for life."'
life.
Although itit was considered

considered that
that earlier
earlier partition
partition legislation
legislation mandated an order order for
for
partition
partition where itit was sought
sought by an
an applicant
applicant withwith standing
standing to
to ask
ask for
for it, it
it has
has for
it,for many years
years
been established
established in in Ontario
Ontario that
that the
the court
court hashas aa discretion
discretion whether to to order partition.'"
order partition.
149
Nevertheless,
Nevertheless, anan applicant,
applicant, in
in genera1,149
general, has
has a
a prima facie
facie right
right to
to partition
partition soso that
that "the
"the Court
should
should ... compel a
... a partition
partition if
if no sufficient reason appears
sufficient reason appears why such
such an an order
order should
should not
not be
be
made".15° In
made". In some cases —
cases—and
and they
they may be said to
said to represent the orthodox view—a
represent the orthodox view —
a narrow
narrow
view has
has been taken
taken of what would constitute
constitute sufficient reason to
sufficient reason to refuse
refuse an order
order soso that
that
"where there
there is
is a
a 'prima
'prima facie' right to
facie' right partition or
to partition or sale
sale which the
the applicant
applicant seeks
seeks to
to enforce
enforce
without
without vexation
vexation or or oppression, the applicant
oppression, and the applicant comes to to Court
Court with
with clean
clean hands,
hands, the
the order
order
141
141
Except where the
the distinction
distinction between partition
partition and sale
sale is
is material,
material, subsequent
subsequent references
references to
to partition
partition include
include sale
sale
and division
division of proceeds.
of proceeds.
142
Laskin,
Laskin, supra,
supra, note
note 135,
135, at
at 402.
402.
143
See Re Garnet & McGoran (1980),
(1980), 117
1 17 D.L.R.
D.L.R. (3d)
(3d) 649 (Ont.
(Ont. H.C.); T.D. Bank v.
H.C.); T.D. (1984), 47 O.R.
v. Morison (1984), O.R. (2d)
(2d)
524 (Co.
(Co. Ct.).
Ct).
144
See Morrison
Morrison v.
v. Morrison (1917),
(1917), 39 O.R. 163.
163.
145
14S
See Bunting v.
v. Servos,
Servos, [1931]0.R.
[193 1] O.R. 409.
409. But contrast
contrast Re Chupryk (1980), 10 D.L.R.
(1980), 110 D.L.R. (3d) 108 (Man.
(3d) 108 (Man. C.A.).
I 146
1 C.A.).
See
See Re Morris (1983),
(1983), 138
138 D.L.R. (3d)
(3d) 113
13 (Ont.
1 H.C.). But contrast
(Ont. H.C.). supra, note
contrast Re Chupryk, supra, note 145.
145.
147
147
See
See Murcar v. Bolton
Murcarv. Bolton (1884),
(1884), 5
5 O.R.
OR. 164
164 (Q.B.D.).
(Q.B.D.).
148
See
See Re Hutcheson and Hutcheson, supra,
supra, note 139, and see
note 139, see the review of
the review legislation and
of legislation and cases in Silva
cases in v. Silva,
Silva v. Silva,
supra,
supra, note
note 136,
136, at
at 121.
121.
149
Special
Special considerations
considerations apply
apply to
to co-owning spouses
spouses of a matrimonial home.
a matrimonial
I50
150
Re Hay & Gooderham (1979),
(1979), 24 O.R.
O.R. (2d)
(2d) 701, at 703 (Div.
701, at (Div. Ct.).
Ct).
100
100
is of right".151
sought is right". On this
this view an application
application for
for partition
partition would not
not be refused
refused merely
hardship.' 52
152
the ground of balance
on the balance of convenience or
or even hardship.
This
This orthodox
orthodox position
position requires
requires modification,
modification, at
at least
least in
in the
the context
context of joint ownership
of joint ownership
the matrimonial
of the matrimonial home by spouses.
spouses. The special rights and obligations
special rights obligations of spouses
spouses will
will
therefore
therefore be
be briefly
briefly surveyed; then
then consideration
consideration will
will be given
given to
to the
the question
question whether the
the
orthodox position requires modification
position requires modification even where the
the co-owners areare not
not spouses.
spouses.
Apart
Apart from their possessory rights
their possessory rights as
as co-owners, co-owning spouses spouses have possessory
possessory
153
rights in
rights the matrimonial
in the home derived
derived from their
their status
status as
as spouses.
spouses. At common law,153
law, those
those
rights came from two sources.
rights First, a
sources. First, a wife's
wife's entitlement
entitlement to to support
support from herher husband
included
included the
the right
right to
to shelter.
shelter. Second, each spouse had a a right
right to
to the
the "consortium" of the
the other
other
spouse,
spouse, thus
thus ordinarily
ordinarily entitling
entitling both toto reside
reside in
in the
the matrimonial home irrespective
irrespective of title
title to
to
the
the property.
property. These common law occupational
occupational rights
rights lasted
lasted only
only during
during the
the marriage
marriage and
depended on the
the continuance
continuance of the
the right
right to
to consortium and,
and, in
in the
the case
case of a
a wife,
wife, the
the right
right to
to
be
be maintained. For example, a wife lost her right of occupation if she committed adultery.
maintained. For example, a wife lost her right of occupation if she committed adultery.
The common law was changed by the the Family Law Reform Act,
Act, 1978,154
1978, and the
the changes
were continued,
continued, with some modifications,
modifications, in
in the
the Family Law Act.155
Act. Section
Section 19
19 of this
this Act
provides that
provides that both
both spouses
spouses have anan equal
equal right
right to possession of the
to possession the matrimonial
matrimonial home. The
right of possession
right possession is is personal
personal against
against the
the other
other spouse and ends when the the marriage
marriage
156
terminates156
terminates unless
unless a
a separation
separation agreement oror court
court order provides otherwise.
order provides otherwise.
The court
court has
has power to orders for
to make orders for exclusive
exclusive possession.
possession. As well
well as
as excluding
excluding the
the
other
other spouse
spouse this
this may also,
also, as
as stated
stated above,
above, continue
continue the
the right to possession
right to possession after
after the
the parties
parties
151
151
Szuba v.
v. Szuba,
Szuba, [1950]
[1950] O.W.N. 669,
669, at
at 673.
673. See
See Davis v.
v. Davis,
Davis, [1954]
[1954] O.R.
O.R. 23 (C.A.);
(C.A.); Bisson
Bisson v.
v. Luciani
Luciani (1982),
(1982),
37 O.R.
O.R. (2d)
(2d) 257 (H.C.).
(H.C.).
152
152
However, J.M.
J.M. Glenn,
Glenn, in —
in "Partition—Weighing
"Partition Weighing of Relative —
Hardship Interrelationship of
Relative Hardship—Interrelationship of The Partition
Partition Act and
and
The Married
Married Women's Property
Property Act" (1976),
(1976), 54 Can.
Can. Bar Rev. 149, at
Rev. 149, at 150
150 observed
observed that:
that:
where inconvenience
inconvenience or hardship will
or hardship will result,
result, the
the courts have sometimes been able
courts have able to
to place
place their
their refusal
refusal
[to
[to order partition] within
order partition] within the
the generally
generally accepted parameters of discretion,
accepted parameters discretion, by holding
holding that
that the
the resultant
resultant
hardship
hardship was intended by the
intended by the applicant,
applicant, who was therefore
therefore acting
acting maliciously,
maliciously, vexatiously
vexatiously oror
oppressively.
oppressively.
153
153
See
See Hovius and Youdan, supra,
supra, note
note 66,
66, at
at 575-76.
154
154
S.O.
S.0. 1978,
1978, c.
c. 2.
2.
155
155
Supra,
Supra, note
note 13
13 , Part
,Part II.
II. See,
See, generally,
generally, Hovius and Youdan, supra,
supra, note
note 66,
66, ch.
ch. 19.
19.
156
156
This
This position
position is
is slightly
slightly modified by s.
modified by s. 26(2):
26(2):
26.—
26.—(2)(2) Despite
Despite clauses
clauses 19(2)(a)
19(2)(a) and (b)
(b) (termination
(termination of spouse's right of possession),
spouse's right possession), a
a spouse
spouse who has
has
no interest
interest in
in aa matrimonial home butbut is
is occupying
occupying itit at
at the
the time
time of
of the
the other
other spouse's
spouse's death,
death, whether
whether under
under
an
an order
order for
for exclusive possession or
exclusive possession or otherwise,
otherwise, is
is entitled
entitled to retain possession
to retain possession against
against the
the spouse's
spouse's estate,
estate,
rent
rent free, for sixty
free, for sixty days
days after
after the
the spouse's
spouse's death.
death.
101
101
157 i •
cease to be spouses.157
cease to spouses. In exercising
In exercising the to determine whether one spouse
the power to spouse should have
158
exclusive
exclusive possession,
possession, the
the court
court is
is directed
directed by statute158
statute to
to consider
consider a
a range
range of relevant
relevant factors:
factors:
(a)
(a) the best
the best interests
interests of the
the children
children affected;
affected;
(b)
(b) any existing
existing orders
orders under Part Property) and any existing
Part I (Family Property)
I existing support
support orders;
orders;
(c)
(c) the
the financial position of both spouses;
financial position spouses;
(d)
(d) written agreement between the
any written the parties;
parties;
(e)
(e) the
the availability
availability of other
other suitable
suitable and affordable
affordable accommodation; and
(f)
(f) any violence
violence committed by a
a spouse against
against the
the other
other spouse or
or the
the children.
children.
159
When considering
considering the
the best interests of the
best interests the children
children affected,
affected, the
the court
court is
is to
to consider:159
consider:
(a)
(a) the
the possible
possible disruptive
disruptive effects
effects on the
the child
child of a
a move to
to other
other accommodation; and
(b)
(b) the
the child's
child's views and preferences,
preferences, if
if they can reasonably
reasonably be ascertained.
ascertained.
the enactment of the

Before the the Family Law Reform Act, Act, 1978,
1978, a a spouse's
spouse's right
right of
occupation
occupation of a regulated under section
a matrimonial home could be regulated section 12
12 of the
the Married
Women's Property Act.I6°
Act. It
It was established
established that
that where the
the matrimonial home was jointly
jointly
owned by the
the spouses
spouses anan order
order for partition or
for partition or sale
sale under the
the Partition
Partition Act should not
not be
made without
without prior
prior consideration
consideration of
of spousal
spousal rights
rights of
of occupation.161
occupation. Moreover the
the court
court had aa
discretion
discretion under
under the
the Married Women's Property
Property Act,
Act, at
at least
least where the
the spouse
spouse in
in occupation
occupation
had been deserted
deserted by the
the other
other spouse.162
spouse. This
This discretionary
discretionary power was
to
to be exercised
exercised according
according to
to all
all the
the circumstances
circumstances of the
the case,
case, including
including (but
(but not limited to)
not limited to) the
the
financial position
financial position of the
the spouses,
spouses, whether there are children
there are children and who has custody of them,
has custody them, the
the
157
157
An order
order for
for exclusive possession is
exclusive possession is registrable
registrable against
against land,
land, both the Registry
under the
both under Act, supra,
Registry Act, supra, note
note 99 and the
and the
Land Titles
Titles Act,
Act, supra,
supra, note
note 100:
100: Family Law Act,
Act, supra,
supra, note
note 13,
13, s.
s. 27.
27.
158
158
Family Law Act,
Act, ibid.,
ibid., s.
s. 24(3).
24(3).
159
159
Ibid.,
Ibid., s.
s. 24(4).
24(4).
160
160
Supra, note
note 14.
14.
161
161
See
See Maskewycz v.
v. Maskewycz
Maske wycz (1973),
(1973), 13
13 R.F.L.
R.F.L. 210 (Ont.
(Ont. C.A.).
C.A.).
162
162
See
See Glenn,
Glenn, supra,
supra, note
note 152,
152, at
at 149; A. Bissett-
149; A. Holland, Matrimonial
Johnson and W.H. Holland,
Bissett-Johnson Property Law in
Matrimonial Property in Canada
at 1-44. But contrast

at 1-44. But contrast the
the unorthodox view expressed in in Re Yale (1974),
Yale and McMaster (1974), 18
18 R.F.L.
R.F.L. 27
27 (Ont.
(Ont. H.C.)
H.C.)
that
that a
a deserted
deserted spouse
spouse had a a right
right to matrimonial home and that
the matrimonial
to occupy the that the
the Married Women's Property
Property Act,
Act,
supra,
supra, note
note 14,
14, did
did not
not confer
confer discretion.
discretion.
102
102
existence or otherwise
existence or other proceedings
otherwise of other proceedings between thethe spouses,
spouses, and the
the competing needs of [one
[one
spouse]
spouse] to realize upon [his
to realize [his or]
or] her
her interest
interest and of the
the [other
[other spouse]
spouse] to
to have a place
place to
to live.163
live.
When the
the Married Women's Property Act was repealed by the the Family Law Reform Act,
Act,
1978, 12 of the
1978, section 12 the former Act was replaced by section 7 of the latter
latter Act. The current,
current,
equivalent provision is
is section 10
10 of the Family Law Act.164
Act. It
It provides as
as follows:
10.—(1)
10. (1) A person may apply to to the
the court
court for
for the
the determination of aa question
question between that
that
person
person and hishis or
or her spouse or
or former spouse as as to
to the
the ownership oror right
right to
to possession
possession of
of
particular
particular property,
property, other
other than
than a
a question
question arising
arising out
out of an equalization
equalization of net
net family
family properties
properties
section 5,
under section 5, and the
the court
court may,
(a)
(a) declare the ownership or
declare the or right
right to
to possession;
possession;
(b)
(b) if
if the
the property
property has
has been disposed of,
of, order
order payment in
in compensation for
for the
the interest
interest of
either
either party;
party;
(c)
(c) order
order that
that the property be partitioned
the property partitioned or
or sold
sold for
for the
the purpose of realizing
realizing the
the interests
interests in
in
it;
it; and
(d)
(d) order that
that either
either or security, including
or both spouses give security, including a
a charge
charge on property,
property, for
for the
the
performance of anan obligation'imposed
obligationlmposed by the
the order,
order,
and may make ancillary

ancillary orders
orders or
or give
give ancillary
ancillary directions.
directions.
Cases decided after

after the enactment of the Family Law Act have established that that the
Partition
Partition Act,
Act, as
as well
well as
as the
the special
special provisions
provisions in
in the
the Family Law Act,
Act, applies to
to co-owning
165
spouses. However, the the obtaining of an order forfor exclusive possession by one joint
joint tenant
tenant
66
will
will prevent partition
partition and sale
sale until
until the is discharged.'
the order expires or is discharged.
It
It follows
follows that
that a
a court
court should not
not order partition and sale
order partition sale of a jointly held
a jointly held matrimonial home where
one spouse seeks
seeks an
an exclusive
possession order
order until it is
until it is decided
decided that
that the
the latter
latter should not be
not be
granted.167
granted.
Nevertheless,
Nevertheless, a co-owning spouse's claim for for exclusive possession does not necessarily
preclude partition
partition or sale.
sale. It
It is that must be considered.168
is a relevant factor that considered. If,
If, therefore,
therefore, a co-
co-
163
161
Maskewycz v.
v. Maskewycz, supra,
supra, note
note 161,
161, at
at 238.
238.
164
164
Supra,
Sworn, note
note 13.
13.
165
See
See Silva
Silva v.
v. Silva,
Silva, supra,
supra, note
note 136.
136.
166
166
See
See novius
Hovius and
and Youdan, supra, note 66,
supra, note 66, at
at 602.
602.
167
Ibid.,
Ibid., at
at 602-03.
168
168
See
See Silva
Silva v.
v. Silva,
Silva, supra, note 136.
supra, note 136.
103
103
spouse's claim
owning spouse's claim for exclusive possession
for exclusive possession would clearly
clearly fail,
fail, an
an order
order for
for partition
partition or
or
sale
sale may be made.169
made.
It is now convenient
It is convenient to return to
to return to the
the situation
situation where co-owners
co-owners are
are not
not spouses and toto
consider
consider whether the the orthodox position
position referred
referred to
to earlier
earlier requires
requires any modification
modification in
in this
this
context. When co-owners are
context. are not
not spouses—whether —
spouses whether because they once were spouses but but
ceased
ceased to to be
be so
so at
at marriage termination
termination or or because they never
never were married—the
married the special
special —
rights of possession
rights possession of the
the matrimonial
matrimonial home conferred
conferred on spouses
spouses naturally
naturally do
do not
not
ordinarily'
ordinarily apply.
apply. The issue
issue is
is whether, nevertheless, the
whether, nevertheless, the courts
courts have a a more flexible
flexible
discretion to refuse an application for partition or sale than that suggested by the orthodox
discretion to refuse an application for partition or sale than that suggested the orthodox
view.
view.
171
In
In Re Yale
Yale and McMaster171
McMaster the the view was taken that that the
the court
court had aa discretion
discretion under the the
Partition
Partition Act that
that went beyond consideration
consideration of vexatious
vexatious or or oppressive
oppressive conduct.
conduct. Rather,
Rather, anan
applicant's
applicant's prima facie
facie entitlement
entitlement to
to partition
partition or
or sale
sale could be refused
refused on grounds of relative
relative
hardship
hardship toto the
the co-owners.
co-owners. ThisThis discretion,
discretion, it
it was held,
held, could
could be exercised
exercised where the the co-
co-
owners were not not spouses.
spouses. Re Yale
Yale and MacMaster was subsequently approved by the the Ontario
Ontario
172
Divisional
Divisional Court in in MacDonald v. v. MacDonald.172
MacDonald. However, thethe reasoning
reasoning in in the
the case
case isis open
173 4
to
to criticism173 and itit is
is unclear
unclear whether itit correctly
correctly states
states the
the current
current law.
law. 4 Also,
1
criticism Also, it
it should
should bebe
added that,
that, although the the co-owners inin Re Yale
Yale and MacMaster were not not spouses,
spouses, that
that was
because they
they had been divorced prior to
divorced prior to the
the application
application for partition and sale.
for partition sale. It
It seems that
that
169
169
Ibid.
Ibid. The cases
cases are
are inconsistent
inconsistent inin deciding
deciding whether partition
partition or
or sale
sale should
should bebe made pursuant to to s.
s. 3
3 of the
the
Partition
Partition Act,
Act, supra,
supra, note
note 23,
23, or s. 10 of the Family
or s. 10 of the Family Law Act, supra, note 13.
Act, supra, note 13. Compare Grail v.
Grail v. Grail (1990),
Grail (1990), 30
R.F.L. (3d)
R.F.L. (3d) 454 with Genttner v. Genttner (1989),
with Genttner v. Genttner (1989), 23 R.F.L.
R.F.L. (3d)
(3d) 25 (Ont.
(Ont. Dist.
Dist. Ct.).
Ct). Other cases
cases also require court
also require court
authorization
authorization for
for sale,
sale, pursuant
pursuant toto s.
s. 23 of the
the Family Law Act:
Act: Alessandro Building
Building Corp.
Corp. v.v. Rocca (1987),
(1987),
9 R.F.L.
R.F.L. (3d)
(3d) 422 (Ont.
(Ont. H.C.);
H.C.); Re Ali
Ali (1987),
(1987), 5
5 R.F.L.
R.F.L. (3d)
(3d) 228 (Ont.
(Ont. H.C.).
H.C.). Compare Sullivan
Sullivan v.
v. Sullivan
Sullivan (1986),
(1986),
2 R.F.L.
R.F.L. (3d)
(3d) 251
251 (Ont.
(Ont. Dist.
Dist. Ct.).
Ct.).
170
170
A separation
separation agreement or
or a court
court order
order may provide
provide for
for rights
rights of occupation
occupation to
to continue
continue after termination of the
after termination the
marriage.
marriage.
171
171
Supra,
Supra, note
note 162.
162.
172
(1976),
(1976), 30 R.F.L.
R.F.L. 187.
187. See
See also
also Makins v.
v. Makins (1978),
(1978), 2 R.F.L.
R.F.L. (2d)
(2d) 104
104 (Ont.
(Ont. U.F.C.).
U.F.C.).
173
173
See Glenn,
Glenn, supra,
supra, note
note 152.
52. 1
174
174
See the
the more recent
recent case
case of Silva
Silva v.
v. Silva,
Silva, supra,
supra, note
note 136, J.A. stated
136, where Finlayson J.A. (at 122-23):
stated (at 122-23):
Very recent
recent cases
cases have fleshed
fleshed out
out the
the application discretion under
judicial discretion
application of judicial the Partition
under the Partition Act.
Act. Most
notable
notable of these
these is
is Bailer
Batler v.
v. Batler
Batler (1988),
(1988), 67 O.R. (2d) (2d) 355 ... (H.C.).
(H.C.). In
... In Batler,
Batler, aa husband sought
sought anan order
order
for
for partition
partition and salesale of jointly
jointly owned recreational property. Although Granger J.
recreational property. found that
J. found he had no
that he no
jurisdiction to
jurisdiction to order
order the
the sale
sale of the
the property
property under the F.L.A., he
the F.L.A., found that
he found that the sale could
the sale could be be ordered
ordered
pursuant to
pursuant to the
the Partition
Partition Act.
Act. Granger J. J. noted ... that
...that 'an application by a
'an application joint tenant
a joint tenant for sale should
for sale should only
only be
be
refused if
refused if the
the application
application isis vexatious
vexatious or malicious.' He then
or malicious.' stated that,
then stated if the
that, if the wife
wife were to to resist the order
resist the order
for
for sale
sale successfully,
successfully, sheshe should have obtained
obtained an order for exclusive
order for possession of the
interim possession
exclusive interim the property
property oror
have demonstrated that that her
her claim
claim at trial would be
at trial prejudiced by an
be prejudiced an immediate sale. It appears
sale. It appears that
that
Granger J. J. held
held that
that the judicial discretion
the boundaries of judicial discretion to
to refuse order under
an order
refuse an s. 2
under s. 2 of the Partition
of the Partition Act
Act
extended
extended to to cases
cases where immediate sale sale would prejudice the claims
prejudice the claims ofof the respondent under
the respondent under the
the F.L.A.
F.L.A. at
at
trial
trial ....
....
104
104
consideration of
consideration relative hardship
of relative hardship has not
not occurred
occurred in partition application
in partition application relating
relating to
to co-
co-
owners who have never
never been married or
or to
to a
a partition
partition application
application not
not relating
relating to property that
to property that
or had been a
was or a matrimonial
matrimonial home.
It already been mentioned that

has already
It has that at
at one time sale
sale inin lieu
lieu of partition could not
of partition not be
be
ordered unless
ordered the co-owners all
unless the all agreed.
agreed. The remedy of sale sale and division
division of the the proceeds, as
as
an alternative to partition,
alternative to partition, was progressively
progressively introduced
introduced in in nineteenth
nineteenth century
century legislation.
legislation.
Section 3(1)
Section Partition Act now provides
the Partition
3(1) of the provides that
that sale
sale is
is available
available ifif it
it is
is "considered by the
the
court
court to
to be
be more advantageous to to the
the parties".
parties". In
In theory,
theory, therefore,
therefore, partition
partition remains
remains the
the
175
primary remedy.175 In
primary remedy. In practice,
practice, however, co-ownership very often relates to
often relates to residential
residential
property that cannot readily
property that readily be physically
physically divided
divided so so that
that sale
sale isis ordered
ordered much more
frequently
frequently than partition.
than partition.
2.
2. REFORM
(a)
(a) ASSIMILATION
Assimilation OF Law RELATING
of LAW to REAL
Relating TO Real AND
and PERSONAL
Personal PROPERTY
Property
This
This report
report is
is concerned with
with the
the basic principles of land
basic principles land law and,
and, accordingly,
accordingly, we have
generally
generally not
not considered
considered principles
principles affecting
affecting personal
personal property.
property. However, aa pervasive
pervasive theme
of our
our recommendations for reform in
for reform in several
several reports,
reports, including
including this
this one,
one, is
is the
the increased
increased
assimilation
assimilation of the
the law relating
relating to
to real
real and personal property.
personal property.
Persons
Persons may own personal
personal property,
property, both
both chattels
chattels and intangible
intangible property,
property, as
as co-owners
and even under the present law generally
the present generally the
the same principles
principles apply
apply to
to co-owners of personal
personal
property
property as
as to
to co-tenants
co-tenants of real
real property.
property. In
In the
the recommendation for for reform that
that we shall
shall be
making, there
there is
is no justification
justification for
for the
the continuation
continuation oror creation
creation of any distinction
distinction between
real
real and personal
personal property.
property. Accordingly,
Accordingly, we recommend that that the
the proposed reforms should
apply,
apply, mutatis
mutatis mutandis,
mutandis, toto personal
personal property
property asas well
as real property.
(b)
(b) TERMINOLOGY
Terminology
Generally,
Generally, in
in this
this report
report we have dealt
dealt with
with substantive
substantive changes to to the law and we have
the law
not
not recommended a a new system of terminology.
terminology. However, for for two main reasons,
reasons, we do
recommend the the use
use of new terminology in in the
the context
context of co-ownership. First, the term
First, the term
"tenancy" isis misleading
misleading to to non-lawyers
non-lawyers inin the
the context
context of co-ownership
co-ownership since
since itit invites
invites
confusion with the
confusion with the relationship
relationship ofof landlord
landlord and tenant.
tenant. Second,
Second, the
the essential
essential difference
difference
between joint
between joint tenancy
tenancy and tenancy
tenancy in
in common is is the right of
the right of survivorship
survivorship associated
associated with
with
joint tenancy.
joint tenancy. We consider
consider it preferable that
it preferable that the
the difference
difference should
should be indicated
indicated by thethe
terminology.
terminology.

that there
there should
should be
be two categories
categories of co-ownership which
will
will be
be described
described as
as co-ownership
co-ownership with right survivorship and co-ownership without
right of survivorship right
without right
of survivorship.
survivorship.
175
175
See Cook v.
See v. Johnston,
Johnston, [1970] (H.C.); Dibattista
[1970] 2 O.R. 11 (H.C.); v. Menecola
Dibattista v. Menecola (1990),
(1990), 74 D.L.R.
D.L.R. (4th)
(4th) 569 (Ont.
(Ont. H.C.).
H.C.).
105
05
Despite this recommendation, in

Despite this the discussion
in the discussion that
that follows
follows we shall
shall generally
generally maintain
use of existing
the use
the existing terminology,
terminology, so that the
so that the effect
effect of our
our recommendations cancan clearly
clearly be
be
understood in
understood the context
in the the present
context of the present law,
law.
76
and TYPES
Types OF
'
(C)
(c) Nature AND
NATURE Co-ownership
of CO-OWNERSHIP176
(i)
(i) The Four Unities
Unities
The satisfaction the four

satisfaction of the four unities is essential
unities is essential to
to the
the creation
creation of a joint tenancy in
a joint in the
the
present law.
present law. Of these,
these, the
the unity possession is
unity of possession is also
also essential
essential for
for a
a tenancy inin common and
expresses
expresses the
the functional requirement of co-ownership that
functional requirement that co-owners concurrently
concurrently share
share the
the
possession
possession of land.
land. The other
other three
three unities
unities are
are not
not necessary
necessary for
for a
a tenancy inin common. These
three
three unities are derived
unities are derived from thethe dogma traditionally
traditionally expressed by saying that joint tenants
that joint tenants
are
are seized
seized "per
"per mie etet per tout".177
tout". However, itit is
is suggested
suggested that
that they
they do not
not carry
carry out
out any
useful
useful policy in the
policy in the modern law.
law.
So far
far as
as the
the creation
creation of a joint tenancy
a joint tenancy isis concerned,
concerned, the
the unities
unities of time
time and interest
interest are
are
most important.178
important. The unity
unity of time
time has
has not
not in
in fact
fact been strictly
strictly required
required since
since a joint tenancy
a joint tenancy
created by will
may be created will or under aa use
or under use in
in which thethe interests
interests of joint
joint tenants
tenants do not vest at
not vest at the
the
179
same time.179
time. However, there is
there is no functional reason
functional reason why the requirement should be excused
the requirement should excused
in gifts
in gifts by will
will or
or under uses
uses but
but not
not in
in an inter
inter vivos
vivos conveyance not not employing a a use.
use.
Whatever thethe manner of creation,
creation, a joint tenancy should be
a joint be capable of being created
created under
which the
the interests
interests of joint
joint tenants
tenants vest
vest at
at different
different times.
times.
176
The radical
radical reform of total
total abolition
abolition of beneficial
beneficial joint
joint tenancy
tenancy (that
(that is,
is, leaving joint tenancy
leaving joint tenancy as
as available
available only
only for
for
trustees)
trustees) has
has been suggested
suggested by some commentators (Bandali, (Bandali, supra,
supra, note 29; M.P. Thompson, "Beneficial
note 29; "Beneficial Joint
Joint
Tenancies:
Tenancies: A Case for for Abolition?",
Abolition?", [1987]
[1987] Cony.
Conv. 29;29; Maxton, supra,
supra, note
note 29)
29) and has
has been enacted
enacted inin aa few
American jurisdictions
jurisdictions (see
(see J.J. Dukeminier and J.E.
J.E. Krier,
Krier, Property (2d
(2d ed.,
ed., 1988),
1988), at 282). However, we think
at 282). think that
that
joint tenancy,
joint tenancy, along
along with its
its right
right of survivorship,
survivorship, provides
provides a convenient form of arrangement which should
a convenient should not
not be
be
abolished. As one commentator put
abolished. it (A.M. Prichard,
put it Prichard, "Beneficial
"Beneficial Joint
Joint Tenancies: Riposte", [1987]
Tenancies: A Riposte", [1987] Cony.
Conv. 273,
273,
at
at 274):
274):
Against
Against all
all this
this is
is the
the clear
clear fact
fact that
that many people are attracted to
are genuinely attracted the survival
to the survival aspects
aspects of joint
joint
tenancy. Not just
tenancy. just married
married couples
couples inin the
the first
first romantic
romantic flush,
flush, wishing
wishing to demonstrate the
to demonstrate full commitment of
the full
their
their mutual vows, but but also
also unmarried siblings
siblings anxious
anxious toto secure
secure the transmission of
the smooth transmission of ownership as as
death
death overtakes
overtakes each
each of them in in their
their family
family home; or or the or mother in
father or
the father in business
business with
with a child, wishing
a child, wishing
to
to effect just such
effect just such a a smooth transmission
transmission whether deaths
deaths do or or do not occur in
do not in expected order. Should such
expected order. such
people told by the
people be told the law that
that their
their simple
simple wish
wish should not be be attainable
attainable in
in their
their purchase
purchase deed but
but should
should
require the
require the immediate
immediate execution of a expensive will
a perhaps complex and expensive as well
will as ...? With money and other
well ...? other
property they
property they can
can have the
the very useful
useful apparatus
apparatus of joint
joint accounts
accounts and jointjoint ownership —
ownership—how how useful,
useful, anyone
advising
advising a a recent
recent widow or or widower can readily
readily testify.
testify. Or is [it being
is [it suggested] that
being suggested] that apparatus
that that apparatus tootoo
should
should be
be done away with so so as
as to
to meet the
the possible
possible desires soured co-owners?
desires of soured
177
177
See
See Dukeminier and
and Krier,
Krier, supra,
supra, note
note 176,
176, at
at 280.
280.
I 178
The unity
unity of title
title is
is important
important with
with respect to severance.
respect to See infra,
severance. See this ch.,
infra, this sec. 2(1)(i).
ch., sec. 2(0(0-
179
179
Supra, this
this ch.,
ch., sec.
sec. 1(a).
1(a).
106
106
Because of thethe requirement

requirement of
of unity
unity of interest, joint tenants
interest, joint tenants must havehave equal
equal interests.
interests.
If, therefore,
If, acquire property
therefore, A and B acquire property and their
their intention
intention is
is that
that A isis to
to have a a seventy-five
seventy-five
share and B a
percent share
percent twenty-five percent
a twenty-five percent share,
share, they
they must taketake asas tenants
tenants inin common.
However, in in some circumstances

circumstances persons
persons may wish to to have shares
shares of unequal amounts
(perhaps because one
(perhaps because one contributed
contributed more to to the
the purchase price
price than
than the
the other)
other) so
so that
that in
in the
the
event of severance,
event severance, partition, or sale of the property
partition, or sale of the property during
during their joint lifetimes
their joint lifetimes their
their unequal
interests would be
interests be recognized, but that
recognized, but that in
in the
the event
event of the
the death of one prior
prior to
to any severance,
severance,
partition, or
partition, sale, the
or sale, the survivor
survivor would be sole
sole owner.
The Law Reform Commission of BritishBritish Columbia in

in its
its Report on Co-ownership ofof
ISO
Land,18° quoting
Land, quoting its
its own Working.
Working Paper,
Paper, gave one example in
in which parties
parties might wish to
to
have the benefit of such an arrangement:
the benefit arrangement:
[A]
[A] husband and wife may purchase
purchase aa matrimonial
matrimonial home with the the wife putting
putting up 80% of thethe
money. They findfind the
the notion
notion of a joint tenancy
a joint tenancy attractive
attractive for
for its
its right
right of survivorship,
survivorship, but
but fear
fear that
that
if
if the
the husband's business activities
activities should lead
lead to
to his bankruptcy, the
his bankruptcy, the trustee
trustee would be
be entitled
entitled to
to
half
half the property. A form of joint
the property. joint tenancy which recognized
recognized unequal interests
interests would seem to to
satisfy
satisfy their
their needs.
needs.
Another example would be unmarried cohabitees cohabitees who purchase a a home, with the the
woman putting
putting up eighty
eighty percent
percent of the
the money. The parties
parties find
find the
the notion
notion of a joint tenancy
a joint tenancy
attractive
attractive for
for its
its right
survivorship. Specifically,
Specifically, the
the woman is is happy that
that the
the man should
should
become thethe sole
sole owner of the the home in the event
in the event of herher death
death while
while the
the relationship
relationship isis
harmonious and priorprior to

to any severance,
severance, partition,
partition, or
or sale.
sale. However, the parties recognize
the parties recognize that
that
the relationship may break
the relationship break down, and inin that
that event
event the
the woman would wish to to have an eighty
eighty
percent interest
percent interest in
in the
the home recognized.
recognized.
The Law Reform Commission of British British Columbia reviewed the the ways parties
parties might be
able
able under the present law to
the present to structure
structure co-ownership to provide for
to provide for a right of survivorship
a right survivorship
even where co-owners have unequal interests interests inin land.
land. There areare three
three main possibilities.
possibilities. First,
First,
it is
it probably possible
is probably possible for
for the
the parties
parties to to hold
hold interests
interests asas tenants
tenants in
in common (and (and these
these
interests
interests could
could be held
held under
under a a trust)
trust) subject
subject to to aa right survivorship. The main difficulties
right of survivorship. difficulties
with
with such
such an
an arrangement
arrangement are are that
that its
its effects
effects are
are uncertain,
uncertain, itit would be
be difficult
difficult to
to make thethe
right
right of
of survivorship
survivorship removable (as (as it is, by severance,
it is, severance, in in a joint tenancy),
a joint tenancy), and,
and, more
generally,
generally, it
it would require
require sophisticated
sophisticated drafting.
drafting. Second,
Second, thethe "parties
"parties may simply
simply enter
enter into
into
aa contract
contract which provides
provides that
that on severance
severance of the joint tenancy
the joint tenancy they
they will
will be
be entitled
entitled to
to
defined
defined unequal interests".1"
interests". This may be effective
This effective in in defining rights of the
defining rights parties between
the parties
themselves
themselves butbut will not be
will not be apt
apt in relation to third parties. Third,
in relation to third parties. Third,
[i]t
[i]t is
is also
also possible
possible for
for co-owners to
to hold
hold land
land as in common in
tenants in
as tenants in unequal
unequal shares.
shares. Each may
then
then make a a will
will leaving
leaving his
his or
or her
her interest to the
interest to others. This
the others. This method is
is also to objection,
also open to objection,
180
180
Supra,
Supra, note
note 50,
50, at
at 26-27.
181
181
Ibid.,
Ibid., at
at 32.
32.
107
107
since a
since will may be revoked by operation of law,
a will law, or
or its
its provisions varied in
provisions varied in circumstances which
182
not affect
would not affect a joint
a joint tenancy.'
tenancy.
The requirement forfor unity

unity of interest
interest for
for a joint tenancy is
a joint is derived
derived only
only from the the
traditional conceptual
traditional conceptual attributes joint tenancy.
attributes of joint tenancy. There is
is no functional
functional reason
reason for
for it. As we it.
have shown, there

have there are
are circumstances in in which parties
parties may reasonably
reasonably wish to
to have a joint
a joint
tenancy in
tenancy their interests
in which their interests are
are unequal,
unequal, but
but the present law does not
the present not provide a a
convenient
convenient means of achieving
of achieving that
that object.
object.
The unity
unity of title
title tends
tends to
to be more important
important in
in the
the context
context of the
the severance
severance of joint
joint
tenancy (and
tenancy (and we shall
shall refer
refer to
to it
it in
in the
the context
context of discussion
discussion of severance by destruction
destruction of
of
the
the four
four unities).
unities). However, the point may conveniently be made here
the point here that,
that, like
like the unities of
the unities of
time
time and interest,
interest, there
there isis no functional
functional reason
reason why unity
unity of title
title should be required
required for
for the
the
creation of a joint
creation of a joint tenancy.
tenancy.
Accordingly,
Accordingly, we recommend that that the unities of interest,
the unities interest, time,
time, and title
title should
should bebe
abrogated
abrogated asas requirements
requirements for
for a joint tenancy.
a joint tenancy. Instead,
Instead, the
the fundamental determining
determining factor
factor
should
should (subject
(subject to
to the
the relevant presumptions) be solely
relevant presumptions) solely one of intention:
intention: whether the parties
the parties
intended the
intended right of survivorship.
the right survivorship.
(ii)
(ii) Tenancy by the
the Entireties
Entireties and the
the Rule in
in Re Jupp
It
It is
is unlikely
unlikely that
that an Ontario
Ontario court
court would today
today hold that
that tenancies
tenancies by the the entireties
entireties or
or
183
the
the rule
rule in
in Re Jupp183
Jupp remain part
part of Ontario
Ontario law.
law. Nevertheless,
Nevertheless, tenancy
tenancy by the the entireties
entireties was
recognized in
recognized in Campbell v. v. Sovereign Securities
Securities & Holding Co. Co. ; 184 the
the rule
; rule in
in Re Jupp has has
never been expressly
expressly abrogated
abrogated in in Ontario,
Ontario, whether by legislation
legislation or judicial decision;
or judicial decision; and
185
section
section 64(3)
64(3) of the
the Family Law Act185
Act appears to limit the effect of section 64(1)
appears to limit the effect of section 64(1) in
in aa way
that can be used to
that to support
support an argument for for the
the continued
continued existence
existence of tenancies
tenancies by the the
entireties
entireties and thethe rule
rule inin Re Jupp.
Jupp. We therefore
therefore recommend that tenancies by the
that tenancies the entireties
entireties
86
86
by legislation.'
1
and the rule in

the rule in Re Jupp should
should both
both be explicitly
explicitly abolished
abolished by legislation.
182
182
Ibid.
Ibid.
183
183
Supra,
Supra, note
note 19.
19.
184
Supra,
Supra, note
note 11.
1 1
185
185
Supra,
Supra, note
note 13.
13.
186
186
See,
See, for
for example,
example, the
the draft
draft provision proposed by the
provision proposed British Columbia Law Reform Commission, supra,
the British supra, note
note 50,
50,
at
at 60:
60:
A husband and wife shall be treated

shall be treated as
as 2 persons for
2 persons for the purposes of acquisition
the purposes acquisition of land
land under a
a
disposition
disposition whenever made and, restricting the
and, without restricting generality of
the generality of the foregoing, ownership of land
the foregoing, land
by tenancy in
in entireties
entireties is
is abolished.
abolished.
108
108
(d)
(d) CREATION
Creation OF
of CO-OWNERSHIP
Co-ownership
We have pointed
pointed out
out in
in the
the summary of the present law the
the present the circumstances
circumstances in
in which the
the
statutory created by section
statutory presumptions created section 13
13 of the
Act
188
and section 14 of the Estates
section 14 of the Estates Administration Act188
Act have no application.
application. We have therefore
therefore
considered whether the
considered the statutory presumption in
statutory presumption in favour
favour ofof tenancy
tenancy inin common should be
extended. We recommend that

extended. that it
it should be extended in in the
the following
following manner:
(1)
(1) Under the
the present
present law,
law, section
section 13
13 of the
Property Act
does not
not apply to to property
property other than land
other than land and section
section 1414 of the
the Estates
Estates
Administration Act does not apply to personal property. In
Administration Act does not apply to personal property. In accordance
accordance with our our
general
general policy
policy of assimilating real and personal
assimilating real personal property,
property, we recommend that that both
both
these
these provisions
provisions should apply to to all
all forms of property.
property. However, in in our view, joint
our view, joint
tenancy
tenancy is
is typically
typically the
the desired
desired form of co-ownership for for spouses.
spouses. Therefore
Therefore we
recommend thatthat there
there should be a presumption of joint
a presumption joint tenancy in in the
the case
case of
189
property co-owned by spouses.I89
property spouses. We further
further recommend that that "spouse"
"spouse" forfor this
this
purpose should be defined

defined asas recommended in in our Report on the the Rights
Rights and
Responsibilities
Responsibilities of
of Cohabitants
Cohabitants under the
the Family Law Act (1993).
(1993).
(2)
(2) One indirect
indirect effect
effect of the
the recommendation in in paragraph (1) (1) above must be be
considered.
considered. Under the the present
present law,
law, the presumption is
the presumption that common law title
is that title
affecting
affecting partnership property is
partnership property is taken
taken as joint tenants.
as joint tenants. This
This seems toto be convenient
since
since it
it enables
enables surviving
surviving partners
partners toto make title,
title, without
without the
the need for joining the
for joining the
personal representatives of deceased partners.
personal representatives partners. Therefore,
Therefore, we recommend that that ifif
section
section 1313 of the
the Conveyancing and Law of of Property Act is
is extended to
to property
property
other
other than —
land thus including
than land—thus including partnership property—an
partnership property — an explicit
explicit exception
exception should
be made for
be partners so
for partners so that
that they
they are
are presumed to to take
take common law (as (as opposed to to
equitable)
equitable) title
title as joint tenants.
as joint tenants.
(3) We have mentioned that

(3) that it
it was held
held in
in Campbell v.v. Sovereign Securities
Securities & Holding
Co.
Co. that
that section
section 13 the Conveyancing and Law of
13 of the of Property
Property Act does
does not
not apply
apply in
in
the
the determination
determination of the
the effect
effect of a a contract to transfer
contract to transfer property
property to
to two or
or more
persons.
persons. However, there
there is reason why a
is no reason a distinction
distinction should
should be
be drawn in in this
this
context
context between a a contract
contract toto transfer property and an instrument
transfer property instrument actually
actually effecting
effecting
187
Supra,
Supra, note
note 11.
11
188
Supra, note
note 24.
24.
189
189
Compare Law Reform Commission of WesternWestern Australia,
Australia, Report on Joint
Joint Tenancy and Tenancy in
in Common
(Project No. 78,
(Project 78, November 1994),
1994), at
at 23,
23, where a
a similar recommendation was made.
similar recommendation
109
109
1 90
aa transfer.1"
transfer. Accordingly, we recommend that that section
section 13
13 should be
be extended to
to
1
apply
apply to
to a
a contract
contract to
to transfer
transfer property
property to
to two or
or more persons.191
l
persons.
(4) We have
(4) have mentioned that that under current
current law persons
persons may become co-ownersco-owners by
virtue
virtue of legal doctrines such as
legal doctrines proprietary estoppel,
constructive trust,
trust, and
resulting
resulting trust.
trust. We consider
consider itit inappropriate
inappropriate toto recommend a a statutory
statutory rule
rule to
to deal
deal
with
with these
these situations.
situations. First,
First, they
they cover a a range of situations
situations inin which different
different
considerations
considerations are relevant so
are relevant so that
that any statutory
statutory formulation
formulation would have to be
to be
complex. Second, it it seems that
that in
in these
these situations
situations the
the equitable
equitable preference
preference forfor
tenancy in
tenancy in common will ordinarily prevail under the present law. Third, the
will ordinarily prevail under the present law. Third, the present
present
law does
does leave
leave the
the court
court with some flexibility,
flexibility, as
as is
is appropriate
appropriate inin the
the situations
situations
dealt
dealt with by these
these doctrines.
doctrines.
(5)
(5) Finally,
Finally, on thethe basis
basis of our recommendation relating
relating to
to terminology, we
recommend thatthat the presumption should
the presumption should not
not be expressed
expressed as
as a presumption in
a presumption in
favour
favour of tenancy inin common. Rather, it should be aa presumption
Rather, it presumption that
that there
there is
is no
right of
survivorship.
(e)
(e) THE
The USE
Use OF
of PROPERTY
Property BY
by CO-OWNERS
Co-owners
192
We agree
agree with the
the view of the
the Alberta
Alberta Institute
Institute of Law Research and Reform192
Reform that
that the
the
principles of the
principles the present
present law do achieve
achieve a a reasonable
reasonable balance
balance between the the interests
interests of co-
co-
owners inin occupation
occupation of land
land and those
those out
out of occupation
occupation and between
between thethe interests
interests of aa co-
co-
owner who hashas paid
paid for
for outgoings related to
outgoings related to the property and one who has
the property has not.
not. We also
also agree
agree
with
with the
the Alberta Institute
Institute that the law should be clarified
that the clarified by aa legislative
legislative restatement
restatement of the
the
relevant principles.193
relevant principles. However, we also also consider
consider that
that in
in certain respects the
certain respects the present
present law is is
unsatisfactory
unsatisfactory and that
that it
it should be changed by legislation.
legislation.
(1)
(1) The court jurisdiction to
court should have jurisdiction to order
order payment of occupation rent in
occupation rent in
circumstances
circumstances beyond the the exceptional
exceptional circumstances
circumstances provided for in the
for in the present
present law. In
law. In
particular, it
particular, it is
is undesirable
undesirable that entitlement to
that entitlement to occupation rent may depend on the
occupation rent the
establishment "ouster". Even if
establishment of "ouster". if this actual eviction
this concept extends beyond actual eviction or violent
or even violent
or
or threatening
threatening behaviour,
behaviour, itit appears
appears that
that under the present law it
the present requires evaluation
it requires evaluation of the
the
190
190
It
It should be noted
noted that
that a
a specifically
specifically enforceable
enforceable contract for the
contract for the sale
sale of property is treated
property is as giving
treated as giving an
an equitable
equitable
interest
interest in
in the
the property
property to
to the purchaser prior
the purchaser prior to
to conveyance of the
the legal
legal title.
title.
191
191
Compare the
the position
position in British Columbia where the
in British the Property Law Act,
Act, R.S.B.C.
R.S.B.C. 1979, c. 340,
1979, c. 1(1) provides
s. 11(1)
340, s. provides as
1 as
follows:
follows:
11.—
11.—(1)
(1) Where, by anan instrument
instrument executed after
after April
April 20, 1891, land
20, 1891, land is transferred or
is transferred or devised
devised in
in fee
fee
simple,
simple, charged,
charged, oror contracted
contracted to be sold
to be sold by a valid agreement for
a valid for sale in which the
sale in vendor agrees
the vendor agrees to
to
transfer
transfer the
the land,
land, to
to 2
2 or
or more persons,
persons, other
other than
than personal representatives or
personal representatives or trustees, they are
trustees, they are tenants
tenants
in
in common unless
unless a
a contrary
contrary intention
intention appears
appears in
in the instrument.
the instrument.
192
192
Supra,
Supra, note
note 45,
45, at
at 34.
34.
193
193
Ibid.,
Ibid., at
at 34-35.
110
110
conduct of the parties in

the parties in order
order to
to determine
determine responsibility
responsibility for
for one party's
party's not
not occupying the
the
194
property.194 For
property. For several
several reasons,
reasons, this
this is
is unsatisfactory.
unsatisfactory. First,
First, a
a party
party may leave
leave voluntarily but
voluntarily but
then, because
then, subsequent events,
because of subsequent events, find
find it
it intolerable
intolerable to
to return
return toto occupation.
occupation. For example, inin
195
Belcher
Belcher v.
v. Belcher195
Belcher aa wife was refused
refused occupation rentrent in
in the
the following
following circumstances:
circumstances:
wife claimed
The wife claimed occupational
occupational rent
rent for
for the
the period
period from the
the date of separation
date of separation to
to date
date of
of sale,
sale, based
her allegation
on her allegation that
that she
she was effectively
effectively ousted from thethe property.
property. II have found that
that she left
left of
her
her own will
will as
as aa result
result of aa matrimonial breakdown. In In such circumstances,
circumstances, even though the the
husband thereafter
thereafter took
took another
another woman into into the house, thereby
the house, thereby for
for practical
practical purposes
purposes preventing
preventing
the wife from returning,
the wife returning, aa claim
claim for
for occupational
occupational rent
rent cannot be maintained.
maintained. The wife's
wife's remedy in in
such
such aa case
case isis to
to seek an order
order for
for partition
partition and sale
sale which will normally be granted
will normally granted inin such
circumstances as a matter of course.

as a course.
Even though itit may be argued thatthat circumstances

circumstances such
such as
as these
these should be heldheld to
to
constitute
constitute ouster
ouster under the present law,196
the present law, the position
the position should be clarified
clarified by legislation.
legislation.
Second,
Second, although
although the
the present
present law isis reasonable
reasonable inin taking
taking the
the position
position that
that aa co-owner
should
should not
not be able
able to
to obtain
obtain occupation rentrent by voluntarily
voluntarily not
not occupying thethe property,
property, it
it is
is
inappropriate
inappropriate that
that the
the court's
court's power to to order
order occupation rent should turn
occupation rent turn on determination
determination of
relative
relative fault
fault as
as between the the co-owners. This is is particularly
particularly apparent
apparent where the the parties
parties are
are
spouses
spouses soso that
that for
for other
other purposes in in determining their
their entitlements
entitlements fault
fault has very reduced
197
importance.
importance. As was said m the
said in the British
British Columbia case
case of Donovan v. v. Donovan,197
Donovan, ouster
ouster is
is an
inappropriate concept in the context of spouses since the Family Relations Act
inappropriate concept in the context of spouses since the Family Relations Act "was
apparently
apparently meant to to exclude the the conduct of the the parties
parties as
as a a consideration
consideration in in the
the
reapportionment of family
reapportionment family assets".
assets".
For these
For these reasons,
reasons,we think
think that
that the
the court should have unrestricted
court should unrestricted discretionary
discretionary power
to
to order
order payment of occupation
occupation rent,
rent, the
the circumstances
circumstances inin which it
it came about
about that
that one party
party
occupied the
the premises
premises whereas another
another did
did not
not being
being simply
simply matters
matters to
to be taken
taken into
into account
in determining the appropriateness of occupation rent being paid.
in determining the appropriateness of occupation rent being paid.
(2)
(2) In
In the
the exceptional
exceptional cases
cases where occupation rent rent may be ordered under the
ordered under present
the present
law,
law, the
the court,
court, it
it seems,
seems, has
has flexibility
flexibility in
in determining
determining whether
whether its
its payment should
should in
in fact
fact be
198
ordered.'"
ordered. However, legislation
legislation should
should make it it clear
clear that
that the court does have such
the court such flexibility.
flexibility.
For
For example, one of of two co-owners may voluntarily
voluntarily vacate
vacate the property. The other
the property. other co-owner
may remain
remain in in occupation,
occupation, looking
looking after
after the property and preventing
the property its deterioration
preventing its deterioration inin
194
194
See Belcher v.
See Belcher v. Belcher,
Belcher, supra,
supra, note
note 40,
40, and Carkeek v. Tate-Jones, supra,
v. Tate-Jones, supra, note
note 40.
40.
195
195
Supra,
Supra, note
note 40,
40, at
at 356.
356.
196
196
See Moss v.v. Moss, supra, note 40.
supra, note 40. In
In addition,
addition, the
the taking
taking in
in of
of a
a person
person to
to share
share occupation
occupation may be
be treated
treated as
as
equivalent
equivalent to
to winning
winning rent from the
rent from the property.
property.
197
197
(1986),
(1986), 5
5 R.F.L.
R.F.L. (3d)
(3d) 1,
1, at
at 5
5 (B.C.S.C.).
(B.C.S.C).
198
198
See Nemeth v.
v. Nemeth, supra, note 71,
supra, note 71, and Bauerfind v. Bauerfind
Bauerfindx. Bauerfind (1989),
(1989), 19
19 R.F.L. (3d) 375 (Alta.
R.F.L. (3d) (Alta. Q.B.).
Q.B.).
1Ill
11
circumstances inin which the

the occupation amounts to
to aa burden
burden to
to the
the occupier but
but provides aa
benefit
benefit to
to both co-owners.
(3)
(3) It
It seems to be established
to be established that
that the
the maximum amount recoverable by a a co-owner in in
respect of improvements is
respect is the lesser of the
the lesser the amount of thethe outlay
outlay and thethe amount by which
the
the value
value of the property is
the property is increased.
increased. ItIt seems that
that no allowance willwill be made for
for inflation
inflation
199
"so
"so that
that the effuxion of time
the effuxion time will
will substantially
substantially detract"I99
detract" from the
from the improving party's
party's claim.
claim.
Legislation should make it
Legislation it clear
clear that
that the
the court has sufficient
court has sufficient flexibility
flexibility to
to enable the effect
enable the effect of
inflation to
inflation be taken
to be taken into
into account.
account.
(4)
(4) ItIt seems that
that under the present law the
the present the court's
court's power to to provide an allowance
allowance forfor
expenditures
expenditures applies
applies only where a a right
right to
to contribution
contribution arises
arises from discharge
discharge of a joint
a joint
obligation
obligation or or in
in partition
partition and sale
sale oror analogous proceedings.
proceedings. It It is
is consistent
consistent with general
general
principles
principles of thethe law of restitution
restitution that,
that, outside
outside of the right to
the right to contribution
contribution from discharge
discharge ofof
aa joint
joint liability,
liability, liability
liability of one co-tenant
co-tenant to reimburse another
to reimburse another for
for expenditures is is generally
generally
restricted to
restricted to circumstances where "the "the benefit
benefit conferred isis ... a
a liquid
... liquid asset".20°
asset". However, in in
some circumstances
circumstances it it may be appropriate
appropriate forfor partition
partition oror sale
sale to
to be postponed, but but for
for
accounting
accounting for use and occupation
for use occupation and expenditure for for outgoings to to be immediately
determined. The court'scourt's power toto order such accounting should not not therefore be premised
therefore be premised on
an application
application or or order
order for
for partition,
partition, sale,
sale, or
or analogous proceedings.
proceedings.
Subject
Subject toto the
the qualifications
qualifications we shall
shall mention,
mention, we recommend the the adoption
adoption of legislation
legislation
201
similar
similar to
to that
that enacted
enacted in
in Alberta,20I
Alberta, implementing the
the Alberta
Alberta Institute
Institute
202
of Law Research and Reform.202
Reform. The relevant provisions are
relevant provisions are as
as follows:
follows:
15. —
15.—(1)
(1) A co-owner
co-owner may apply to the
apply to the Court by originating
Court by originating notice
notice for
for an
an order
order terminating
terminating the
the
co-ownership
co-ownership of
of the
the interest
interest in
in land
land in
in which he is
which he is a
a co-owner.
co-owner.
(2)
(2) On hearing
hearing an
an application
application under
under subsection
subsection (1),
(1), the
the Court
Court shall
shall make an
an order
order directing
directing
(a)
(a) aa physical
physical division
division of
of all
all or part of
or part of the land between
the land between the
the co-owners,
co-owners,
(b)
(b) the sale of
the sale of all
all or part of
or part of the
the interest
interest of
of land
land and the distribution
and the distribution of the proceeds
of the proceeds of
of
the
the sale
sale between the
the co-owners,
co-owners, oror
(c)
(c) the
the sale
sale of
of all
all or
or part
part of
of the
the interest
interest of
of one
one or
or more of co-owners' interests
the co-owners'
of the interests in
in
land
land to
to one
one oror more ofof the
the other co-owners who are
other co-owners are willing
willing to purchase the
to purchase the
interest.
interest.
199
Bradbrook,
Bradbrook, MacCallum and Moore, supra,
supra, note
note 51,
51, at 462. See,
at 462. See, also, Costa, supra,
also, Mendes da Costa, supra, note
note 19, at 147.
19, at 147.
200
Maddaugh and McCamus, supra, note 76,
supra, note 76, at
at 747.
747.
201
201
Law of
of Property
Property Act,
Act, supra,
supra, note
note 8,
8, ss.
ss. 15-17.
15-17.
202
Supra,
Supra, note
note 45.
45.
112
112
16. section 15(2),

16. Notwithstanding section 15(2), if
if an
an order
order is
is made under section
section 15(2)(b)
15(2)(b) and the
the highest
highest
offered for
amount offered the purchase
for the purchase of
of the
the interest
interest in
in the
the land is
is less
less than the market value
than the value of the
the
interest, the Court may
interest, the
(a)
(a) refuse
refuse to
to approve the
the sale,
sale, and
(b)
(b) make any
any further
further order
order it
it considers
considers proper.
proper.
17.—(1)
17. In making an
(1) In an order
order the
the Court may direct
direct that
that
(a)
(a) an
an accounting,
accounting, contribution
contribution and adjustment,
adjustment, or
or any one or
or more of them, take
take
place
place in respect of the
in respect the land,
land, and
(b)
(b) compensation, if
if any,
any, be paid
paid for
for an unequal division
an unequal division of the
the land.
land.
(2)
(2) In
In determining ifif an accounting, contribution
contribution or
or adjustment should take place or
take place or
compensation be paid for
be paid for an
an unequal division
division of the
the land
land the
the Court shall,
shall, without
without limiting
limiting itself
itself
from considering
considering any matter
matter it
it considers
considers relevant
relevant in
in making its
its determination,
determination, consider
consider whether
(a)
(a) one co-owner has excluded another
another co-owner from
from the
the land;
land;
(b)
(b) an occupying co-owner was tenant, bailiff or
tenant, bailiff or agent
agent of another
another co-owner;
(c)
(c) aa co-owner has received from third
has received third parties
parties more than
than his just share
his just share of the
the rents
rents from
land
land or
or profits
profits from the
the reasonable
reasonable removal of its
its natural resources;
natural resources;
(d)
(d) aa co-owner has committed waste
waste by an unreasonable
unreasonable use
use of the
the land;
land;
(e)
(e) aa co-owner hashas made improvements or
or capital
capital payments that
that have increased
increased the
the
realizable value of the
realizable the land;
land;
(f)
(f) aa co-owner should be compensated for
for non-capital
non-capital expenses in
in respect
respect of the
the land;
land;
(g)
(g) an occupying co-owner claiming non-capital
non-capital expenses in respect of the
in respect the land
land should be
required to
required to pay a
a fair
fair occupation rent.
occupation rent.
Our qualifications
qualifications on this
this recommendation are
are four in
in number.
First,
First, the Alberta legislation
legislation premises the the court's
court's power to to order accounting on
circumstances where an order for sale or partition
for sale partition is
is made or in restricted circumstances
in the restricted
set
set out in
in section 16(2). the proposal made by the Law
16(2). For the reasons given above, we prefer the
Reform Commission of BritishBritish Columbia203
Columbia which does notnot restrict the circumstances in
restrict the in
which the
the court's
court's powers may be exercised:
On application
application by a
a co-owner,
co-owner, the
the court
court may
(a)
(a) direct
direct that
that an accounting,
accounting, contribution adjustment, or
contribution and adjustment, or any one or
or more of them,
them, take
take
place in respect
place in respect of
of a
a co-owner's
co-owner's interest,
interest, and
(b)
(b) order
order that
that compensation, if
if any,
any, be paid
paid between co-owners.
co-owners.
203
Supra, note
note 50,
50, at
at 65.
65.
113
113
Second, both
Second, both the Alberta legislation
the Alberta legislation and the
the British
British Columbia proposal
proposal enable
enable the
the court
court
to
to take all relevant
take account of all circumstances and also
relevant circumstances also list relevant factors.
list relevant factors. We agree
agree with this
this
general approach except

general except it should be made clear
it should that the
clear that the court
court has a a discretion
discretion not
not only
only
whether toto order
order an accounting butbut also
also as
as to
to the
the quantum of any adjustment made and the the
legislation should express
legislation the relevance
express the relevance of the
the effect
effect of changes in in the
the value
value of the
the property.
property.
Third,
Third, in
in expressing the relevant
expressing the relevant factors the Alberta
factors the Alberta legislation
legislation reflects
reflects the
the present
present law,
law,
along with features we consider
with some features consider to
to be
be unsatisfactory.
unsatisfactory.
Section 17(2)(a)
(a) Section
(a) 17(2)(a) refers
refers to
to exclusion of one co-owner by another.
another. We agree
agree that
that
such exclusion
exclusion is
is relevant,
relevant, but
but the legislation should make it
the legislation it clear
clear that
that occupation
occupation
rent
rent may be ordered
ordered toto be paid
paid outside
outside of the
the exceptional
exceptional situations
situations under the
the
present law.
present law.
(b)
(b) It
It should
should be expressed as as a
a relevant
relevant factor
factor that
that a
a co-owner has
has not
not been reasonably
reasonably
able
able to
to enjoy
enjoy her
her or
or his
his right
right of occupation,
occupation, irrespective
irrespective of any fault
fault on the part of aa
the part
co-tenant in
co-tenant in occupation.
occupation.
(c)
(c) The term "bailiff"
"bailiff used inin section
section 17(2)(b)
17(2)(b) should be avoided since
since it
it is
is in
in this
this
context
context an archaic
archaic term that
that does not
not usefully
usefully add anything to
to the
the term agent.
agent.
Fourth,
Fourth, the British Columbia proposal204
the British proposal would give
give the
the court
court an express
express power to
to order
order
aa lien
lien to
to protect
protect the
the position
position of a
a co-tenant
co-tenant who has
has incurred
incurred expenditures
expenditures as
as follows:
follows:
Where an
an amount is
is found recoverable
recoverable under section
section 44 or
or section
section 47,
47, the
the court
court may order
order
(a)
(a) that
that a
a co-owner has a
a lien
lien on the
the interest
interest of another to secure
another co-owner to secure payment of
that
that amount, and
(b)
(b) in
in default
default of payment of thatthat amount within
within 30 days,
days, or
or such
such other
other period
period as
as the
the
court may direct
court direct after
after the
the date
date of service
service of aa certified
certified copy of the order on the
the order the co-
co-
owner, the
the sale
sale of the
the co-owner's
co-owner's interest pursuant to
interest pursuant to the
the Rules of Court.
Court.
We agree
agree that
that the
the legislation
legislation should
should include
include such a
a power.
power.
Finally,
Finally, in
in accordance
accordance with
with our
our general
general policy
policy in
in favour
favour of
of assimilating personal
real and personal
assimilating real
property,
property, we recommend that that the
the legislation
legislation should
should apply,
apply, mutatis
mutatis mutandis,
mutandis, toto personal
personal
property.
property.
(f)
(0 SEVERANCE
Severance OF
of JOINT
Joint TENANCY
Tenancy
(i)
(i) Severance by Destruction of
of the
the Three Unities
Unities
Under the
the present
present law
law the
the three
three unities
unities are generally essential
are generally essential to the continuation
to the continuation asas well
well
as
as the
the creation
a joint tenancy. The destruction
destruction of
of one
one of these unities
of these unities will, therefore, effect
will, therefore, effect
204 _.,
Ibid.,
Ibid., at
at 67.
67.
114
114
severance, whether that

aa severance, that destruction
destruction is
is caused
caused by
by the
the act
act of a
a party
party or
or an external
external event or
or
the act
the act of a
a third
third party.
party.
We have already
already argued that that the
the conceptual
conceptual requirement of the the four
four unities
unities should notnot
dictate whether a
dictate joint tenancy should be
a joint be capable
capable of existing
existing inin any setset of circumstances.
circumstances.
Instead, the fundamental determining
Instead, the determining factor
factor should (subject
(subject toto the
the relevant
relevant presumptions) be be
solely
solely one of intention:
intention: whether the the parties
parties intended
intended thethe creation
a joint tenancy. Similarly,
Similarly,
the conceptual
the requirement of the
conceptual requirement the four
four unities
unities should
should notnot dictate
dictate whether
whether a joint tenancy
a joint tenancy
continues
continues or is severed.
or is severed. The requirement of the the continuation
continuation of the the four unities
unities is
is of little
little
relevance to
relevance to the
the merits
merits of the the question
question whether severance
severance should in in any given
given set
set of
205
circumstances
circumstances be be treated
treated asas having occurred.205
occurred. Several
Several distinct
distinct problems are are caused by the the
present law.
present First, severance
law. First, severance by act act of the
the parties
parties may be caused by an act act that
that the
the parties
parties did
did
not realize had the
not realize the effect
effect of causing severance.
severance. For example, one party party may grant
grant aa lease
lease of
his
his interest
interest or
or a
a party
party may have made a
a contract to sell her interest,
contract to sell her interest, which contract was by
contract
mutual agreement subsequently abandoned. There is is no reason why a a person would realize
realize
that
that those
those acts
acts would causecause severance.
severance. Nevertheless,
Nevertheless, severance
severance would probably
probably occur under
the present law.
the present law. Second,
Second, in in cases
cases where there
there isis room forfor argument about
about whether severance
severance
occurred,
occurred, courts
courts will
will often
often be more concerned about about the
the practical
practical effect
effect of the
the decision
decision asas
well
well as,
as, or perhaps more than,
or perhaps than, the
the impact of the the circumstances
circumstances on the the four
four unities.
unities. Third,
Third,
particularly because of the
particularly the second point,
point, it,
it will
will often
often be difficult
difficult to predict whether aa given
to predict given
transaction will be held to have effected a severance.
transaction will be held to have effected a severance.
For these
For reasons,
these reasons, we recommend that that destruction
destruction of thethe three
three unities
unities should
should not
not cause
cause
severance.
severance. Instead,
Instead, we shall
shall recommend a a statutory
statutory way of effecting
effecting severance by act act of party
party
and we shall
shall recommend also also a a statutory response to
statutory response to severance
severance by operation
operation of law. law.
However, before
before dealing
dealing with
with the
the details
details of these
these proposals
proposals we should address
address the
the argument
that third
that parties may be prejudiced
third parties prejudiced by the the abrogation
abrogation of destruction
destruction of thethe four
four unities
unities asas a
a
206
cause
cause of severance.206
severance. For example,
example, under the present law severance
the present severance occurs
occurs when a joint
a joint
tenant conveys his
tenant his or
or her
her interest
interest to
to aa third party or
third party or even when theythey enter
enter into
into a
a specifically
specifically
enforceable
enforceable contract,
contract, since
since the unity of title
the unity title is
is destroyed.
destroyed. The thirdthird party
party isis therefore
therefore
unaffected
unaffected by the death of the
the subsequent death the person
person with
with whom he or she had dealings.
or she dealings. Under
our proposal,
proposal, the
the third party's entitlement
third party's entitlement to to the
the property
property will
will bebe affected
affected by thethe question
question of
whether the
the appropriate
appropriate procedure laid laid down for for severance
severance has
has been followed.
followed. If If it
it has
has not
not
and the
the co-owner
co-owner entering
entering into
into the
the transaction predeceases other
transaction predeceases other joint
joint tenants,
tenants, her
her or
or his
his
interest
interest will
will disappear
disappear and the the third
third party
party will
will have no claim
claim against the property.
against the property. However,
we shall propose aa simple
shall propose simple method for for a joint tenant
a joint tenant to
to effect
effect a severance and it
unilateral severance
a unilateral will
it will
be
be easy
easy for
for a third party
a third party to
to ensure
ensure that the requirements
that the requirements of that that method are are complied with.with.
Moreover, we shall
Moreover, shall propose
propose that
that registration
registration of an an instrument
instrument of of severance
severance will
will provide
provide
protection for
protection for a
a good faith
faith purchaser
purchaser of land.land.
205
See
See Law Reform Commission of British
British Columbia, ibid.,
ibid, at
at 38.
38.
206
See Law Reform Commission of British
ibid, at
at 38,
38, 40.
40.
115
115
(ii)
(ii) Severance by Operation of Law
With the abrogation of destruction

the abrogation destruction of the
the four
four unities
unities as
as a mode of severance, it is
severance, it is
necessary
necessary to
to deal
deal with
with the in which severance should
the circumstances in should occur
occur by operation
operation of
law.
law.
enactment of legislation
We recommend enactment legislation under which the the court
court has
has a
a general
general power to
to
207
determine
determine severance
severance by
by order207
order so
so that
that a
a court
court order
order as
as a
a mode ofof severance
severance will be provided
will be provided
for.
for. This
This scheme will
will provide
provide appropriate
appropriate flexibility
flexibility to
to deal
deal with
with any unforeseen
unforeseen circumstances
circumstances
and
and at
at the
the same time provide clear
time provide clear rules
rules to
to deal
deal with
with the
the situations
situations that
that occur
occur with
with frequency.
frequency.
We recommend that bankruptcy of aa joint

that bankruptcy joint tenant
tenant should,
should, as
as in
in the present law,
the present law, sever
sever the
the
joint ownership.
joint ownership. This
This ensures
ensures that
that the
the interest
interest of the
the bankrupt joint tenant
bankrupt joint tenant is
is made available
available for
for
creditors
creditors and their position is neither prejudiced by
and their position is neither prejudiced by the
the death
death of the bankrupt nor
the bankrupt nor advantaged
advantaged byby
the death of another
the death joint tenant.
another joint tenant.
So far
far as
as execution
execution by judgment creditors
creditors is
is concerned,
concerned, we reaffirm
reaffirm the
the recommendations
208
made in
in the
the Report on the
the Enforcement ofofJudgment Debts and Related Matters.208
Matters. We outlined
outlined
the
the problems caused by the present law as
the present as follows:2°9
follows:
With the
the sole
sole exception of property
property held
held in joint tenancy,
in joint tenancy, land
land inin which a a debtor
debtor has
has an interest
interest atat
his
his death
death isis available
available to to creditors
creditors after
after he dies.
dies. Moreover, where the the debtor's
debtor's interest
interest inin land
land isis of
any kind
kind other
other than
than anan interest
interest in joint tenancy,
in joint tenancy, the
the creditor
creditor may protect
protect his right to
his right to execution
execution
simply byby filing
filing aa writ
writ of fieri
fieri facias
facias with
with the
the sheriff.
sheriff. Rather
Rather than proceed
proceed with aa forced
forced sale,
sale, he
may choose to to wait

wait until
until the
the debtor
debtor transfers his interest
transfers his interest or
or dies.
dies. So long
long as
as the
the writ
writ is
is properly
properly
renewed, itit will
renewed, will continue
continue to to bind the land
bind the land toto the
the extent
extent of the
the debtor's
debtor's former interest
interest after
after its
its
transfer
transfer oror his
his death. creditor then may seek
death. The creditor seek payment of the the judgment debt from the
debt from the
transferee—who
transferee —
who is is normally interested
interested in in obtaining
obtaining clear —
clear title—or
title or from the the executor or or
administrator
administrator of of the
the debtor's
debtor's estate,
estate, as
as the
the case
case may be.be. The available
available evidence
evidence indicates
indicates that
that in
in
fact
fact this
this course is is the
the one that creditors follow with
that most creditors respect to
with respect to enforcement against
against their
their
debtors'
debtors' interests
interests inin land.
land. In
In the
the case
case of joint
joint tenancies, however, this
tenancies, however, this alternative
alternative isis not
not aa viable
viable
one,
one, as
as death
death will
will extinguish
extinguish thethe creditor's
creditor's right
right to
to proceed
proceed against
against the
the debtor's
debtor's interest
interest inin the
the
land.
land.
Therefore,
Therefore, we believe
believe that
that some change is is required
required to to ensure
ensure that
that the
the effectiveness
effectiveness of
of
creditors' remedies against
creditors' remedies against land
land no longer
longer depends on the the law respecting
respecting severance
severance of joint
joint
tenancies and on whether the
tenancies the debtor joint tenant
debtor joint tenant dies
dies first
first ....
....
210
We then
then went on to
to make the
the following recommendations:21°
following recommendations:
207
Compare the
the proposal
proposal by the Columbia, ibid.,
British Columbia,
the Law Reform Commission of British ibid., at
at 61.
61
208
Supra, note
note 128,
128, Part
Part 111.
III.
209
Ibid.,
Ibid., at
at 25.
25.
210
Ibid.,
Ibid., as
as summarized at
at 134.
134. For discussion ibid., at
see ibid.,
discussion see at 29-31.
29-3 1
116
116
Where aa debtor
debtor is
is a joint tenant
a joint tenant of land,
land, the
the following rules
rules should apply:
apply:
(1)
(1) the filing
the filing of a
a writ
writ of enforcement against
against the
the debtor should notnot sever
the joint tenancy.
Severance should occur only once thethe sheriff
sheriff enters
enters into
into a
a binding
binding agreement of purchase
and sale
sale with a prospective purchaser at
a prospective at an execution sale;
sale;
(2)
(2) where the
the debtor
debtor dies
dies before
before severance,
severance, but
but after
after sale
sale proceedings
proceedings have been commenced,
there should be
there be a
a right
right of
of survivorship; however, subject
survivorship; however, subject to paragraph (3),
to paragraph (3), the
the value
value of the
the
debtor's
debtor's interest
interest in
in the
the hands of the
the surviving joint
joint tenant
tenant should be
be subject
subject to
to a
a charge
charge to
to
the
the extent
extent of the
the debts
debts of judgment creditors
creditors who have delivered
delivered writs
writs of enforcement toto the
the
sheriff;
sheriff; and
(3)
(3) with respect to
with respect to the
the charge proposed
proposed above,
above,
(a)
(a) in
in the
the distribution
distribution of the
the debtor's
debtor's estate,
estate, the
the former joint
joint tenancy interest
interest should be
be
resorted to
resorted to for
for the
the payment ofof debts
debts only
only ifif the
the other
other property
property of the
the debtor
debtor has
has been
exhausted and the
the creditors'
creditors' debts
debts remain outstanding,
outstanding, and
(b)
(b) in
in order
order to
to determine
determine the
the debtor's
debtor's interest
interest that
that should be available
available to
to creditors,
creditors, there
there
should
should be a a statutory
statutory prima facie presumption that,
facie presumption that, where the
the deceased debtor
debtor and the
the
surviving joint tenant
surviving joint tenant were joint
joint tenants
tenants in
in law,
law, they
they also
also were joint
joint tenants
tenants in
in equity.
equity.
(iii)
(iii) Unilateral Severance by Act of a Party
It
It is
is a
a striking
striking feature
feature of the present law that
the present that severance
severance may be effected
effected unilaterally,
unilaterally,
without
without consent
consent of or
or even notice to the
notice to the other joint tenants.
other joint tenants.
We have considered
considered whether severance
severance should
should require
require the
the concurrence of all
all the joint
the joint
tenants. In
tenants. In Saskatchewan a joint tenancy
a joint tenancy may only
only be severed
severed with
with the
the consent
consent of all joint
all joint
2n
tenants, section
tenants, section 240 of the
the Land Titles
Titles Act2"
Act providing
providing as
as follows:
follows:
240. —
240.—(1)
(1) Notwithstanding
Notwithstanding anything in in this
this or
or any other
other Act,
Act, where any land,land, mortgage,
encumbrance or or lease registered under this
lease registered this Act is
is held
held by two oror more persons
persons in joint tenancy,
in joint tenancy,
other
other than
than as
as executors,
executors, administrators
administrators oror trustees,
trustees, the joint tenancy shall
the joint shall be
be deemed not not to
to have
been severed
severed by any instrument
instrument heretofore
heretofore or
or hereafter
hereafter executed
executed by one of the joint tenants,
the joint tenants, or
or by
more than
than one but
but not
not all the joint
all the joint tenants,
tenants, unless
unless the
the instrument
instrument has been registered
registered under this
this
Act.
Act.
(2)
(2) The registrar
registrar shall
shall not
not accept
accept for
for registration
registration an
an instrument purporting to
instrument purporting to transfer
transfer the
the share
share
or
or interest
interest of any such joint tenant
such joint tenant unless
unless it
it is
is accompanied by the
the written
written consent
consent ofof the
the other
other
joint tenant
joint tenant or joint tenants,
or joint tenants, duly
duly attested
attested in section 63
in accordance with section 63 or
or 64,
64, as
as the
the case
case may
require.
require.
212
We do not
not agree
agree that
that consent
consent of all joint tenants
all joint tenants should be required
required for
for severance.212
severance.
The cardinal
cardinal feature
feature of joint
joint tenancy,
tenancy, and thethe most important
important characteristic
characteristic distinguishing
distinguishing it
it
from aa tenancy in
in common, is is the
the right
right of
of survivorship.
survivorship. Ordinarily,
Ordinarily, this
this right
survivorship
211
211
R.S.S. 1978,
R.S.S. 1978, c.
c. L-5.
L-5.
212
Compare McClean, supra,
supra, note
note 89,
89, at
at 38.
38.
117
17
is apt where the

is only apt the co-owners maintain harmonious relationships
relationships so so that
that each isis content
content for
for
the other
the other or
or others
others to benefit from the
to benefit the termination
termination of a a dying joint
joint tenant,
tenant, whatever should be be
the order of their
the order their deaths.
deaths. Most often,
often, of course,
course, joint
joint tenancy is used by married couples or
is used or
unmarried cohabitees, often for
cohabitees, often for ownership of the the matrimonial
matrimonial home. When the the relationship
relationship
between joint tenants changes,
joint tenants changes, or or even when theirtheir wishes
wishes with
with respect
respect toto the
the property on
death
death change,
change, they
they should be free free to
to terminate
terminate thethe right
survivorship unilaterally
unilaterally byby
severing the
severing tenancy. Where the
joint tenancy.
the joint the property
property is is a
a matrimonial
matrimonial home, the parties' rights
the parties' rights of
occupation require protection
occupation require protection and thethe right
right of a joint tenant
a joint tenant toto dispose of or or encumber his his or
or
her interest should be
her interest be curtailed. But that
curtailed. But that is
is the
the subject
subject of special
special legislation in
legislation in Part
Part II
II of the
the
Family Law Act.213
Act. In
In any event,
event, severance
severance of a joint tenancy
a joint tenancy does not not affect
affect the
the right
right to
to
214
possession
possession of the property and itit does not in
the property in itself
itself result in any disposition
result in disposition of property.
property.
There may, it it is
is true, be circumstances in
true, be in which joint
joint tenants
tenants may wish to to bind
bind
themselves
themselves not
not to
to sever
the joint tenancy. For this
this reason,
reason, the
the Law Reform Commission of
British
British Columbia hashas recommended the the continuation
continuation of the
the present
present law that
that ordinarily joint
ordinarily joint
tenants
tenants are
are free
free unilaterally
unilaterally to
to sever
sever a joint tenancy,
a joint but also
tenancy, but also that
that the
the law should
should be changed
215
to
to provide for
for the
the parties'
parties' creation
creation of joint
joint tenancies that are
tenancies that are only severable
severable on consent:215
consent:
We have
have inin mind anan approach
approach where the parties would decide
the parties decide for
for themselves,
themselves, and
and designate
designate at
at the
the
time
time title
title in
in co-ownership
co-ownership is registered, whether
is registered, whether or
or not
not a joint tenant
a joint tenant can
can unilaterally
unilaterally sever
sever his
his
intent
intent from
from the joint tenancy
the joint tenancy ...
...
In
In our
our view,
view, this
this approach
approach should
should be
be adopted.
adopted. If
If the parties fail
the parties fail to
to state
state whether
whether or
or not
not consent
consent is
is
required for
required for a joint tenant
a joint tenant to
to sever
sever his
his interest
interest from
from the joint tenancy,
the joint tenancy, it should
it should be
be conclusively
conclusively
deemed that
that consent
consent is
is not
not required.
required.
We agree
agree that joint tenants
that joint tenants should be be free to bind themselves
free to themselves notnot to
to sever
sever the joint
the joint
tenancy,
tenancy, but
but aa special
special form of joint
joint tenancy is not required
is not required for
for that.
that. Under the present law
the present
joint tenants
joint tenants are
are able
able toto contract
contract not to sever,
not to sever, and theythey may of course
course do this
this in
in complex
fashion,
fashion, for
for example by contracting
contracting to
to permit
permit severance
severance only
only in
in certain
certain circumstances
circumstances or or on
certain
certain terms.
terms. Such a a contractual
contractual arrangement is is therefore
therefore flexible
flexible and gives
gives rise
rise to
to the
the
normal range of contractual
contractual remedies.
remedies. A party's
party's ability
ability to respond to
to respond breach of such aa
to breach
contract
contract will,
will, moreover,
moreover, bebe strengthened
strengthened by thethe recommendation we shall shall make below thatthat aa
joint tenant
joint tenant should only
only be
be able
able to effect unilateral
to effect unilateral severance written notice
giving written
severance on giving to the
notice to the
We turn
turn now toto consideration
consideration of a requirement of notice-giving.
a requirement the present
notice-giving. Under the present law,
law,
severance
severance may bebe effected
effected unilaterally
without notice
notice to
to the
the other tenants. This
joint tenants.
other joint This has
has two
undesirable effects.
undesirable effects. First,
First, it
it is
is very easy
easy for
for a tenant to
joint tenant
a joint without detection,
to commit, without detection, a
a
fraud
fraud under which he isis able
able to
to benefit
benefit from the right of survivorship
the right survivorship if
if he survives the
he survives the other
other
213
Supra,
Supra, note
note 13.
13.
214
See
See supra,
supra, note
note 128.
128.
215
British Columbia, supra,
supra, note
note 50,
50, at
at 42.
42.
118
118
joint tenants,but
joint tenants,but under which severance
under prior to
severance prior to death
death will
will be established
established if
if he
he dies
dies first.
first. The
216
this can be
way this is illustrated
be done is illustrated by an American commentator:216
commentator:
case of H and W, a
the case
Take the a husband and wife wife who own their
their family residence property
family residence property as joint
as joint
tenants. H has
tenants. a child,
has a child, C,
C, by a a previous
previous marriage.
marriage. Without W's consent or or knowledge, H executes
executes
aa severance deed and deposits
severance deed deposits it it in his safety
in his safety deposit
deposit along
along with his
his will
will in
in which he leaves
leaves all
all of
his property to
his property to C.C. Sometime later, either weeks, months or
later, either or years,
years, W W dies.
dies. H retrieves
retrieves hishis
severance
severance deed and [after]
[after] its
its destruction,
destruction, H willwill have no difficulty in establishing
difficulty in establishing clear
clear title
title to
to the
the
property as surviving
property as joint tenant.
surviving joint tenant. IfIf H dies
dies before
before W, however, the the severance deed will will be
discovered
discovered and recorded.
recorded. W W will
will be unsuccessful
unsuccessful in her claim
in her claim to
to the
the property
property asas surviving joint
surviving joint
tenant. Rather, she and C will
tenant. Rather, will hold title
title in
in equal undivided shares
equal undivided as tenants
shares as tenants in
in common.
Second,
Second, even apartapart from such fraud,
fraud, it
it is
is inappropriate
inappropriate that
that one
one co-tenant
co-tenant should
should be
ignorant
ignorant of severance
severance of the joint tenancy by another
the joint joint tenant
another joint tenant and thus
thus be prevented from
arranging
arranging hishis or
or her
her affairs
affairs in
in the light of the
the light the changed status
status of the co-ownership. In
the co-ownership. In
particular,
particular, he oror she
she isis deprived "of an awareness of his his right
right to provide for
to provide for the
the transmission
transmission
wi ir,.217
217
his interest
of his interest by will".
In
In order to overcome both
order to both of these undesirable results,
these undesirable results, we recommend that that unilateral
unilateral
218
severance
severance should
should not
not take
take effect unless notice of severance is given to the other joint
effect unless notice of severance is given to the other joint owners.218
owners.
We have recommended that severance should

that severance should not effected merely by destruction
not be effected destruction of
the four
one of the four unities that severance
unities and that severance should not take
should not take effect unless notice
effect unless notice of severance
severance isis
given to the
given to the other joint owners.
other joint owners. The joint
joint effect these recommendations is
effect of these is that
that unilateral
unilateral
severance effected by,

severance would be effected by, and only
only by, the giving
by, the giving of notice
notice to the other
to the joint owners.
other joint owners. A
consideration
consideration of the details of these
the details recommendations will
these recommendations will follow.
follow.
216
S.M. Fetters,
Fetters, "An Invitation to Commit Fraud:
Invitation to Fraud: Secret
Secret Destruction Joint Tenant Survivorship
Destruction of Joint Rights" (1986),
Survivorship Rights" (1986), 55
Fordham L.L. Rev. 173,
173, at
at 175.
175.
217
Ibid.,
Ibid., at
at 196.
196. See, also, Re Sammon (1979),
See, also, (1979), 94 D.L.R.
D.L.R. (3d)
(3d) 594,
594, at
at 609 (Ont.
(Ont. C.A.).
C.A.).
218
In England,
In England, the
the giving
giving of notice is an additional
notice is additional method of severance. Section 36(2)
severance. Section 36(2) of the of Property Act,
the Law of Act,
1925,
1925, supra,
supra, note
note 21, provides as
21, provides as follows:
follows:
— (2) No severance
36.—(2)
36. severance of a tenancy of a
joint tenancy
a joint a legal
legal estate,
estate, so
so as to create
as to create aa tenancy
tenancy inin common in in land,
land,
shall
shall be permissible, whether
be permissible, whether by operation
operation of law or or otherwise, but this
otherwise, but subsection does
this subsection not affect
does not affect the
the right
right
of aa joint
joint tenant to release
tenant to release his
his interest
interest to
to the
the other joint tenants,
other joint tenants, or
or the
the right to sever
right to sever a joint tenancy in
a joint in an
equitable interest
equitable interest whether
whether or not the
or not the legal
legal estate
estate is
is vested
vested in
in the joint tenants;
the joint tenants;
Provided
Provided that,
that, where a a legal estate (not
legal estate being settled
(not being settled land)
land) is vested in
is vested in joint tenants beneficially,
joint tenants beneficially, and any
tenant
tenant desires
desires to
to sever
sever the joint
the joint tenancy
tenancy in
in equity,
equity, he shall
shall give
give to
to the
the other
other joint
joint tenants
tenants aa notice
notice in
in writing
writing
of such
such desire
desire or
or do such other acts
such other acts or things as
or things as would,
would, inin the
the case personal estate,
case of personal estate, have been effectual
effectual to
to
sever
sever the
the tenancy
tenancy in equity, and thereupon
in equity, thereupon under
under the
the trust
trust for sale affecting
for sale affecting the
the land
land the
the net
net proceeds
proceeds of sale,
sale,
and the net

and the net rents profits until
rents and profits until sale,
sale, shall
shall be
be held upon the
held upon trusts which would have been requisite
the trusts requisite for
for
giving effect
giving effect to the beneficial
to the beneficial interests
interests if
if there
there had
had been
been an actual
actual severance.
severance.
For discussion
For discussion about the effect
about the effect of this v. Rawnsley,
see, Burgess v.
this see, Rawnsley, supra,
supra, note
note 88.
88.
For consideration
For consideration of reform
reform in
in Australia, see Law Reform Commission of Western
Australia, see Western Australia,
Australia, supra,
supra, note
note 189,
189,
at
at 33-38,
33-38, and New South Wales
Wales Law Reform Commission, Unilateral (1994).
Joint Tenancy (1994).
ofa Joint
Unilateral Severance of
1119
19
In
In this context, it
this context, it is
is important
important to take account
to take account of the the functions performed by
functions performed
219
formality.219
formality. It possible to
It would be possible to require the completion
require the completion of a a prescribed
prescribed form or, or, further,
further,
220
the registration
the registration of a a document.22°
document. However, we think think such requirements would be more
such requirements
exacting than necessary. There is a danger that
exacting than necessary. There is a danger that failure
failure to
to comply with
with thethe required
required form,
whether because
because of inadvertence
inadvertence or or shortage
shortage of time,time, could occuroccur quite
quite frequently
frequently in in
circumstances
circumstances in in which there
there was no doubt that that as
as aa matter
matter of substance
substance notice
notice was given.
given.
Unless thethe position complicated by special
position was complicated special relieving provisions, either
relieving provisions, either dealing
dealing with
221
particular situations22I
particular situations or giving the
or giving the court
court aa general
general power to to dispense
dispense withwith the
the normal effect
effect
222
of
of failure
failure toto comply with the the required
required form,222
form, there
there would be a a considerable
considerable danger of of the
the
formality
formality impeding rather
rather than
than facilitating
facilitating the
the intention
intention of co-owners.
co-owners. On the
the other hand,
other hand, itit is
is
clear
clear to
to us that the
us that notice would suffer
the notice suffer tootoo much from uncertainty
uncertainty if if it
it could be completely
informal.
informal. We therefore
therefore recommend the the compromise position
position that
that unilateral
severance by a a
party should
party should be in in writing
writing and signed,
signed, and should
should show an intention
intention toto terminate
terminate the
the right
right of
survivorship.
survivorship.
223
The next
next issue
issue that arises is
that arises is how the
the notice
notice should
should be given.
given. We recommend223
recommend thatthat notice
notice
224
should
should be
be served
served in
in accordance
accordance with
with the
the rules
rules provided for services
provided for services under
under the
the Mortgages Act.224
Act
We have concluded above that that neither

neither the
the use
use of a a prescribed
prescribed form nor registration
registration
should
should be
be necessary
necessary in in order
order to
to effect
effect severance
severance asas between the parties. However, since
the parties. since under
our
our proposed scheme the the giving
giving of notice
notice is
is an essential
essential requirement for for unilateral
unilateral severance,
severance,
it
it is
is necessary
necessary to to devise
devise a a method of securing
securing a a purchaser's title to
purchaser's title to an interest
interest in
in land
land
converted into tenancy in
converted into tenancy in common by severance. In this context it
severance. In this context it would be
be appropriate to
appropriate to
225
provide for
provide for aa prescribed
prescribed form which would be registrable
registrable under thethe Registry
Registry Act225
Act and under
under
226
the
the Land Titles
Titles Act,226
Act, and we soso recommend. In In addition,
addition, since
since a a purchaser
purchaser under thethe
Registry
Registry Act would ordinarily
ordinarily be unable
unable toto determine
determine whether a a notice
notice had been properly
properly
given,
given, we recommend that that a notice registered
a notice registered under the the Registry
Registry ActAct should
should be
be deemed
219
See, for example,
See, for example, L.
L. Fuller,
Fuller, "Consideration
"Consideration and Form" (1941),
(1941), Colum. L. Rev. 799,
L. Rev. 799, at
at 800 et
et seq.; AG. Gulliver
seq.; A.G. Gulliver
and C.J.
and C.J. Tilson, "Classification of Gratuitous
Tilson, "Classification Gratuitous Transfers"
Transfers" (1941),
(1941), 51
51 Yale
Yale L.J.
L.J. 1;
1; J.
J. Langbein,
Langbein, "Substantial
"Substantial
Compliance with
with the
the Wills
Wills Act"
Act" (1975),
(1975), 88 Harv.
flarv. L. Rev. 489,
L. Rev. 489, at
at 491-98.
220
This is
is the
the reform proposed by the
the British
British Columbia Law Reform Commission, supra, note 50,
supra, note 50, at
at 43-45.
221
221
See,
See, for
for example, the
the consideration
consideration of "last
"last minute severance"
severance" by the
the British
British Columbia Law Reform Commission,
ibid.,
ibid., at
at 37,
37, 46-47.
222
See the
the dispensing
dispensing power conferred
conferred on courts
courts with respect to
with respect to formal
formal defects
defects in in Manitoba and
wills in
in wills
Saskatchewan: The Wills

Wills Act,
Act, R.S.M. 1988,
1988, c.
c. W150, s.s. 23,
23, as
as am. by S.M. 1995, c. 12,
1995, c. 12, s.
s. 2;
2; The Wills Act, R.S.S.
Wills Act, R.S.S.
1978,
1978, c.
c. W-14, s.
s. 35.1
35.1 as
as en. by S.S.
en. by S.S. 1989,
1989, c.
c. 66,
66, s.
s. 9.
9.
223
Cl
Cf. the
the proposal the Law Reform Commission of British
proposal of the Co-ownership of
British Columbia, Working Paper on Co-ownership of Land
(1987),
(1987), atat 37,
37, that
that notice
notice should
should be
be served in accordance with
served in with the provided in
rules provided
the rules in the
the Rules
Rules of Civil Procedure
of Civil Procedure
for
for the
the service
service of originating
originating process.
process.
224
R.S.O.
R.S.O. 1990, c. M.40.
1990,c.M.40.
225
Supra,
Supra, note
note 99.
99.
226
Supra,
Supra, note
note 100.
00.
1
120
120
effective in favour
effective in a bona fide
favour of a purchaser for
fide purchaser for value
value without notice
notice of
of any defect
defect in
in the
the
notice.
notice.
(g)
(g) SEVERANCE
Severance BY
by AGREEMENT
Agreement
Under thethe present

present law, joint tenants
law, joint tenants may sever the joint
sever the joint tenancy by agreement and that that
agreement may be informal,
informal, even to to the point that
the point that it
it is
is inferred
inferred from the the parties'
parties' course
course of
conduct.
conduct. We have considered whether this this method of severance
severance should be be abrogated,
abrogated, leaving
leaving
227
only
only the proposed method of severance by signed writing.227
the proposed writing. Such aa reform would have have the
the
advantage
advantage of simplicity
simplicity and it it would greatly
greatly increase
increase thethe certainty
certainty in in determination
determination of
whether and when aa severance
severance has occurred.
occurred. Severance by course of conduct, conduct, in in particular,
particular,
depends on thethe court's
court's evaluation
evaluation of a a wide range of relevant
relevant evidence and it it is
is often
often difficult
difficult
to
to predict
predict whether severance will will be held to have been effected. It
held to have been effected. It may further
further be argued that
that
severance
severance should occur only when a a severing party has
severing party has made a a deliberate
deliberate decision
decision to
to sever
sever
228
the joint tenancy,228
the joint tenancy, whereas the
the present
present law on severance by agreement permits permits severance
severance by
parties who do not
parties not realize
realize the
the effect
effect of what they
they are
are doing.
doing.
Despite
Despite the
the force
force of these
these arguments,
arguments, we do not think think the
the present
present law should be
changed.
changed. Our chief
chief concern with
with the
the change under consideration
consideration is
is that
that many joint
joint tenants
tenants
will
will be
be unaware of the the law dealing with severance
dealing with severance of joint tenancy
of joint tenancy and if
if only
only formal
formal
methods of severance were allowed,
allowed, most would likely
likely fail
fail to
to achieve
achieve severance
severance even where
their
their mutual intention
intention was inconsistent
inconsistent with continuance of jointjoint tenancy.229
tenancy. We therefore
therefore
recommend the the continuation
continuation of the present law so
the present so that
that severance
severance may be be effected
effected by the
the
agreement of joint
joint owners,
owners, whether or or not that agreement is
not that is informally
informally expressed.
expressed. Such
agreement may, as as in
in the
the present
present law,
law, be express
express oror implied
implied and may be inferred
inferred from the
the
parties' course
parties' course of
of conduct.
conduct.
(h)
(h) TERMINATION
Termination OF
of CO-OWNERSHIP
Co-ownership
130
The archaic
archaic and confusing provisions of the
confusing provisions the Partition
Partition Act23°
Act should,
should, we recommend, be be
repealed.
repealed. In
In enacting replacement provisions,
enacting replacement provisions, three
three major issues
issues arise:
arise: (1)
(1) the
the forms of property
property
to
to which the
the legislation
legislation should
should apply;
apply; (2)
(2) the
the persons
persons who may apply apply for
for relief;
relief; and (3)
(3) the
the
nature of the
nature the powers made available
available to
to the
the court
court on
on the
the hearing
hearing of
of an
an application.
application.
(1)
(1) The property
property to
to which the
the Act
Act applies.
applies. The present
present Partition
Partition Act applies
applies only
only to
to land.
land.
In
In accordance
accordance with
with our
our general policy in
general policy in favour
favour of
of assimilating
assimilating real
real and personal
personal property,
property, we
227
Compare the
the reform proposed by
reform proposed by the
the Law Reform Commission of of British
British Columbia,
Columbia, supra,
supra, note
note 223,
223, that
that
"severance of
"severance of a joint tenancy
a joint tenancy should be effected
should be effected only by an
only by an instrument
instrument registered
registered against
against title
title to
to the
the land".
land".
228
See
See Law Reform Commission of British Columbia,
of British Columbia, ibid.,
ibid., at
at 40.
40.
229
See
See U.K.
U.K. Law Commission, Trusts
Trusts of
of Land (Working Paper No. 94,
Paper No. 94, 1985),
1985), at
at 70.
70.
230 _
Supra,
Supra, note
note 24.
24.
121
121
recommend that the reformed law

that the law be
be made applicable to personal
applicable to personal property
property as
as well
well as real
as real
property.
property.
(2)
(2) The persons apply for
persons who may apply for relief
relief. The first
first question
question is
is whether the
the legislation
legislation
should
should express in wide
express in wide terms
terms the
the persons
persons who may apply,
apply, leaving
leaving itit to
to the
the court
court to reject
to reject
inappropriate applications,
inappropriate or whether the
applications, or the legislation
legislation should
should state
state with
with some particularity
particularity the
the
persons with standing
persons standing to
to apply.
apply. If
If the
the latter position is
latter position is taken,
taken, the
the second question
question arises
arises which isis
who should
should be
be specified
specified as persons with
as persons with standing.
standing.
The former position

position on thethe first
first question
question has has been taken in in England. Section
Section 30 of the the
231 deals
Law ofof Property Act,
Act, 1925
1925 deals with applications
applications to to court,
court, among other
other things,
things, for
for orders
orders
of
of sale
sale of co-owned property
property and provides
provides that
that "any person
person interested
interested may apply",
apply", and the
the
232
Law Commission, in in its
its Report on Transfer
Transfer of of Land: Trusts
Trusts of of Land,232
Land, recommends
continuation
continuation of this
this approach. The present
present Ontario law superficially
superficially appears to to afford
afford similar
similar
233
flexibility.
flexibility. However, as as mentioned above,233
above, itit has
has been interpreted
interpreted soso that
that applicants
applicants must
have "an estate
estate in
in possession"
possession" or or have "the
"the immediate right right to
to its
its possession".
possession". Partition
Partition and
sale
sale legislation
legislation in
in Alberta234
Alberta provides that
provides that a
a "co-owner" is is defined
defined toto mean,
joint tenants
joint tenants or
or tenants
tenants in
incommon of an interest
interest in
in land
land but
but does not
not include joint tenants
include joint tenants or
or
tenants
tenants in
in common of an interest
interest in
in land
land who are holding the
are holding the interest
interest for
for common beneficiaries.
beneficiaries.
The Law Reform Commission of British British Columbia, inin its

its Report on Co-Ownership of of
Land,2" also
Land, also adopted thethe technique of specifying
specifying with
with some particularity
particularity the
the persons
persons who
may apply. It agreed
apply. It agreed with
with the
the Alberta
Alberta legislation
legislation in
in enabling
enabling "co-owners",
"co-owners", similarly
similarly defined,
defined,
236
to
to apply but
but additionally
additionally included:236
included:
(b)
(b) registered aa judgment against
aa person who has obtained and registered against the
the interest
interest of a
a debtor
debtor
who isis a
a co-owner; and
(c)
(c) aa person financial charge
person who has obtained aa financial charge which satisfies
satisfies the
the conditions
conditions of
section
section (2),
(2), provided the
the debt
debt obligation
obligation served by the
served by the financial
financial charge is
is in
in default.
default.
One of the
the difficulties
difficulties associated
associated with
with the
the second
second approach
approach isis the
the risk that aa category
risk that category of
individuals
individuals who might legitimately
legitimately claim
claim standing
standing might be inadvertently omitted
be inadvertently the list.
omitted from the list.
Accordingly,
the criterion
criterion for
for standing
standing in partition proceeding
a partition
in a should be
proceeding should be
231
231
Supra,
Supra, note
note 21.
21.
232
U.K.
U.K. (Law Commission No. 181,
181, 1989),
1989), at
at 22,
22, 44.
44.
233
Supra,
Supra, this
this ch.,
ch., sec.
sec. 1(e).
1(e).
234
Law of Property Act,
of Property Act, supra,
supra, note
note 8,
8, ss.
ss. 14(a),
14(a), 15(1), recommendations of Alberta
15(1), based on recommendations Institute of
Alberta Institute of Law
Research and
and Reform, supra,
supra, note
note 45.
45.
235
Supra, note 50.
Supra, note 50.
236
See Law Reform Commission of
of British
ibid., at
at 68,
68, s. draft Bill.
of draft
s. 46 of Bill.
122
expressed
expressed broadly. note that
broadly. We note this approach
that this approach is is consistent
consistent with
with that
that taken
taken in
in our Report on the
the
Law ofof Standing.
Standing. At the
the same time,
time, it
it is
is our
our view that
that it
it would be helpful
helpful to
to articulate
articulate a non-
a non-
exhaustive list
exhaustive list of categories parties who would have standing
categories of parties standing under the
the criterion,
criterion, in
in the
the
manner of the British Columbia proposal.
the British proposal. More particularly,
particularly, we recommend that that the
the non-
exhaustive list include
exhaustive list include a
a creditor
creditor who has
has the
the right
right to have the
to have the property
property seized
seized and sold pursuant
sold pursuant
to a writ
to a seizure and sale.
writ of seizure sale.
(3)
(3) The
The powers available
available to
to the
the court.
court. The English
English legislation
legislation expresses
expresses the
the court's
court's
237
powers in
in general
general terms:
terms: "the
"the court
court may make such orderorder asas it
it thinks
thinks fit",237
fit", whereas the
the present
present
238 239
Ontario provision,238
Ontario provision, the Alberta reformed
the Alberta reformed legislation,239
legislation, and thethe proposed British
British Columbia
reforms249
reforms specify
specify the
the powers available
available to
to the
the court.
court. We agree
agree with the
the view that
that the
the legislation
legislation
should
should explicitly
explicitly limit the powers available
limit the to the
available to the court.
court.
Following the
Following the Alberta
Alberta reformed
reformed legislation
legislation and
and the
the British
British Columbia
Columbia proposed
proposed reform,
reform, we
recommend that
that the powers that
the powers that should
should be
be available
available are:
are:
(a)
(a) aa physical division of all
physical division all or
or part
part of the
the property
property between the
the co-owners;
co-owners;
(b)
(b) the
the sale
sale of all
all or
or part
part of the property and the
the property the distribution the proceeds
distribution of the proceeds of the
the sale;
sale;
and
(c)
(c) the
the sale
sale of all
all or part of the
or part the interest
interest of one or the co-owners
or more of the to one or
co-owners to or more of
of
241
the
the other
other co-owners
co-owners who are are willing
willing to
to purchase
purchase the
the interest.241
interest
In
In some cases
cases where division
division of the property is
the property is appropriate
appropriate itit may be impractical
impractical toto
divide
divide the property in
the property in aa way thatthat corresponds
corresponds exactly
exactly with
with the
the size
size of the
the parties'
parties'
entitlements. Accordingly,
entitlements. Accordingly, in in circumstances
circumstances in in which a a division of property in shares
division property in shares
conforming to to ownership isis not
not possible,
possible, we recommend that the court
that the court have power to to order
order
division
division of property not conforming to
property not to ownership and in in such
such a
a case
case to
to order
order payment of
compensation in in adjustment. British Columbia proposed reform242
adjustment. The British reform provides
provides a a useful
useful
model:
237
Law of
of Property
Property Act,
Act, 1925,
1925, supra,
supra, note
note 21,
21, s.
s. 30(1).
30(1).
238
Partition Act,
Partition Act, supra,
supra, note
note 23,
23, ss.
ss. 2,
2, 3(1).
3(1).
239
Law of
of Property
Property Act,
Act, supra,
supra, note
note 8,
8, s.
s. 15(2).
15(2).
240
British Columbia, supra, note 50,
supra, note 50, at
at 69,
69, draft
draft Bill,
Bill, s.
s. 46(3).
46(3).
241
241
The conduct of thethe sale
sale must,
must, of course,
course, be regulated. British Columbia proposed reforms
regulated. The British (ibid, at
reforms (ibid., at 69,
69, s.
s. 46 of
draft
draft Bill),
Bill), provides:
provides:
46. —
46.—(4)
(4) In
In making an order
order under subsection
subsection (3)(c)
(3)(c) the court shall
the court shall fix
fix the value of the
the value the interest
interest and
the
the terms
terms of
of the
the sale.
sale.
(5) A sale
(5) sale under
under subsection
subsection (3)(b)(c) the distribution
(3)(b)(c) and the distribution of the proceeds of the
the proceeds sale shall
the sale shall be
be under
under the
the
direction
direction of the
the court
court subject
subject to
to the
the Rules of
of the
the Court.
Court.
242
Ibid., at
Ibid, at 69,
69, s.
s. 47 of draft Bill.
draft Bill.
123
47.
47. If
If an
an order
order for
for a physical division
a physical division under section
section 46 cannot
cannot be made in
in accordance with the
the
co-owner's actual
actual entitlement,
entitlement, the
the court order that
court may order that
(a)
(a) the land be divided
the land divided in
in portions
portions that
that do not
not correspond to
to the
the co-owner's actual
actual
entitlement;
entitlement; and
(b)
(b) compensation be paid
paid in
in adjustment.
adjustment.
The Alberta
Alberta legislation
legislation makes it it mandatory (subject
(subject only
only to
to the restricted circumstances
the restricted circumstances
set
set out in section
out in 16) to
section 16) to make one of the the listed
listed orders.243
orders. The British
British Columbia proposed
reform,244 like
reform, like the present Ontario law,
the present law, affords
affords the
the court
court aa discretion
discretion to permit the
to permit the co-
co-
ownership to continue. We think
to continue. that the
think that the court
court should have such a a discretion
discretion and so
so
recommend. We also also recommend that,that, as
as under the
the present
present law,
law, the
the onus should
should be
be on the
the
245
person opposing termination to
person opposing termination to justify that position.245
justify that position.
It
It is
is preferable
preferable for
for the
the court's
court's exercise
exercise of discretion
discretion to
to be structured
structured by statutory
statutory
guidelines.
guidelines. The British
proposal rejects
rejects this
this approach,
approach, section
section 46(3)
46(3) of the
the draft
draft
legislation providing that,
legislation providing that,
[u]pon hearing an application

application under subsection
subsection (1),
(1), the
the court,
court, unless justice otherwise
unless justice requires,
otherwise requires,
shall
shall make an order
order directing
directing ... ...
The English
English Law Commission has has recommended a a list
list of guidelines
guidelines for
for the
the exercise
exercise of
the
the court's
court's discretion.
discretion. Section
Section 6(3),
6(3), and (5)
(5) of the
the proposed Bill provide as
Bill provide as follows:
follows:
(3)
(3) In
In considering
considering on such an application
application whether to to order
order that
that land
land subject
subject to
to a
a trust be sold,
trust be sold,
the
the court
court shall,
shall, subject
subject to
to subsection
subsection (5)
(5) of this
this section,
section, have regard—
regard
(a)
(a) to
to the
the intentions
intentions of the
the settlor;
settlor;
(b)
(b) to
to the
the purpose for
for which the
the land
land was acquired;
acquired;
243
See
See Westlock
Westlock Foods Ltd. v. Bonel Properties
Ltd. v. Properties Ltd
Ltd. (1981),
(1981), 33 A.R. 1 (Q.B.).
(Q.B.).
1
Section
Section 16
16 of the
the Law of
of Property
Property Act,
Act, supra, note 8,
supra, note 8, provides:
provides:
16.
16. Notwithstanding section
section 15(2),
15(2), if
if an order is
is made under
under section 5(2)(b) and the
section 15(2)(b)
1 highest amount
the highest
offered
offered for the purchase
for the purchase of the
the interest
interest in
in the
the land
land is
is less than the
less than the market value of the
market value interest, the
the interest, the Court
may
(a)
(a) refuse
refuse to
to approve the
the sale,
sale, and
(b)
(b) make any further
further order
order it
it considers proper.
considers proper.
244
Supra,
Supra, note
note 50.
50. Section
Section 46(3)
46(3) of the
the draft
draft Bill,
Bill, ibid.,
ibid., at
at 69,
69, provides
provides that,
that,
upon hearing
hearing an
an application under subsection
application under subsection (1), the court,
(1), the court, unless justice otherwise
unless justice requires, shall
otherwise requires, shall make an
an
order
order ...
...
245
See the
the British
British Columbia proposed reform, supra,
proposed reform, supra, note
note 50.
50.
124
(c)
(c) if
if the land includes
the land includes any dwelling,
dwelling, to
to the
the welfare
welfare of those
those residing
residing in
in the
the dwelling,
dwelling,
particularly
particularly any minor who occupies oror might reasonably be expected to
to occupy it
it as
as
his
his home;
(d)
(d) w the wishes of any persons
to the persons of full
full age
age who are
are entitled
entitled to
to interests
interests in
in possession
possession in
in the
the
land
land or,
or, in
in the
the case
case of a
a dispute
dispute between them, of the majority (according
the majority (according to
to the
the value
value
of
of their
their combined interests)
interests) of
of those
those persons;
persons;
(e)
(e) to
to the
the interests
interests of any creditor
creditor who has obtained a a charging order under thethe Charging
Orders Act against
against any person
person for
for whose benefit
benefit any land
land subject
subject to
to the
the trust
trust is
is or
or may
be held;
held; and
(f)
(f) to any other
to other matters
matters appearing to
to the
the court to be relevant.
court to relevant.
(5) Subsection
(5) Subsection (3)
(3) does not
not apply
apply in
in the
the case
case of
of an
an application
application to
to which section
section 335A ofof the
the
Insolvency 1986 applies
Insolvency Act 1986 applies (applications by the
(applications by the trustee
trustee of a
a bankrupt for
for the
the sale
sale of land).
land).
We recommend an approach similar

similar to
to that the English
that adopted by the English Law Commission.
We consider
consider that legislation should expressly
that legislation expressly deal
deal with
with the
the interrelationship
interrelationship between the
the
co-ownership provisions consideration and the
provisions under consideration the provisions
provisions in the Family Law Act246
in the Act
247
applying
applying to
to spouses.247
spouses. Accordingly,
Accordingly, we recommend that the legislation
that the legislation should
should confirm the
the
position
position that has been adopted in
that has in the present law that
the present (a) the
that (a) provisions apply
the co-ownership provisions apply
to co-owning spouses
to spouses and (b)(b) the provisions are
the co-ownership provisions are subject
subject to
to orders for exclusive
orders for exclusive
possession made under the
possession the Family Law Act.
Act.
We further
further recommend that that the legislation should
the proposed legislation should spell
spell out
out the implications of
the implications
248
that interrelationship.
that interrelationship. It
It should provide that
should provide that the
the court
court may staystay the
the co-ownership
proceedings when an
proceedings an application for exclusive
application for exclusive possession the Family Law Act has
possession under the has been
brought and that
that the
the court shall stay
court shall the co-ownership proceedings
stay the while such order
proceedings while order remains
in
in force.
force. In
In addition, the court
addition, the court should
should have power to to adjourn the
the co-ownership proceedings
proceedings to
to
enable
enable aa co-owner toto bring
bring an application
application for
for exclusive
possession under the
the Family Law Act.
Act.
246 „
Supra,
Supra, note
note 13.
13.
247
See
See supra, this ch.,
supra, this ch., sec.
sec. 1(e).
1(e).
248
This
This recommendation is is similar
similar to
to the British Columbia
proposed British
the proposed supra, note
reform, supra,
Columbia reform, note 50, at 70,
50, at 70, s.
s. 48
48 of
of the
the draft
draft
Bill.
Bill. However,
However, it should
should be
it be noted
noted that
that the British Columbia
the British Columbia reform states that
reform states court "shall"
the court
that the "shair stay
stay proceedings
proceedings
where
where an
an application
application has
has been brought under
been brought under the
the Family
Family Relations
Relations Act, R.S.B.C. 1979,
Act, R.S.B.C. c. 121.
1979, c. 121
CHAPTER 7
EASEMENTS AND PROFITS
1.
1. INTRODUCTION
The previous
previous chapters
chapters of this
this report
report deal
deal with interests
interests inin land
land that
that confer
confer a right to
a right to
possession of the
possession the land.
land. That right
right may be postponed to
be postponed to the future, as
the future, as in
in future
future interests,
interests, or
or it
it
shared with
may be shared with others,
others, as
as in
in co-ownership.
co-ownership. ThisThis chapter
chapter considers
considers rights
rights in
in land
land that
that fall
fall
short of a
short right to
a right possession.' Such rights
to possession. are recognized
rights are recognized in in law.
law. Some, such
such as rentcharges
as rentcharges
and mortgages,
mortgages, areare concerned with providing
providing security
security for
for the
the payment of money. Of these, these,
mortgages was the the subject
subject of our Report on the the Law of of Mortgages.2
Mortgages. Others
Others are
are concerned
concerned
with
with the
the use
use of land.
land. We have already
already dealt
dealt with some of these
these inin our Report
Report on Covenants
3
Affecting
Affecting Freehold Land.3
Land. The other
other important
important topic
topic in
in this
this area
area is
is the
the law of easements and
this, along with the
this, along the closely related topic
closely related topic ofprofits-a-prendre,
of proflts-a-prendre, is is the
the subject
subject of this
this chapter.
chapter.
There is,
is, however, no clear-cut
clear-cut line
line that
that marks the
the boundary between
between the
the entitlements
entitlements that
that may exist
exist as
as easements
and
and those
those that
that may not:
not:
[I]t
[l]t follows
follows from the
the general
general nature
nature of the
the recognized
recognized interests
interests in that an easement cannot
property that
in property cannot amount to to
aa claim quite
quite at
at variance
variance with
with the proprietary rights
the proprietary rights of the
the servient
servient owner.
owner. On the other hand,
the other hand, it
it is
is also
also quite
quite
obvious thatthat an
an easement does does to
to some extent
extent detract
detract from those
those rights.
rights. A right
right of way cuts
cuts down the the
servient
servient owner's right
right to
to exclude
exclude people
people from his
his property or or to
to develop
develop it it as pleases; and a
as he pleases; a negative
negative
easement,
easement, suchsuch as
as light,
light, also hinders development. The issue
also hinders issue in
in fact is the
fact is perennial one
the perennial of ... drawing
one of ... drawing the
the
line,
line, of deciding
deciding when thethe point
point has been reached
has been reached that
that the
the right question detracts
in question
right in so substantially
detracts so substantially from thethe
rights
rights of
of the
the servient
servient owner that
that it
it must be
be something other
other than
than easement.
easement.
A.J.
A.J. McClean, "The Nature of an Easement" (1965), (1965), 5 Rev. 32,
5 U.W.O.L. Rev. 32, at 51. See,
at 51. also, M.M. Litman and B.I-1.
See, also, B.H.
Ziff, "The Road Not Taken:
Ziff, Taken: Some Important
Important Questions
Questions About the of Easements" (1989),
Nature of
the Nature (1989), 50
50 R.P.R.
R.P.R. 261.
261. It
It
should be
should be noted that
noted that the
the decision
decision in
in Shelf
Shelf Holdings v.
v. Husky Oil (1987), 52 Alta.
Oil (1987), Alta. L.R.
L.R. (2d)
(2d) 21
21 (Q.B.),
(Q.B.), criticized
criticized in
in
the
the latter
latter article,
article, was reversed
reversed on appeal:
appeal: (1989),
(1989), 33 R.P.R (2d)
(2d) 113 (Alta. C.A.).
113 (Alta. See, also,
C.A.). See, also, B. Ziff and M.M.
B. Ziff
Litman,
Litman, "Easments and Possession:
Possession: An Elusive
Elusive Limitation",
Limitation", [1989]
[1989] Cony.
Conv. 296.
22
Ontario
Ontario Law Reform Commission, Report
Report on the
the Law of
of Mortgages (1987).
(1987).
3
Ontario Affecting Freehold Land (1989).
Ontario Law Reform Commission, Report on Covenants Affecting (1989).
[[125]
125 ]
126
126
2.
2. SUMMARY OF THE PRESENT LAW
(a)
(a) NATURE
Nature AND REQUIREMENTS OF
and Requirements of EASEMENTS
Easements AND PROFITS
and Profits
Before dealing
Before dealing with
with detail
detail of the present law affecting
the present affecting easements,
easements, it it is
is convenient to to
emphasize two ways in in which easements and profits
profits are proprietary rights.
are proprietary First, the
rights. First, the benefit
benefit
of
of the right passes
the right passes as property. Moreover,
as property. Moreover, where the right is connected with— "appurtenant
the right is connected with —
"appurtenant
to" —
to" —a a particular piece of land,
particular piece land, as
as under the present law itit is
the present is required
required toto be
be in
in the
the case
case of an
easement, the right
easement, the right automatically passes with any transfer
automatically passes transfer of the
the benefited
benefited land
land "so
"so that
that the
the
occupier
occupier for
for the
the time being can enjoy it".4 it". Second, thethe burden of an easement or or profit
profit
necessarily
necessarily affects
affects a a piece
piece of land
land and that that burden will,
will, subject
subject toto compliance with with
registration provisions,
registration provisions, affect
affect successors
successors in
in title
title to
to the
the burdened land.
land. Indeed,
Indeed, third parties are
third parties are
affected
affected by the easement or profit so
the easement or profit so that a
that a third party
third party who wrongfully interferes
interferes with
with it
it
commits aa tort.
tort.
A profit
profit may be defined
defined as
as the
the right
right to
to go on thethe land
land of another
another and toto take
take some part
part
of the
the land,
land, such as
as soil,
soil, gravel,
gravel, minerals,
minerals, oil,
oil, or
or natural
natural gas,5
gas, or
or to
to take
take wild
wild animals
animals or
or birds
birds
existing
existing on the
the land.
land. In
In order
order to
to qualify
qualify asas a profit, the
a profit, the thing
thing taken
taken must be capable
capable of
ownership.6
ownership. A profit
profit may be connected to—or to —
or "appurtenant
"appurtenant to"—a
to" a piece —
piece of land
land or
or the
the
benefit of the profit
benefit of the profit may be unconnected with
with any land,
land, existing
existing "in
"in gross".
gross".
Anger and Honsberger7

Honsberger define
define an easement as
as follows:
follows:
An easement isis a privilege without profit

a privilege profit annexed toto land
land to
to utilize
utilize the land of aa different
the land different owner
(which does not
not involve
involve the removal of any part
the removal part of the
the soil
soil or
or the natural produce
the natural produce of the
the land)
land) or
or
to
to prevent
prevent the
the other
other owner from utilizing
utilizing his
his land
land in
in aa particular
particular manner forfor the
the advantage of
of the
the
dominant owner.
4
R.
R. Megarry and H.W.R. Wade, The
The Law of
ofReal Property
Property (5th
(5th ed.,
ed., 1984),
1984), at
at 835.
835.
5
See
See Ontario
Ontario Law Reform Commission, Report
Report on
on Limitation
Limitation of
ofActions
Actions (1969),
(1969), at
at 148:
148:
Minerals,
Minerals, however, may be be sold
sold so
so as
as to
to be
be owned separately
separately from the
the land
land in
in which they
they exist.
exist. Such
separate
separate ownership of the
the minerals isis not a profit-a-prendre, ownership in
profit-à-prendre. Under aa profit-a-prendre,
aprofit-a-prendre. in the
the
mineral does not
mineral pass until
not pass until it
it has
has been extracted.
extracted. Oil gas 'leases',
Oil and gas for example, may come within
'leases', for within
either of these
either these categories,
categories, depending upon how they are are framed ....
....
6
supra, note
note 4,
4, at
at 850.
850.
7
A.H. Oosterhoff
A.H. Oosterhoff and W.B. Rayner,
Rayner, eds.,
eds., Anger and Honsberger's of Real Property
Honsberger 's Law of Property (2d
(2d ed.,
ed., 1985),
1985), at
at 925.
925.
127
Following the the English

the judgment of the English Court of Appeal inin Re Ellenborough Parka
Pari? it is
it is
9
conventional
conventional to
to describe
describe easements as
as comprising four
four characteristics:9
characteristics:
(1) there
there must be a
a dominant and a
a servient
servient tenement;
(2) an easement must 'accommodate' the

the dominant tenement;
tenement;
(3) the dominant and servient

the servient tenements must 'not be both
'not be both owned and occupied by the
the same
person';
person';
(4)
(4) aa right
right over
over land
land cannot amount to
to an easement unless
unless it
it is
is capable of forming the
the subject-
subject-
matter of aa grant.
grant.
The first
first two requirements,
requirements, as as well
well asas the
the definition
definition of easements by Anger and
Honsberger quoted above,
above, emphasize that that in
in Anglo-Canadian law an easement cannot cannot exist
exist
independently
independently of a a benefited
benefited piece
piece of land;
land; it
it cannot exist
exist in
in gross.1°
gross. This
This is
is unlike
unlike profits,
profits,
which may exist

exist in
in gross,
gross, and it
it is
is unlike
unlike the
the law in in the
the United States
States where the
the common lawlaw
was developed toto permit easements in in gross.
gross. InIn addition,
addition, other jurisdictions, including
other jurisdictions, including New
Zealand, have provided by statute for easements in gross.
Zealand, have provided statute for easements in gross.
The requirement that

that an easement must "accommodate" the the dominant tenement is
is very
very
similar,
similar, if
if not
not functionally
functionally the
the same, asas the
the requirement in
in the
the law of covenants that
that a
a
11 12
covenant
covenant "touch
"touch and concern" the the land."
land. In
In Re Ellenborough Park12
Park thethe English
English Court of
13
Appeal approved Cheshire'
Cheshire'ss 13 statement
statement that:
that:
one of
of the
the fundamental
fundamental principles
principles concerning
concerning easements
easements isis that
that they
they must be
be not
not only
only appurtenant
appurtenant
to
to a
a dominant tenement, but also connected with the
but also normal enjoyment of the
the normal the dominant tenant
tenant ... ...
[W]e may expand the the statement

statement of the principle thus;
the principle thus; aa right
right enjoyed by one over thethe land
land of
another
another does
does not
not possess
possess thethe status
status of an
an easement unless
unless itit accommodates and serves
serves the
the
dominant tenement,
tenement, and is
is reasonably
reasonably necessary
necessary for
for the better enjoyment of that
the better that tenement .... ....
8
[1956]
[1956] Ch.
Ch. 131,
131, adopting
adopting the
the formulation
formulation in
in Cheshire,
Cheshire, Modern Law of
of Real Property
Property (7th 1954), at
ed., 1954),
(7th ed., 456 et seq.
dXA56et seq.
See Oosterhoff and Rayner,

Rayner, supra,
supra, note
note 7,
7, at 925; Vannini
at 925; Vannini v. Utilities Commission of
v. Public Utilities of Sault Ste. Marie
Sault Ste.
(1973),
(1973), 32 D.L.R. (3d)
(3d) 661 (Ont.
(Ont. H.C.).
H.C.).
9
The quotations
quotations that
that follow
follow are
are taken
taken from Re Ellenborough Park, Park, supra,
supra, note
note 8,
8, at
at 163
163 except that in
except that the third
in the third
characteristic.
characteristic. The equivalent
equivalent requirement
requirement quoted in in Re Ellenborough Park was that that "dominant and servient
servient
owners must be be different
different persons".
persons". However, as as the formulation by Megarry and Wade, supra,
the formulation note 4,
supra, note at 837,
4, at 837,
quoted inin the
the text,
text, emphasizes,
emphasizes, "the
"the same person
person must not
not only own both
both tenements
tenements but also occupy both of them
but also
before the existence
before the existence of anan easement isis rendered
rendered impossible.
impossible. Thus there difficulty about
is no difficulty
there is about the existence of an
the existence an
easement in in favour
favour of aa tenant
tenant against
against his
his own landlord, or another
landlord, or another tenant landlord, although
his landlord,
tenant of his the landlord
although the landlord
owns the
the freehold
freehold of both dominant and servient
servient tenements".
tenements".
10
10
See
See Oosterhoff
Rayner, supra,
supra, note
note 7,
7, at
at 925-26. For critique of this
discussion and critique
For discussion this rule see McClean, supra,
rule see supra,
I note
note 1,
1, at
at 36-42;
36-42; M.F.
M.F. Sturley
Sturley "Easements inin Gross" (1980),
(1980), 96 L.Q. Rev. 557.
L.Q. Rev. infra, this
557. See infra, ch., sec.
this ch., sec. 3(b)(i).
3(b)(i).
n
11
I See Report on Covenants Affecting
Affecting Freehold Land , supra,
supra, note
,note 3, at 13,
3, at 3, 15-16,
5-16, 30.
1 30.
1
12
12
Supra,
Supra, note
note 8,
8, at
at 170.
70.
1
13
13
Supra,
Supra, note
note 8,
8, at
at 457.
457.
128
128
Emphasis on the the "normal" enjoyment of of the

the dominant
dominant tenement
tenement is,
is, however,
however, open to to
14
criticism"
criticism and itit may be that the
be that principle should
the principle should bebe more broadly
broadly stated
stated so
so that
that "the
"the test
test is
is
15
whether
whether the right makes the
the right the dominant tenement a a better
better and more convenient property".
property".I5
issues were considered

Three issues considered in
in Re Ellenborough Pare
Park in
in relation
relation to
to the
the fourth
fourth
characteristic of an easement:
characteristic easement:
Whether thethe rights

rights purported to to bebe given are
are expressed in in terms of too
too wide and vague a a
character;
character; whether, if
whether, if and so far as effective, such rights could amount to
so far as effective, such rights to rights
rights of joint
joint
occupation oror would substantially
substantially deprive the
the park owners of proprietorship
proprietorship or
or legal
legal possession;
possession;
whether,
whether, if
if and so
so far
far as
as effective,
effective, such rights
rights constitute
constitute mere rights
rights of recreation,
recreation, possessing
possessing no
quality
quality of utility
utility or
or benefit;
benefit; and on such ground cannot qualify
qualify as
as easements.
The first
first of these
these issues
issues does not
not distinguish
distinguish an easement from other other rights
rights in
in property
property
but
but it
it simply
simply emphasizes that that it
it must be sufficiently
sufficiently certain
certain to
to be recognized
recognized as as a
a property
property
right. The second issue
right. issue does identify
identify an important
important characteristic
characteristic of an easement:
easement: that
that it
it
confers
confers anan entitlement
entitlement falling
falling short
short of possession.
possession. The third third issue,
issue, which is is framed inin light
light of
of
the
the facts
facts in
in Re Ellenborough Park, does not relate relate to
to any general principle. However, it
general principle. it
indicates,
indicates, as
as also
also more generally
generally do thethe other
other two issues,
issues, that
that the
the courts
courts maintain
maintain control
control over
the rights which will
the rights will be allowed recognition
recognition as as easements.
IT
easements. The listlist of easements may not not be
closed,
closed, but
but the
the courts
courts control
control entry
entry to
to the
the list.17
list.
There are categories of easements that

are two main categories that have received
received recognition.18
recognition.
"Positive"19
"Positive" easements
easements give
give "the
"the owner of land
land a right himself to
a right to do something on or or to
to his
his
20
neighbour's land".2°
land". Rights
Rights of way, right
right to
to take
take water,
water, and right
right to
to have drainage
drainage pipes
pipes and
sewers under land
sewers under provide examples.
land provide examples. "Negative"
"Negative" easements give the owner of land
give the land "a
"a right
right to
to
21
stop his neighbour doing something on his
stop his his [the
[the neighbour's]
neighbour's] own land".21
land". A right to light or aa
right to light or
14
14
See Oosterhoff and Rayner, supra,
Oosterhoffand note 7,
supra, note 7, at
at 927;
927; McClean, supra,
supra, note
note 1,
1, at
at 43-45.
43-45.
15
15
supra, note
note 4,
4, at
at 836.
836. Compare thethe classic
classic test
test for
for whether a
a covenant "touches and concerns"
the land:
the land:"The covenant must either
either affect the land
affect the land as regards made of occupation,
as regards occupation, or
or it
it must be such as
as per se,
se,
and not
not merely from collateral
collateral circumstances,
circumstances, affects
affects the
the value
value of the
the land"
land" (Rogers v.
v. Hosegood, [1900]
[1900]
2
2 Ch. 388,
388, at
at 395).
395).
16
16
Supra,
Supra, note
note 8,
8, at
at 164.
164.
17
17
See,
See, also,
also, Dyce v.
v. Lady James Hay (1852),
(1852), 11 Macq. 305,
305, at
at 312-13:
312-13: "The category
category of servitudes
servitudes and easements
must alter
alter and expand with
with the
the changes that
that take place in
take place the circumstances
in the circumstances of mankind."
18
18
However, thethe line
line between the
the two categories
categories is
is not clean-cut. See McClean, supra,
not clean-cut. supra, note
note 1. For a
1 . a discussion
discussion of the
the
classification,
classification, see
see W.S. Holdsworth,
Holdsworth, A History
History of
ofEnglish (3d. ed.,
English Law (3d. ed., 1923)
1923) Vol.
Vol. III,
Ill, at
at 153-54.
153-54.
19
19
The American Law Institute,
Institute, Restatement
Restatement of
of the of Property (1944),
the Law of (1944), §451,
§451, describes
describes these as "affirmative"
these as "affirmative"
easements.
20
Phipps v.
v. Pears,
Pears, [1965]
[1965] 11 Q.B.
Q.B. 76,
76, at
at 82 (C.A.).
(C.A.).
21
Ibid.
Ibid
129
129
to create
right to
right create what would otherwise be a
a nuisance "by the
the discharge
discharge of gases,
gases, fluids,
fluids, or
or
smoke"22 provide examples.
smoke" provide
There
There areare in
in fact
fact very
very few negative
negative easements.
easements. ThisThis is
is partly
partly because
because thethe law ofof
prescription does not
prescription not work well
well in
in relation to negative
relation to negative entitlements.23
entitlements. Such entitlements
entitlements do
not
not involve
involve the
the dominant owner doing anything on the the servient
servient land.
land. This may make it it
difficult for the

difficult for the servient
servient owner toto perceive
perceive that
that an easement may be in in the process of creation
the process creation
against
against him or or her;
her; even ifif perceived, it may make it
perceived, it it difficult
difficult for
for the
the servient
servient owner to to take
take
action
action to
to prevent the
the prescriptive period running;
prescriptive period running; and any appropriate action action to prevent the
to prevent the
period
period running may be inconvenient for
for the
the servient
servient owner. For example,
example, where aa building
building on
the dominant land
the land is receiving support from a
is receiving a building
building on thethe servient
servient land,
land, termination of
the
the prescriptive
prescriptive period require removal of the
period may require the support provided by the
support provided building on the
the building the
servient
servient land.
land.
A second reason for for the

the recognition
recognition of only a a few negative
negative easements is is that
that the
the
development of
of restrictive covenants (the benefit
restrictive covenants (the benefit of which cannot be acquired by
cannot acquired
prescription)
prescription) as
as rights
rights in land in
in land in the
the nineteenth century enabled thethe function
function that
that might have
been carried out by negative easements to
carried out to be carried
carried out
out instead
instead by restrictive
restrictive covenants.24
covenants.
(b)
(b) CREATION of EASEMENTS
Creation OF Easements
(0)
(i) Introduction
25
There is
is a
a variety
variety of methods by which easements may be created.
created. A1125
All are to a
are to a greater
greater
or
or lesser
lesser extent related to
extent related to the
the idea
idea of acquisition grant. The methods of acquisition
acquisition by grant. acquisition may be
22
supra, note
note 4,
4, at
at 908. all easements are
Virtually all
908. Virtually are negative
negative in
in the
the sense
sense that
that they
they do not
not require
require
the servient
the servient owner to
to spend money: "It "It is
is most unlikely right would be
that aa right
unlikely that be accepted
accepted asas an easement if if it
it
involves
involves the
the servient
servient tenant
tenant in
in the
the expenditure
expenditure of money; for for none of thethe recognized
recognized easements do so, so, except the
the
obligation
obligation to
to fence
fence land
land in
in order
order to keep out
to keep out cattle,
cattle, which has
has been described
described as
as "in
"in the
the nature
nature of a a spurious
spurious
easement" (Megarry and Wade, ibid.,
ibid., at
at 839,
839, quoting
quoting Lawrence v. v. Jenkins
Jenkins (1873),
(1873), L.R.
L.R. 8
8 Q.B. 274,
274, at
at 279).
279).
23
supra, note
note 1,
1, at
at 59-60. In
In the
the case
case of one of the negative easements,
the most important negative easements, right
right to
to
light,
light, acquisition
acquisition by prescription
prescription has
has been abolished
abolished in
in several Ontario: Limitations
including Ontario:
jurisdictions, including
several jurisdictions, Limitations Act,
Act,
R.S.O. 1990,
1990, c.
c. L.15,
L.15, s.
s. 33.
33. See Oosterhoff and Rayner,
supra, note
note 7,
7, at
at 961-62.
24
See Report on Covenants Affecting
Affecting Freehold Land, supra,
supra, note
note 3,
3, at
at 24-25.
25
Special
Special mention
mention must be made of the the creation
creation of anan easement
easement by operation
operation of law through doctrines such
through doctrines such as
as
proprietary
proprietary estoppel
estoppel or
or acquiescence.
acquiescence. The English District Council,
v. Arun District
case of Crabb v.
English Court of Appeal case Council, [1976]
[1976]
Ch. 179,
179, provides
provides an
an example. (See,
(See, also,
also, Ives (E.R.) Investment
Ives (ER) Ltd. v.
Investment Ltd. High, [1967]
v. High, (C.A.) and the
[1967] 2 Q.B. 379 (C.A.) the
case of Classic
Ontario case Classic Communications v. v. Lascar (1985),
(1985), 51 (2d) 769 (H.C.)).
51 O.R. (2d) facts and decision
(H.C.)). The facts decision in
in the
the
case are
Crabb case are conveniently
conveniently summarized as as follows
follows by Oosterhoff and Rayner,
Oosterhoffand Rayner, supra, note 7,
supra, note at 946-47:
7, at
In
In Crabb v. v. Arun District
District Council a a man owned a piece of land
a piece land in
in a local council
field. The local
a field. council
commenced building
building a a road near
near the
the field.
field. The owner of the field wanted access
the field access to the new road.
to the road. He
was led
led to
to believe
believe by the
the surveyor forfor the local council
the local that he would be
council that access. The surveyor,
granted access.
be granted surveyor,
in
in fact,
fact, left
left aa gap in
in the
the fence
fence for
for it
it and the
the man acted sold adjoining
acted on it. He sold
it. land which had access
adjoining land to
access to
the
the new road
road without reserving
reserving a relying on the
right of way, relying
a right the access he was led
access he to believe
led to he had been
believe he
given.
given. Sometime later,later, the
the council
council blocked
blocked up the refused him access.
the gap and refused thus became land-
access. He thus land-
locked.
locked. The English
English Court of of Appeal heldheld that
that while ... not claim
could not
the man could
while ... the claim a right of way by
a right
130
130
classified
classified into three groups.
into three groups. Acquisition
Acquisition may be by express
express grant or
or reservation,
reservation, by implied
grant oror reservation, or by prescription.
reservation, or prescription. In
In this
this last
last case,
case, the
the grant
grant is
is presumed by law and isis
aa fiction.
fiction.
A deed is is required
required for
for an
an express
express grant
grant toto be effective
effective at
at common law but but an equitable
equitable
easement may be
easement be created
created where the the parties
parties enter
enter into
into aa specifically
specifically enforceable
enforceable contract
contract to
to
an easement.26
grant an
grant easement. At common law there there was a a technical
technical difficulty
difficulty inin the
the making of a a
reservation of an easement in
reservation in favour
favour of land retained by aa grantor.
land retained grantor. However, where the the
conveyance was executed by the grantee it
the grantee it was treated as
treated as making aa re-grant
re-grant of any easement
expressed
expressed in
in favour
favour of the
the grantor's
grantor's retained
retained land.
land. Even in
in the
the absence
absence of such
such execution
execution by
grantee, "in
the grantee,
the equity the
"in equity the grantee
grantee would not not be permitted to
be permitted to prevent thethe easement from being
enjoyed
enjoyed by hishis grantor
grantor oror those
those claiming
claiming under him".27
him". Statute
Statute has
has removed these
these technical
technical
28
difficulties, section 44 of the
difficulties, section the Conveyancing and Law of of Property Act28
Act providing as as follows:
follows:
44.
44. Where by by the
the terms
terms of
of a
a conveyance
conveyance ofof land
land a right of
a right of way or
or easement
easement is
is reserved
reserved oror
excepted
excepted from
from the
the land
land thereby
thereby transferred
transferred or
or charged,
charged, such
such reservation
reservation or
or exception
exception is
is effectual
effectual
and
and shall
shall be
be deemed always
always toto have
have been
been effectual
effectual to vest the
to vest the right
right of
of way or
or easement
easement in in the
the
transferor
transferor or
or chargor
chargor ofof the
the land
land notwithstanding
notwithstanding that
that the
the transferee
transferee or
or chargee
chargee does
does not
not execute
execute
the
the instrument.
instrument.
(ii)
(ii) Easements Arising
Arising by Implication
Implication
Various
Various doctrines
doctrines provide the basis for
the basis for the
the implication
implication of anan easement where one is is not
not
expressly
expressly created.
created. Although these
these doctrines
doctrines are
are all
all concerned with thethe circumstances in
in which
29
the
the grant
grant or reservation of an
or reservation an easement may properly be inferred,29
properly be inferred, they
they overlap
overlap considerably
considerably
30
30
and the
the effect
effect of their
their interrelationship
interrelationship is
is not
not always clear.
clear.
necessity
necessity and that
that he had neither
neither a
a grant
grant nor the
the benefit
benefit of an
an enforceable
enforceable contract,
contract, nor a a prescriptive
prescriptive
right, he had acquired
right, acquired a right of way by estoppel.
a right estoppel. The local
local council
council was estopped
estopped by their
their conduct from
denying the
the man a right of
a right of access
access over
over their
their land
land to
to the highway. This
the highway. This equity
equity gave
gave rise
rise to,
to, and could
could be
be
enforced by,
enforced by, a
a cause
cause of action.
action.
26
See
See Megarry and
and Wade, supra,
supra, note
note 4,
4, at
at 855-56.
855-56.
27
OosterhofTand Rayner, supra,
supra, note
note 7,
7, at
at 932.
932.
28
R.S.O.
R.S.O. 1990,
1990, c.
c. C.34.
C.34.
29
For
For discussion
discussion about
about the meanings of inferring
the meanings inferring intention
intention in
in this
this context,
context, see
see L. Berger, "Integration
L. Berger, the Law of
"Integration of the of
Easements,
Easements, Real
Real Covenants and Equitable
Equitable Servitudes"
Servitudes" (1986),
(1986), 43 Wash. & Lee L. L. Rev.
Rev. 337,
337, at
at 339-43.
30
See,
See, also,
also, Restatement ofof the
the Law of
of Property,
Property, supra,
supra, note
note 19,
19, which states
states a general principle
a general principle that the creation
that the creation of
of
an
an easement may be be inferred
inferred (§474)
(§474) and then
then lists various matters
lists various matters which are factors
which are factors in
in the
the operation
operation of that
that
general
general principle
principle (§476).
(§476).
131
131
a.
a. in Wheeldon v.
The Rule in v. Burrows
in Wheeldon v.
The Rule in v. Burrows31
Burrows isis concerned with the
the "translation
"translation into
into easements"32
easements"
33
of rights
rights over
over a grantor's retained
a grantor's As Megarry and Wade explain:33
retained land.
land. explain:
It is
It is natural for this
natural for to look at
purpose to
this purpose at the grantor's previous
the grantor's previous use
use of
of the
the land,
land, and to
to allow the
the
grantee
grantee to take easements corresponding to
to take to the facilities which the
the facilities the grantor
grantor himself found
necessary. Before
necessary. Before the
the grant
grant they
they cannot have been easements because of the the common ownership.
ownership.
They are
are therefore
therefore called 'quasi-easements', i.e.
called 'quasi-easements', rights which are
i.e. rights are potential
potential easements inin case
case of
of a
a
division
division of the
the land.
land.
provides that
The Rule provides that on the
the grant
grant by the
the owner of a a piece
piece of land of
of land of part
part of that
that land
land
there
there will
will pass
pass to
to the
the grantee
grantee all
all those
those quasi-easements which, first,
first, were "continuous and
apparent"
apparent" and,
and, second,
second, which are necessary to
are necessary to the
the reasonable
reasonable enjoyment of the property
the property
granted,
granted, and which have been and are are at
at the
the time
time of the
the grant
grant used by the the owners of the
the
entirety
entirety for
for the
the benefit
benefit of the part granted.34
the part granted. This rule
rule operates
operates only
only toto create
create easements in in
favour
favour of aa grantee;
grantee; it
it does
does not
not create
create any easement inin favour
favour of the
the grantor
grantor with respect to
with respect to
retained land.35
retained land.
b.
b. The "General
"General Words"
Words " Statutory Provision
Section
Section 15(1)
1 5( 1 ) of the ofProperty Act36
the Conveyancing and Law of Act provides:
provides:
37
—
15.—(1)
15. (1) Every conveyance37
conveyance of land, unless an
land, unless an exception
exception is
is specially
specially made therein,
therein, includes
includes
all
all ... ways,
... ways, waters,
waters, watercourses,
watercourses, lights,
lights, liberties, privileges, easements,
liberties, privileges, profits ... hereditaments
easements, profits hereditaments
...
and appurtenances whatsoever

whatsoever to
to such
such land
land belonging or or in
in anywise appertaining,
appertaining, or or with
with such
land
land demised, held,
held, used,
used, occupied and enjoyed
enjoyed or or known as
or taken or as part
part or parcel thereof
or parcel thereof ... . ...
31
31
(1879),
(1879), 12
12 Ch. D. 31. actual decision
31. The actual decision in
in the
the case
case was that
that an easement was not created because
not created because the
the rule
rule
formulated
formulated in the case
in the case did
did not
not apply to implication of a reservation of an easement in favour of a grantor.
apply to implication of a reservation of an easement in favour of a grantor.
32
supra, note
note 4,
4, at
at 862.
862.
33
33
Ibid.
Ibid, [footnote
[footnote omitted].
omitted].
34
Wheeldon v. v. Burrows, supra,
supra, note
note 31,
31, at
at 49.
49. It
It may be that the
be that the second condition is an alternative
condition is alternative rather than an
rather than an
additional
additional condition.
condition. At one point
point in
in Wheeldon (at (at 49)
49) they
they are
are treated as synonymous; in
treated as in another (at 58)
another (at 58) they
they are
are
treated
treated as
as alternatives.
alternatives. See Megarry and Wade, supra,
supra, note
note 4,
4, at are two recent
at 862-63. There are English cases
recent English cases on the
the
Rule in
in Wheeldon; theythey do not
not seem toto resolve
resolve this
this problem: see see B.
B. Ziff, Principles of
Ziff, Principles Property Law (2d
of Property (2d ed.,
ed.,
1996),
1996), at
at 340.
340.
35
The Rule does
does apply
apply where simultaneous grants
grants are
are made to or more grantees
to two or grantees of land previously held as
previously held as a
a
single piece by the
single piece grantor. Compare Hardy v.
the grantor. v. Herr,
Herr, [1965]
[1965] 1 O.R.
1O.R. 102
102 (H.C.), aff d [1965]
(H.C.), aff'd O.R. 801
[1965] 2 O.R. 801 (C.A.).
(C.A.).
Reciprocal
Reciprocal easements,
easements, for
for example where two houses supportsupport each other, provide an
other, provide exception under
an exception under which an
an
easement may be be implied
implied in
in favour
favour of
of a
a grantor,
grantor, so
so that
that on the sale of one house
the sale house an support would be
an easement of support be
implied
implied in
in favour
favour of
of both
both grantor
grantor and grantee.
grantee. However, this be explained
this may be explained asas being
being an "intended easement".
an "intended easement".
36
36
Supra,
Supra, note
note 28.
28.
37
A "conveyance" for
for this purpose includes
this purpose includes a
a lease,
lease, among other
other things:
things: ibid.,
ibid., s.
s. 1(1).
1(1).
132
132
The main purpose of the the provision

provision was to to shorten
shorten conveyances by implying implying the the
that had previously
verbiage that
verbiage previously been typically
typically setset out
out expressly
expressly in in conveyances. For the the most
part the extraordinarily
part the extraordinarily detailed list of items
detailed list items isis unexceptional
unexceptional and is is irrelevant
irrelevant toto the
the creation
creation
easements. Even the
of easements. the explicit
explicit references
references to to easements and profitsprofits are
are of little
little importance
since the
since provision "has
the provision "has no effect
effect on existing
existing easements or or profits
profits appurtenant
appurtenant to the land
to the
1
conveyed,
conveyed, which automatically
automatically pass
pass with
with it,
it,save that it precludes any
save that it precludes any argument that
that they
not intended
were not
were intended to pass".38 However, the
to pass". the provision
provision does have the the important effect,
effect, unless
unless
there is provision
there is provision to
to the
the contrary,
contrary, of creating
creating an an easement or or profit
profit out
out of previously
previously enjoyed
ways,
ways, liberties,
liberties, and privileges,
privileges, and soso on.
on. For example, in in International
International Tea StoresStores Co.Co. v.v.
39
Hobbs aa landlord
Hobbs39 permitted his
landlord had permitted his tenant
tenant to
to use
use aa way across
across property
property that
that remained in in the
the
occupation
occupation of the the landlord.
landlord. Subsequently,
Subsequently, the the landlord soldsold the
the reversion
reversion to to the previously
the previously
leased property to
leased property to the
the tenant.
tenant. It
It was held that that the
the tenant,
tenant, by force
force of English
English legislation
legislation
equivalent to section 15,
equivalent to section 15, acquired an easement of way.
acquired an easement of way. What had previously been aa way
previously
enjoyed
enjoyed byby permission
permission was converted
converted intointo an
an easement of way.
Section
Section 15
1 5 overlaps
overlaps the
the Rule in
in Wheeldon v.v. Burrows. However, in in important
important respects
respects it
it
has
has aa considerably
considerably wider ambit.ambit. There is is no requirement that
that the
the quasi-easement
quasi-easement bebe
"continuous"
"continuous" or or "apparent"
"apparent" or or that
that it
it be reasonably
reasonably necessary
necessary toto the
the enjoyment of thethe
property
property conveyed.
conveyed. On the the other
other hand,
hand, the
the House of Lords held
held in
in Sovmots Investments
Investments Ltd.
Ltd.
v. Secretary
v. Secretary of
of State
State for
for the
the Environment40 that, the equivalent English
Environment tha^the equivalent English provision only applies
provision only applies
where there
there had been some diversity
diversity of ownership oror occupation of the
the quasi-dominant and
quasi-servient
quasi-servient tenements prior
prior to
to the
the conveyance.
c.
c, "Intended" Easements
Even in in circumstances
circumstances outside
outside those
those attracting
attracting the
the Rule inin Wheeldon v. v. Burrows an
easement,
easement, often
often referred
referred to
to as
as an
an "intended"
"intended" easement, implied on the
easement, may be implied the basis
basis that
that it
it is
is
"necessary
"necessary to to give
give effect
effect to
to the
the common intention
intention of the parties".41 Although itit is
the parties". is more
difficult
difficult for
for aa grantor
grantor than
than a a grantee
grantee toto establish
establish an easement on this
this basis,
basis, an "intended"
"intended"
easement may be implied
implied in
in favour
favour of a
a grantor
grantor as
as well
well as
as a
a grantee.42
grantee.
38
Megany and
and Wade, supra, note 4,
supra, note 4, at
at 864.
864.
39
[1903]
[1903] 2
2 Ch.
Ch. 165.
165.
40
[1979]
[1979] A.C. 144.
144.
41
41
Pwllbach Colliery
Colliery Co.
Co. v.
v. Woodman, [1915]
[1915] A.C.
A.C. 634,
634, at
at 646.
646.
42
See
See Duchman v.
v. Oakland Dairy Co.,
Co., [1929]
[1929] 1 D.L.R.
D.L.R. 9 (Ont.
1 Div.) and Barton v.
(Ont. App. Div.) Raine (1980),
v. Raine (1980), 29 O.R.
O.R. (2d)
(2d)
685 (C.A.).
(C.A.).
133
d.
a\ Easements of
of Necessity
These easements are closely

easements are closely related
related to
to "intended
"intended easements" and may in in fact
fact merely be
illustrations
illustrations of them.43The classic example of an easement of
them. The classic of necessity
necessity occurs
occurs where there
there is
is
aa grant
grant of land,
land, resulting
resulting in
in the
the land
land granted oror land retained by the
land retained the grantor
grantor having no means
of access unless an easement is
access unless is implied
implied providing
providing such
such access.
access. As suggested
suggested by this
this example,
an
an easement of necessity
necessity may be implied in in favour of aa grantor
grantor as
as well
well as
as a
a grantee.
grantee.
necessity requirement
The necessity is more stringent
requirement is stringent in
in easements of necessity
necessity than in
in the
the Rule
in
in Wheeldon v.v. Burrows. For example, a a convenient second method of accessaccess may bebe
acquired
acquired as the Rule in
as an easement under the in Wheeldon v. v. Burrows. On the
the other
other hand,"
hand,
[i]f
[i]f some other
other way exists,
exists, no way of necessity
necessity will
will be implied
implied unless
unless that
that other
other way isis merely
precarious
precarious and not not as
as of right,
right, or
or unless,
unless, perhaps,
perhaps, it
it would be a
a breach of the
the law to
to use
use that
that other
other
way for the purpose in
for the in question.
question. Nor will there be aa way of necessity
will there necessity if
if the
the other
other way isis merely
inconvenient,
inconvenient, as as where thethe land
land abuts
abuts on a a highway inin a
a cutting
cutting twenty feetfeet below; for
for the
the
principle is
principle is that
that an easement
easement of necessity
necessity is
is one 'without the property
'without which the retained cannot
property retained cannot bebe
used at
at all,
all, and not
not one merely necessary
necessary at
at the
the reasonable that property'.
reasonable enjoyment of that property'.
(iii)
(iii) Prescriptive
Prescriptive Easements
The law prescriptive easements was summarized in

law of prescriptive the Commission's Report on
in the
Limitations
ations of
Limitations ofActions45
Actions and it
ofActi it will be convenient to
will be to set
set out
out that here. (The footnotes
that summary here. footnotes
have been added.)
added.)
(b)
(b) Prescriptive
Prescriptive Easements
For aa prescriptive
prescriptive easement to to arise,
arise, the
the claimant
claimant must show user user 'as right'. This
'as of right'. This means
that
that he has
has enjoyed the the easement as if he were entitled
as if entitled toto it. The enjoyment must have been
it.
without
without force,
force, without secrecy permission. (Nec
secrecy and without permission. (Nee vi,vi, nee nee precario
clam, nec
nec clam, precario are
are the
the
expressions
expressions used in in legal
legal terminology.)
terminology.) A claimant
claimant to
to a
a right
right of way willwill not
not succeed
succeed if
if he had to
to
break open aa locked gate gate to

to achieve
achieve his use or
his use or where the the adverse use use has been continually
continually
contentious.
contentious. Nor will will he
he be
be successful
successful ifif the
the adverse use
use is active concealment is
secret, although active
is secret, is
not
not an
an essential
essential ingredient
ingredient of secrecy
secrecy for
for this purpose. This
this purpose. This may be illustrated the underground
illustrated by the
discharge
discharge of waste
waste from one property into another.
property into another. Finally,
Finally, if if permission
permission has given by
has been given by the
the
owner of the the land,
land, a a prescriptive
prescriptive easement cannot arise. arise. It not how long
matters not
It matters long ago that
that
permission was given,

permission given, oror whether itit was written
written or oral. Obviously,
or oral. Obviously, if if an owner of land
land gives
gives
permission (i.e.,
permission (i.e., aa licence)
licence) to
to another
another toto cross his land,
cross his the owner should not
land, the not be
be subjected
subjected to
to aa
43
See Wong v.v. Beaumont Property
Property Trust
Trust Ltd.,
Ltd., [1965]
[1965] 1 Q.B. 173
1 173 (C.A.). In Nickerson v.
(C.A.). In [1981] 11 Ch.
Barraclough, [1981]
v. Barraclough, Ch.
426,
426, at
at 440 (C.A.),
(C.A.), it
it was stated
stated that
that "an easement of necessity
necessity is not founded on public
is not policy at
public policy at all but on an
all but an
implication
implication from the
the circumstances".
circumstances".
44
supra, note
note 4,
4, at
at 860 [footnotes
[footnotes omitted], quoting from Union Lighterage
omitted], quoting Lighterage Co. v. London
Co. v.
Graving Dock Co.,
Co., [1902]
[1902] 2 Ch.
Ch. 557,
557, at
at 573.
573.
45
Supra,
Supra, note
note 5,
5, at
at 144-49
144-49 [footnotes
omitted].
134
34
claim for
claim for an merely because
an easement merely because the person to
the person to whom he has given permission
permission has
has taken
taken
advantage
advantage of that permission for
that permission for a
a considerable length
length of time.
time.
The person
person claiming
claiming the
the easement must show thatthat the
the owner of the
the land
land has
has acquiesced
acquiesced in
in
his enjoyment. The latter

his enjoyment. latter must have acquiesced, yet not
acquiesced, yet not given
given permission. It
It is
is not always easy
easy to
to
tell whether or
tell or not
not there
there was, in
in fact,
fact, acquiescence or permission in
or permission in a particular case.
a particular case.
Under English
English law, prescriptive easement
law, prescriptive easement can
can arise
arise in
in three
three ways:
ways:
(i)
(i) at
at common law;
law;
(ii)
(ii) under the
the doctrine
doctrine of the
the lost
lost modern grant;
grant;
(iii) under
(iii) under the
the Prescription
Prescription Act,
Act, 1832.
1832.
In
In Ontario,
Ontario, prescriptive
prescriptive easements can only
only be created
created by the
the second and third
third methods. The
English
English statute
statute was adopted for
for Upper Canada in
in 1847
847 and most of its
1 its provisions
provisions are
are now to
to be
be
found in
in The Limitations
Limitations Act.
Act.
The Limitations
Limitations Act expressly
expressly excludes
excludes the
the operation
operation of prescription
prescription in
in certain
certain situations.
situations. It
It
has
has not
not been possible
possible toto acquire
acquire a prescriptive easement with respect
a prescriptive with respect to
to light
light in
in Ontario
Ontario since
since
1880.
1880. (See
(See s.
s. 33.)
33.) However, prescriptive
prescriptive easements of light prior to
light which were acquired prior to 1880
1880 are
are
still
still valid
valid to-day.
to-day. Wires or or cables
cables on another's property cannot give rise to
another's property give rise to aa prescriptive
prescriptive
easement.
easement. (See
(See s.s. 35.)
35.) Nor can prescription under The Limitations
prescription under against unsurveyed
Limitations Act work against
Crown lands.
lands. (See
(See s.s. 41.)
41.) It
It does,
does, however,
however, apply
apply to surveyed Crown lands.
to surveyed lands. (See
(See ss.
ss. 30 and 31.)
31.)
(i)
(i) At
At Common Law
At common law,
law, aa grant
grant of an
an easement would be presumed if if the
the enjoyment of the
the claimed
right could be shown to
right to have continued
continued from timetime immemorial. Under the the common law
law in
in
this meant back to

England, this to 1189, the first
1189, the year of the
first year the reign
reign of Richard I. I. Since
Since it
it would be
virtually
virtually impossible
impossible to
to show continuous
continuous enjoyment since
since 1189,
1189, the
the courts
courts would presume that that
such
such long-term enjoyment existed
existed if
if twenty years user could be proved.
years of user proved. However, the the
rebutted by showing that
presumption could be rebutted
presumption that at
at some time
time since
since 1189
189 the
1the adverse
adverse use
use did
did not
not
exist.
exist.
(ii)
(ii) The Lost
Lost Modern Grant
To overcome the the obvious difficulties

difficulties in
in establishing
establishing a prescriptive easement at
a prescriptive at common law
so
so that
that legal
legal support
support could be given to long
could be given to long established
established enjoyment,
enjoyment, the
the English
English courts
courts developed
what Cheshire has described
described as
as 'the
'the very
very questionable
questionable theory'
theory' of the lost modern grant.
the lost grant. This
This
judge-made rulerule was based
based on the
the court's presuming that,
court's presuming that, if
if actual
actual enjoyment had been shown for for
aa reasonable length
length of
of time,
time, an actual grant had been made when the
actual grant the enjoyment began,
began, but
but that
that
the
the deed granting
granting that
that easement had been subsequently
subsequently lost.
lost. The speciousness the fiction
speciousness of the fiction of the
the
`lost'
'lost' grant
grant is
is demonstrated by by the
the refusal
refusal of the (although there
courts (although
the courts there is
is some law to to the
the
contrary)
contrary) toto allow the presumption
allow the presumption to to be rebutted
rebutted by evidence that grant was in
that no such grant in fact
fact
46
made.
46
It seems that
It the doctrine
that the doctrine does not
not apply
apply if
if a
a grant
grant could not possibly
could not have been
possibly have been made.
135
135
The doctrine the lost

doctrine of the lost modern grant
grant is part of the
is part the common law as
as it
it exists
exists in
in Ontario.47
Ontario.
(Hi) The Prescription

(iii) Prescription Act of
of1832
1832
The relevant
relevant provisions
provisions of this
this statute
statute were made applicable
applicable to
to Upper Canada in
in 1847
847 and 1
are
are now contained
contained in
in sections
sections 30 to
to 32,
32, 34,
34, 39 and 40 of The Limitations
Limitations Act.
Act.
The purpose of the

the 1832
1832 statute
statute was to reduce the
to reduce uncertainties of establishing
the uncertainties establishing prescriptive
prescriptive
easements
easements at
at common law or under the
or under lost modern grant
the lost grant doctrine,
doctrine, and avoid the problem of
the problem of
persuading juries to
persuading juries to find
find that
that grants
grants had been made and lost
lost when it
it was obvious that
that this
this was not
not
the case.
the case.
The statute
statute did
did not replace the
not replace the common law and lost lost modern grant
grant methods of acquiring
acquiring
prescriptive rights. It
prescriptive rights. It merely supplied
supplied aa new and supposedly simpler
simpler method. Thus, in in England,
England, aa
prescriptive
prescriptive easement can still
still be claimed in
in three different ways and,
three different and, in
in Ontario,
Ontario, in
in two.
two. Because
of
of the
the requirements
requirements of of the
the provisions
provisions of
of the
the statute,
statute, there
there are
are occasions
occasions when a a prescriptive
prescriptive
easement cannot be successfully
successfully claimed under it it but, nevertheless, can
but, nevertheless, can be either
either at
at common law
or
or under the
the doctrine
doctrine of the lost modern grant
the lost in England and under the
grant in the latter
latter in
in Ontario.
Ontario.
The Act of 1832

1832 is
is described
described by Megarry and Wade in in their
their text
text on real
real property law as as 'ill-
'ill-
drafted'
drafted' and Gale,
Gale, the
the author
author of the
the leading
leading treatise
treatise on easements,
easements, wrote 'it 'it certainly
certainly is
is to
to be
be
lamented that
that its
its provisions
provisions were notnot more carefully
carefully framed'.
framed'. These comments apply apply toto the
the
provisions as
provisions as they
they have been carried
carried forward into
into the present Ontario
the present Ontario limitations
limitations statute.
statute. The
prescription provisions
prescription provisions of
of that
that enactment remain aa mystery
enactment remain mystery to
to many a practicing lawyer.
a practicing lawyer.
Under these
these provisions,
provisions, the
the following
following are
are the
the points
points of significance:
significance:
1.
1 . Section
Section 31 establishes two different
3 1 establishes different periods
periods for
for the
the creation
creation of prescriptive
prescriptive easements.
easements.
These periods
periods are
are twenty and forty
forty years.
years.
The 20 year period
After
After twenty years
years of adverse use,
use, an easement cannot be defeateddefeated by showing thatthat user
user
began after
after 1189.
11 89. This merely facilities
facilities the
the operation
operation of prescription
prescription at
at common law by
eliminating
eliminating one kindkind of defence. at common law
prescription at
defence. Thus, while an easement by prescription law
could
could not
not bebe created
created in
in Ontario
Ontario apart
apart from this
this provision, 31 makes 'time
section 31
provision, section 'time
immemorial' irrelevant
irrelevant and enables
enables a a prescriptive
prescriptive easement to to be
be created
created at
at common law in in
this province. Apart from showing user

this province. Apart user began after
after 1189,
1189, aa claim
claim for
for aa prescriptive
prescriptive
easement after
after twenty years'
years' adverse use may still
adverse use be defeated
still be other defence
defeated by any other defence that
that
was available
available atat common law.
law.
47
For
For a
a recent
recent confirmation,
confirmation, see
see Descar Ltd
Ltd. v.
v. Megaventures Corp. (1990), 72 O.R.
Corp. (1990), (2d) 388 (H.C.).
O.R. (2d) (H.C.).
136
136
period
The 40 year period
After
After forty
forty years
years of adverse use, the easement becomes 'absolute
use, the 'absolute and indefeasible'.
indefeasible'. This isis
not
not as
as definite
definite as
as itit appears.
appears. The basic
basic rule
rule that
that prescription
prescription must operate
operate for
for and against
against a a
fee
fee simple
simple estate
estate still
still applies.
applies. Thus,
Thus, a a tenant
tenant cannot prescribe
prescribe against
against his
his landlord
landlord and it
it is
is
doubtful
doubtful ifif a
a corporation
corporation can be prescribed against against ifif it
it does not
not have the
the power toto grant
grant an
easement.
easement. Also a a claim based on forty forty years'
years' adverse use use may be defeated,
defeated, as
as could a a
twenty
twenty year claim, by
year claim, showing that the user
that the user was forcible
forcible or or secret,
secret, or
or enjoyed by written
written
permission.
permission. On the the other
other hand,
hand, aa forty
forty year
year claim
claim cannot be be defeated,
defeated, as
as aa twenty year
year claim
claim
can,
can, by proving
proving it it was enjoyed by oral permission. Furthermore,
oral permission. Furthermore, the the disabilities
disabilities that
that have
have toto
be
be taken
taken into
into account in in the
the running of thethe twenty year
year period
period under section
section 39 do not
not apply
to
to the running of the
the running forty year
the forty period. (Note,
year period. however, section
(Note, however, section 40.)
40.)
Thus,
Thus, section
section 31
3 may be
1 be said
said to
to operate
operate both negatively
negatively and positively.
positively. It
It facilitates
facilitates the
the creation
creation
of common law prescription
prescription by the
the elimination
elimination of a
a defence,
defence, on the
the one hand, and establishes
establishes a
a
right, on the
right, the other.
other.
2.
2. Section
Section 31 only comes into
into play
play when there
there is
is litigation
litigation and the
the relevant
relevant period
period of
user must immediately precede the
user bringing of the
the bringing the action.
action. Thus, forty
forty years
years of adverse
adverse
use
use does
does not
not of itself
itself create
create an
an 'absolute'
'absolute' prescriptive
prescriptive easement.
easement. An action
action must be
be
brought and the
the necessary
necessary period
period of enjoyment must be immediately prior
prior to
to the
the
commencement of that
that action.
action.
3.
3. The period
period must be 'without
'without interruption'. not mean mere non-user by the
interruption'. This does not the
person claiming
claiming the
the easement.
easement. It
It means that
that the
the claimant has not
claimant has not been obstructed
obstructed from
enjoying the
the use.
use.
4.
4. No act
act is
is deemed to interruption for
to be an interruption for the
the purpose of section
section 31
3 unless
unless the
the person
1
claiming
claiming the
the easement has
has submitted
submitted to
to interruption
interruption for
for one year.
year.
Example of
of the
the operation
operation of
ofsections
sections 31
31 and 32
X has
has been
been crossing property as
crossing Y's property as if
if he
he had
had an
an easement
easement for
for 19
19 years
years and
and one day.
day. The
next
next day Y prevents
prevents X from crossing
crossing by placing
placing an obstruction
obstruction in
in the
the way of passage.
passage. At
this
this time,
time, X has
has no right
right to
to cross
cross as
as he cannot show twenty years
he cannot years of enjoyment.
enjoyment.
However, if if X sues
sues for
for a prescriptive easement one year
a prescriptive year from the
the day after
after he had enjoyed
the
the use
use for
for nineteen
nineteen years, he will
years, he will succeed.
succeed. X will
will now be able to show twenty
able to twenty years
years of
enjoyment prior
prior to
to bringing
bringing the
the action.
action. The interruption
interruption will
will not
not count as
as it
it was for
for one year
less
less a
a day.
day. X could
could not
not have brought hishis action
action sooner as
as he would have been short
short of the
the
twenty year
twenty year period
period required.
required.
An action
action brought
brought by X on the
the following will be too
following day will too late
late as the interruption
as the interruption will
will now
have lasted
lasted a
a year
year and section 3 1 can no longer
section 31 longer apply.
apply.
The acquisition
acquisition of anan easement by by adverse
adverse use
use oror enjoyment is,is, of course,
course, to to be
be
distinguished
distinguished from the
the acquisition
acquisition of title
title by adverse possession under sections
adverse possession sections 4
4 and 151 5 of The
Limitations
Limitations Act.
Act. Ten years
years of adverse possession gives
adverse possession gives rise to a
rise to a possessory
possessory oror 'squatter's'
'squatter's' title,
title,
which is
is good against
against the
the world.
world. The adverse
adverse useuse required for an easement does
required for does not
not amount to to aa
dispossession
dispossession and,
and, of course,
course, must be
be for the benefit
for the benefit of
of adjacent land. Adverse possession
adjacent land. possession entails
entails
dispossession and does not
not depend for
for its other land
existence on other
its existence land which will
will benefit.
benefit.
137
137
Furthermore,
Furthermore, the adverse enjoyment which gives
the adverse rise to
gives rise to prescriptive
prescriptive easement is based on aa
is based
presumed grant.
grant. It is presumed that
It is the claimant
that the claimant had been granted the
the right
right to
to use the
the lands
lands in
in the
the
first place. Adverse possession
first place. raises no such presumption but,
possession raises but, once it
it has
has lasted
lasted ten
ten years,
years, results
results
in:
in:
(a)
(a) the
the dispossessed person barred from suing
person being barred suing for
for the
the recovery
recovery of the
the land;
land; and
(b)
(b) the dispossessed
the person's
dispossessed person's title
title to
to the
the land
land being extinguished.
extinguished.
The law relating

relating to prescription is
to prescription is both confusing and complex. Certainly,
Certainly, if
if prescription
prescription
were to
to be retained, there should be substantial
retained, there substantial improvements. Confusion and difficulties
difficulties under
under
the
the present arise from:
present law arise from:
1.
1 having two different
different methods of prescription
prescription when one would be sufficient;
sufficient;
2.
2. having two different periods under the
different periods the stature
stature when one would be sufficient;
sufficient;
3.
3. tying
tying the prescription periods
the prescription periods under the
the statute
statute to
to the
the commencement of an action;
action;
4.
4. requiring long
requiring long periods
periods of adverse
adverse enjoyment, considering
considering that
that ten
ten years'
years' adverse
adverse
possession
possession is
is sufficient
sufficient to
to create
create a possessory title;
a possessory title;
5.
5. excluding
excluding from the
the periods
periods required
required under the
the statute
statute time when the
the servient
servient tenement
is
is owned by someone under a disability, when such persons usually
a disability, usually have legal
legal
representatives
representatives who can act
act on their
their behalf;
behalf;
6.
6. the
the poor drafting
drafting of the
the statutory provisions;
statutory provisions;
7.
7. the
the use
use of the
the fiction
fiction of the
the 'presumed' grant;
grant;
8.
8. the
the obscureness
obscureness of the
the law as
as to
to the
the meaning of 'user
'user as
as of right';
right'; and
9.
9. the
the difficulty
difficulty or
or undesirability,
undesirability, in
in some cases,
cases, of
of having to
to make 'interruptions'
'interruptions' in
in the
the
running
running of
of time by the
the creation
creation of physical
physical obstructions.
obstructions.
C.
C. PROFITS-A-PRENDRE
Profits-a-Prendre
(b)
(b) Prescriptive
Prescriptive
A profit-a-prendre
profit-a-prendre may be claimed in in Ontario
Ontario by prescription
prescription either
either by virtue
virtue of the
the
doctrine
doctrine of the
the lost
lost modern grant
grant or
or under
under section
section 30 of The Limitations
Limitations Act.
Act. Section
Section 30 provides
for
for the
the establishing
establishing of a a prescriptive
prescriptive profit-a-prendre
profit-a-prendre after
after thirty adverse use
years of adverse
thirty years use by the
the
claimant,
claimant, although
although the
the claim
claim may be defeated
defeated on certain
certain grounds.
grounds. After sixty years,
After sixty the section
years, the section
provides
provides that
that the right to
the right to the
the profit-a-prendre
profit-a-prendre become absolute
absolute (unless it can
(unless it can be that the
be shown that the
adverse use was enjoyed by written written consent). Limitations Act is
Prescription under The Limitations
consent). Prescription is not,
not,
however, applicable
applicable toto unsurveyed Crown lands.
lands. (See
(See s.
s. 41.)
41.)
Prescriptive profits-à-prendre in
Prescriptive profits-a-prendre in gross
gross cannot
cannot be
be successfully the statute.
claimed under the
successfully claimed statute.
They can,
can, however, be
be established
established under the doctrine of the
the doctrine lost modern grant.
the lost grant.
138
It should
It be added to
should be to the foregoing account of the
the foregoing the law that
that neither
neither an easement nor a a
profit can be acquired
profit acquired by prescription
prescription against
against land registered under the
land registered the Land Titles
Titles Act,48
Act?* the
the
same provision,
provision, section
section 51(1),
51(1), abolishing
abolishing both adverse possession
adverse possession and prescription.
prescription.
Section 51(1)
Section 51(1) provides
provides as
as follows:
follows:
51. —
51.—(1)(1) Despite any provision
provision of this
this Act,
Act, the
the Limitations
Limitations Act or
or any other
other Act,
Act, no title
title to
to and
no right
right or
or interest
interest in
in land registered under this
land registered this Act that
that is
is adverse
adverse to
to or
or in
in derogation
derogation of the
the title
title
of
of the
the registered
registered owner shall
shall be acquired hereafter
hereafter or
or be deemed toto have been acquired
acquired heretofore
heretofore
by any length
length of possession
possession oror by prescription.
prescription.
(C)
(c) EXTINGUISHMENT OF
Extinguishment of EASEMENTS
Easements
(i)
(i) Express Release
49
At common law an express
express release
release must be made by deed."
deed.""
In
In equity,
equity, however, an
an informal
informal release
release will
will be
be effective provided it
effective provided it would be
be inequitable
inequitable
for
for the
the dominant owner toto claim that the
claim that right still
the right still exists,
exists, as
as where he has orally
orally consented
to
to his
his light
light being obstructed
obstructed and the
the servient
servient owner has has spent
spent money on erecting
erecting the
the
obstruction.
obstruction.
(ii)
(ii) Abandonment
The essence
essence of abandonment is
is conduct showing an intention
intention to release. An easement
to release.
will not be extinguished by non-user alone,
will not alone, but
but non-user
non-user of long
long duration
duration may raise
raise aa
rebuttable
rebuttable presumption of abandonment.
(iii)
(iii) Unity of
of Ownership and Possession
As Megarry and Wade explain, is only extinguished

explain, an easement is extinguished if
if there
there is
is unity
unity of
both ownership and possession:5°
both possession:
If the dominant and servient

If the servient tenements
tenements come into
into the possession of the
the ownership and possession the same
person,
person, any easement
easement or profit is
or profit is extinguished.
extinguished. Unity
Unity of possession
possession without
without unity
unity of ownership is is
not enough; and unity

not unity of ownership means acquisition
acquisition of both
both tenements forfor aa fee
fee simple
absolute.
absolute. If
If there
there is
is only
only unity
unity of possession the
of possession right is
the right is merely suspended until
until the
the unity
unity of
possession ceases.
possession ceases. If
If there
there is unity of ownership the
is only unity the right continues until
right continues until there
there is
is also
also unity
unity
of
of possession.
possession.
48
R.S.O.
R.S.O. 1990,
1990, c.
c. L.5.
L.5.
49
supra, note
note 4,
4, at
at 897 [footnotes
omitted].
50
Ibid.,
Ibid., at
at 899 [footnotes
omitted].
139
139
(iv)
(iv) Effect
Effect of Land Titles
Titles Act and Registry Act
51
The Land Titles
Titles Act"
Act provides for for the
the statutory
statutory extinguishment after
after forty
forty years
years of aa
"condition,
"condition, restriction
restriction or
or covenant" which "has been registered
registered as
as annexed to
to or running with
or running with
the land". However, it
the land". it appears that
that this
this provision
provision does
does not
not apply
apply to
to easements or profits and
or profits
no other
other provision
provision of the
the Land Titles
Titles Act provides
provides for their statutory
for their statutory extinguishment.
extinguishment.
52
The Registry
Registry Act,52
Act, on the other hand, does provide
the other provide for
for the
the statutory
statutory extinguishment of
easements and profits in certain circumstances.53 Section 113(1)
profits in certain circumstances. Section provides that
113(1) provides that a
a "claim"
"claim"
expires
expires at
at the
the end of thethe "notice
"notice period"
period" unless
unless a a "notice
"notice of claim" is is registered.
registered. Claim is is
defined
defined by section
section 111(1)
111(1) to to include
include an easement,
easement, and probably
probably aa profit,
profit, inin a
a registered
registered
instrument.
instrument. Section
Section 113(2)
13(2) provides
1 provides thatthat aa notice
notice of claim may be registered
registered within
within the
the notice
notice
period or
period or thereafter
thereafter "before
"before the the registration
registration of any conflicting
conflicting claim".54
claim". "Notice period"
period" is is
defined
defined by section
section 111(1)
111(1) as as forty
forty years
years from registration
registration of the
the instrument
instrument in in question
question oror
forty
forty years
years after
after registration
registration of a a notice
notice of claim.
claim. The effect
effect of all
all this
this is
is that
that generally
generally anan
easement or profit will expire after forty years unless a notice of claim is registered in order
easement or profit will expire after forty years unless a notice of claim is registered in order
to
to keep itit alive.
alive. However, this this is
is subject
subject toto an important exemption since since section
section 113(5)
113(5)
provides that
provides these provisions
that these provisions do not not apply
apply to:
to:
(a)
(a) aa claim,
claim,
(iv)
(iv) of aa person
person to
to an unregistered
unregistered right
right of way or
or other
other easement or right that
or right the
that the
person is
is openly
openly enjoying
enjoying and using.
using.55
3.
3. REFORM
(a)
(a) APPROACHES
Approaches TO
to REFORM
Reform
During the
the last years or
last twenty years or so
so an
an argument has has been made forfor the
the integration
integration of
F doctrines relating to
doctrines relating to covenants, easements, and profits.
covenants, easements, profits. In
In 1971
1971 the
the English
English Law Commission
in
in a
a working paper56
paper argued
argued for
for legislative
legislative reformulation
reformulation along
along lines
lines different
different from the
the
distinctions
distinctions in
in the
the present
present doctrines.
doctrines. An integrated
integrated body of rules apply to
rules would apply to aa new
category
category of
of "Land Obligations"
Obligations" subdivided
subdivided into
into five
five classes according to
classes according to their nature. Several
their nature. Several
51
51
Supra,
Supra, note
note 48,
48, s.
s. 119(9).
119(9).
52
R.S.O.
R.S.O. 1990,
1990, c. R.20. The Registry
c. R.20. Registry Amendment Act,
Act, S.O.
S.O. 1981,
1981, c.
c. 17,
17, s. 4, introduced
s. 4, a new Part
introduced a Part III
III to the Registry
to the Registry
Act, R.S.O. 1980,
Act,R.S.O. 1980, c.
c. 445.
445.
53
See,
See, generally,
generally, T.G.
T.G. Youdan, "The Length of a a Title in Ontario"
Title Search in (1980), 64 Can. Bar Rev.
Ontario" (1980), Rev. 507, at 519-31;
507, at 519-31;
and B.
B. Bucknall,
Bucknall, et
et al.,
al., "Title
"Title Searching
Searching under
under the Ontario Registry
the Ontario Registry Act
Act After
After Fire v. Longtin:
Fire v. Longtin: A Consensus
Position"
Position" (1996),
(1996), 1 R.P.R.
RPR. (3d)
1 (3d) 173.
173.
54
54
For discussion
For discussion about
about the
the effect
effect of this provision, see
this provision, see Youdan, ibid.,
ibid., at
at 527-28.
55
For
For discussion
discussion about
about the
the effect
effect of this see Youdan, ibid.,
provision, see
this provision, at 530-31.
ibid., at 530-3 1
56
U.K.,
U.K., Law Commission, Transfer
Transfer of Landf:J Appurtenant
of Land[:] Rights (Working Paper
Appurtenant Rights No. 36).
Paper No. 36).
140
140
American commentators, notably

notably in
in a
a symposium in in the
the Southern
Southern California
California Law Review in in
57
1982, for integration
1982, have argued for integration to
to be
be effected
effected by judicial
judicial development of the law.57 One of
the law.
these commentators,
these commentators, Professor
Professor Susan French, is the reporter for
French, is the reporter the servitudes
for the servitudes section
section of the
the
Third
Third Restatement and in in "Tentative
"Tentative Drafts"58
Drafts" has formulated an an exposition
exposition of
of doctrine
doctrine
integrating the law of covenants,
integrating the covenants, easements and profits.
profits.
The main thrust

thrust of the
the argument forfor integration
integration is
is that
that the
the separate
separate doctrines
doctrines in
in the
the
present law have developed for
present for historical
historical reasons
reasons whereas inin contemporary society
society they
they all
all
carry
carry out
out the
the same basic functions and overlap considerably. The existence
basic functions and overlap considerably. existence of such
such separate
separate
doctrines
doctrines creates
creates unnecessary doctrinal
doctrinal complication,
complication, which inin turn
turn causes
causes difficulty
difficulty in
in the
the
application
application of the
the law.
law. It
It also
also causes
causes incoherence where different rules of different
different rules different doctrines
doctrines
cause
cause different
different results
results in
in circumstances where such variance
variance cannot be functionally justified.
functionally justified.
9
In
In our
our Report on Covenants Affecting
Affecting Freehold Land59
Lane? we referred
referred toto this
this movement for
for
60
integration
integration but
but concluded against
against attempting
attempting such reform in
such reform in the
the report:6°
report:
[W]e have concluded that

that such an approach would be be overly
overly ambitious within
within the
the limited
limited context
context
of the
the present
present Report.
Report. Although we do not not wish to preclude the
to preclude the eventual
eventual assimilation
assimilation of the
the
several
several servitudes,
servitudes, we have determined thatthat the
the proposals
proposals for
for reform made in
in this
this Report should
should
deal
deal only
only with positive
positive and restrictive
restrictive covenants,
covenants, and should notnot address
address easements oror profits
profits a
prendre.
prendre.
Those who oppose or or are

are skeptical
skeptical of integration
integration argue
argue that
that at
at least
least some important
important
differences
differences in
in the
the rules
rules applicable
applicable in
in the
the existing
existing doctrines
doctrines are
are not
not merely thethe product of
history but
history but that
that "many of the the variances
variances inin the
the rules
rules are
are based upon sound policypolicy and
supported
supported by community expectation".61
expectation". An important
important example of suchsuch variance
variance is
is the
the group
of doctrines
doctrines in
in the
the law
law of easements
easements providing
providing for
for the
the implication
implication of easements
easements where they
they
have not
not been
been expressly created. We outlined
expressly created. outlined these
these doctrines
doctrines in
in our "Summary of the the Present
Present
Law" under the the headings
headings of:
of: "The Rule inin Wheeldon v. v. Burrows",
Burrows", "The
"The 'General
'General Words'
57
See, particularly, U.
See, particularly, U. Reichman, "Towards a a Unified
Unified Concept of Servitudes"
Servitudes" (1982), So. Cal.
(1982), 55 So. Cal. L.
L. Rev. 1179;
1179;
S.P.
S.P. French,
French, "Towards a a Modern Law of Servitudes:
Servitudes: Reweaving the
the Ancient Strands"
Strands" (1982),
(1982), 55
55 So.
So. Cal.
Cal. L.
L. Rev.
Rev.
1261
1261 (hereinafter referred to
(hereinafter referred to as
as French,
French, "Towards a a Modem
Modern Law"); S.P.
S.P. French, the New
"Servitudes Reform and the
French, "Servitudes
Restatement of Property:
Property: Creation
Creation Doctrines
Doctrines and Structural
Structural Simplification"
Simplification" (1988),
(1988), 73 Cornell
Cornell L.Q. 928
(hereinafter referred to
(hereinafter referred to as
as French,
French, "Servitudes
"Servitudes Reform").
Reform").
For
For a
a brief
brief comment along similar
similar lines
lines by an
an English writer,
writer, see
see P. Jackson, The Law of
P. Jackson, of Easements and Profits
Profits
(1978),
(1978), at
at 2.
2. See,
See, also,
also, several
several articles
articles in
in 27 Conn. L.
L. Rev.
Rev. 119 et seq.
1 19 et seq. (1994).
(1994).
58
American Law Institute,
Institute, Restatement ofof the
the Law Third[.)
Thirdf] Restatement of the Law of
of the of Property (Servitudes)17
(Servitudes) [:]
Tentative Draft No. 11 (April
Tentative Draft (April 5,
5, 1989); Tentative Draft
1989); Tentative Draft No. 2 (April
(April 5,
5, 1991).
1991).
59
Supra, note
note 3.
3.
60
Ibid.,
Ibid., at
at 103.
103.
61
61
Berger,
Berger, supra,
supra, note
note 29,
29, at
at 368.
368. See,
See, also,
also, L. Berger, "Unification
L. Berger, "Unification of the
the Law of Servitudes" (1982), 55 So.
Servitudes" (1982), So. Cal.
Cal. L.J.
L.J.
1339.
1339. Compare C.M.
CM. Rose,
Rose, "Servitudes,
"Servitudes, Security, Assent: Some Comments on Professors
Security, and Assent: Professors French
French and
Reichman" (1982),
(1982), 55
55 So.
So. Cal.
Cal. L. Rev. 1403.
L. Rev. 1403.
141
141
Statutory Provision",
Statutory Provision", "'Intended'
"'Intended' Easements", and "Easements of Necessity".
Necessity". These doctrines
doctrines
counterparts in
have no counterparts the law relating
in the relating to
to positive
positive or
or restrictive
restrictive covenants.
covenants. This,
This, it
it is
is argued,
argued,
is
is because the practical
because the practical context the types
context of the types of rights
rights created
created by easements, unlike
unlike those
those
created by positive or restrictive covenants,
created positive or restrictive covenants, make such doctrines appropriate.
such doctrines appropriate.
This argument is
This is to
to some extent
extent at least conceded by
at least by proponents
proponents of integration.
integration. For
Professor French accepts
example, Professor accepts that
that the proposed single
the proposed single body of doctrine
doctrine will
will
62
"occasionally
"occasionally [break]
[break] out or more of the
out one or the servitudes
servitudes for
for separate
separate treatment".62
treatment". For
example,
example, she
she accepts that,63
accepts that,
[d]ifferent
[different rules
rules ... may apply to
... to finding
finding affirmative
affirmative easements by implication
implication than
than apply
apply to
to
profits
profits and different to implying negative
rules apply to
different rules negative and affirmative
affirmative covenants.
covenants.
Doctrinal
Doctrinal integration
integration would,
would, therefore,
therefore, not
not be
be a
a simple
simple process
process of
of making an an existing
existing
body of doctrine
doctrine apply
apply in
in all
all the
the circumstances
circumstances presently
presently dealt
dealt with
with by positive
positive covenants,
covenants,
restrictive
restrictive covenants,
covenants, and easements.
easements. Rather,
Rather, it
it would require
require reformulation
reformulation of large
large bodies
bodies of
of
existing
existing doctrine.
doctrine. Moreover, such reformulation
reformulation would probably continue
continue important
important
distinctions
distinctions similar to those
similar to in the
those in present law.
the present law.
In
In the
the context
context of this
this report
report it
it is
is not possible to
not possible to conduct a
a detailed
detailed review
review and
reformulation of
reformulation of the
the areas
areas dealt
dealt with
with presently
presently by the law of
the law of easements
easements and such
such a
a review
review and
reformulation
reformulation would be be necessary
necessary if
if the law of easements was to
the law to be
be integrated
integrated with that
with that
dealing
dealing with
with covenants.
covenants. Instead,
Instead, we shall
shall consider
consider particular
particular topics
topics where reform of basic
basic
principles
principles of the
the law of easements would be be appropriate.
appropriate. InIn considering
considering such reform,
reform,
increased
increased assimilation
assimilation with
with the
the law of positive
restrictive covenants
covenants will
will be aa very
very
important
important factor.
factor.
(b)
(b) PROPOSED
Proposed REFORMS
Reforms
(i)
(i) Easements in
in Gross
We mentioned in in the
the "Summary of the
the Present
Present Law" the
the well-entrenched
well-entrenched rule
rule that
that an
easement cannot
cannot exist
exist independently of a
a benefited
benefited piece
piece of land;
land; it
it cannot
cannot exist
exist in
in gross.
gross.
Holdsworth64
Holdsworth argued thatthat the
the main reason
reason for
for this rule was that
restrictive rule
this restrictive the medieval
that the medieval
remedy forfor infringement
infringement of anan easement, the assize
easement, the assize of
of nuisance,
nuisance, "only
"only lay
lay for
for aa freeholder
freeholder
against
against aa freeholder"65
freeholder" and that
that this
this procedural
procedural restriction
restriction became a a rule substantive law so
rule of substantive so
that
that it
it remained even after
after the
the assize obsolete. A contributing
assize of nuisance became obsolete. factor may
contributing factor
62
"Servitudes
"Servitudes Reform", supra,
supra, note
note 57,
57, at
at 951.
951
63
Ibid.
ibid
64
Supra,
Supra, note
note 18,
18, at
at 156-57.
156-57.
65
Ibid.,
Ibid., at
at 156.
156.
142
142
that Roman law similarly

have been that similarly restricted
restricted servitudes
servitudes to
to ones that
that were connected with
with
benefited land, and
benefited land, and Roman law was influential
influential in
in the nineteenth century systematization of
the nineteenth century systematization
the law of easements.
the easements.
A more substantial
substantial reason for
for the
the existence,
existence, or or at
at least
least the
the continued
continued existence,
existence, of thethe
rule may have been concern about the
rule the detrimental
detrimental impact
impact an an easement in in gross
gross might have on
the servient
the tenement. The main point66
servient tenement. point isis that
that it
it is
is ordinarily
ordinarily fairly
fairly easy to
to locate
locate and identify
identify
the owner of an easement connected to
the to benefited
benefited landland since
since the
the land,
land, and its
its owner, will
will be
readily
readily identifiable;
identifiable; however, determination of the the identity
identity and location
location of the
the current
current owner
of an easement in in gross
gross might cause
cause more difficulty.
difficulty. This
This might have two possible
possible effects.
effects.
First, aa potential
First, potential purchaser of the the servient
servient land
land might be concerned about the the difficulty
difficulty and
this might affect
this affect marketability
marketability of land.67
land. Second,
Second, the the difficulty
difficulty inin determining thethe identity
identity and
location of the
location current owner of the
the current the easement might cause problems for for an owner of the the
68
servient tenement
servient tenement who wished to negotiate the removal or modification of the easement.68
wished to negotiate the removal or modification of the easement.
This problem would be
This problem particularly acute
be particularly acute where the the easement had long ago fallen fallen into
into disuse
disuse
and was therefore
therefore "a "a particularly
particularly appealing
appealing candidate
candidate for for removal".69
removal". All All of these
these problems
caused by difficulty
difficulty inin determining
determining the identity and location
the identity location of thethe current
current owner of an
easement in in gross
gross would be particularly
particularly likely
likely toto occur in in a jurisdiction, like
a jurisdiction, like that
that in
in England
when thethe rule

rule became established,
established, lacking
lacking an effective
effective system of recording title to
recording title to land
land or
or
documents relating
relating to land.
to land.
Whatever the reasons for

the reasons the creation
for the creation and continuance
continuance of the
the rule
rule in
in Anglo-Canadian
law,
law, it
it causes
causes inconvenience
inconvenience in
in modern law.
law. There are
are various
various types
types of arrangements that
that
cannot
cannot conveniently
conveniently be structured
structured through other legal concepts
other legal concepts but
but could
could conveniently
conveniently exist
exist
70
as
as easements
easements in gross. One commentator gives
in gross. gives the
the following
following examples:7°
examples:
Several possibilities
Several possibilities seem feasible
feasible as
as easements in in gross:
gross: the
the right
right to
to land
land helicopters
helicopters proposed inin
71
Gale;
Gale; easements forfor maintaining
maintaining telephone,
telephone, telegraph,
telegraph, power or or cable television lines
cable television lines on
another's
another's land,
land, or
or pipelines
pipelines under it;
it; the right to
the right to maintain advertising signs;
maintain advertising signs; or
or even the
the right
right of a
a
72
transport
transport company to to park
park lorries
lorries at
at convenient points
points along its
its normal routes.72
routes.
66
Sturley, supra, note
Sturley, supra, note 10,
10, at
at 562-63,
562-63, mentions, but then
mentions, but then convincingly
convincingly demolishes,
demolishes, the
the additional
additional argument "that
"that an
easement inin gross,

gross, not
not being limited by
being limited by the needs of the
the needs the dominant tenement,
tenement, is
is likely
likely to
to burden the
the servient
servient
tenement with
with excessive
excessive use".
use".
67
See Sturley, ibid., at
Sturley, ibid., at 563-67;
563-67; French,
Modern Law", supra, note 57 at
supra, note at 1282,
1282, 1286;
1286; S.E.
S.E. Sterk,
Sterk,
"Freedom from Freedom of Contract:

Contract: The Enduring
Enduring Value Servitude Restrictions"
Value of Servitude Restrictions" (1985),
(1985), 70 Iowa L.
L. Rev.
Rev.
615,
615, at
at 650 (hereinafter
(hereinafter referred
referred to
to as
as Sterk,
Sterk, "Freedom of Contract").
Contract").
68
See French,
Modern Law", supra,
supra, note
note 57, at 1286-87;
57, at 1286-87; French, "Servitudes Reform" supra,
French, "Servitudes supra, note
note 57,
57,
at
at 945-47;
945-47; and Sterk,
Sterk, "Freedom from Freedom of Contract",
Contract", supra,
supra, note
note 67,
67, at
at 651.
651.
69
Sterk,
Sterk, "Freedom of Contract",
Contract", ibid.,
ibid., at
at 651.
651.
70
Sturley,
Sturley, supra, note 10,
supra, note 10, at
at 559.
559.
71
See
See now S.G.
S.G. Maurice, ed., Gale on Easements,
Maurice, ed., Easements, (15th
(15th ed.,
ed., 1986),
1986), at
at 44.
44.
72
This possibility
This possibility was suggested by McClean, supra,
suggested by supra, note
note 1,
1, at
at 40.
40.
143
143
It
It is true that
is true the more important
that the important of these
these possibilities—those
possibilities those relating —
relating to
to utilities
utilities and
and
pipelines
pipelines and so so on—are — often accommodated by special
on are often special legislation.
legislation. For example, the the
Ontario Water Resources Act73 Act provides
provides that rights "in
that rights "in respect
respect of water or or sewage works, in in
favour
favour of the
the Crown or or any municipality
municipality having a a contract
contract with
with the
the Crown in in respect
respect of water
or sewage works" may be
or valid and enforceable
be valid enforceable "although thethe right
right ... is
is not
not appurtenant
appurtenant or
...or
annexed toto or
or for the benefit
for the benefit of any land
land of the
the Crown or the municipality".
or the municipality".
However, this
this ad hoc typetype of solution
solution is
is not
not completely satisfactory.
satisfactory. First, it does
First, it does not
not
deal
deal with
with all
all arrangements that that could conveniently
conveniently exist
exist as
as easements and,
and, in
in particular,
particular, there
there
will often be a
will often time-lag between the
a time-lag the development of some novel novel type
type of arrangement and any
legislation
legislation passed to deal with it. Second, where there
to deal it. there is
is an arrangement which could could
conveniently
conveniently exist
exist as
as an
an easement butbut which does
does not
not have thethe benefit
benefit of special
special legislation,
legislation,
courts
courts will
will either
either have to to strike
strike down the
the arrangement as as an easement or or be forced
forced into
into
strained
strained reasoning in in order
order toto uphold it. Vannini v.
it. v. Public Utilities
Utilities Commission of Sault Ste.
ofSault Ste.
Marie74 provides
Marie provides anan example.
example. A water main, belonging to to the
the defendant
defendant Commission, was
laid
laid in
in land
land of the
the plaintiffs
plaintiffs predecessor in in title
title in
in 1909
1909 at
at a
a time when no special
special legislation
legislation
provided
provided for
for the
the validity
validity of such an arrangement as as aa easement in in gross.
gross. It
It was held that an
held that an
easement had been acquired by prescription.prescription. The argument that that the
the defendant had no
dominant tenement
tenement to to which the the casement was appurtenant
appurtenant was met with with the
the argument,
argument,
accepted
accepted by the court, "that the
the court, "that the Commission in effect has ownership of the waterworks
in effect has ownership of the waterworks
system
system and that
that this
this creates
creates a a dominant tenement".75
tenement".
The third
third deficiency
deficiency in
in the
the ad hoc statutory treatment of easements in
statutory treatment in gross
gross is
is that
that it
it is
is
76
"necessarily
"necessarily expensive and inefficient".76
inefficient". In
In the
the absence of compelling reason
reason for
for the
the general
general
77
invalidity
invalidity of easements inin gross,77
gross, they
they should
should be permitted
permitted by the
the general
general law and then
then the
the
form and terms
terms of each
each arrangement can can be cheaply
cheaply and efficiently
efficiently determined by the
the parties
parties
able
able to
to negotiate
negotiate them.
them.
There are,
are, we suggest,
suggest, no compelling reasons
reasons why easements in in gross
gross should notnot be
permitted
permitted in
in modern Ontario
Ontario law.
law. In
In particular,
particular, the possible rationales
the possible rationales based
based on difficulty in
difficulty in
determining
determining the
the identity
identity and location
location of the
the owner of the
the easement have little
little force
force in
in modern
Ontario
Ontario and will
will have even less
less force
force if
if other reforms we propose
other reforms propose are
are implemented. The main
73
R.S.O.
R.S.O. 1990,
1990, c.
c. 0.40,
O.40, s.
s. 29(1).
29(1). Compare the the more general
general provisions
provisions inin Alberta,
Alberta, British
British Columbia,
Columbia, and
and Manitoba:
Manitoba:
Land Titles
Titles Act,
Act, R.S.A.
R.S.A. 1980,
1980, c.
c. L-5,
L-5, s. 72(1), as
s. 72(1), rep. sub.
as rep. sub. by S.A.
S.A. 1985,
1985, c.
c. 48, s. 2(16);
48, s. Title Act,
2(16); Land Title Act, R.S.B.C.
R.S.B.C.
1979,
1979, c.
c. 219,
219, s.
s. 214,
214, as
as am. by S.B.C.
S.B.C. 1989,
1989, c.
c. 71,
71, s.
s. 11;
11; 1992,
1992, c.
c. 77,
77, s.
s. 3; Act, R.S.M. 1987,
3; Real Property Act, c. R.30
1987, c. R.30
(also
(also C.C.S.M.,
C.C.S.M., c. c. R.30),
R.30), s.
s. 111,
1 1 1, as
as am. by S.M.
S.M. 1995,
1995, c.
c. 16,
16, s.
s. 5.
5.
74
Supra,
Supra, note
note 8.
8. Vannini
Vannini applied similar English
the similar
applied the English decision
decision of Re Salvin's [1938] 2
Indenture, [1938]
Salvin Indenture,
's Al E.R.
2 All E.R. 498. For aa
498. For
1
similar
similar Australian
Australian example,
example, see
see Gas & Fuel Corp.
Corp. of
of Victoria v. Barba,
Victoria v. [1976] V.R.
Barba, [1976] 755 (S.
V.R. 755 (S. Ct.), varied (1977),
Ct), varied (1977),
51
51 A.L.J.R. 219 (1-1.C. Aus.).
A.L.J.R.219(H.C.Aus.).
75
75
Vannini
Vannini v.
v. Public
Public Utilities
Utilities Commission of Sault Ste.
ofSault Ste. Marie,
Marie, supra,
supra, note
note 8,
8, at
at 666.
666.
76
Sturley,
Sturley, supra,
supra, note
note 10,
10, at
at 565.
565.
77
supra, note
note 1,
1, at
at 40.
40.
144
144
point
point is that
is the recording
that the recording systems
systems operative
operative in
in Ontario—both
Ontario both the—
the Registry Act78
Act™ and the
the Land
19
—
provide effective
Titles Act79—provide
Titles Act
80
Of)
effective systems forfor maintaining
maintaining aa record
record of the
the owner of the the
easement.
easement. In addition, difficulty
In addition, difficulty caused by obsolete
obsolete easements can properly be directly
directly
81
overcome by our proposed provisions for
provisions for modification and discharge
modification discharge of easements.81
easements.
Easements in gross have been

in gross permitted in
been permitted in other
other common law jurisdictions.
jurisdictions. InIn the
the
United States of America a
United States rule prohibiting
a rule prohibiting easements in in gross
gross was never established.
established.
Instead, itit is
Instead, is a
a question
question of construction
construction whether an easement is is intended
intended to be in
to be in gross
gross or
or
whether it is intended
it is intended toto be attached
attached toto a a dominant tenement,
tenement, although
although there
there isis a
a strong
strong
constructional
constructional preference
preference forfor finding
finding an easement to to be appurtenant rather
rather than
than inin gross.82
gross.
The difficulty
difficulty that has been
that has been experienced in in America law with easements in in gross
gross has
has related
related
83
their assignability
to their
to assignability and inheritability.83
inheritability. Originally,
Originally, they not assignable
they were not assignable oror inheritable
inheritable
but
but in
in modern times times the
the position
position has changed so so that
that the
the Restatement ofof the
the Law ofof Property,
Property,
in 1944,
in 1944, took
took the the position that:
position that:
Easements in gross, if
in gross, if of a
a commercial character,
character, are
are alienable
alienable property
property interests.84
interests.
alienability of non commercial easements in

The alienability in gross
gross is
is determined by the
the manner or
or the
the terms
of their
their creation.85
creation.
As the
the leading
leading treatise,
treatise, Powell on Real Property,
Property, asserts,
asserts, those
those sections the Restatement,
sections of the Restatement,
recognize the growing recognition

recognize the recognition of the
the assignability all easements in
assignability of all in gross
gross except
except those
those
demonstrably intended to benefit only the individual
demonstrably intended to benefit only the individual who is
is its
its first
first recipient.86
recipient.
78
Supra, note
note 52.
52.
79
Supra,
Supra, note
note 48.
48.
80
Compare French,
Modern Law", supra, note 57,
supra, note 57, at
at 1286;
1286; French,
French, "Servitudes
"Servitudes Reform", supra,
supra,
note
note 57,
57, at
at 947;
947; Sterk,
Contract", supra,
supra, note
note 67,
67, at
at 650;
650; Sturley,
Sturley, supra,
supra, note
note 10,
10, at
at 566-67.
81
81
See
See infra,
infra, sec.
sec. 3(b)(iii).
3(b)(iii). See
See French,
French, "Towards aa Modem
Modern Law", supra,
supra, note
note 57, 1286-87; French,
at 1286-87;
57, at French, "Servitudes
"Servitudes
Reform", supra,
supra, note
note 57,
57, at
at 947;
947; Sterk,
Contract", supra,
supra, note
note 67,
67, at
at 651-52.
82
P.J. Rohan, ed.,
P.J. ed., Powell on Real Property (1991),
(1991), s.
s. 405. also, Restatement of
See, also,
405. See, of the of Property,
the Law of Property, supra,
supra,
note 19,
note 19, §454;
§454; McClean, supra, note 1,
supra, note 1, at
at 40-42.
83
Powell on Real Property,
Property, supra,
supra, note
note 82,
82, s.
s. 419;
419; McClean, supra, note 1,
supra, note at 40-42.
1, at 40-42.
84
Restatement of the Law of
of the of Property,
Property, supra,
supra, note
note 19,
19, §489.
§489.
85
Ibid.,
Ibid., §491.
§491.
86
Powell on Real Property,
Property, supra,
supra, note
note 82,
82, s.
s. 419.
419.
145
145
Professor Susan French,

Professor French, the
the reporter
reporter for
for the
the servitudes
servitudes section
section of the
the proposed new
Restatement of Property,
Property, confirms this
this view that the law should
that the should not
not impose restrictions
restrictions on the
the
87
assignability the benefit
assignability of the benefit of easements inin gross.87
gross.
The rule
rule forbidding
forbidding easements in
in gross
gross has been abrogated inin New Zealand
Zealand by
section
section 122
122 of the
the Property Law Act, 1952, which provides
Act, 1952, provides as
as follows:
follows:
122.
122. An easement over land land may be created
created without being
being attached
attached or
or made appurtenant to to
other
other land,
land, and such an easement shallshall run with and bind the
the land over which it it is
is created,
created, and all
all
persons claiming title

title to
to that
that land
land by,
by, through,
through, or
or under the person creating
the person creating the
the easement;
easement; and the
the
easement so
so created
created shall
shall be to
to all
all intents
intents and purposes an incorporeal
incorporeal hereditament,
hereditament, and shall
shall be
be
assignable
assignable accordingly.
accordingly.
It
It does
does not
not appear
appear that
that this
this change has
has caused
caused difficulties in New Zealand,
difficulties in Zealand, and although
although
aa dominant tenement has not not been an essential
essential characteristic
characteristic of an easement since
since 1952 it
it has
has
88
been reported
reported by a text that
a text that "in
"in practice
practice most easements areare created to benefit
created to benefit other
other land".88
land".
final argument that

The fmal that may be made in in favour
favour of permitting
permitting easements
easements in in gross
gross is
is the
the
general
general goal
goal of simplifying
simplifying the
the law and the particular aim of assimilating
the particular assimilating easements, profits,
profits,
and covenants.
covenants. As mentioned in in the
the "Summary of the the Present
Present Law", Anglo-Canadian law has has
always permitted
permitted profits
profits to
to exist
exist in
in gross.
gross. Moreover, in in our Report on Covenants Affecting
Affecting
9
Freehold Land89
Landt we recommended that the benefit
that the benefit of "land
"land obligations"
obligations" (the(the proposed term
for
for positive
restrictive covenants affecting
affecting freehold
freehold land)
land) "should be permitted
permitted toto exist
exist
either
either as
as appurtenant
appurtenant to to land
land or
or in
in gross"."
gross". In
In coming to to this
this conclusion,
conclusion, we considered
considered thethe
area of easements
analogous area easements and tooktook the
the view then
then (as
(as we do now) that that the
the prohibitions
prohibitions on
both
both easements in in gross
gross and covenants
covenants inin gross
gross were unjustified.
unjustified. IfIf anything,
anything, the
the argument in in
favour
permitting easements in in gross
gross isis even stronger
stronger than
than that
that inin favour
permitting
covenants inin gross
gross since
since the
the courts
courts have controlled
controlled entry to the
entry to the list
list of what may exist
exist as
as
easements
easements and easements
easements areare negative
negative inin the
the sense
sense that
that they
they do not
not involve
involve the
the owner of thethe
servient
servient tenement incurring
incurring expenditure.91
expenditure.
We therefore
therefore recommend that
that easements
easements should
should be
be permitted
permitted to
to exist
exist as
as appurtenant
appurtenant to
to
land
land or
or in
in gross.
gross.
87
French,
Modern Law", supra,
supra, note
note 57,
57, at
at 1308.
1308. See American Law Institute, Restatement of
Institute, Restatement of the
the Law
Third,
Third, supra,
supra, note
note 58,
58, Tentative
Tentative Draft
Draft No. 2,
2, §§3.4-3.7.
§§3.4-3.7. Nevertheless,
Nevertheless, the parties to
the parties the creation
to the an easement
creation of an
would remain free
free to
to incorporate
incorporate into
into the
the terms
terms of the restrictions on assignability
the easement restrictions assignability subject to such
subject to such
general rules as
general rules as ones relating
relating to
to unreasonableness,
unreasonableness, restraint
restraint of trade,
trade, and unconscionability.
unconscionability.
88
G.W. Hinde,
Hinde, D.W. McMorland, and P.B.A.
P.B.A. Sim, Land Law (1979),
(1979), at
at 655.
655.
89
Supra, note
note 3.
3.
90
Ibid.,
Ibid., at
at 111.
111.
91
91
Subject
Subject to
to the
the exceptional
exceptional "spurious"
"spurious" easement to provide fencing.
to provide fencing.
146
146
(ii)
(ii) Creation of Easements and Profits
Profits
a.
a, Introduction
Introduction
Reform of two aspects

aspects of thethe law relating
relating to
to the
the creation
creation of easements is, is, in
in our
our view,
view,
clearly required.
clearly required. The first—the
first —
the "general
"general words"
words" statutory
statutory provision —
provision—is ais a minor topic but
topic but the
the
case
case for reform is
for reform is simple and strong. —
strong. The second—creation
second creation by prescription—is
prescription
92
— is aa topic
topic we
have already dealt
have already dealt with in in our
our Report on Limitations
Limitations of
of Actions.92
Actions. We can herehere usefully
usefully
summarize thethe arguments for for reform;
reform; refer
refer to
to developments in in other jurisdiction; subject
other jurisdiction; subject to
to
two qualifications, report our
qualifications, report our view that
that abolition
abolition of creation
creation of easements and profits profits by
prescription
prescription is
is appropriate; consider a
appropriate; and consider a special provision dealing
special provision dealing with
with mistake.
mistake.
b.
b. The "General Words" Statutory Provision
Statutory Provision
The aspect
aspect of this provision—section
this provision —
section 15 15 of the
Act —
Act93—that
that isis open to
to question
question is
is its
its ability
ability to
to create
create an easement or profit not
or profit not existing
existing prior
prior
to
to the
the conveyance giving
giving rise
rise to
to the
the operation
operation of the provision. This
the provision. This creative
creative effect
effect of the
the
provision largely
provision largely overlaps
overlaps doctrines
doctrines of the the general
general law such as as the
the rule
rule in
in Wheeldon v. v.
94
Burrows,94 easements of necessity, and "intended" easements.
Burrows, easements of necessity, and "intended" easements. However, as
as explained in the
explained in the
"Summary of the the Present
Present Law", the the creative
creative effect
effect of section
section 15
15 can go beyond thesethese
doctrines in circumstances in
doctrines in in which itit is
is likely
likely to
to cause
cause unforseen and inappropriate
inappropriate results.
results.
To our knowledge, thisthis problem has been addressed in in only two other jurisdictions. In
other jurisdictions. In a
a
discussion paper published
discussion paper published in 1989 the
in 1989 the Law Reform Committee of Victoria95
Victoria considered
considered thethe
effect
effect of section
section 62 of the
the Victorian
Victorian Property Law Act,Act, a
a provision
provision equivalent
equivalent toto section
section 15,
15,
and proposed thatthat it
it should
should "be
"be made clear
clear that
that only
only existing
existing easements and rights
rights pass
pass on
transfer
transfer of the
the land".96
land". Such aa reform
reform has
has been enacted
enacted in
in Trinidad
Trinidad and Tobago where section
section
94(5)
94(5) of the
the Land Law and Conveyancing Act, Act, 1981,97 provides:
1981, provides:
—
94.—(5)It
94. is hereby declared
(5)It is declared that,
that, from the
this Act,
Act, this
this section
section does not
not
operate
operate to
to create
create in
in respect or impose on any other
respect of or other land
land any easements,
easements, profits
profits a
a prendre or
or
similar rights
similar rights and obligations.
obligations.
92
Supra, note
note 5.
5.
93
Supra,
Supra, note
note 28.
28.
94
Supra,
Supra, note
note 31.
3 1
95
Discussion Paper No. 15:
Discussion Paper 15: Easements and Covenants (February
(February 1989).
1989).
96
Ibid.,
Ibid., at
at 14.
14.
97
Statutes
Statutes of Trinidad
Trinidad and
and Tobago, 1981,
1981, No. 20.
20.
147
147
We recommend that legislation in

that legislation in Ontario
Ontario should
should similarly
similarly declare
declare that
that section
section 15
15 of the
the
of Property Act does not
not operate
operate to
to create
create any easement, profit, or
easement, profit, or
similar right.
similar right.
c.
c. Prescriptive
Prescriptive Easements and Profits
Profits
The English
English Law Reform Committee considered
considered the
the creation
creation of
of easements and profits
profits
98
by prescription
prescription in
in its Fourteenth Report,98
its Fourteenth Report, published in
published 1966. The Committee unanimously
in 1966.
recommended thatthat prescription

prescription should be abolished with respect
respect to
to profits
profits and,
and, by an
an 88 -- 6
6
majority,
majority, recommended also also the
the abolition
abolition of all
all methods of creation
creation of easements
easements by by
prescription.
prescription.
The Ontario
Ontario Law Reform Commission, in in our Report on Limitation
Limitation ofof Actions
Actions
published
published in 1969,
in 1969, reviewed the
the arguments made by both the majority
both the majority and the minority of
the minority of the
the
English
English Committee and favoured thethe view that
that prescription
prescription should be abolished.
abolished. There were
four
four main arguments in
in favour of abolition.
abolition. First,
First, there
there is
is
little,
little, if
if any,
any, moral justification for
moral justification the acquisition
for the acquisition of
of easements
easements by
by prescription,
prescription, aa process
process which
which
either
either involves
involves an
an intention
intention to
to get
get something
something for
for nothing
nothing or,
or, where there is no intention
there is intention to
to acquire
acquire
99
any
any right,
right, is
is purely
purely accidental.
accidental.
Second, abolition
abolition of prescriptive
prescriptive easements would reduce uncertainties affecting
reduce uncertainties affecting title
title to
to
land.
land. Third,
Third, a particular way in
a particular in which certainty
certainty is
is affected
affected isis that
that persons should be able
able to
to
rely on the
rely registered records
the registered records of title,
title, aa reliance
reliance that
that (at least under the
(at least the present
present system)
system) isis not
not
possible with respect
possible respect to prescriptive easements. Fourth,
to prescriptive Fourth, if prescription were to
if prescription to continue,
continue, a a
simple
simple and cheap method should be available available to the servient
to the servient owner to to protect
protect herself
herself or
or
himself against prescriptive easements being acquired.
against prescriptive acquired. This
This could only
only be done by a a system
of registration,
registration,
and
and there
there are
are considerable
considerable doubts
doubts as
as to
to the
the feasibility
feasibility of
of this
this ... Even if
... it is
if it is feasible,
feasible, it seems
seems
it
doubtful whether those

doubtful whether those exceptional
exceptional cases
cases where
where prescription
prescription does meet aa genuine
does meet need ... would
genuine need would
...
justify the
justify the elaborate
elaborate administrative
administrative arrangements
arrangements that
that aa new system
system ofof registration
registration would
. 100
involve.m
involve.
The majority
majority of the
the English acquisition of easements by
English Committee compared acquisition
prescription with
prescription with acquisition
acquisition of title
title by adverse possession and considered
adverse possession considered that
that different
different legal
legal
responses were appropriate.
responses appropriate.
Certainty
Certainty of
of title to land
title to land is a social
is a social need
need and
and occupation
occupation of land which
of land has long
which has long been
been
unchallenged
unchallenged should
should not
not be
be disturbed.
disturbed. Moreover,
Moreover, a occupation of
squatter's occupation
a squatter's of land is sufficiently
land is sufficiently
98
U.K., Law Reform Committee, Acquisition
U.K., Acquisition of Easements and Profits
of Easements by Prescription,
Profits by Prescription, Cmd. 3100.
3 100.
99
Report on Limitation
Limitation of
ofActions,
Actions, supra,
supra, note
note 5,
5, at 150, quoting
at 150, Committee, supra,
quoting Law Reform Committee, note 98,
supra, note 98, at
at 11. 1 1
100
100
Limitation of
ofActions,
Actions, supra,
supra, note
note 5, at 151,
5, at quoting Law Reform Committee,
151, quoting Committee, supra, note 98,
supra, note at 12.
98, at 12.
148
148
notorious
notorious to invite preventive
to invite preventive action.
action. There isis no comparable need toto establish
establish easements, and
user right' may be
'as of right'
user even 'as be insidious.
insidious. The creation
creation of easements,
easements, which may limit
limit the
the use
use or
or
development of thethe servient
servient land,
land, should not
not be encouraged. No serious
serious hardship would result
result if
if
in
in future, subject to
future, subject to appropriate transitional safeguards,
appropriate transitional safeguards, no easements could
could be acquired by
. ..101
prescription.
prescription.
As well as favouring
well as favouring these
these arguments over
over the
the arguments advanced by the
the minority of
the the Ontario
English Committee, the
the English Ontario Law Reform Commission pointed out out that,
that, "[i]n
"[i]n Ontario
Ontario
prescriptive easements occur relatively
prescriptive relatively infrequently,
infrequently, although
although it it would not
not be true
true to
to say
say they
they
102
are
are rarities".102
rarities". Moreover, in
in the
the three
three situations
situations where they
they were most likely to occur—
likely to occur
overhanging
overhanging projections,
projections, easements of support,
support, and cottage
cottage rights
rights of way—it —
way it was considered
considered
103
likely
likely "that prescription would be less
"that prescription less rather
rather than
than more likely to arise
likely to arise in
in the
the future".1°3
future". With
regard
regard toto the
the practical operation of
practical operation of the
the law of prescription
prescription in in the
the present
present law it it should be
emphasized thatthat neither

neither an easement nor a a profit
profit can be acquired
acquired by prescription
prescription against
against land
land
registered under the
registered the Land Titles
Titles Act.1°
Act. The Ontario
Ontario Law Reform Commission also also
05
considered
considered that
that there appeared "to
there appeared be
"to be no valid reason for retaining prescription" for
valid reason for retaining prescription" for profits.
profits.
It
It therefore
therefore recommended, subject
subject to
to transitional
transitional provisions
provisions and to to aa qualification relating to
qualification relating to
overhanging projections
projections occurring
occurring by mistake,
mistake, that
that the
the creation
creation of easements and profits profits by
prescription be abolished.106
prescription abolished.
The transitional
transitional provisions
provisions recommended by the the Ontario
Ontario Law Reform Commission
were based on those
those recommended by thethe English
English Committee. The rationale
rationale for
for them was
107
expressed
expressed by the
the Ontario
Ontario Commission asas follows:107
follows:
In
In recommending the the abolition
abolition of the creation of
the creation of prescriptive
prescriptive easements
easements and profits-a-
profits-a-
the Commission does not
prendre, the
prendre, not intend
intend that
that the position of persons
the position who have the
the required
required
periods
periods of adverse
adverse use
use to
to establish prescriptive rights
establish prescriptive rights should be
be affected.
affected.
Under the
the doctrine
doctrine of the lost modern grant,
the lost grant, aa person
person may have acquired
acquired a a prescriptive
prescriptive
easement whether or or not
not an action
action has been brought to
has been to establish
establish his
his rights.
rights. It
It is not intended
is not that
intended that
the
the recommended abolition
abolition of prescription
prescription affect
affect this
this person's
person's position,
position, even if it is
if it is necessary
necessary for
for
him to
to establish
establish his
his rights
rights by litigation
litigation subsequent to
to abolition.
abolition.
So far
far as
as prescription under The Limitations
prescription under Limitations Act is
is concerned,
concerned, the repeal of the
the repeal relevant
the relevant
provisions should not
provisions not affect the position
affect the position of the
the person
person
who has the required
has the period of adverse
required period adverse use
use
101
Law Reform Committee, ibid.,
ibid., at
at 12.
12.
102
102
Limitation of
ofActions,
Actions, supra, note 5,
supra, note 5, at
at 154.
154.
103
103
Ibid.
Ibid.
104
104
Supra,
Supra, note
note 48,
48, s.
s. 51(1).
51(1).
105
105
Limitation of
ofActions,
Actions, supra, note 5,
supra, note 5, at
at 154.
154.
106
106
Ibid.,
Ibid., at
at 156.
156.
107
107
Ibid.,
Ibid, at
at 156-58.
156-58.
149
149
but has not

but established his
not established prescriptive right
his prescriptive right in
in an action
action as
as section
section 32 of that
that act
act requires.
requires. Thus,
repeal the relevant
repeal of the provisions of the
relevant provisions statute should be
the statute be subject
subject to
to the
the position
position of any person who
has the necessary period
has the period of adverse
adverse use,
use, whether oror not
not an
an action
action has
has been
been brought.
brought.
There isis one further transitional problem.

further transitional problem. Should persons
persons who have
have had adverse use for
adverse use for an
insufficient
insufficient time
time to establish a prescriptive
to establish right at
prescriptive right at the
the time
time of
of abolition,
abolition, be entitled
entitled to
to additional
additional
time
time in
in order to establish
order to establish their
their prescriptive right?
prescriptive right?
Where aa person
person has enjoyed adverse use use for
for an
an insufficient
insufficient time,
time, it
it may be argued that
that he
has right
has no right at all
at all or
or that
that he has
has an accrued or
or inchoate
inchoate right.
right. Since
Since his
his prescriptive
prescriptive right is based
right is based
on long
long term enjoyment, can it it be said
said that
that he has any 'rights'
'rights' at
at all
all before he has the
the necessary
necessary
period
period of enjoyment? On the the other
other hand,
hand, it
it may be unfair
unfair to
to wipe out
out the
the position
position of the person
the person
who has
has a
a substantial but insufficient
substantial but period of enjoyment.
insufficient period enjoyment.
The [English]
[English] Committee feltfelt that
that such aa person had anan accrued oror inchoate
inchoate right
right which
should not
not be abrogated
abrogated by abolition.
abolition. That Committee recommended that, that, in
in order to
to effectuate
effectuate as
as
speedy
speedy aa transition
transition as possible, aa twelve year
as possible, year transitional
transitional period
period be fixed
fixed after
after which it
it would not
not
possible to
be possible to claim time for
for a prescriptive easement.
a prescriptive easement.
This Commission agrees the approach taken

agrees with the taken by thethe [English]
[English] Committee in in giving
giving
recognition
recognition to periods of enjoyment insufficient
to periods insufficient to
to create
create prescriptive rights. However, the
prescriptive rights. the twelve
year
year transitional
transitional period
period was undoubtedly chosen for for the
the same reason
reason as
as the
the minority
minority selected
selected it
it for
for
their
their recommended prescription
prescription period.
period. Twelve years
years is the time
is the time required
required in
in England to
to acquire
acquire
title
title by adverse
adverse possession.
possession. In
In Ontario,
Ontario, the
the period
period is
is ten
ten years.
years.
The Commission recommends aa ten

ten year
year transitional
transitional period.
period.
The Ontario
Ontario Law Reform Commission was also also concerned that
that so
so far
far as
as possible
possible
existing
existing prescriptive
prescriptive easements and profits,
profits, along with those acquired
with those acquired during
during the
the transitional
transitional
108
period, should
period, should become discoverable
discoverable through the
the land
land registration
registration systems:im
systems:
The Commission considers

considers that
that the
the balance
balance is is in
in favour of having a a registration
registration system that
that
reflects
reflects the
the title.
title. It
It therefore
therefore recommends that that either
either a a judgment oror notice
notice of claim be required
claim be required toto
be filed in the appropriate registry or land titles office within

be filed in the appropriate registry or land titles office within two years
years after
after the end of the ten
the end of the ten
year
year transitional
transitional period.
period. If
If such
such a a judgment or or notice
notice of claim
claim was not
not filed
filed by that
that time,
time, the
the
prescriptive right
prescriptive right would lapse.
lapse. Thus, twelve
twelve years
years after
after the
the abolition, there would no longer
abolition, there longer bebe
any unregistered
unregistered prescriptive
prescriptive rights.
rights. A person
person who had aa prescriptive
prescriptive right
right at time of abolition
the time
at the abolition
would have twelve years
would years to
to register
register it. There should
it. should be be aa requirement that the owner of the
that the the
servient
servient land
land be
be notified
notified of
of any notices
notices of claim
claim so registered.
so registered.
The harshness
harshness of the
the registration requirement in
registration requirement in those
those cases the owners of the
cases where the the
dominant lands
lands would not
not be
be aware
aware of
of the could be tempered to
requirement could
the requirement tempered to a
a large
large extent
extent by
providing for
providing for an
an extension
extension of time
time in
in cases
cases of substantial hardship. The Commission recommends
substantial hardship.
such
such an
an extension
extension of time provision.
provision.
108
108
Ibid,
Ibid., at
at 160.
160.
150
150
As mentioned above,
above, the
the Ontario
Ontario Law Reform Commission also also expressed a
a
no i
qualification with respect

qualification to overhanging projections.
respect to overhanging projections. It
It said
said this:109
this:
With respect
respect toto overhanging projections, there
overhanging projections, there should
should perhaps
perhaps bebe a
a similar
similar procedure for for adjustment
adjustment
between adjoining
adjoining owners as as is
is provided by section
section 38 of The Conveyancing and Law of of Property
Property
Act"°
Act ... in
...in cases
cases where a person builds
a person builds on another's property under aa mistake of title.
another's property title. Section
Section 38 does
does
not,
not, however, apply
apply toto situations
situations where the
the mistake isis one of identity
identity rather
rather than
than title.
title. Overhanging
projections would usually

projections usually occur
occur as
as a result
result of mistakes inin identifying
identifying land.
land. In
In any event,
event, section
section 38
38
will
will be reviewed in
be reviewed in the
the Commission's Law of Property
Property project.
project. Then will
will be
be the
the appropriate
appropriate timetime to
to
consider
consider whether it it should
should extend
extend to
to overhanging projections,
projections, oror whether there
there should
should be be a
a separate
separate
procedure for
procedure for dealing
dealing with
with this
this problem. For the
problem. For the time
time being,
being, the
the Commission makes no no
recommendation on this
recommendation this point.
point.
The Law Reform Commission of British British Columbia considered

considered the
the topic
topic of prescriptive
of prescriptive
easements
easements and profits
profits in
in aa report
report published
published in in 1970.1"
1970. It reviewed the
It reviewed the report
report of the
the Ontario
Ontario
Law Reform Commission and agreed that prescription should be abolished
that prescription abolished asas aa means of
creation
creation of easements and profits.
profits. It
It differed,
differed, however, from the the Ontario
Ontario Commission's
recommendations relating
relating to to transitional
transitional provisions.
provisions. First,
First, mainly because prescriptive
prescriptive
easements are
are extremely rare
rare in
in British
British Columbia, it it considered that
that protections
protections for
for what the
the
Ontario
Ontario Commission described
described as as "accrued
"accrued or or inchoate"
inchoate" rights,
rights, what the
the British
British Columbia
Commission perhaps
perhaps more aptly,
aptly, called
called "ripening rights"112
"ripening rights" was unjustified. Second,
unjustified. Second, although
although
it
it agreed
agreed that prescriptive rights
that prescriptive rights existing
existing at at the
the date
date of abolition
abolition should
should not
not be
be abolished,
abolished, itit
recommended aa transitional regime that

transitional regime that would be be less
less favourable
favourable forfor the
the holders
holders of
prescriptive
prescriptive rights
rights than
than the
the one recommended in in Ontario.
Ontario. ItIt agreed that
that there
there should be a a
system for
for registering
registering a a judgment or or filing
filing aa notice
notice of claim relating to
claim relating to an existing
existing
prescriptive
prescriptive right
right but
but considered
considered thatthat the
the appropriate
appropriate period
period for
for taking
taking such
such steps
steps was five
five
years
years after
after the
the time
time of abolition.
abolition. The British
British Columbia Commission also also decided that
that there
there
should be no power to to extend
extend thethe time:113
time:
[I]f
[I]f there
there is
is to
to be
be a
a registration requirement, with
registration requirement, with failure
failure to register resulting
to register resulting in
in the
the loss
loss of the
the
right, the
right, the Commission has has concluded that
that there
there should
should be no extension
extension procedure,
procedure, asas
recommended by the the Ontario
Ontario Commission.
We prefer
prefer aa final
final cut-off point so
cut-off point so that
that the
the law of prescription be completely
prescription can be completely eliminated
eliminated
as
as a
a possible
possible complicating
complicating factor
factor in
in future
future dealing
dealing with land.
with land.
109
109
Ibid., at 157.
Ibid., at 157.
no
110
The current provision is
current provision is s.
s. 37 of the
ofProperty
Property Act,
Act, supra,
supra, note
note 28.
28.
m
111
British Columbia,
Columbia, Report on Limitations[:] I—Abolition of
Limitations[:] Part I—Abolition ofPrescription
Prescription (1970).
(1970).
112
112
Ibid.,
Ibid., at
at 20.
20.
113
113
Ibid.,
Ibid, at
at 21.
21.
151
151
The recommendations of thethe British

British Columbia Commission were implemented by An
Act to the Land Registry
to Amend the Registry Act114
Act which provided for
for a
a new provision,
provision, section
section 38A of
the
the Registry
Registry Act,
Act, in
in the
the following terms:
terms:
38A.—(1)
38A. (1) Subject
Subject to
to subsection
subsection (2),
(2), all
all existing
existing methods of acquiring
acquiring a
a right
right in
in or
or over
over land
land by
prescription
prescription are
are abolished
abolished and,
and, without limiting
limiting the
the generality
generality of the
the foregoing,
foregoing, the
the common law
doctrine
doctrine of prescription
prescription and the
the doctrine
doctrine of lost
lost modern grant
grant are
are abolished.
abolished.
(2)
(2) A prescriptive right, whether judicially
prescriptive right, judicially declared
declared or
or not,
not, ceases
ceases to
to exist
exist five
five years
years after
after this
this
section
section comes into force, unless
into force, unless the person asserting
the person asserting the
the right
right has
has before
before that
that date,
date,
(a)
(a) registered
registered a
a judgment declaring
declaring his right; or
his right; or
(b)
(b) commenced an action
action to
to establish
establish his
his right
right and registered
registered a
a certificate
certificate of lis pendens
lis pendens
in
in the
the land registry office
land registry office for
for the
the land
land registration
registration district
district in
in which the
the lands
lands affected
affected are
are situated.
situated.
(3)
(3) The Prescription
Prescription Act is repealed.
is repealed.
Prescriptive
Prescriptive easements and profits
profits were alsoalso considered
considered by thethe Manitoba Law Reform
Commission in in a report published
a report published inin 1982."5
1982. The Manitoba Commission agreed with both both
the Ontario
the Ontario and British
British Columbia Commissions in in recommending abolition
creation of
easements
easements and profits
profits by prescriptions.
prescriptions. ItIt also
also agreed
agreed with
with the
the British
British Columbia Commission
in
in rejecting
rejecting the
the Ontario
Ontario Commission's recommendation for for protection
protection of "ripening"
"ripening" rights
rights
and inin taking
taking the
the view that
view that the
the appropriate
appropriate timetime for requiring registration
for requiring registration of existing
existing
prescriptive rights
prescriptive rights was five
five years
years from the
the date
date of abolition.
abolition. On the
the other
other hand,
hand, it
it agreed
agreed with
with
the
the Ontario
Ontario Commission's recommendation that that there
there should
should be a a provision
provision enabling
enabling the
the
court
court to
to extend the
the time
time for
for registering.
registering. However, it it considered,
considered,
that
that the
the Ontario
Ontario recommendation would be improved by the the addition
addition of a
a provision
provision allowing
allowing the
the
court
court to
to extend the
the time for registration on the
for registration the condition that the
condition that the applicant
applicant pay the
the servient
servient owner
such compensation as as the

the court
court may determine.116
determine.
The Manitoba
Manitoba Commission also
also emphasized the
the importance
importance of
of landowners
landowners being
being made
aware ofof the
the new regime and,
and, in particular, of the
in particular, the importance registering existing
importance of registering existing
prescriptive
prescriptive easements:'
easements: 17
We are
are mindful of the
the fact
fact that
that such registration
registration requirements
requirements will
will affect the rights
affect the of landowners
rights of landowners
in
in the
the province.
province. We believe
believe that
that they
they should be made aware of thethe new requirements public
requirements by public
114
S.B.C.
S.B.C. 1971,
1971, c.
c. 30,
30, s.
s. 8.
8. See now B.C.
B.C. Land Title
Title Act,
supra, note 73, s.
s. 24.
24.
115
115
Manitoba Law Reform Commission, Report
Report on
on Prescriptive Profits-a-Prendre (1982).
Prescriptive Easements and Profits-a-Prendre (1982).
116
116
Ibid.,
Ibid., at
at 27.
27. See,
See, also,
also, Law Commission (New Zealand), Act (Report
Property Law Act
Zealand), A New Property (Report No. 29, 1994), at
29, 1994), at 27,
27,
179, 384.
179,384.
117
Manitoba Law Reform Commission, supra,
supra, note
note 115,
5, at
at 29.
29.
1 1
152
152
advertising
advertising or municipal notices
or by municipal notices distributed
distributed with property tax
tax bill.
bill. Property owners should be
informed of thethe specific date by

specific date by which registration
registration must be made, as as well
well as
as the
the different
different
registration requirements for
registration for land....
land....
After reviewing our previous

After reviewing previous recommendations and the the subsequent reports
reports by the
the Law
Reform Commission of of British
British Columbia and the the Manitoba Law Reform Commission, we
reaffirm,
reaffirm, subject
subject to
to two qualifications,
qualifications, the
the recommendations made in in our
our Report on
Limitation of
Limitation of Actions.
Actions. We should
should perhaps add thatthat aa further
further argument thatthat may be made in in
favour
favour of abolition
creation of easements and profits
profits is
is the
the related
related goals
goals of assimilation
assimilation and
simplification.
simplification. Under the the present
present law one of the the major differences
differences between restrictive
restrictive
covenants and easements
covenants easements is is that
that restrictive
restrictive covenants
covenants may only be created created consensually
whereas easements
easements may be created by prescription. If prescription is abolished,
be created prescription. If prescription is abolished, easements
easements
will
will in
in this
this respect
respect be assimilated
assimilated to
to covenants.
covenants.
For convenience we set

set out
out here
here the
the summary of the
the relevant
relevant recommendations made in
in
118
our Report on Limitation
Limitation of
ofActions.118
Actions
1.
1. Except for
for the
the transitional
transitional period
period recommended below, the the right
right to
to acquire
acquire easements and
profits-a-prendre
profits-a-prendre by prescription
prescription in
in the
the future
future should
should be abolished,
abolished, by
(i)
(i) declaring
declaring by statute
statute that
that the
the doctrine
doctrine of the
the lost
lost modern grant
grant is
is no longer
longer part
part of the
the law
of Ontario;
Ontario; and
(ii)
(ii) repealing sections
repealing sections 30 to
to 35 and 39 toto 41
41 of The Limitations
Limitations Act and not
not replacing
replacing these
these
provisions in
provisions in any new limitations
limitations statute.
statute.
2.
2. Prescriptive easements and profits-a-prendre
Prescriptive profits-a-prendre shall
shall be capable
capable of creation
creation during a
a ten-year
ten-year
transitional
transitional period
period on the
the following
following basis:
basis:
(i)
(i) as
as soon as
as the person having the
the person the benefit
benefit of the adverse enjoyment has
the adverse has the
the required
required period
period
of enjoyment under the
the existing
existing law;
law;
(ii)
(ii) at
at the
the end ofof the transitional period,
the transitional period, if
if there
there has
has been
been continuous
continuous adverse
adverse enjoyment
enjoyment for
for
at
at least
least ten
ten years,
years, but
but insufficient
insufficient length
length of enjoyment under the
the existing
existing law.
law.
3.
3. If
If the
the recommendation of abolition
abolition is
is implemented, then
then the
the requirement
requirement for
for an action
action
provided by
provided by section
section 32 of
of The Limitations
Limitations Act should
should not
not apply
apply to
to persons
persons
(i)
(i) having,
having, at
at the time of abolition,
the time abolition, the required adverse
the required adverse enjoyment under the
the present
present law,
law,
and
(ii)
(ii) acquiring,
acquiring, during
during the
the transitional
transitional period,
period, the
the required
required adverse
adverse enjoyment under the
the
transitional
transitional provisions.
provisions.
4.(1)
4.(1) Prescriptive profits-à-prendre should
Prescriptive easements and profits-a-prendre should lapse
lapse two years
years after
after the
the end of thethe
transitional
transitional period,
period, unless
unless the
the persons
persons entitled
entitled to
to their benefit have filed
their benefit filed a
a judgment or or
notice
notice of
of claim
claim in
in the
the appropriate
appropriate registry
registry or
or land
land titles office, such
titles office, judgment or
such judgment or notice
notice to
to be
be
118
118
Supra, note
Supra, note 5, at 169-61.
5, at 169-61.
153
153
entered
entered on the records relating
the records relating to the appropriate
to the appropriate servient
servient tenement. Notification
Notification of the
the
registration notice of claim should
registration of any such notice be given
should be given to
to the
the owner of the
the servient
servient land.
land.
(2)
(2) Where a a person
person has failed to
has failed to file
file his
his judgment or or notice
notice in
in time,
time, he should be
be able to apply
able to
to apply to
to to a judge of the
a judge the county oror district in which any of the
district in the relevant
relevant lands
lands are
are situated
situated
for
for an
an extension
extension of time
time on the
the grounds of substantial
substantial hardship.
hardship. The extension should
should only
only
be
be granted
granted
(i)
(i) if
if the
the applicant
applicant is
is able
able to
to demonstrate that
that the
the loss
loss of enjoyment would result
result in
in
substantial
substantial hardship,
hardship, and
(ii)
(ii) if
if the
the applicant
applicant had been unaware of the
the registration requirement during
registration requirement during the
the
registration
registration period.
period.
We mentioned that that we have two qualifications

qualifications to to the
the confirmation
confirmation of these these
recommendations. First,
recommendations. First, on reconsideration
reconsideration of the
the matter we agree
agree with the
the British
British Columbia
and Manitoba Commissions that that there
there should not
not be protection
protection for
for "ripening
"ripening rights".
rights". A
person who has
person has not
not enjoyed thethe required
required twenty years'
years' user
user at
at the
the date
date of abolition
abolition will
will have
no existing
existing rights affected by the abolition and that person's acquisition of an easement could
rights affected the abolition and that person's acquisition of an easement could
always be prevented
prevented by the the owner of the
the dominant tenement.
tenement. Therefore
Therefore the
the first
first qualification
qualification
is
is that
that there
there is
is not
not sufficient reason to
sufficient reason to enable
enable such
such a person to
a person to acquire
acquire an easement by
prescription by aa period
prescription period of user
user falling
falling short
short of that
that required
required under the the present
present law.
law.
Accordingly, we no longer
longer make thethe recommendation set set out
out above numbered 2(ii).2(ii).
The second qualification

qualification is
is that
that the
the court's permitting of
court's permitting of an
an extension
extension of
of time
time for
for
registration be
registration be subject to the
subject to the condition that the
condition that the applicant
applicant pay to
to the servient
the servient owner such
such
compensation asas the
the court
court may determine,
determine, and we soso recommend.
We turn
turn now to
to the
the suggestion
suggestion made in the Ontario
in the Ontario Law Reform Commission's Report
Report
on Limitations
Limitations of
of Actions relating to
Actions relating to overhanging projections.119
projections. The suggestion
suggestion was that
that
what is
is now section
section 37 of the
the Conveyancing and Law of of Property Act12°
Act should be extended
extended
to cover overhanging projections
to cover projections occurring
occurring because of mistake. Section 37(1)
mistake. Section provides as
37(1) provides as
follows:
follows:
37.—(1)
37. (1) Where a person makes lasting
a person lasting improvements on land land under the belief that
the belief that it
it is
is the
the
person's
person's own, the person or
the person or the assigns are
person's assigns
the person's are entitled
entitled to
to a
a lien
lien upon itit to the extent
to the extent of the
the
amount which its its value
value is
is enhanced by the the improvements, or are entitled
or are or may be
entitled or be required
required to
to
retain
retain the
the land
land if
if the
the Ontario
Ontario Court (General
(General Division)
Division) isis of opinion
opinion oror requires
requires that this should be
that this
done,
done, according
according as as may under
under all
all circumstances of the just, making compensation
case be most just,
the case compensation
for
for the
the land,
land, if retained, as
if retained, as the
the court
court directs.
directs.
In
In our previous report,
our previous report, the
the problem in application of section
the application
in the to overhanging
section 37 to overhanging
projections
projections was thought
thought to
to be
be that
that the
the section not "apply
section does not to situations
"apply to where the mistake
situations where the mistake
119
Ibid., at 157.
Ibid.,2X\51.
120
120
Supra,
Supra, note
note 28.
28.
154
154
is one of identity
is one rather than
identity rather than title".121
title". However, this
this does
does not
not seem to to be the
the nub of the
the
problem. The question
problem. question whether section
section 37 applies
applies where the
the mistake was one of "identity"
"identity"
than "title"
rather than
rather "title" is
is not
not restricted
restricted to to overhanging projections
projections or
or other
other potential
potential easements.
better view is
the better
Moreover, the is that
that a a distinction not be
distinction should not be drawn between mistakes of
"identity" and mistakes
"identity" mistakes of "title"
"title" in
in the
the application
application of section
section 37.122
37.
The problem withwith the

the application
application of section
section 37 to to overhanging projections
projections is is that
that the
the
section does not
section provide an
not provide an appropriate
appropriate remedy. The remedy of lien lien in
in the
the first
first part
part of the
the
provision
provision isis only
only appropriate
appropriate where the the value
value of the
the true
true owner's land
land has
has been enhanced by
the improvement,12
the improvement, something thatthat is
is unlikely
unlikely to
to have occurred
occurred where the the improvement
includes
includes aa projection
projection overhanging the the true
true owner's land.
land. Similarly,
Similarly, retention
retention of thethe affected
affected
land
land by the improver—the
the improver —
the remedy provided in the second part of the provision—will not
provided in the second part of the provision —
will not
always be apt in the
apt in the situation
situation under consideration.
consideration. What is is required
required is
is that
that the
the court
court should
have the
the additional
additional power to to order
order the
the creation
creation of an easement in in favour
favour of thethe improver,
improver,
subject to payment of such
subject to such compensation as the court
as the court directs.
directs.
We have referred
referred toto the
the problem as as arising
arising when anan overhanging projection
projection occurs
occurs by
mistake
mistake since
since that
that is
is the
the way the
the problem was framed in in the
the Report on Limitation
Limitation of
of Actions.
Actions.
However, the problem, and its
the problem, its solution,
solution, should not
not be
be so
so restricted.
restricted. For example, a a person
person
may have put
put up a building mistakenly believing
a building that water
believing that water pipes
pipes to
to it, or
or drains
drains from it, or
it, or a
a it,
pathway leading
leading toto it,
it, were located
located on hishis or
or her
her own land
land whereas in in fact
fact they
they were on
another's land. The court
another's land. court should
should in
in all
all these
these cases
cases have the
the power to to order
order the
the creation
creation of an
easement.
easement.
Accordingly,
Accordingly, we recommend that that section
section 37(1) the Conveyancing and Law of
37(1) of the of Property
Property
Act
Act should
should bebe amended to to read
read "where a person makes lasting
a person lasting improvements on land land under thethe
belief that
belief that it
it is
is the
the person's
person's own, or or under the
the belief
belief that the person
that the person is
is entitled
entitled to
to do so...",
so...", and
the section
the section should
should bebe further
further amended in in order
order to
to empower thethe court
court to
to order
order the
the creation
creation of an
easement subject,
subject, if
if the
the court
court so directs, to
so directs, to the payment of compensation.
the payment compensation.
(iii)
(iii) Modification and Extinguishing of Easements
Under present
present Ontario
Ontario law
law neither
neither the
the court
court nor
nor any other
other tribunal
tribunal possesses
possesses power to
to
modify oror extinguish
extinguish an easement on grounds such as obsolescence. The question
as obsolescence. question that
that can
can be
briefly
briefly addressed
addressed here
here is
is whether such
such a
a power should
should be enacted.
enacted.
124
Recent American literature124
literature contains
contains a lively debate
a lively debate on the
the question
question whether a
a
modification or extinguishment doctrine
modification or extinguishment doctrine should
should exist
exist in
in American law. In this debate—which
law. In this debate which —
121
121
Report Limitation of
ofActions,
Actions, supra, note
supra, note 5,
5, at
at 157.
157.
122
122
See
See P.D.
P.D. Maddaugh and J.D.
J.D. McCamus, The Law of
ofRestitution
Restitution (1990),
(1990), at
at 295-96.
123
123
Ibid,
Ibid, at
at 292-94.
292-94.
124
124
See Reichman, supra,
See Reichman, supra, note
note 57,
57, at
at 1233;
1233; French,
French, "Towards aa Modern Law", supra,
supra, note
note 57,
57, at
at 1313;
1313; C.J.
C.J. Berger,
Berger,
"Some Reflections
Reflections on aa Unified
Unified Law of Servitudes" (1982), 55
Servitudes" (1982), 55 So.
So. Cal. L.J. 1323,
Cal. L.J. at 1330-31;
1323, at 1330-31; R.A.
R.A. Epstein,
Epstein,
155
is mainly focused
is the development of judge-made
focused on the judge-made law—it
law it is —
is assumed by allall sides
sides that
that the
the
issues and solutions apply
same issues solutions apply to
to easements as
as well
well as
as positive
positive and restrictive covenants
restrictive
(referred to
(referred to in
in American law as real covenants and equitable
as real equitable servitudes).
servitudes). The predominant
is that
view is there should be a
that there judicial power of modification
a judicial modification or or extinguishment.
extinguishment. Owners of
dominant and servient
servient land,
land, it
it is
is considered,
considered, will
will not
not always be able able to
to bargain between
bargain between
themselves
themselves to to produce an efficient ordering
an efficient ordering of their
their interests. This may be
interests. This be because of such
difficulties as the
difficulties as large number of people
the large people involved
involved or or the
the infancy
infancy or
or other
other disability
disability of
landowners.
landowners. More controversially,
controversially, some argue that the court should be able to step in
argue that the court should be able to step in where a a
landowner, acting
landowner, acting as
as aa "hold
"hold out"
out" or or otherwise
otherwise using
using her
her or
or his
his position
position to
to extort
extort "blackmail"
money, isis unreasonable in in refusing
refusing to to agree
agree to
to modification
modification or or discharge.
discharge.
For
For the
the purpose of thisthis report,
report, itit is
is not
not necessary
necessary toto pursue
pursue these
these arguments.
arguments. InIn relation
relation
to restrictive
to covenants, Ontario has had a
restrictive covenants, judicial modification
a judicial modification and extinguishment power
125
for
for many years125
years and inin our recent Report on Covenants Affecting
our recent Covenants Affecting Freehold Land we
evaluated this
evaluated this existing
existing power and decided both
both that
that it
it should
should be
be strengthened
strengthened and thatthat it
it
should
should apply
apply to positive as
to positive as well
well as
as restrictive
restrictive covenants (collectively
(collectively described
described inin the report
the report
126
"land obligations").126
as "land
as obligations"). The question
question which does does need to to be considered
considered here
here is
is whether
there
there is
is any reason why such powers powers should
should not
not extend
extend toto easements.
easements. Two arguments are are
relevant. First,
relevant. First, our
our earlier
earlier recommendation that that it
it should
should be possible to have easements
possible to easements in in
gross was in
gross part based on the
in part the argument that that aa modification
modification or or extinguishment power should
be available to deal with possible difficulties caused
available to deal with possible difficulties caused by obsolete easements
obsolete easements in
in gross.
gross.
The second argument is is directed

directed at
at the related goals
the related goals of assimilation
assimilation and simplicity.
simplicity. We
have taken
taken the position that
the position that the
the law of covenants and easements in in this
this area
area should,
should, in
in the
the
absence of good reason
reason to the contrary,
to the contrary, be assimilated,
assimilated, and thus
thus simplified.
simplified.
Several Commonwealth jurisdictions

Several jurisdictions have already
already enacted
enacted modification
modification and
extinguishment
extinguishment provisions
provisions which apply
apply to
to both
both easements
easements and covenants.
covenants. This
This has been done
has been
29
in most Australian
in
127
Australian states,127
states, in
in New Zealand'28
Zealand
128
and—within —
Canada in British
and within Canada—in —
British Columbia.'
Columbia.
129
In
In addition,
addition, the
the English
English Law Reform Committee,13°
Committee, as
as well
well as
as the
the Law Commission in in aa
"Notice and Freedom of Contract in in the

the Law of Servitudes"
Servitudes" (1982),
(1982), 55 So.
So. Cal.
Cal. L.J.
L.J. 1353,
1353, at
at 1364-68;
1364-68; Rose,
supra, note
note 61,
61, at
at 1411-13;
141 1-13; Sterk,
Contract", supra,
supra, note
note 67,
67, at
at 652-53;
652-53; S.E.
S.E. Sterk,
Sterk, "Foresight
"Foresight and the
the
Law of Servitudes"
Servitudes" (1988),
(1988), 73
73 Cornell
Cornell L.Q.
L.Q. 956;
956; G.S.
G.S. Alexander,
Alexander, "Freedom, Coercion,
Coercion, and thethe Law of
Servitudes"
Servitudes" (1988),
(1988), 73 Cornell
Cornell L.Q.
L.Q. 883,
883, at
at 898.
898.
125
125
See Conveyancing and Law ofof Property Act,
supra, note 28, s.
s. 61(1);
61(1); Land Titles
Titles Act,
Act, supra,
supra, note
note 48,
48, s.
s. 119(5).
19(5).
1
See
See Report on Covenants Affecting
Affecting Freehold Land, supra, note 3,
supra, note 3, at
at 51-56.
5 -56.
1
126
126
Report on Covenants Affecting
Affecting Freehold Land,
Land, ibid,
ibid., at
at 51-56,
51-56, 139-146.
139-146.
127
127
Conveyancing Act,
Act, 1919
1919 (N.S.W.),
(N.S.W.), s.s. 89(1);
89(1); Property Act, 1974
Property Law Act, (Queensland), s.
1974 (Queensland), s. 181;
181; Transfer of Land Act,
Transfer of Act,
1893
1893 (West Aus.),
Aus.), s.
s. 129c.
129c. See
See M.A. Neave, C.J. Rossiter, and
C.J. Rossiter, and M.A. Stone, eds., Sackville
Stone, eds., Neave, Property
Sackville & Neave, Property
Law:
Law: Cases and Materials
Materials (4th
(4th ed.,
ed., 1988),
1988), at
at 918;
918; A.J. S.V. MacCallum, and
Bradbrook, S.V.
A.J. Bradbrook, Moore, Australian
A.P. Moore,
and A.P. Australian
Real Property
Property Law (1991),
( 99 ), at
1
1
at 656.
656.
128
128
Property Law Act,
Act, 1952,
1952, s.
s. 127.
127. See,
See, for Hinde, McMorland, and Sim,
for example, Hinde, supra, note
Sim, supra, note 88,
88, at
at 723.
723.
129
129
Property Law Act,
Act, R.S.B.C. 1979,
1979, c.
c. 340,
340, s.
s. 31,
31, as by S.B.C.
as am. by S.B.C. 1982,
1982, c.
c. 46,
46, s.
s. 34.
34.
130
130
Supra,
Supra, note
note 98,
98, at
at 29.
29.
156
156
working paper, Manitoba Law Reform Commission'32

the Manitoba
paper,I31 and the Commission have recommended such
legislation
legislation within their respective
within their jurisdictions.
respective jurisdictions.
It may be argued
It argued that
that easements by their
their nature
nature are
are less
less likely
likely than covenants to to require
require
modification
modification or or extinguishment on grounds of obsolescence
obsolescence and so so on.
on. This
This may be true,
true, so
so
that it may be
that it the case
be the case that
that modification
modification and extinguishment powers would not not often
often be used
in relation to easements,
in relation to easements, but
but this
this is
is not
not an
an argument for
for excluding the court's powers in
excluding the court's in
they were needed.'

33
133
relation
relation to
to easements soso that
that they would not
not be available
available in
in cases
cases where they needed.
We can discern
discern no good reason for for continuing
continuing differences
differences between covenants
covenants and
easements with
easements with respect
respect to
to the court's powers of modification and extinguishment.
the court's
Accordingly,
the recommendations made by us us in
in our
our Report on
Affecting Freehold
Covenants Affecting Freehold Land with respect to
with respect to extinguishment and variation by the
extinguishment and variation the court
court
of "land obligations" should
"land obligations" should apply,
apply, mutatis
mutatis mutandis,
mutandis, to
to easements.
easements.
131
131
Supra,
Supra, note
note 56,
56, at
at 57.
57.
132
132
Supra,
Supra, note
note 115,
1 5, at
1 at 34.
34.
133
133
For application
For application of Australian
Australian modification
modification and extinguishment provisions
provisions to
to easements, see
see Manley Properties
Properties
Ltd
Ltd. v.
v. Castrisos,
Castrisos, [1973]
[1973] 2
2 N.S.W.R. 420;
420; Pieper v.
v. Edwards, [1982]
[1982] 11 N.S.W.L.R. 336;
336; Ex parte Proprietors of
parte Proprietors of
"Avert!
"Averil Court" Building Units
Units Plan No.
No. 200,
200, [1983]
[1983] 1 Qd. 66.
1 66.
SUMMARY OF RECOMMENDATIONS
The Commission makes the

the following
following recommendations:
recommendations:
CHAPTER 3:
3: SUCCESSIVE ESTATES AND INTERESTS IN LAND
1.
1. We recommend statutory
statutory abolition
abolition of the
the legal
legal remainder rules,
rules. (at
(at 45)
45)
2.
2. With respect
respect to
to the
the obligations
obligations of persons
persons inin possession
possession of land
land subject
subject to
to successive
successive
interests,
interests, the
the reform
reform we recommend, expressed
expressed broadly,
broadly, is
is that
that there
there should
should be a a trust
trust
whenever successive
interests in
in land
land are
are created.
created. Accordingly,
Accordingly, if if no trust
trust is
is expressly
expressly
created,
created, a a statutory
statutory trust
trust will
will apply.
apply. This reform would make section
This reform section 3535 of the
the
Conveyancing and Law of of Property
Property Act redundant
redundant and that
that provision
provision should
should therefore
therefore be
repealed.
repealed, (at
(at 47)
47)
3.
3. We recommend thatthat the
the Statute
Statute of Uses be repealed
of Uses repealed soso that
that legal
legal executory
executory interests
interests
would also
also become obsolete
obsolete and trusts,
trusts, whether active
active or passive, could
or passive, could be
be created
created
without
without the
the need for
for expressing
expressing aa use
use upon aa use.
use. (at
(at 48)
48)
4.
4. The new system
system would take
take the
the place
place of
of that provided in
that provided in the
the Settled
Settled Estates
Estates Act,
Act, and we
recommend that
that that
that Act be repealed,
repealed. (at
(at 48)
48)
5.
5. We make the
the following
following recommendations with respect to
with respect to identifying
identifying the
the transactions
transactions to
to
which the
the statutory
statutory trust
trust will
will apply:
apply:
(1)
(1) Whenever successive
interests in
in land
land are
are created
created a
a trust
trust will
will be deemed toto occur
occur in
in
those
those cases
cases where aa trust
trust would otherwise
otherwise not
not have been created. Accordingly, the
created. Accordingly, the
estate
estate in
in fee
fee simple
simple or
or leasehold
leasehold interest
interest (as
(as the
the case
case may be)be) in
in the
the land
land will
will be
be held
held
on trust
trust to
to give
give effect
effect to
to the
the successive
interests in
in equity.
equity.
(2)
(2) A leasehold
leasehold interest
interest of a
a tenant
tenant and the
the reversionary
reversionary interest
interest of
of a
a landlord
landlord will
will be
be
deemed not
not to
to be
be successive interests in
successive interests in land.
land.
(3)
(3) Without prejudice
prejudice to
to the
the generality
generality of
of the
the expression
expression "successive
"successive interests
interests in
in land"
land"
the
the following
following will,
will, for
for avoidance
avoidance of
of doubt,
doubt, be deemed to successive interests
be successive
to be interests in
in
land:
land:
(a)
(a) aa determinable
determinable fee
fee simple
simple along
along with
with the
the possibility
possibility of
of reverter (and equivalent
reverter (and equivalent
interests
interests in
in leasehold
leasehold land).
land).
(b)
(b) a
a fee
fee simple
simple subject
subject to
to condition
condition subsequent along with
subsequent along the right
with the of re-entry
right of re-entry
(and
(and equivalent
equivalent interests
interests in
in leasehold land).
leasehold land).
[[157]
157 ]
158
158
(c) "springing
(c) "springing interests",
interests", that
that is
is interests subject to
interests subject to conditions
conditions precedent,
precedent, even
where no prior
prior interest
interest is
is conferred
conferred on another person,
person. (at
(at 53-54)
53-54)
6.
6. We recommend that
that the
the statutory
statutory trust
trust will
will be
be a
a trust
trust to hold—or
to hold —
or retain—the
retain —
the land.
land, (at
(at 57)
57)
7.
that the
the trustees
trustees of the
the statutory
statutory trust
trust will
will be the
the adult
adult and capacitated
capacitated
beneficiaries
the statutory
statutory trust.
trust, (at
(at 58)
58)
8.
8. We recommend that,
that, subject
subject to
to the
the recommendation below relating
relating to
to occupation
occupation of
of land,
land,
the
the statutory
statutory trust
trust should
should be
be subject
subject to
to the
the general
trusts, including
including the
the provisions
provisions of
of
the proposed revised
the proposed revised Trustee
Trustee Act set
set forth
forth in
in our
our Report
Report on the
the Law of
of Trusts. (at
Trusts, (at 59)
59)
9.
9. We recommend that that the provisions recommended in
the provisions in our
our Report on the
the Law ofof Trusts
Trusts
relating
relating to
to the
the protection
protection of purchasers
purchasers shall
shall apply
apply to purchasers from
to purchasers from trustees
trustees of the
the
statutory
statutory trust.
trust, (at
(at 59)
59)
10
10 We recommend that that a
a right
right of possession
possession and occupation
occupation should
should be
be conferred
conferred on a
a
beneficiary
beneficiary with
with a
a present,
present, vested
vested interest
interest in
in the
the land.
land, (at
(at 60)
60)
CHAPTER 4:
4: QUALIFIED ESTATES AND INTERESTS IN LAND
11.
1 1 We recommend that the continuing
that the continuing distinctions
distinctions between aa determinable interest and an
determinable interest an
interest
interest subject
subject to
to aa condition
subsequent should
should be
be abrogated.
abrogated. This
This abrogation
abrogation should
should
apply
apply to
to interests
interests held
held under trusts,
trusts, as well as
as well as common law interests,
interests, and should
should extend
extend to
to
interests
interests in personal as
in personal as well
as real property. It
It should
should be
be achieved,
achieved, we recommend, by
providing that language
providing that language that
that at
at common law would create create aa determinable
interest will
will
instead
instead create
create an
an interest
interest subject to aa condition
subject to condition subsequent.
subsequent, (at
(at 64)
64)
12.
12. Notwithstanding our main recommendations, we recommend that
Notwithstanding our that protective
protective trusts
trusts should
should
remain valid subject
remain valid subject to
to the
the recommendations
recommendations made in
in our
our Report
Report on the
the Law of Trusts.
of Trusts.
(at
(at 64)
64)
CHAPTER 5
5 THE RULE IN SHELLEY'S CASE
13.
13 that the
We recommend that the rule
rule in
in Shelley's
Shelley 's Case be
be abrogated. (at 71)
abrogated, (at 71
14.
14. further recommend that
We further that in
in the
the context
context of the abrogation
of the abrogation of
of the
the rule
rule in
in Shelley's
Shelley's Case
references
references to
to the
the heir
heir or
or heirs
heirs of a person should
a person should in
in the case of
the case inter vivos
of inter vivos conveyances,
conveyances, as
as
well
well as
as wills,
wills, mean the intestate successor
the intestate successor or
or successors
successors of the
the person. (at 71)
person, (at 71)
CHAPTER 66 CO-OWNERSHIP
15.
that our proposed reforms
our proposed concerning co-ownership should
reforms concerning should apply,
apply,
mutatis
mutatis mutandis,
mutandis, to personal property
to personal property as
as well
well as real property,
as real property. (at
(at 104)
104)
159
159
16.
16. We recommend that that there
there should be two categories
should be categories of co-ownership
co-ownership which will
will be
be
described as co-ownership with
described as with right
survivorship and co-ownership without right of
without right of
survivorship, (at
survivorship. (at 104)
104)
17.
17. We recommend that that the
the unities
unities of interest,
interest, time,
time, and title
title should
should be
be abrogated
abrogated asas
requirements
requirements for
for a joint tenancy.
a joint tenancy. Instead,
Instead, the
the fundamental determining
determining factor
factor should
should
(subject
(subject to
to the relevant presumptions) be solely
the relevant solely one of intention:
intention: whether the
the parties
parties
intended
intended the right of survivorship.
the right survivorship, (at
(at 107)
107)
18.
18. We recommend that that tenancies
tenancies by the
the entireties
entireties and
and the
the rule
rule in
in Re Jupp should
should be
be
abolished
abolished by legislation.
legislation, (at
(at 107.)
107.)
19.
that the
the statutory presumption in
statutory presumption in favour of tenancy in
in common should
should be
be
extended
extended in
in the
the following (at 108-09)
following manner: (at 108-09)
(1)
(1 Under the
the present
present law,
law, section
section 13
1 3 of the
the Conveyancing and Law of of Property Act does
does
not apply to property other than land and section 14 of the Estates
not apply to property other than land and section 14 of the Estates Administration
Administration
Act does not apply
does not apply toto personal
personal property.
property. InIn accordance
accordance with our general
with our general policy
policy of
of
assimilating
assimilating real
real and personal
personal property,
property, we recommend that these provisions
that both these provisions
should
should apply
apply toto all property. However, in
all forms of property. in our
our view, joint tenancy
view, joint tenancy isis
typically
typically the
the desired
desired form of co-ownership
co-ownership for for spouses.
spouses. Therefore
Therefore we recommend
that
that there should be
there should be aa presumption
presumption of joint tenancy
of joint tenancy in
in the
the case
case of property
property co-owned
by spouses.
spouses. We further
further recommend that that "spouse"
"spouse" forfor this purpose should
this purpose be defined
should be defined
as
as recommended in our Report on
in our Report on the
the Rights
Rights and Responsibilities
Responsibilities of
of Cohabitants
Cohabitants
under the
the Family Law Act (1993).
(1993).
(2)
(2) One indirect
indirect effect
effect of thethe recommendation in in subparagraph
subparagraph (1)(1) above must be be
considered.
considered. Under the the present
present law, the presumption
law, the presumption is that common law title
is that title
affecting partnership property

affecting partnership property isis taken
taken as joint tenants.
as joint tenants. This
This seems toto be
be convenient
convenient
since
since it enables surviving
it enables surviving partners
partners toto make title,
title, without the need for
without the for joining
joining the
the
personal representatives of deceased Therefore, we recommend that
partners. Therefore,
deceased partners. that if
if
section
section 1313 of the
Property Act is is extended to property
to property
other
other than land —
than land—thus thus including
including partnership —
partnership property—an
property an explicit
explicit exception
exception should
should
be
be made forfor partners
partners soso that
that they
they are
are presumed to take common law
to take law (as
(as opposed toto
equitable)
equitable) title
title as joint tenants.
as joint tenants.
(3) In
(3) In Campbell v.v. Sovereign
Sovereign Securities
Securities & Holding
Holding Co., it was held
Co., it that section
held that 13 of
section 13 of the
the
Conveyancing and Law of of Property Act does
does not
not apply
apply in the determination
in the determination ofof the
the
effect
effect of a
a contract
contract to
to transfer
transfer property
property to
to two or persons. However, there
or more persons. there is
is no
reason
reason why a a distinction
distinction should
should be
be drawn in in this context between
this context between a a contract
contract toto
transfer
transfer property
property and an an instrument actually effecting
instrument actually effecting aa transfer. Accordingly, we
transfer. Accordingly,
recommend thatthat section

section 1313 should
should be extended to
be extended to apply
apply toto a
a contract
contract to transfer
to transfer
property
property to
to two or
or more persons.
persons.
160
160
(4) Under current

(4) current law, persons may become co-owners by virtue
law, persons virtue of legal
legal doctrines
doctrines such
such
as
proprietary estoppel, constructive trust,
trust, and resulting
resulting trust.
trust. We consider
consider it it
inappropriate
inappropriate to to recommend a a statutory
statutory rule
rule to
to deal
deal with
with these
these situations.
situations. First,
First, they
they
cover aa range
range of situations
situations in
in which different
different considerations
considerations are relevant so
are relevant so that
that any
statutory formulation
statutory formulation would have to
have to be complex. Second,
Second, itit seems that
that in
in these
these
situations
situations the
the equitable preference for
equitable preference for tenancy in in common willwill ordinarily
ordinarily prevail
prevail
under
under the present law.
the present law. Third,
Third, the
the present
present law does
does leave
leave the
the court
court with
with some
flexibility,
flexibility, as
as is
is appropriate
appropriate in the situations
in the situations dealt
dealt with by these
these doctrines.
doctrines.
20.
20. On the basis of the
the basis the recommendation set
set out
out above relating
relating to
to the
the terminology of co-
co-
ownership,
ownership, we recommend that that the
the statutory
statutory presumption in in favour
favour of tenancy in
tenancy in
common should
should be expressed
expressed as
as a
a presumption
presumption that
that there
there is right of survivorship.
is no right survivorship,
(at
(at 109)
109)
21.
21. We recommend the the adoption
adoption of legislation
legislation which would both both state for purposes
state for purposes ofof
clarification
clarification and modify in in some respects the law relating
respects the relating to
to the
the rights
rights of co-owners
co-owners inin
situations
situations where a a co-owner is is not
not in
in occupation or or is
is not
not contributing
contributing toto the
the cost
cost of
expenses related to
expenses related to the property. Subject
the property. Subject toto the
the qualifications
qualifications set
set out
out below,
below, we
recommend enactment
legislation similar to that
similar to that enacted
enacted in
in Alberta,
Alberta, implementing the the
recommendations of the
recommendations the Alberta Institute of Law Research and Reform. The relevant
Alberta Institute relevant
provisions
provisions are
are as
as follows: (at 111-13)
follows: (at 1 1-13)
15.—
15.—(1)
(1) A co-owner may apply
apply to
to the
the Court by originating
originating notice
notice for
for an
an order
order terminating
terminating the
the
co-ownership
co-ownership of
of the
the interest in land
interest in land in
in which he
he is
is a
a co-owner.
co-owner.
(2)
(2) On hearing
hearing an application under subsection
an application subsection (1),
(1), the
the Court
Court shall
shall make an
an order
order directing
directing
(a)
(a) physical division
aa physical division of
of all
all or
or part
part of
of the
the land
land between the
the co-owners,
co-owners,
(b)
(b) the
the sale all or
sale of all or part
part of
of the
the interest
interest of
of land
land and the
the distribution
distribution of the
the proceeds
proceeds of
the
the sale
sale between the co-owners, or
the co-owners, or
(c)
(c) the sale
the sale of
of all
all or
or part
part of the
the interest or more of the
interest of one or the co-owners'
co-owners' interests
interests in
in
land
land to
to one or
or more of the
the other co-owners
other co-owners who are willing to purchase the
are willing to purchase the interest.
interest.
16. section 15(2),

16. Notwithstanding section 15(2), if
if an
an order
order is
is made under section 15(2)(b)
under section 15(2)(b) and the
the highest
highest
amount offered
offered for
for the purchase of
the purchase the interest
of the interest in
in the
the land
land is
is less
less than the market value
than the value of
of the
the
interest,
interest, the
the Court may
(a)
(a) refuse
refuse to
to approve the
the sale,
sale, and
(b)
(b) make any further
further order
order it
it considers
considers proper.
proper.
17.—
17.—(1)
(1) In
In making an
an order
order the Court may direct
the Court direct that
that
(a)
(a) an accounting, contribution
an accounting, contribution and adjustment, or any one or
adjustment, or or more of them, take
them, take
in respect
place in
place respect of the
the land,
land, and
(b)
(b) compensation,
compensation, if
if any, paid for
be paid
any, be for an
an unequal
unequal division
division of the
the land.
land.
161
161
(2) In determining
(2) In determining if accounting, contribution
if an accounting, contribution or
or adjustment
adjustment should
should take place or
take place or
compensation be paid for an unequal division
paid for division of the
the land
land the
the Court shall,
shall, without limiting
limiting
itself
itself from considering
considering any matter
matter it
it considers
considers relevant
relevant in
in making its
its determination,
determination, consider
consider
whether
(a)
(a) one co-owner has
has excluded
excluded another
another co-owner from the
the land;
land;
(b) an occupying co-owner was tenant,

(b) an bailiff or
tenant, bailiff or agent
agent of
of another
another co-owner;
co-owner;
(c)
(c) aa co-owner has
has received
received from third parties more than
third parties than his just share
his just share of
of the
the rents
rents
from land
land or
or profits
profits from the reasonable removal of its
the reasonable its natural resources;
natural resources;
(d)
(d) a has committed waste
a co-owner has waste by an
an unreasonable
unreasonable use
use of the
the land;
land;
(e)
(e) aa co-owner has
has made improvements or
or capital
capital payments that
that have increased
increased
the
the realizable
realizable value
value of
of the
the land;
land;
(f)
(f) a
a co-owner should
should be
be compensated for
for non-capital
non-capital expenses in
in respect
respect of
of the
the
land;
land;
(g) an
(g) an occupying
occupying co-owner claiming
claiming non-capital
non-capital expenses
expenses in
in respect
respect of the
the land
land
should
should be required
required to
to pay a
a fair
fair occupation rent.
rent.
Our qualifications
qualifications on this
this recommendation are
are four
four in
in number.
(1)
(1) The Alberta
Alberta legislation
legislation premises
premises thethe court's
court's power to to order
order accounting
accounting on
circumstances
circumstances where an orderorder for
for sale
sale or partition is
or partition is made or
or in
in the
the restricted
restricted
circumstances
circumstances set
set out
out in
in section
section 16(2).
16(2). We prefer
prefer the
the following proposal made by the
following proposal the
Law Reform Commission of of British
British Columbia which
which does
does not restrict the
not restrict the
circumstances
circumstances in
in which the
the court's
court's powers may bebe exercised:
exercised:
On application
application by a
a co-owner, the
the court
court may
(a)
(a) direct
direct that
that an
an accounting,
accounting, contribution
contribution and adjustment,
adjustment, or
or any one or
or more of them,
take
take place
place in
in respect
respect of a
a co-owner's
co-owner's interest,
interest, and
(b)
(b) order
order that
that compensation,
compensation, if
if any,
any, be paid between co-owners.
be paid
(2) The Alberta

(2) Alberta legislation
legislation and the
the British
proposal enable
enable the
the court
court to take
to take
account
account ofof all
all relevant
relevant circumstances
circumstances and
and also
also list
list relevant factors. We agree
relevant factors. agree with
with
this
this general
general approach
approach except
except it
it should
should be
be made clear
clear that
that the
the court
court has
has a
a discretion
discretion
not
not only
only whether
whether toto order
order an
an accounting
accounting but
but also
also as
as to
to the
the quantum of of any adjustment
adjustment
made and thethe legislation
legislation should
should express
express the relevance of the
the relevance effect of changes
the effect changes in
in the
the
value
value of the
the property.
property.
(3) In
(3) In expressing
expressing the
the relevant
relevant factors
factors the
the Alberta
Alberta legislation
legislation reflects
reflects the present law,
the present law,
along
along with
with some features
features we consider
consider to be unsatisfactory.
I
to be unsatisfactory.
(a)
(a) Section
Section 17(2)(a)
17(2)(a) refers
refers to exclusion of one co-owner by another.
to exclusion another. We agree that
agree that
such
such exclusion
exclusion isis relevant, the legislation
but the
relevant, but should make it
legislation should it clear
clear that
that
occupation
occupation rent
rent may bebe ordered
ordered to
to be paid outside
be paid the exceptional
outside of the exceptional situations
situations
under the
the present
present law.
law.
162
(b)
(b) It should
It should bebe expressed
expressed as
as aa relevant
relevant factor
factor that
that a
a co-owner hashas not
not been
reasonably able
reasonably able to
to enjoy her
her or
or his right of occupation,
his right occupation, irrespective
irrespective of any fault
fault
on the
the part
part of a
a co-tenant
co-tenant in
in occupation.
occupation.
(c)
(c) The term
term "bailiff'
"bailiff' used
used in
in section
section 17(2)(b)
17(2)(b) should be avoided since
since it
it is
is in
in this
this
context
context an
an archaic
archaic term
term that
that does not
not usefully
usefully add anything
anything to
to the
the term agent.
agent.
(4)
(4) The British proposal would give
British Columbia proposal give the
the court
court an
an express
express power to
to order
order a
a lien
lien
to protect the
to protect the position
position of a
a co-tenant
co-tenant who has
has incurred
incurred expenditures:
expenditures:
Where an
an amount is
is found recoverable
recoverable under section
section 44 or
or section
section 47,
47, the
the court
court may
order
order
(a)
(a) that
that a
a co-owner has
has a
a lien
lien on the
the interest
interest of another
another co-owner to
to secure
secure payment of
that
that amount, and
(b)
(b) in
in default
default of payment of thatthat amount within
within 30 days,
days, or
or such other
other period
period as
as the
the
court
court may direct
direct after
after the
the date
date of service
service of a
a certified
certified copy of
of the
the order
order on the
the co-
co-
owner, the sale
owner, the sale of
of the
the co-owner's
co-owner's interest
interest pursuant
pursuant to
to the
the Rules
Rules of
of Court.
Court.
We recommend that
that the
the legislation
legislation should
should include
include such
such a
a power.
power, (at
(at 113)
1 13)
22.
22. In
In accordance with
with our general policy in
favour of assimilating
assimilating real
real and personal
personal property,
property,
we recommend thatthat the
the legislation
legislation described
described in the previous
in the recommendation should
previous recommendation should
apply,
apply, mutatis mutandis, to
mutatis mutandis, to personal property,
personal property. (at
(at 113)
1 13)
23. We recommend abrogation

23. abrogation of the
the rule
rule that
that destruction
destruction of
of the
the three
three unities
unities causes
causes
severance
severance of a joint tenancy.
a joint tenancy, (at
(at 114)
1 14)
24.
24. We recommend enactment
legislation under which the
the court
court has
has a
a general
general power to
to
determine
determine severance
severance by order.
order, (at
(at 115)
1 15)

25. that bankruptcy
bankruptcy of a joint tenant
a joint tenant should,
should, as
as in
in the
the present
present law,
law, sever
sever the
the
joint ownership.
joint ownership, (at
(at 115)
115)
26.
26. We reaffirm the recommendations in
reaffirm the in our
our Report
Report on
on the
the Enforcement
Enforcement ofof Judgment Debts
and Related
Related Matters
Matters with
with respect
respect to execution by judgment creditors
to execution creditors against
against a joint tenant.
a joint tenant,
(at
(at 115-16)
115-16)
27.
27. We recommend that unilateral severance
that unilateral severance should
should not
not take effect unless
take effect notice of
unless notice of severance
severance
is
is given
given to
to the
the other joint owners.
other joint owners, (at
(at 118)
118)
28.
that unilateral
severance by a a party
party should
should be in writing
be in writing and signed,
signed, and
should
should show an
an intention
intention to
to terminate
terminate the
the right
survivorship, (at
(at 119)
1 19)
29.
29. We recommend thatthat notice
notice of
of unilateral
severance should be served
should be served in
in accordance
accordance with
with
the
the rules provided for
rules provided for service
service under
under the
the Mortgages Act.
Act. (at
(at 119)
1 19)
163
163
30. Under our proposed scheme the

30. the giving
giving ofof notice
notice is
is an
an essential
essential requirement for
for unilateral
unilateral
severance.
severance. ItIt is therefore necessary
is therefore necessary to
to devise
devise aa method of securing
securing a purchaser's title
a purchaser's title to
to an
an
interest
interest in
in land
land converted
converted into
into tenancy inin common by severance.
severance. In
In this
this context
context it
it would
be appropriate
appropriate to to provide
provide for
for a prescribed form which would be
a prescribed be registrable under the
registrable under the
Registry Act and under the
Registry the Land Titles
Titles Act,
Act, and we so recommend. (at
so recommend, (at 119)
1 19)
31.
31 We recommend thatthat a
a notice
notice registered
registered under the Registry
under the Registry Act
Act should
should be
be deemed effective
effective
in
in favour a bona fide
favour of a fide purchaser
purchaser for
for value
value without
without notice
notice of any defect
defect in
in the
the notice.
notice,
(at
(at 119-20)
119-20)
32.
32. We recommend the the continuation
continuation of the present law so
the present so that
that severance may be effected
effected by
the
the agreement of joint
joint owners,
owners, whether or or not
not that
that agreement is is informally
informally expressed.
expressed.
Such agreement may, as as in
in the
the present
present law,
law, be express
express or
or implied
implied and may be inferred
inferred
from the parties' course of conduct, (at 120)
from the parties' course of conduct. (at 120)
33. The provisions

33. provisions of
of the
the Partition
Partition Act should,
should, we recommend, be
be repealed
repealed and replaced
replaced by
legislation
legislation which has
has the following features:
the following features:
(a)
(a) The property
property toto which the
the Act applies.
applies. The present
present Partition
Partition Act applies
applies only
only to
to land.
land.
In
In accordance
accordance with
with our
our general policy in
favour of assimilating real and personal
assimilating real personal
property,
property, we recommend that that the
the reformed law be be made applicable
applicable to
to personal
personal
property
property as
as well
as real property, (at
(at 120-21)
120-21)
(b)
(b) The persons who may applyapply for relief We recommend that
for relief. that the
the criterion
criterion for
for standing
standing
in
in a
a partition
partition proceeding
proceeding should
should be expressed
expressed broadly.
broadly. For purposes
purposes of clarification
clarification
and illustration,
illustration, however, we recommend that that the
the legislative
legislative provision
provision include
include aa non-
exhaustive list of categories of individuals who come within
exhaustive list categories individuals within the
the general
general criterion.
criterion.
More particularly,
particularly, we recommend that this list
that this list include
include aa creditor
creditor who has
has the
the right
right to
to
have the
the property
property seized
seized and sold
sold pursuant
pursuant toto a
a writ
writ of seizure
seizure and sale.
sale, (at
(at 121)
121)
(c)
(c) The powers available
available to
to the
the court.
court. We recommend thatthat the powers that
the powers that should
should be
be
available
available to
to the
the court
court on an
an application
application should
should be
be explicitly
explicitly limited
limited and should
should
include:
include:
(1)
(1 aa physical
physical division
division of all
all or
or part
part of the property between the
the property the co-owners;
co-owners;
(2)
(2) the
the sale
sale of
of all
all or
or part
part of the the distribution
property and the
the property distribution of the proceeds of the
the proceeds the
sale;
sale; and
(3) the
(3) the sale
sale of
of all
all or part of
or part of the
the interest
interest of one or
or more of co-owners to
the co-owners
of the to one
one or
or
more of the
the other
other co-owners
co-owners who areare willing to purchase
willing to the interest.
purchase the interest, (at
(at 122)
122)
We further
that the court have power to
the court division of property
order division
to order property not
not
conforming toto ownership and in
in such
such aa case
case to order payment of
to order of compensation inin
adjustment as
adjustment as was recommened inin the British Columbia
the British proposed
proposed reform.
reform, (at
(at 122)
122)
164
164

We further that the
the court
court should have
have aa discretion
discretion to
to permit
permit the
the co-
co-
ownership
ownership to
to continue
continue and that,
that, as
as under the present law,
the present law, the
the onus should
should be on the
the
person opposing termination
person termination to justify that
to justify that position.
position, (at
(at 123)
123)
Finally,
Finally, we recommend that that the
the court
court be
be given
given guidance
guidance in
in the
the exercise
exercise of this
this
discretion
discretion in
in the
the form of guidelines
guidelines in
in the
the manner recommended by the
the English
English Law
Commission.
Commission, (at(at 123-24)
123-24)

34. that the proposed legislation
the proposed legislation expressly
expressly deal
deal with
with the
interrelationship
between the
the proposed co-ownership provisions
provisions and the
the provisions
provisions inin the
the Family Law Act
applying
applying toto spouses.
spouses. Accordingly,
the legislation
legislation should
should confirm
confirm the
the
position that
position that has
has been adopted inin the
the present
present law that
that (a)
(a) the
the co-ownership provisions
provisions
apply to
apply to co-owning spouses
spouses and (b) the co-ownership provisions are subject
(b) the co-ownership provisions are subject to
to orders
orders for
for
exclusive
possession made under the
the Family Law Act.
Act. (at
(at 124)
124)
35. Further, we recommend that

35. Further, that the legislation should
proposed legislation
the proposed should spell
spell out
out the
the implications
implications of
of
the
interrelationship between the provisions and the
the co-ownership provisions the Family Law Act as as
follows:
follows:
(a)
(a) It
It should
should provide
provide that
that the
the court
court may stay
stay the
the co-ownership proceedings when an
application
application for
for exclusive
the Family Law Act has
has been brought and
that
that the
the court
court shall
shall stay
stay the proceedings while
the co-ownership proceedings while such
such order
order remains
remains in
in
force.
force.
(b)
(b) In
In addition,
addition, the court should
the court should have power toto adjourn the co-ownership proceedings
adjourn the to
proceedings to
enable
enable aa co-owner to bring an application
to bring application for
for exclusive
exclusive possession the Family
Law Act.
Act. (at
(at 124)
124)
CHAPTER 77 EASEMENTS AND PROFITS
36. that easements should

36. We recommend that should be permitted to
be permitted to exist
exist as
as appurtenant to land
appurtenant to land or
or in
in
gross.
gross, (at
(at 145)
145)
37. We recommend the

37. the enactment
legislation declaring that section
declaring that section 15
15 of the
the Conveyancing
of Property
and Law of Property Act does
does not
not operate
operate to
to create
create any easement, profit, or
easement, profit, or similar right.
similar right,
(at
(at 147)
147)
38. We reaffirm
38. reaffirm the recommendations made in
the recommendations in the
the Report
Report on Limitations
Limitations of
of Actions
Actions
concerning abolition
concerning abolition of the right to
the right to acquire easements and proflts-a-prendre by
acquire easements and profits-a-prendre
prescription,
prescription, subject
subject to
to two qualifications.
qualifications.
(a)
(a) The first
first qualification relates to
qualification relates to our
our earlier
earlier recommendation that persons who had
that persons
commenced aa period
period of
of continuous adverse enjoyment
continuous adverse enjoyment prior
prior to
to abolition
abolition should
should be
allowed
allowed a a transitional
transitional period
period of ten
ten years within which a
years within a claim for an
claim for an easement
easement by
prescription might be
prescription be made if if sufficient time had elapsed.
sufficient time elapsed. We are
are now of the
the view that
view that
these
these "ripening
"ripening rights"
rights" should not be protected
should not protected and that
that a person who had enjoyed
a person enjoyed less
less
165
165
than twenty
than twenty years continuous adverse
years of continuous adverse enjoyment would not have any right
not have right
surviving abolition, (at
surviving abolition. (at 153)
153)
(b) The second qualification

(b) qualification relates to our recommendation that
relates to that a
a discretion
discretion be conferred
conferred
on the
the court
court to permit an
to permit an extension
extension of time
time for
for fulfilling
fulfilling the
the registration
registration requirement
requirement
for
for easements profits-a-prendre. We now recommend that,
easements and profits-a-prendre. that, in
in such
such cases,
cases, the
the
court
court may require
require the
the applicant to pay the
applicant to the servient
servient owner suchsuch compensation as as the
the
court
court may determine.
determine, (at
(at 153)
153)

39. section 37(1)
that section 37(1) of the
the Conveyancing and Law of Property Act should be
of Property
amended to to read "where a person
read "where a person makes lasting improvements on land
lasting improvements on land under
under the
the belief
belief
that
that it
it is
is the
the person's
person's own, or or under the
the belief
belief that
that the person is
the person is entitled
entitled to
to do so...",
so...", and the
the
section
section should
should be further
further amended in in order
order to
to empower thethe court
court to
to order
order the
the creation
creation of
of
an
an easement
easement subject,
subject, if
if the
the court
court so
so directs,
directs, to the payment
to the payment of compensation.
compensation, (at (at 154)
154)
40.
40. We recommend thatthat the recommendations made in
the recommendations in our
our Report on Covenants Affecting
Affecting
Freehold Land with
with respect
respect to
to extinguishment
extinguishment and variation
variation by the
the court
court of "land
"land
obligations"
obligations" should apply,
apply, mutatis
mutatis mutandis,
mutandis, to
to easements.
easements, (at
(at 156)
156)
I
I
m
I
I
li
Copies of this publication y be purchased from the
may the Ontario
Ontario Government 13colcstote,
Bookstore, SRO
880 Ray
Bay Street,
Street,
Toronto, or by mail order from .Thshlication.s
Publications Ontario,
Ontario, 50
50 Grosvenor
Grosvenor Street, Toronto, Ontario
Street, Toronto, Ontario
M7AIN8. Telephone (416) 1A 26-5300. Toll
326-5300. Toll free long distanec
free long distance 1-800-668-9938.
1-800-668-9938

Report On Basic Principles of Land Law 193801 PDF

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Report On Basic Principles of Land Law 193801 PDF

Uploaded by

Copyright:

Available Formats

REPORT

ONTARIO LAW REFORM COMMISSION

ONTARIO LAW REFORM COMMISSION

D. McCamus, MA, LLB, LLM, Chair

(Hon), LLB, LLM, Senior Counsel

** These Commissioners served during the

The Commission's office

The Honourable Charles

CHAPTER 2 THE BASIS OF LANDHOLDING IN ONTARIO 55

CHAPTER 3 SUCCESSIVE ESTATES AND INTERESTS IN LAND 11

CHAPTER 4 QUALIFIED ESTATES AND INTERESTS IN LAND 61

CHAPTER 5 THE RULE IN SHEI LEY'S CASE

CHAPTER 7 EASEMENTS AND PROFITS 125

SUMMARY OF RECOMMENDATIONS 157

Throughout the thirty-two years

modernization of the law of Ontario appears desirable.

The completion of this report on basic

member of the Commission for

The Commission is is very

Four themes are

A second theme is is clarification.

Chapter 2 of the the report briefly reviews the

THE BASIS OF LANDHOLDING

The Conquest enabled the the Norman kingskings to

child the ward of the

However, inin practice

Escheat was of two types,

Escheat propter delictum

Although thethe marginal

state of New York abolished

York which had been owned by supporterssupporters ofof the

proposal] would not

escheat and that

have any continuing

SUCCESSIVE ESTATES AND

The common law law system

individual, normally but

For example, if if A, the

conceptually distinct ways;

because itit does not include

An argument can be made that that these

However, the rule was applied

common law limit

remainder must be supported by aa prior

For example, if if A purports

the other hand,

passed from him by the the original

Even atat common law this rule could easily

the gap may or

itit became established

fee simple and his

would pass pass by descent

common law as as infringing

this respect, gaining nothing

The main purpose

When thethe use

However, not all limitations

statute never applied

The second important

The most important aspect

provided from the the rule

inter vivos conveyance, although

plaintiffs not entitled