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Common Law & Civil Law Property * A Conversation * Professor Kirsten Anker Professor David Lametti 22 March, 2011.

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Presentation on theme: "Common Law & Civil Law Property * A Conversation * Professor Kirsten Anker Professor David Lametti 22 March, 2011."— Presentation transcript:

1 Common Law & Civil Law Property * A Conversation * Professor Kirsten Anker Professor David Lametti 22 March, 2011

2 Common Law Property * Idiosyncrasies* Archaic terminology Archaic terminology Fee simple estate, freehold tenure, seisin, feoffee, replevin, ejectment Fee simple estate, freehold tenure, seisin, feoffee, replevin, ejectment Sources and defining property Sources and defining property No owners No owners Title is relative Title is relative Possession gives rights Possession gives rights All titles held of the Crown All titles held of the Crown Five dimensions of property in land Five dimensions of property in land Divisions over time Divisions over time Legal and equitable interests Legal and equitable interests Aboriginal rights Aboriginal rights

3 Civil Law Property : *Absolutes* Patrimonial Rights $$$

4 Patrimonial Rights Extra-patrimonial Rights [Aubry v. Vice-Versa] Real Rights Personal Rights Ownership

5 Defining Property - Caselaw Yanner v. Eaton (1999) Yanner v. Eaton (1999) The ultimate fact about property is that it does not really exist: it is mere illusion. (native title) The ultimate fact about property is that it does not really exist: it is mere illusion. (native title) INS v. Associated Press (1918) INS v. Associated Press (1918) Property, a creation of law, does not arise from value, although exchangeable – a matter of fact. (hot news) Property, a creation of law, does not arise from value, although exchangeable – a matter of fact. (hot news) Storey-Bishoff v. Storey-Bishoff (1994) Storey-Bishoff v. Storey-Bishoff (1994) One of the inherent qualities of property is that it may be transferred, bought, sold, exchanged, gifted or hypothecated. (degrees as matrimonial property) One of the inherent qualities of property is that it may be transferred, bought, sold, exchanged, gifted or hypothecated. (degrees as matrimonial property) Stewart v. The Queen (1988) Stewart v. The Queen (1988) As the term "property" is simply a reference to the cluster of rights assigned to the owner, this protection [for confidential information in the commercial field] could be given in the form of proprietary rights. (theft of information) As the term "property" is simply a reference to the cluster of rights assigned to the owner, this protection [for confidential information in the commercial field] could be given in the form of proprietary rights. (theft of information)

6 Defining Property - Statutes Land Titles Act Land Titles Act property means land designated as a property under subsection 141 (2) or (4) property means land designated as a property under subsection 141 (2) or (4) Mortgages Act; Trespass to Property Act Mortgages Act; Trespass to Property Act (property not defined) (property not defined) Conveyancing and Law of Property Act Conveyancing and Law of Property Act property includes real and personal property, a debt, a thing in action, and any other right or interest. property includes real and personal property, a debt, a thing in action, and any other right or interest. Family Law Act Family Law Act property means any interest, present or future, vested or contingent, in real or personal property property means any interest, present or future, vested or contingent, in real or personal property

7 Defining Property - Commentaries Blackstone 1760 Blackstone 1760 Property is the sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe. Property is the sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe. Classifications: Real (corporeal, incorporeal); Personal (tangible, intangible) Classifications: Real (corporeal, incorporeal); Personal (tangible, intangible) Hohfeld and Honoré (following Bentham) Hohfeld and Honoré (following Bentham) Person to person Person to person Socially constructed bundles of rights Socially constructed bundles of rights Property rights indistinct from other rights (Gray) Property rights indistinct from other rights (Gray) Both owner and object have become abstract and diffuse Both owner and object have become abstract and diffuse

8 Civil Law: Codes, Doctrine, cases

9 947. Ownership is the right to use, enjoy and dispose of property fully and freely, subject to the limits and conditions for doing so determined by law. Ownership may be in various modes and dismemberments La propriété est le droit duser, de jouir et de disposer librement et complètement dun bien, sous réserve des limites et des conditions dexercice fixées par la loi. Elle est susceptible de modalités et de démembrements.

10 911. A person, alone or with others, may hold a right of ownership or other real right in a property, or have possession of the property. A person may also hold or administer the property of others or be trustee of property appropriated to a particular purpose On peut, a légard dun bien, etre tiulaire, seul ou avec dautres, dun droit de propriété ou dun autre droit réel, ou encore être possesseur du bien. On peut aussi être détenteur ou administrateur du bien dautrui, ou être fiduciaire dun bien affecté à une fin particulière.

11 899. Property, whether corporeal or incorporeal, is divided into immovables and movables Les biens, tant corporels quincorporels, se divisent en immeubles et en meubles.

12 Where are the owners in the Common Law? The feudal pyramid The feudal pyramid The king as absolute lord The king as absolute lord Seisin = right to enjoy returns of the land Seisin = right to enjoy returns of the land Different kinds of tenures Different kinds of tenures Decline of feudalism Decline of feudalism Tenures converted into free and common socage Tenures converted into free and common socage Land granted to tenant and his heirs Land granted to tenant and his heirs The estate as the object of inheritance The estate as the object of inheritance Different slices of time possible Different slices of time possible fee simple, fee tail, life estate, conditional estates fee simple, fee tail, life estate, conditional estates

13 5 Dimensions of Property in Land 3 dimensions 2 dimensions Life EstateFee Simple Estate Legal Interest Equitable Interest Time – 4 th dimension 3 dimensions Equity – a second layer of estates and interests – the 5 th dimension Leasehold Estate

14 Umm… The owners? The importance of possession The importance of possession Multiple persons entitled to land Multiple persons entitled to land Disputes solved by seisin Disputes solved by seisin Presumption that possession was legitimate Presumption that possession was legitimate The role of writs and remedies The role of writs and remedies Writ of right Writ of right Writ of entry Writ of entry Assize of novel disseissin, mort dancestor Assize of novel disseissin, mort dancestor Writ of ejectment (leasehold freehold ); now part of trespass Writ of ejectment (leasehold freehold ); now part of trespass Larceny a crime against possession Larceny a crime against possession Ownership understood variously in terms of protection, limitation and title Ownership understood variously in terms of protection, limitation and title

15 Civil Law Property Attempts to organize these impulses… Attempts to organize these impulses… according to kinds of objects & rights according to kinds of objects & rights according who « owns » according who « owns » according to whose rights according to whose rights according to time, space according to time, space

16 976. Neighbours shall suffer the normal neighbourhood annoyances that are not beyond the limit of tolerance they owe each other, according to the nature or location of their land or local custom Les voisins doivent accepter les inconvénients normaux du voisinage qui nexcèdent pas les limites de la tolérance quils doivent, suivant la nature ou la situation de leurs fonds, ou suivant les usages locaux.

17 Patrimonial Rights Extra-patrimonial Rights [Aubry v. Vice-Versa] Real Rights Personal Rights Ownership 947 Special Modes Co-ownership [1010] Superficies [1011] Dismemberments [1119] Usufruct [1120] Servitude [1177] Emphyteusis [1195] Innominate Real Rights?

18 Civil Law Property Supposedly absolute, BUT perhaps not quite so … Supposedly absolute, BUT perhaps not quite so …

19 976. Neighbours shall suffer the normal neighbourhood annoyances that are not beyond the limit of tolerance they owe each other, according to the nature or location of their land or local custom Les voisins doivent accepter les inconvénients normaux du voisinage qui nexcèdent pas les limites de la tolérance quils doivent, suivant la nature ou la situation de leurs fonds, ou suivant les usages locaux.

20 Civil Law Property : *Absolute?* Limits on each form of real right Limits on each form of real right Limits on certain objects Limits on certain objects Possession Possession And historical contingencies: And historical contingencies: The Crown (and common law) in Quebec The Crown (and common law) in Quebec Aboriginal « interests »: rights and title in Quebec Aboriginal « interests »: rights and title in Quebec The modern, global context The modern, global context

21 Example 1 – Who owns the baseball? Popov v. Hayashi Significant but incomplete steps to achieve possession … interrupted by the unlawful acts of others [give rise to] a pre-possessory interest … a qualified right to possession. Significant but incomplete steps to achieve possession … interrupted by the unlawful acts of others [give rise to] a pre-possessory interest … a qualified right to possession.

22 Example 2 – Conditional Estates: ruling from the grave Defeasible fee Defeasible fee An estate terminated before its natural end by the fulfillment of a condition An estate terminated before its natural end by the fulfillment of a condition To A provided he never marries a Roman Catholic To A provided he never marries a Roman Catholic Condition removed if invalid Condition removed if invalid Determinable fee Determinable fee An estate limited from the outset by conditioning event An estate limited from the outset by conditioning event To A for the time that she lives in Toronto To A for the time that she lives in Toronto Invalid condition voids whole grant Invalid condition voids whole grant

23 Example 3 – Quasi-public space Harrison v. Carswell (1975) Harrison v. Carswell (1975) Picketing (statutory labour right) on shopping centre sidewalk Picketing (statutory labour right) on shopping centre sidewalk Dixson (majority) Dixson (majority) private property central in Canadian law private property central in Canadian law right to exclude can only be curtailed by explicit legislation right to exclude can only be curtailed by explicit legislation Laskin (minority) Laskin (minority) historical purpose of trespass relates to privacy historical purpose of trespass relates to privacy interests of owners v members of public can be reconciled by limiting right to exclude to misbehaviour interests of owners v members of public can be reconciled by limiting right to exclude to misbehaviour calls up civil law abuse of rights calls up civil law abuse of rights Statutory amendments Statutory amendments Charter rights Charter rights CCC v. Canada CCC v. Canada R v. Layton R v. Layton

24 Example 4 – Barriere Lake: unceded Algonquin territory

25 Aboriginal rights Doctrine of continuity Doctrine of continuity Three categories of colony Three categories of colony conquest conquest cession cession settlement settlement Pre-existing rights? Pre-existing rights? Some tribes are so low in the scale of civilization… Re Southern Rhodesia (1919) Some tribes are so low in the scale of civilization… Re Southern Rhodesia (1919) Must not render [aboriginal] title conceptually in terms which are appropriate only to systems which have grown up under English law Amodu Tijani (1921) Must not render [aboriginal] title conceptually in terms which are appropriate only to systems which have grown up under English law Amodu Tijani (1921) Which category for Canada? Which category for Canada?

26 Aboriginal rights in Quebec R v. Adams; R v. Coté (1996) R v. Adams; R v. Coté (1996) Regardless of recognition by French regime, s.35 protects activities central to the distinctive culture of aboriginal societies prior to contact Regardless of recognition by French regime, s.35 protects activities central to the distinctive culture of aboriginal societies prior to contact Legislative infringement possible if justified Legislative infringement possible if justified Difficult to establish commercial rights Difficult to establish commercial rights Aboriginal title for semi-nomadic peoples? Aboriginal title for semi-nomadic peoples? Exclusive possession (Delgamuukw) Exclusive possession (Delgamuukw) Sui generis, reconciliation of two perspectives Sui generis, reconciliation of two perspectives Regular, not occasional use Regular, not occasional use Comprehensive claim agreements since 1975 Comprehensive claim agreements since 1975 James Bay and Northern Quebec, Nunavik completed James Bay and Northern Quebec, Nunavik completed Mimaq, Innu in progress Mimaq, Innu in progress


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