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  • Property & IP accounts for 59 out of 654 casebriefs.

Style of causeRatio

Braglin v Braglin, 2002 ABQB 816

A determination of whether occupation rent is payable is context-specific and discretionary. In this case, no occupation rent required. This is a discretionary remedy: therefore occupation rent may apply in other situations.

Bulun Bulun v R & T Textiles, [1998] ALR 157

Equity will not automatically impose a constructive trust.
** Equity will only be invoked if there is a need for a just remedy -- might be imposed to prevent the fiduciary from retaining an unconscionable benefit.

Canadian Pacific Railway Co v Vancouver (City), [2006] 1 SCR 227, 2006 SCC 5

A de facto expropriation requires both an acquisition of a beneficial
interest in a property and removal of all reasonable uses of the property.
** A prohibition on all economic activity does not constitute de facto expropriation.

Caroline v Roper

Fee simple subject to a condition subsequent = Defeasible Interest

Determinable fee simple subject to a right of reverter = Determinable Interest

Chappell v United States (2000), 119 F Supp 2d 1013, 2000 U.S. Dist. LEXIS 16599

In cases of ownerless property, first finder of the property gets rights.

Charrier v Bell (1986), 496 So.2d 601 (Court of Appeal of Louisiana, First Circuit)

Objects interred with the dead are not abandoned; such objects are intended to remain in the ground.

Delgamuukw v British Columbia, [1997] 3 SCR 1010

Establishes the three part test for establishing aboriginal title:
** 1. Land must have been occupied prior to sovereignty
** 2. If present occupation is relied on as proof of occupation pre-sovereignty, must be continuity between present and pre-sovereignty occupation
** 3. At sovereignty, that occupation must have been exclusive

Diamond Neon (Manufacturing) v Toronto-Dominion Realty, [1976] 4 WWR 664 (BC CA.)

An article is a fixture unless expressly excluded from a sale; tenants must convert fixtures to chattels for removal on a timely basis.

The court followed the La Salle test to determine whether an object is a fixture or chattel:
** 1. Is the item resting on its own weight? If so, leads to a presumption that the object is chattel;
** 2. What is the degree of annexation? The stronger the attachment, the greater the presumption that the object is a fixture.
** 3. What is the purpose of annexation? If the object has been affixed for the better use of the chattel, then it strengthens the presumption that it is a chattel. If the object has been affixed for the better use of the land, then it strengthens the presumption that it is a fixture.

The court also noted that if an item is decorative, it strengthens the presumption that the object is chattel.

Didow v Alberta Power Ltd, [1988] 5 WWR 606 (Alta CA)

An intrusion that interferes with potential or actual use and enjoyment of the land constitutes trespass. There must also not be overriding policy considerations.

Greenbanktree Power Corp v Coinamatic Canada Inc (2004), 75 OR (3d) 478

The amount of the property being held is irrelevant -- there remains a prima facie right to partition and sale.

Grosvenor Park Shopping Centre v Waloshin et al (1965) 46 DLR 750 (Sask CA)

Trespass cannot be committed if the premises cannot be said to be in sufficient possession.

The landlord of a premise leased to tenants, together with easements over common areas, and to which the public had an unrestricted invitation to enter, does not have actual possession of the premises and accordingly cannot maintain an action for an injunction based on trespass in respect of picketing carried on by a union against one of the tenants.

Haida Nation v British Columbia (Minister of Forests), [2004] 3 SCR 511, 2004 SCC 73

Crown owes a duty to consult with aboriginal people. This extends also to a duty to accommodate, but is not a duty to agree. Third parties have no duty to consult.

Harrison v Carswell, [1976] 2 SCR 200

As per R v Peters, though shopping centres offer an unrestricted invitation to enter, they retain the right to withdraw that offer and therefore the right to control. As such, shopping centres have sufficient possession for trespass protection.

HJ Hayes v Meade, 1987 NBQB

This case is a good example of a court determining the what should happen in uncertain terms of a conveyance.

If condition subsequent, condition is eliminated and gift is rendered absolute.
If condition precedent, condition is best clarified by the court.

Keefer v Arillotta (1976), 13 OR (2d) 680 (CA)

The adverse possessor must be using the land in a way inconsistent with the intention of the true owner.

The test for whether a person has adversely possession land:
** (1) Actual possession;
** (2) Intention to possess/exclude the owner; and
** (3) Effective dispossession or exclusion of the owner