Co-Ownership

Joint tenancy
rights

Intimate union: comes with survivorship

Four unities must exist to create a joint tenancy. (Blackstones

Commentaries)
i)
Title: All interests must arise from the same instrument or act
ii)
Time: All interests must arise at the same time
iii)
Interest: Holdings must be equal in nature, extent and duration
iv)
Possession: Rights must all relate to the same piece of property
a. Each must have the entire possession, as well as every parcel as
of the whole
i. No co-owners have rights to exclusive possession: They
cannot exclude one another in any part of the whole. No
trespassing actions available unless the act is an
actual ouster or destruction of the subject matter of the
tenancy.
v)
There must be an intent to be joint tenants
a. The unities do not cause joint tenancy; they are necessary to
consciously create joint tenancy.
Tenancy in Common
assigns, etc.

Rights in land pass to descendants, heirs,

Unities dont matter; they all have possession of the whole, but may have
come into their interest in different ways, may have different degrees of
interest, etc.
This format is assumed if more than one person comes into co-ownership of
land by length of possession
Common Law / Equity Split
Land: Assume tenancy-in-common under equity unless clear intention to the
contrary on the face of the instrument saying as joint tenants and not as
tenants-in-common
Personal property: Assume joint tenancy under common law unless
overruled as below.
Common law
assumes joint tenancy
Equity
assumes tenants-in-common and overrules common
law, even in
explicit cases of intentional joint
tenancy wherever:
words of severance can be found
o even the word equally can suggest shares instead of
togetherness
money is advanced in a mortgage (even if in equal shares)
purchase price is provided in unequal shares

property belongs to a business partnership

Conveyancing and Law of Property Act, R.S.O. 1990 c. C-34 presumes

tenancy-in-common for land only unless the instrument says otherwise 13(1)
even if they are married (2) (p. 221)
Equity cannot overrule the statute, so if there is clear intention
to the contrary of tenancy-in-common presumption, joint tenancy can still
be created
Succession Law Reform Act R.S.O. 1990, c. C-34: If co-owners die in such a
way that we cant tell who died first, we assume 55(1) each survived the
other (2) unless theres a contrary intention, joint tenants in this situation are
treated as tenants-in-common (p. 222)
Severance
Joint tenancy Tenancy-in-common: ends survivorship
Ways of severing joint tenancy:
a) Any act destroying one of the unities, including a conveyance to
oneself (Conveyancing and Law of Property Act s. 41): destroys unity of
title.
b) Any of the parties creates a severance of his share (Burgess v.
Rawnsley)
c) Mutual agreement (Burgess v. Rawnsley)
d) Enter upon a course of dealing that evinces intention to be
tenants-in-common: oral contracts count, but negotiations dont.
(Burgess v. Rawnsley)
e) NOT MURDER (or likely, any illegality): The share you illegally gain
by survivorship is placed in a constructive trust for the heirs, assigns,
etc. of the wronged party (or likely, the party herself if she is still alive)
Co-Owner Relations
Courts generally tell co-owners to work it out. Wont police
relationship. (Leigh and Another v. Dickeson)
Waste
Is the co-owners waste of the land:
a) Malicious,
b) Destructive, or
c) Attended by peculiar circumstances / use is unreasonable?
If the use is reasonable, no remedy.
If unreasonable and test met, remedy = injunction.
Ouster
Is another co-owner excluding you from your right to promiscuous
possession? Injunction! (M. v. H.)
But its not ouster if the co-owner is only taking sole possession or
appropriation of the proceeds of the land. Ouster requires denial of coowners rights. (Family Law Act is one way of acquiring exclusive
possession, and until that acquisition takes place, common law prevents one
party ousting the other from common property: M. v. H.)

Account (Courts of Justice Act, R.S.O. 1990 c. C-43, s. 122(2), not equity
anymore)
If one party has received money or something else from a third party to
which all co-owners are entitled strictly by virtue of being co-owners,
actions for account follow. Just receiving the whole of the profits does
not show unjust proportion: that co-owner could have been the one
generating the whole of the profits: Reid v. Reid.
Unjust Enrichment
Courts wont police co-ownerships, and wont order restitution for unsolicited
benefits a co-owner has endowed upon her own property. If you have a
problem, partition. (Leigh and Another v. Dickeson)
Partition or Sale (Partition Act, R.S.O. 1990 c. P-4. Both terminate coownership.)
Tenants-in-common have a prima facie right to partition. Municipal
preference is irrelevant. Sale only when beneficial to both parties. (Re
DiBattista et al. and Menecola et al.)
Condominiums (Condominium Act, S.O. 1998, c. 19)
- Cant be registered unless theres a condominium corporation
- Governance by board of directors enacting by-laws
- Requires declaration (constitution) changeable only by substantial
majority vote
- Essentially creates a micro-sovereignty that can enact and
enforce local law
Matrimonial Property
The common law allows individual property during the course of a marriage,
but when the marriage ends, there is equal sharing of the matrimonial assets.
Civil law is always in the latter mode.

Easements
Easements run with the land by default. This is what makes it a property
concern and not a contractual concern. Thus, not just any arrangement
necessarily forms an easement.
NOTE: Landlords and tenants have distinct estates; thus, tenants can have
easements over their landlords lands. (Apartment hallways, etc.) (Wong v.
Beaumont Property Trust, Ltd.)
In Re Ellenborough Park test

Is there an easement?
An easement can be found if:
1) There is a dominant and a servient tenement,
2) The easement accommodates the dominant tenement,
Sufficiently connected to the properties, adding to the normal
enjoyment (NOT JUST ECONOMIC VALUE) of land?
o This was passed in Ellenborough Park because it was a
back garden if it was a public garden, theres no
connection to those properties. If it were a zoo, it would
not serve the properties as homes.
o Proximity does not seem to matter some more distant
properties were also entitled to private use but would
more distance matter?
Was connected to and carried with the properties, not the
owners
3) The dominant and servient tenement owners are separate persons,
and
Different arrangements of co-owners are sufficient: AB and BC
are different persons for this purpose (Re Lonegren et al and
Rueben et al)
4) The right must be capable of forming the subject matter of a grant.
a. That is, are the rights too wide or vague?
b. Are they capable of substantially depriving the owners of
proprietorship or possession?
c. Is there a quality of utility or benefit, beyond mere recreation?
o Here, it was a beneficial attribute of residence
Cognizable Negative Easements
Prevent doing something on your own land
1) Lateral support for buildings
2) Right to continue to receive water from an artificial stream
3) Right to light
4) Right to air by a defined channel
5) NOT right to protection from the weather (Phipps v. Pears)
The law is disinclined towards negative easements (Phipps v. Pears)

Creation of an easement

All easements lie in grant, even

reservations
If the words are less than clear, courts resolve in favour of the grantee
(Express grants are easy.)
Implied grant
All continuous and apparent easements (i.e., quasi-easements easements
the owner is using over parcels of his own land) necessary to the reasonable
enjoyment of the property granted are passed to the grantee by implication.
(Wheeldon v. Burrows)
Any reservations must be expressly reserved in the grant; grantors shall
not derogate from their grants (Wheeldon v. Burrows)
Except for ways of necessity, which owners always impliedly keep
and there
may be more; its only 1879. (Wheeldon v. Burrows)
Remember: uses after the grant dont matter; its uses before that affect
the content of the grant, express or implied (1994 exam)
Implied reservations
Generally there are none, but four exceptions:
1.
Ways of Necessity
Does not cover the most convenient way; engaged only if there is no access
by water or land
Adverse possessors get no ways of necessity because there is no
grant, implied or express (Wilkes v. Greenway).
Some have suggested ways of necessity should always be implied with
any parcel of land, but that was rejected by the Court of Appeal in
1981, where there was a clause in a conveyance (not adverse
possession) negativing the way of necessity (Nickerson v. Barraclough)
Road Access Act, R.S.O. 1990, c. R-34 provides a statutory easement of
necessity. (p. 261)
2(1) Cant make a barrier that blocks access to someone elses parcel
of land unless:
o a) application to a judge has been made;
o b) owners of the parcel agree;
o c) closure is temporary and for repair/maintenance; OR
o d) closure is for less than 24 hours/year, and intended to prevent
owners from gaining prescriptive rights to the land
2(2) Cant make a barrier that prevents use of the road itself unless:
o a) application to a judge has been made, OR
o b) closure is temporary and for repair/maintenance
3 Judge can grant order if it seems reasonable (specifics p. 262)
2.
Mutual Easements
Mutual and reciprocal easements can be implied despite the fact that they
include an implied reservation. These easements must be equal; not 10%
one side, 90% the other.

A and Bs rainspouts pour into a drain on land A, which is piped

through land B (Pyer v. Carter)
Driveway split by property line A conveys half to B, both need the
driveway
o No effect in Barton v. Raine; need for easement not equal.

3.
Simultaneous Sale
In cases where a grantor is simultaneously selling two parcels of land,
reservations may be implied on the part of one tenement to satisfy the
implied grant upon the other. (Swansborough v. Coventry)
4.
Common Intention
The law will give effect to the common intention of the parties even if it
involves an implied reservation (Sandom v. Webb) UK
Test is not facts on the ground: Must demonstrate with
affirmative evidence that the facts are not reasonably consistent with
any other explanation than implied reservation (Sandom v. Webb)
UK
o Well, sometimes you can infer from evidence. Family
relationships strongly suggest implication that ongoing rights are
reserved (OCA, Barton v, Raine)
The terms of the grant can inform common intent. Even if the grant
itself does not grant an easement, the common intent of the parties
that the land should have a definite and particular use can give rise
to a grant of necessity to fulfill that use (Wong v. Beaumont Property
Trust, Ltd.)
o Be sure that this use is in the lease; there is no implied grant
outside the conveyance (1994 exam)
Can imply a reservation where a grantee can be shown by necessary
inference from the effect on the property granted or some
physical characteristic of the property retained, to have
acquiesced to grantors intent to retain property or parts of it in a
definite manner detracting from the grantees rights. CAN
(Barton v. Raine)
Scope of Easements
An easement granted for one purpose cannot be used for another. (Malden
Farms Ltd. v. Nicholson: Right of way for sheep to graze =/= road for
fraternities to drive to the beach)
Grantees cannot increase the scope of the legitimate burden beyond
intention of the parties at the time of the grant (Malden Farms Ltd. v.
Nicholson)
If a dominant tenement subdivides, all divisions keep the right of way,
and increased traffic/usage is to be expected (Re Gordon et al and
Regan et al)

But if a subdivision uses the easement to a different end or

purpose, then it is a colourable infringement on the servient
tenements rights (Re Gordon et al and Regan et al)

Termination of Easements
1) Court application under statute
a. Common for covenants, but for easements, its B.C. only:
Property Law Act, R.S.B.C. 1979, c. 340, s. 31(2)
2) By law
a. Rights have been abused (Malden Farms Ltd. v. Nicholson)
b. Time has expired
c. Purpose for easement vanishes
d. Dominant/servient become same estate
i. Only suspended if same person, but still different estates
3) Release
a. Express
b. Implied by clear intent to abandon
Restrictive Covenants
A covenant is an agreement under seal, in a deed. Differs from an
easement in that:
1. It involves what an owner can do with her own land, not someone
elses
2. It contains terms and conditions that would not amount to an
easement (e.g. things that would be disqualified as being negative
easements or fail Ellenborough test)
3. Always explicit, never implied
4. Harder to enforce against successors-in-title than easements
So, argue easement if you can
Covenants at issue between the original parties are dealt with at contract law.
It is the difficulties dealing with successors-in-title that give rise to covenants
as interests in land.
Historically used primarily to defend class interests as private zoning:
Pearson v. Adams.
RUNNING THE BURDEN OR BENEFIT
BURDE
N

COMMON LAW
Does not run (Austerberry v.
Oldham)

EQUITY
1) The covenant must be
negative in substance (Jain
v. Nepean, Tulk v. Moxhay
in Tulk, positive obligation to
keep and not build is
negative in substance)

2)

3)

4)

5)

BENEF
IT

Must touch and concern

land of the covenantee, must
not be only for public benefit
(Austerberry v. Oldham)
Must either affect the

1)
2)

Hayward v. Brunswick
Permanent Building
Society held that Tulk
definitely applied to
negative covenants only.
There must be a dominant
and servient tenement
(London County Council v.
Allen and Others, adopted in
Page v. Campbell, SCC
dominant land must be easily
ascertainable from the deed
after Galbraith v. Madawaska
Club, Ltd.)
The covenant must touch
and concern the land of the
covenantee
Public bodies do not count
must touch and concern
actual land (Jain v.
Nepean), but benefit need
not be confined to
dominant land; can also be
a public benefit (Zetland v.
Driver)
Third parties touched and
concerned might actually
be able to enforce (London
County Council v. Allen
and Others (301)
Must not be solely
personal must affect land
qua land (Galbraith v.
Madawaska Club Ltd.)
Successors-in-title to the
covenantor must have
notice of the covenant (Tulk
v. Moxhay)
Registry at Land Titles
counts as notice
The covenant must have been
intended to run with the
servient land, not just to be a
personal obligation
Expressly annexed to the
land by covenant
Express assignment of the
benefit at the time of the
transfer of the dominant land

land as regards mode of

3) Building schemes
occupation, or it must be
i. All lots must derive from a
such as per se, and not
common vendor
merely from collateral
ii. Clear intent that benefits
circumstances, affects the
and burdens apply equally
value of the land (Rogers
to all lots
v. Hosegood)
iii. Defined geographical area
o So, must affect
iv. All purchasers purchase
with the expectation that
dominant tenement in
the covenants will be
its use (residential,
enforceable against the
industrial, etc.)
other owners
o Must affect land qua
Berry et al. v. Indian Park
land, not the occupant
Association: no enforcement
(it did not in Jain v.
because of no common vendor
Nepean municipality
did not have affected
DOMINANT LAND MUST BE
land. It did in Smith et
EXPLICITY DESCRIBED IN THE
al. v. River Douglas
DEED (Victoria University v.
Catchment Board land
Heritage Properties Ltd.,
qua land was affected
Galbraith v. Madawaska Club
even though the Board
Ltd.)
in and of itself had no
land)
So a no fast food restaurants covenant would run in a residential
neighbourhood because it increases the value of the land. It would not run in
a commercial strip where the dominant tenement was a McDonalds it
affects the idiosyncratic situation of the covenantee, but not the value of the
commercial land qua land.
Parties appearing to have mala fides in escaping covenants may have
their costs removed (London County Council v. Allen and Others)
The relative size of the dominant/servient land does not matter:
- Earl of Leicester v. Wells-next-the-Sea Urban District Council: 19 acre
plot can be restricted for the benefit of 32,000 (1973). More recent.
- Re Ballards Conveyance: 18 acre plot cannot be restricted for 1,700
(1937).
Positive covenants sometimes allowed under Condominium Act for
upkeep and maintenance.
Terminating Restrictive Covenants
1) Time limit
2) Dominant and servient land are owned by the same person
a. Does not apply in building scheme
3) Laches: As this is an equitable remedy, rights slept upon may not be
enforceable
a. Open, inconsistent use for many years creates a presumption of
release

4) Ontario General Division order: Conveyancing and Law of Property Act,

R.S.O. 1990, c. C-34, s. 61(1)
a. Only to be granted if the benefit to the applicant greatly
exceeds any possible detriment to the respondents (Re
Beardmore)
5) British Columbia Superior Court Order: Property Law Act, R.S.B.C. 1979,
c. 340, s. 31(2)(a)
a. Power to grant order if by reason of changes in the character of
the land, the neighbourhood or other circumstances the court
considers material, the registered charge or interest is obsolete
this includes nearby development or inability to profitably use
the land as the covenant intended (material circumstances)
(Parmenter v. British Columbia)

Public Policy
Expropriation and Takings
American Policy
5th Amendment: Constitutional right to property, and no public taking of
private property without just compensation. Applies to states, too: 14 th.
There is compensation for private purpose taking for public
purpose taking, we have to draw a line at what economically viable
use of the land is.
Government would be paralyzed if it had to compensate for all regulations it
is when regulation goes too far that it can constitute a taking.
(Pennsylvania Coal Company v. Mahon et al.)
Removing a property right or limiting its profitability to the point
that there is virtually no right at all, for the primary benefit of
other private parties engages the right to compensation
(Pennsylvania Coal Company v. Mahon et al.)
o Dissent: There is a responsibility inherent in owning land that it
not be used to the detriment of the community (Brandeis J.)
Liquor was a public evil, and extinguishing the right to
create and sell liquor does not give rise to compensation
for lost bar revenue (Mulger v. Kansas)
Removing a property right in the same way, but for the public
benefit, is not compensable; everyone benefits from the common
good (Keystone Bituminous Coal Association et al. v. Nicholas
DeBenedictis, Secretary, Pennsylvania Department of Environmental
Resources, et al.)
If legislation regulating the use of property serves a valid public
purpose, and it imposes only a small limitation on the economic
use of that property in view of the entirety of that property,
compensation is not due. (Keystone Bituminous Coal Association et al.
v. Nicholas DeBenedictis, Secretary, Pennsylvania Department of
Environmental Resources, et al.)
o If you can still get a reasonable return on your investment,
regulations may not engage compensation (Penn Central
Transportation Co. v. New York City)
o Dissent: But if youve extinguished all rights in a small amount
of property, why should it matter that the owner also owns more
property in order to compensate him for his loss?
American cases are useless in Canada because of the Fifth Amendment
right to property (Mariner Real Estate Ltd. v. Nova Scotia (Attorney General)

Canadian Policy
In order for a taking to have taken place, property must have been taken
from the citizen and subsequently been acquired by the state.
The taking must be of property, not value.
The taking must be by statute adverse possession, etc. will not
engage compensation. Its not an act of taking.
Property cannot be taken without compensation unless the statute
specifically says so (Attorney General v. DeKeysers Royal Hotel, Ltd.)
SCC: De facto takings require compensation at common law when:
1) Government acquires beneficial interest in the property or flowing
from it
2) There is a removal of all reasonable uses of the property (Canadian
Pacific Railway
Co. v. Vancouver)
This includes intangible property, here goodwill, as long as rights
are extinguished in the plaintiff and vested in the Crown.
(Manitoba Fisheries Ltd. v. The Queen in Right of Canada). This case is
unusual in finding compensation for economic loss brought about by
economic regulation.
o Full extinguishment not necessary sufficiently onerous
regulation preventing exercise of rights will suffice (The Queen
in Right of British Columbia v. Tener et al.)
But have to demonstrate that rights cannot be
exercised (e.g. be refused for permit) theoretical loss
always insufficient (The Queen in Right of British
Columbia v. Tener et al., confirmed in Mariner Real Estate
Ltd. v. Nova Scotia (Attorney General))
Interest is nothing without the right to exploit it
(Wilson concurring, The Queen in Right of British
Columbia v. Tener et al.)
o This does not apply if that intangible property is a license
(Keystone Bingo Center, Inc. v. Manitoba Lotteries Foundation et
al.), if the Crown is a mere competitor or if it is business that
exists only at the sufferance of the Crown (both Home
Orderly Services v. Government of Manitoba)
Owner must demonstrate loss of all reasonable uses of the land,
not just a diminution of value (Mariner Real Estate Ltd. v. Nova Scotia
(Attorney General)
o Historical use of the land matters in determining what is
reasonable. If the building restriction had been placed on
land next to a suburb (Mariner Real Estate Ltd. v. Nova Scotia
(Attorney General)
Loss of value does not qualify for expropriation; only the loss of all
reasonable use of the land (Mariner Real Estate Ltd. v. Nova Scotia
(Attorney General), Canadian Pacific Railway Co. v. Vancouver)
o Total commercial impracticability might count, but we
havent seen it (Harvard Investments Ltd. v. City of Winnipeg)

Is this loss of value? Wouldnt this mean that you can get
expropriation for residential zoning?
Article 1110 of NAFTA forbids a nation from the open, deliberate and
acknowledged taking of property, as well as overt or incidental
interference with the use of property which has the effect of depriving
the owner, in whole or in significant part, of the use or reasonably-tobe-expected economic benefit of property even if not necessarily to
the obvious benefit of the host state.

Right to Property
There is no right to subsistence property; necessity quickly becomes a
mask for anarchy (London Borough of Southwark v. Williams and Another)
UK
Although s. 7 might cover economic rights to some degree, the Charter
does not impose positive obligations upon government. (Gosselin v.
Attorney General of Qubec)
Arbour, dissenting: AND the right not to be deprived thereof suggests
a positive right not to fall below the standards necessary for life, liberty
and security of the person
It does, however, prevent positive interference with use of public
property to secure the necessities of life (Victoria (City) v. Adams)
o This use does not conflict with the use of other members of the
public
o S. 7 often used to stop the state from interfering with personal
efforts at self-preservation (Morgentaler, Gosselin)
Aboriginal Title
Absolute title in all land belongs to the Crown. Aboriginal title is a burden
stemming from the Royal Proclamation of 1763 on that title giving aboriginal
peoples personal usufructary rights in that land (St. Catherines Milling &
Lumber Co. v. The Queen see Calder).
Sui generis interest in land (Guerin v. The Queen)
European discovery rights diminished Aboriginal rights in land, but
their continued possession proves non-exclusion usufructary rights
seem to persist (Johnson v. MIntosh) U.S., but prior to Confederation
Can be extinguished by treaty or express unilateral action of the
Crown, subject to compensation
Is there Aboriginal title in land?
JUDSON THREE: First Nations acts of possession granted title, as did
the Royal Proclamation of 1763. They lost it by adverse possession
of the B.C. government. (Calder et al. v. Attorney General of British
Columbia)
HALL THREE: Possession is proof of title they have unprecedented,
continuous usufructary possession, and it requires express words to

take without compensation. Crown cant prove extinguishment,

plus, we must have treaties for something. (Calder et al. v. Attorney
General of British Columbia)
Unclear as to whether or not extinguished
Aboriginal interest in aboriginal title and reserve lands is identical (A.G.
Qubec v. A.G. Canada)
What are the characteristics of Aboriginal interest in land?
There can be no dealing in Aboriginal lands but through the Crown
(Indian Act, s. 18)
Alienable only to the Crown (Guerin v. The Queen)
Crown obligated as fiduciary to deal with land on the Bands behalf
and on their terms after surrender (Guerin v. The Queen)
o Duty is of loyalty, not obedience Crown might have gotten
away with making a better deal for them (Guerin v. The Queen)
Delgamuukw test for Aboriginal title
Oral history evidence OK
Aboriginal title is:
Inalienable except to Crown
Communal right in land (following idea in Amdou Tijani v. Secretary,
Southern Nigeria)
Permits a range of uses, as long as those uses are not irreconcilable
with the nature of the attachment giving rise to the claim. Then is it
really title or just possession? To what quantum must the land
serve that attachment?
Aboriginal title is established by:
i)
Land having been occupied prior to Crown sovereignty (not
contact).
1. Quality of occupation dependent on capacity of claimant at the
time. (No need to prove permanent structures if nomadic, etc.)
ii)
If present occupation is used as proof of pre-sovereignty possession,
claimant must prove substantial maintenance of the
connection between the people and the land in question.
1. In some cases, this will be impossible to prove (especially when
dispossession occurred prior to sovereignty), and allowances must
be made for post-sovereignty claims.
iii)
At sovereignty, that possession must have been exclusive.
1. Even if other tribes trespassed, intention and capacity to retain
exclusive control is sufficient
2. Joint possession a question for another day, but can likely be
accommodated
What is possession, under this test? What about nomadic bands?

Possession can give rise to title, but if a band used land only to hunt
or fish, that gives rise to s. 35 rights, not title. Nomads dont have
title. (Marshall v Bernard)
o LeBel and Fish dissent; read Aboriginal concepts of possession
into common law concepts
So, proof of Aboriginal title can be raised based on possession or
indigenous legal rights (Cree legal system recognized in Connolly v.
Woolwich)

Infringements on Aboriginal title

Aboriginal title is constitutionally protected under s. 35. Whence limitations?
The second step of the Sparrow test, narrowed by Gladstone, applies
to aboriginal title claims in that the Crown must justify the
infringement near-Oakes level: compelling objective and minimal
infringement, with the latter measured considering its fiduciary
duty to respect:
Exclusive aboriginal use of such land
Aboriginal right to choose the usage of the land
Economic reality; aboriginal interest in land is valuable
Justification for interference with Aboriginal title requires consultation and
compensation commensurate with the level of intrusion.

Landlord and Tenant

Until possession is taken, landlord/tenant law is contract law.
Changing the identity of the landlord does not affect the tenants estate.
Whether a demise is for residential or commercial purposes is a question of
predominant purpose.
License / Lease
What is the test for license/lease?
Exclusive possession for a fixed period of time. (Disputed below)
o Rights given back at the moment of demise are not unusual;
substance over words. (Re British American Oil Co. Ltd. and
Depass) (OCA 1959)
o Covenants in leasehold are smaller contracts within the lease
that can give rise to action, but not to fundamental breach,
termination or rescission. Security of tenure is important;
homes are not fungible.
No re-entry for mere breach of covenant (Falleson v.
Spruce Creek Mining Co.)
o Exclusive possession as the singular distinguishing feature (Ont.
G.D. 1997)
Whatever the parties choose to be in the course of their contractual
language, not in the substance of their arrangement. (Metro-Matic
Services Ltd. v. Hallman) (OCA 1973)
o Perhaps more forgivable in a commercial context. Language,
not substance followed by Read Marketing Inc. v. Minister of
Transportation and Highways (B.C. Expropriation Compensation
Board 1995)
Substance of the agreement, not the words (Street v. Mountford) (HL
1985)
THUS, GOOD CASE FOR EACH BUT METRO-MATIC IS THE LAW IN
ONTARIO
Surrender
Surrender takes place when one party does something inconsistent with the
continuation of the estate; breach of a covenant alone does not give the
other party a right to terminate.
Abandonment is not surrender until the landlord accepts the abandonment.
Landlords are estopped from denying surrender if they:
Resume possession, OR
o No true intent to resume possession? No acceptance of
surrender. (Goldhar v. Universal Sections and Mouldings Ltd.)
Allow possession on the part of a new tenant

Plain intention and notice given that landlord will re-let

as agent for the tenant, then lease is still alive and landlord
can collect unmitigated rent. (Goldhar v. Universal Sections and
Mouldings Ltd.)

Four options for landlords faced with abandonment of lease:

1. Do nothing and keep lease alive until end of term, collecting rent
monthly
2. Accept abandonment explicitly or implicitly (re-letting). Collect
rent up to surrender date
3. Give notice to tenant that you will re-let on their behalf and
collect damages above those mitigated. (All these Goldhar v.
Universal Sections and Mouldings Ltd., upheld in Highway
Properties, infra)
Constant assertion that the lease is in force keeps it in force
(Commercial Credit Corporation v. Harry D. Shields Ltd.)
4. #3, plus notice that you will seek contractual damages for breach of
covenant and unmitigated rent. (Highway Properties Ltd. v. Kelly,
Douglas & Co. Ltd.)
Notice must be more or less contemporaneous with notice
of termination of lease (Fuda v. DAngelo, Gander Shopping
Centre Ltd. v. Powell)
Either the statement of claim itself or less than two
months is sufficient notice (North Bay T.V. and Audio Ltd. v.
Nova Electronics Ltd. et al.)
Contractualization of Surrender
In the event of fundamental breach of contract/covenant, parties are
excused from performance.
Tenants can benefit from the contractualization of surrender.
In the event of fundamental breach (even of fundamental breach of
the way tenant operates its business (Wesbild Enterprises Ltd. v.
Pacific Stationers Ltd.)):
Performance may be discontinued (Lehndorff Canadian Pension
Properties Ltd. et al. v. Davis Management Ltd. et al.)
Landlords can benefit from the contractualization of surrender.
In the event of fundamental breach, performance may be
discontinued (Arton Holdings v. Gateway Realty Ltd.)
In the event of anticipatory breach or repudiation,
Parties may seek contractual damages (rescission or mitigation and
expectation damages) (Homer v. Toronto Dominion Bank)
Duty to Mitigate

Is there a duty to mitigate in the event of tenant abandonment or breach

of covenant?
If a subsequent transaction comes out of the breach, it counts as
mitigation, even if you had no intention of taking Highway
Properties 4th option (Toronto Housing Co. Ltd. et al. v. Postal
Promotions Ltd.) This can cost you your rent-as-it-comes-due damages
from options one through three if the subsequent transaction is
profitable.
It may even be the case that once mitigation is found on the facts,
4th option might be the default, regardless of landlords choice.
(Toronto Housing Co. Ltd. et al. v. Postal Promotions Ltd. O.C.A. 1982)
Yes
Unless landlord has a substantial and legitimate interest in actual
performance (Asamera Oil Corp Ltd. v. Sea Oil and General Corp.,
followed in Grouse Mechanical Co. v. Griffith et al.) (B.C.S.C. 1990)
PensionFund Realty Limited v. P.C.E.P. Properties Ltd. et al. (Man. Q.B.
2004)
No

Landlord entitled to take lease alive rent damages until the

legislature says otherwise (Transco Mills Ltd. v. Percan
Enterprises Ltd.) (B.C.C.A. 1993)
Highway Properties found no duty to mitigate, and has not
been overruled. Almad Investments v. Mister Leonard Holdings
(O.C.A. 1996)

4th option mitigation must mitigate the economic loss, not just fill the specific
space. Mitigation places the landlord back in the same financial
position as if performance had occurred. (Windmill Place v. APECO of
Canada Ltd.)
Covenant for Quiet Enjoyment
Old test
There is an actionable breach of the covenant for quiet enjoyment where
there is a:
1) Physical (Kenny v. Preen)
2) Direct (McCall v. Abelesz)
3) Substantial (not trifling or purely transitory)
interference by the landlord (not other tenants Malzy v. Eichholz) with the
purpose for which the premises were granted (Owen v. Gadd).
This includes denial of an incident of exclusive possession, such as
limiting guests (Cunningham v. Whitby Christian Non-Profit Housing
Corporation)
o And attempts to induce vacancy (not notice to vacate)
(Franco v. Lechman)
o And harassment, even if it is not physical or direct (Kenny v.
Preen, upheld in McCall v. Abelesz)

New test
There is an actionable breach of the covenant for quiet enjoyment where
there is an interference with the tenants freedom of action in
exercising his rights as tenant. (McCall v. Abelesz) Such as:
Non-payment of utilities (McCall v. Abelesz)
Great deal of continuous noise (Southwark London Borough Council v.
Mills)
Substantial invasion of dust and dirt (Amadon Properties Ltd. v. Pacific
Apparel Inc.)
Retrofit of the entire building (116531 Canada Inc. v. 569562 Ontario
Inc.)
Interference with profitability (maybe?) (Mayfair Tennis Courts, Ltd. v.
Nautilus Fitness & Racquet Centre Inc.)
Note that quiet enjoyment is technically an independent covenant, but it
can be argued as constructive eviction.
Non-Derogation
Two important differences between the covenants not to derogate from the
grant and not to interfere with quiet enjoyment:
1) Derogation is very often contextual --- land substantially (i.e.
materially) less fit for the purpose for which it was let. Quiet
enjoyment more general --- substantially (i.e. more than trivially)
interfering with tenants right of action.
2) Non-derogation has never required physical interference; it covers
things like easements. Legal, not physical impediments.
So, use breach of covenant for quiet enjoyment when tenants right to
exclusive possession is infringed; non-derogation when effectively
destroyed.
Derogation from grant has been found:
In building atop what was thought to be a usable and necessary
parking lot (Langleys Ltd. v. Lawrence Manor Investment Ltd.)
In the conscious taking of action that makes a tenants premises unlicensable (or substantially less useful for the purposes for
which they were leased) (Harmer v. Jumbil (Nigeria) Tin Areas Ltd.)
In leasing to persons who scare off business (Chartered Trust Plc.
v. Davis)
But not for:
Leasing to the tenants competition; that has to be bargained for.
The land can still be used for the purpose for which it was demised
(Port v. Griffith, Clarks Gamble of Canada Ltd. v. Grant Park Plaza Ltd.
(SCC))
Leasing to someone who raises the cost of doing business, in
this case insurance costs on the land (Caplan et al. v. Acadian
Machinery Ltd.)

Rent
Non-Payment of Commercial Rent
If payment of rent is included in a lease, the Commercial Tenancies Act s.
18(1) makes it a statutory obligation to pay.
Three options for a landlord after the 15-day grace period:
1) Forfeiture (end the lease by physical re-entry or action for
possession) (Commercial Tenancies Act, R.S.O. 1990, c. L-7, s. 18)
Taking the keys and allowing the tenant supervised access is not
forfeiture (Falwyn Investors Group Ltd. v. GPM Real Property (6)
Ltd.)
2) Distress (sustain the lease by selling tenants stock-in-trade for rent
arrears)
No grace period; distrain away as soon as rent is late
THESE TWO ARE MUTUALLY EXCLUSIVE (Country Kitchen
Ltd. v. Wabush Enterprises Ltd. et al.)
If seizure and sale provisions are in the contract, but forfeiture
is taken, then the engagement of those provisions is not
distress; the landlord seems to be able to jump the queue
over other creditors, although he no longer enjoys the special
relationship and sale profits are limited to arrears for some
reason (Nfld. C.A., Country Kitchen Ltd. v. Wabush Enterprises
Ltd. et al.)
But on this planet, it is typically held that the right to
distrain is lost upon entry, no matter what the agreement
says (Williams, The Canadian Law of Tenant and Landlord
4th ed. 1973)
3) Sue for rent
Distress in the Commercial Tenancies Act
31(2): Can only take the tenants goods or chattels. Exception: if the title
in the goods or chattels is held by someone else by means of purchase, gift,
transfer, assignment (either absolute or in trust), by means of mortgage or
otherwise, etc.
43: Distress shall be reasonable.
47: Cant take any goods or chattels that are not on the relevant
premises.
48(1): 30 days to locate hidden or conveyed chattels to convert them for
distress
48(2): No distress on things that have been validly contracted away
49: Peace officers will help with locked-up distrainables.
50: Landlord entitled to double value of chattels hidden or conveyed in an
attempt to avoid distress*
53: Leave visible notice of distress and cause. Hold for five days, get the
chattels appraised twice under oath, and sell at the best price. Repay any
surplus over rent.

54: Irregularity or unlawful act in distraining this property not a crime

damages can be had, but trespassing / B&E not an issue.
55: Wrongful or excessive distress is actionable.
* Section 50 was applied to Park Street Plaza Limited v. Surinder Bhamber
(1992) (Ont. G.D.) Rent owed was slightly less than $10,000, chattels
removed were $25,000, so damages were $50,000.
Relief Against Forfeiture in the Commercial Tenancies Act
18(2): All demises include an agreement that the keeping of a disorderly
house (CCC), or running a licensed activity without a license is cause for
landlord re-entry and termination
19(2): Any breach of covenant other than for rent is not enforceable unless
there is notice given of the breach, the potential remedy (if possible),
and money compensation and the tenant fails to make that remedy
within a reasonable time.
20(1): Ont. G.D. application for relief is available when a landlord is
proceeding to enforce a right of re-entry or forfeiture for non-payment of rent
or some other clause. (This relief is usually a schedule of payments)
20(2): The above are available even if the breach is recognized in the
lease or a statute (i.e., even if youre running something in there you
shouldnt be)
20(4) and (6): Pay up before the judgment ends and youll be fine.
27: Does not apply if the violation is subletting without consent of
the landlord. (How can it be a tenants closely-held equitable interest if hes
not even there?)
Will relief be granted? (LSUC Bar Admission Materials 1986-7: Real Estate
and Landlord and Tenant, Barry Bernstein)
1. Will landlord be adequately compensated by money or
terms?
2. Comparative prejudice as between landlord and tenant if relief is
granted?
3. Hardship upon tenant if no relief, given her investment in the
premises
4. Nature of the breach, especially if there was a mistake, or no
conscious intent to breach
5. Tenant attempt to remedy the breach?
6. All relevant circumstances are to be considered: other breaches by
that tenant, strict or casual observance of the lease provisions by
both parties, etc.
7. Does the landlord appear to have ulterior motives, especially taking
advantage of a breach to avoid its long-term bargain?
Relief is discretionary, and granted in light of all circumstances, such as:
Risks not compensable by money (fire, reputation: Re Jeans West
Unisex Ltd. and Hung et al.)
Persistent, substantial breach (931576 Ontario Inc. v. Bramalea
Properties)

Bad attitude, reprehensible behaviour (931576 Ontario Inc. v.

Bramalea Properties)
Fraud, unclean hands of the tenant (Kochhar v. Ruffage Food Corp.)
Residential Tenancies

Residential Tenancies Act

3. Lease/license done away with, no contracting out
5. Room for Rent straight-up eviction rights
11, 12. Rights information
14. Pets are cute
16. Mitigation
17. Interdependence of covenant: Fundamental breach (as in not
evicting trouble neighbours?)
19. Frustration
20. Repair and fitness for use
21. Withholding vital service
25. Entry
37 et seq. Security of tenure / agreements to end tenancy (38 key
section)
39. Recovering possession
40. No distress
44. Tenant terminates lease
48. Personal/family occupation*
49. Occupation by purchaser
50. Non-residential uses/extensive renovation*
58(1)1. Persistent late rent**
72(1). Affadavit of intent necessary for personal occupation
72(2). Landlords moving in on agreement proviso require 4 units or less
83 (1) Board may (a) refuse or (b) postpone eviction unless unfair in
circumstances
83 (2) Board shall not grant an application without considering
83(1).
113. Vacancy decontrol
* Reasonableness unnecessary, good faith will do: bona fide wanted
and genuinely intended to be occupied (Re Higgins and Mathot, cited in
Jaffer v. Sachdev)
Unless balance of equities suggests refusal of application and (?)
landlords have other options (Jaffer v. Sachdev)
Past mala fides no indication of present mala fides (Yarmuch v.
Jacobson)
Landlord applications refused can be reconsidered for equitable
reasons (such as illness: Wolfowicz v. Craig)
Moving in order to care for family members OK (Chin v. Dejager)
Moving family member to larger space chosen economically OK
(Salter v. Beljinac), but into a vacant unit if possible (Horst v.
Beingessner, Jaffer v. Sachdev)

There is no policing provision evicted tenants can police it

themselves and receive punitive damages, but cannot dislodge
new tenants (McLarty v. Goudanos)
** Senkow et al v. Manufacturers Life Property Corporation: 25 of 29
payments late is sufficient cause for termination at end of term. Only
tenant fault that brings about eviction at end of term.
CONDOS DONT COUNT: No landlord/tenant relationship, no tenant/tenant
relationship (Laing v. Brushette)

Tenant Fault Eviction

What?

Secti
on

Damage

62

Interference with
reasonable
enjoyment
(substantial
interference with
enjoyment of
landlord or other
tenants)
Persistent late rent

64

When?

Precedents

7-day remedy
period, then
immediate Board
application (70,
71)
7-day remedy
period, then
immediate Board
application (70,
71)

Make good provision

applies if performed prior
to end of remedy period

58(1)1

End of term

Non-payment of
rent

59(1)

14 days notice

Impairment of
safety (seriously
impairs safety of
any person)
Illegality
(serious and not
trivial contravention
of any statute
capable of
affecting the
character of the
premises or
disturbing the
reasonable
enjoyment of the

66

10 days notice

Senkow et al v.
Manufacturers Life
Property Corporation: 25
of 29 payments late is
sufficient cause
Youre good if you pay
before:
Notice expires 59(1)
Board application
for termination
59(2)
Boards decision
74(2)
Boards decision
takes effect 73(3)
and (4)
(Then, try for relief!)
Objective evidence
necessary

61

Apply to Board
immediately
after notice
given (71), 10
days notice for
tenant if drug
trafficking;
20 days notice
otherwise

Make good provision

applies if performed prior
to end of remedy period

Committed by
tenant or other
occupant 61, (or
permits a guest?)
No conviction or
charge necessary
75
o But standard of
proof between
beyond
reasonable doubt

premises by
landlord or other
tenants) (Samuel
Property
Management Ltd. v.
Nicholson)

and balance of
probabilities
(Bogey
Construction Ltd.
v. Boileau)
No make good
provision

Note: for a tenant to challenge an application, file at least 10

days before hearing (five days for s. 61 illegality) this is in the Rules,
not the Act.
Section 7 of the Charter is not engaged for security of the person by s.
61 eviction for permitting illegality (wilful blindness) of the Residential
Tenancies Act. Even if it did, it would be saved by s. 1. (MTHA v. Smith even
with sympathetic facts)
Duty to Accommodate
Landlords must accommodate up to the point of undue hardship before
17(1) of the Ontario Human Rights Code will declare disabled tenants
incapable without infringing on their rights. Chain:
2(1) Equal right to occupation of accommodation without
discrimination
10(1) Including mental disorder
17(1) Not an infringement to deny rights if the only reason for denying
them is that disability makes essential duties or requirements of
exercising that right impossible
17(2) 17(1) does not engage unless the needs of that person cannot be
accommodated without undue hardship on the service provider.
Duty to accommodate:
Schizophrenic fugues with notice to tenants family (Walmer
Developments v. Wolch)
Tourettes with removal of all slammables, installation of foam and
mats, hiring of acoustic engineers and retrofits to other units. Undue
hardship a high standard (Vanwyngaarden v. Cummings)
Contact tenants family and mental health authorities (Peel Living v.
Gill)
Relief from Eviction
83 allows relief despite the fact that landlord has fully made its case.
Consideration of 83 is mandatory under 83(2), codifying Toronto Community
Housing Corp v. Greaves.
Eviction should be ordered as a last resort Short of losing ones
liberty, the loss of ones home is as serious a matter as can be imagined.
(Brittania Glen Co-Operative Homes v. Singh)

Past relief conditions:

No more loaded illegal firearms in the unit, please (Re Metropolitan
Toronto Housing Authority and Pennant)
Landlords father must move into vacant unit instead of tenants (Horst
v. Beingessner)