Constructive Takings and Acquired Rights
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Learning Outcomes
By the end of this week, you should be able to:
- Describe the key elements of the modern style and compare these to those of the classical style studied last term.
- Identify the elements of the current legal test for constructive takings, explain how these have changed over time, apply the test in practice, and critically analyze problems or inconsistencies in the doctrine.
- Define acquired rights and describe their source and the underlying rationales for their protection by the common law.
- Analyze the scope of acquired rights based on the framework established in the Saint Romuald case.
This week, will begin to revisit some of last term’s topics from the perspective of the modern style of Anglo-Canadian thought. Our primary focus this week will pick up on our discussion of constructive expropriation from the McLaren v Caldwell. Recall that these cases involve claimed “takings” of property rights (or “sticks” from the ownership bundle) by the state, for which the owner would like to receive some form of compensation.
The line of cases we will read this week develop a more robust common law framework and legal test for resolving these claims about constructive takings. However, this area of the law remains heavily contested.
In addition to issues of constructive expropriation, we will also explore the related issue of “acquired rights” (sometimes called “legal non-conforming uses”). Such rights arise in the hands of landowners engaged in certain land uses when a zoning or other land-use bylaw changes. Provincial statutes, combined with common law doctrine, generally permit owners to continue pre-existing uses even when those are prohibited by the new bylaw. But because such uses can themselves change and evolve over time, this area of the law raises difficult questions about how far the protections afforded by acquired rights can extend.
Our Problem this Week #
Our problem this week combines issues of constructive takings and acquired rights set against government responses to the rising threat of floodwater damage in Manitoba: Flood on the Red River.