• Problems
• Mid-Term Rapid Review

Week 10: Adverse Possession #

• What concerns are motivating court’s decision in Popov v Hayashi and how are these illustrative of the modern style? Do these concerns rely on Locke’s theory of property?

• How does the test for possession applied in Popov v Hayashi compare to the test adopted in Pierson v Post? Are these different tests?

• How would you characterize the respective legal interests of Popov and Hayashi, and how does this characterization help to resolve the case? Does the court’s resolution respond effectively to its motivating concerns?

• How is the doctrine of adverse possession justified? In some jurisdictions, this doctrine has been abolished. Do you agree with this move?

• What is the test for adverse possession?

• What is the court’s criterion of “inconsistent use” in Keefer v Arillota and how does this alter the likelihood of adverse possessors succeeding in their claims?

• Should municipalities be immune from adverse possession claims? Are they?

Week 11: Right to Shelter #

• There are 175 available shelter beds in a city; according to the local government’s best estimate, there are no more than 150 homeless persons living in the city. Do those experiencing homelessness have a right to shelter in public parks? On city sports fields or on the city’s busy waterfront boardwalk?

• What would it mean to have a right to adequate shelter? How, if at all, is “adequacy” related to the choices or preferences of those in need of shelter?

• In what way is a time-limited right to shelter in public parks between 7PM and 9AM similar to or different from a municipal bylaw prohibiting “panhandling” in some downtown areas but permitting it in others?

• Is it appropriate to frame/understand the right the shelter under section 7 of the Charter as a conflict between the needs of unhoused persons and the interests of the general public in accessing safe and orderly public spaces? Between the needs of unhoused persons and the responsibility of local governments to maintain these spaces?

Week 12: Constructive Takings and Acquired Rights #

• What is the legal test for de facto expropriation in Canadian law?

• Why is the concept of “reasonable use of the land” important for determining if a de facto expropriation has taken place? How do we know what the “reasonable use of land” is?

• How do we know when a “beneficial interest in land” is acquired by government? Can you give an example? (How) is this different from the acquisition of an “advantage” by the state?

• Is the loss or gain of land value irrelevant to the analysis of de facto expropriation? Why or why not?

• What is the relationship between the growing use of planning and zoning regimes by municipal authorities and the acquired rights established by common law courts?

• If the operation of a bicycle repair shop was permitted on land last year, but the zoning was changed to exclude bicycle repair shops last month, does the landowner retain the right to operate a garage on their land? What about a busy gas station?

• What is the source of an acquired right? Why does this matter?

• What is the legal test for determining the scope of an acquired right?

Week 13: Restrictive Covenants and Qualified Interests #

• Are restrictive covenants contracts or incidents of property?

• What legal requirements does a restrictive covenant need to meet in order to “run with the servient land”?

• Is a restrictive covenant requiring that agricultural crops grown on the land be cultivated organically one that is negative in nature? What about a covenant requiring upkeep of a hedgerow?

• Would a restrictive covenant prohibiting sale of agricultural land to certain named corporations “touch and concern” the land? Would it be otherwise enforceable?

• What are the legal requirements that must be met in order for a court to apply the public policy doctrine to invalidate a restrictive covenant?

• In what sense are possessory and future interests (i.e. property “vested in interest”) both “present interests”?

• Classify the property interests created in the following devise: “to A for life, then to B for life, then to C if they graduate high school.” What is the potential problem with this devise? How might that problem be avoided?

• How did the courts in Re Drummond Wren and Noble v Alley differ in their approach to striking down the racially restrictive covenants in each case? Does this difference matter, and if so why?

• Can the public policy doctrine ever apply to a private bequest?

• What is the legal relevance of the recitals contained in the trust document in Canada Trust Co v Ontario?

• Why is it significant that the bequest in McCorkill is vested rather than contingent?

Course themes #

• In what ways do you think the patterns of legal reasoning in the cases we have read this term are different than those employed in the cases from last term during an earlier era of “nation-building” in Canadian history?

• Property law and property rights are conventionally understood as part of the “private” law, as distinguished from “public” law, public values, and public goods. To what extent does this division between private and public drive the reasoning in the materials we have studied this term? Are there examples where