NCA Canadian Common Law Foundations 3 — Questions and Answers
Question 1: Under Canadian property law, the doctrine of adverse possession requires a claimant to demonstrate possession that is:
- Actual, open, notorious, exclusive, continuous, and adverse for the statutory limitation period (Correct answer)
- Simply continuous for 10 years regardless of the nature of possession
- Made with the owner's implied permission
- Registered in the land titles system
Correct answer: Actual, open, notorious, exclusive, continuous, and adverse for the statutory limitation period
Adverse possession requires: (1) actual possession; (2) open and notorious; (3) exclusive; (4) continuous; (5) adverse (without the true owner's permission); for the full limitation period prescribed by provincial statute (typically 10 years). The claimant must have the intention to possess.
Question 2: In Canadian provinces using the Torrens land registration system (land titles system), the principle of indefeasibility means that:
- The registry is conclusive proof of ownership and registered title cannot be challenged except for fraud by the registered owner (Correct answer)
- All transfers of land must be registered to be effective between the parties
- Unregistered interests have priority over registered interests
- The government guarantees the accuracy of all survey measurements in the registry
Correct answer: The registry is conclusive proof of ownership and registered title cannot be challenged except for fraud by the registered owner
Indefeasibility of title under the Torrens system means that a registered owner's title is indefeasible (cannot be defeated) except where the registered owner was party to fraud. The system provides certainty by allowing purchasers to rely on the register.
Question 3: A landlord wants to terminate a residential tenancy in Ontario because the tenant has not paid rent. Under the Residential Tenancies Act, 2006, what procedure must the landlord follow?
- The landlord may immediately change the locks
- The landlord must give a written notice of termination and may then apply to the Landlord and Tenant Board for an eviction order (Correct answer)
- The landlord must obtain an order from the Ontario Superior Court
- The landlord must give 60 days' notice regardless of the reason for termination
Correct answer: The landlord must give a written notice of termination and may then apply to the Landlord and Tenant Board for an eviction order
Under Ontario's Residential Tenancies Act, 2006, non-payment of rent requires: (1) a Form N4 notice of termination; (2) if not remedied, an application to the Landlord and Tenant Board. Self-help remedies (changing locks, removing property) are prohibited.
Question 4: The rule against perpetuities in Canadian common law limits future interests in property. In most Canadian provinces, what reform has largely replaced the common law rule?
- The rule has been abolished with no replacement
- Provincial perpetuities legislation has replaced the common law rule, often adopting a fixed perpetuity period (e.g., 21 years after the death of specified lives) or 'wait and see' approach (Correct answer)
- The Supreme Court has abolished the rule as unconstitutional
- The rule applies only to commercial, not residential, property
Correct answer: Provincial perpetuities legislation has replaced the common law rule, often adopting a fixed perpetuity period (e.g., 21 years after the death of specified lives) or 'wait and see' approach
Most Canadian common law provinces have enacted perpetuities legislation (e.g., Ontario's Perpetuities Act) that either adopts a fixed perpetuity period or a 'wait and see' approach, replacing or modifying the complex common law rule against perpetuities.
Question 5: In Canadian equity, the principle of 'constructive trust' is most commonly invoked in which context?
- To enforce a contract that fails for lack of consideration
- To recognize the unjust enrichment of one party at the expense of another where there is no juristic reason for the enrichment (Correct answer)
- To register unregistered property interests
- To void fraudulent conveyances in bankruptcy
Correct answer: To recognize the unjust enrichment of one party at the expense of another where there is no juristic reason for the enrichment
In Pettkus v. Becker [1980] the SCC established that a constructive trust is the appropriate remedy for unjust enrichment where: (1) enrichment of one party; (2) corresponding deprivation of the other; (3) no juristic reason for the enrichment. It is widely used in domestic partnership property disputes.
Question 6: Under Canadian law, a vendor of real property is under a duty to disclose:
- All defects visible on a reasonable inspection
- Latent defects known to the vendor that render the property dangerous or unfit for the buyer's purpose (Correct answer)
- Only defects that reduce the property's value by more than 10%
- Nothing—the principle of caveat emptor applies absolutely in real estate transactions
Correct answer: Latent defects known to the vendor that render the property dangerous or unfit for the buyer's purpose
Caveat emptor applies to patent defects (discoverable on inspection), but vendors must disclose known latent defects that make the property dangerous or unfit for habitation. Failure to disclose known latent defects may give rise to an action in damages or rescission.
NCA Canadian Common Law Foundations 3
Under Canadian property law, the doctrine of adverse possession requires a claimant to demonstrate possession that is: