Case considered: Felske Estate v. Donszelmann, 2009 ABCA 209
PDF version: Court of Appeal Agrees that Severing a Joint Tenancy Requires More than Intention
In a previous post, I concluded that the Court of Queen’s Bench correctly dismissed an application brought by a neighbor of Mrs. Felske for a declaration that he was entitled to half of her farm upon her death. The Court of Appeal has agreed and has dismissed the neighbor’s appeal.
Case considered: Olson v. Angermeier, 2009 ABQB 356
PDF version: Is a Bison Squeeze Real or Personal Property? A Question of Law or a Question of Interpretation?
One of the first things a law student in first year property law class learns is the distinction between real property and personal property, the most basic of divisions in this area of law. The distinction is usually taught with reference to a case or two about the law of fixtures. The law of fixtures is the area of law that encompasses the legal rules that apply to transform personal property to real property and vice versa. There are hundreds of cases concerned with classifying something as real or personal property. The controversies usually arise in connection with the sale of real property. For example, is the dishwasher real or personal property? Does it go with the house on the sale of the real property or can the seller move it out with his or her other personal property? This type of question was the issue in Olson v. Angermeier. Was a bison squeeze a chattel (personal property) or a fixture (real property)? Answering that question would determine whether or not the bison squeeze was part of the sale of the NE¼-9-62-5-W5th.
Case considered: Castledowns Law Office Management Ltd. v. FastTrack Technologies Inc., 2009 ABCA 148
PDF version: The perils of selling the same property twice (with an aside on styles of appellate decision-making)
This was a dispute between two purchasers of the same piece of commercial real estate in Edmonton, the Vienna Building at 7708-104 Street. The vendor, 1131102 Alberta Ltd, sold the property first to FastTrack Technologies Inc. (FastTrack). That agreement was conditional upon the vendor’s lawyer’s approval. The vendor also entered into a second or back-up agreement with Castledowns Law Office Management Ltd. (Castledowns). The back-up agreement with Castledowns was conditional on “satisfactory confirmation of termination” of the FastTrack agreement. The resolution of the dispute turned on the interpretation to be given those words. This was the issue on which the dissent of Mr. Justice Frans Slatter parted ways with the majority judgment of Madam Justice Carole Conrad, concurred in by Mr. Justice Clifton O’Brien. Was it enough if the vendor could legally terminate the agreement with FastTrack and did so? Or did FastTrack have to ratify any purported termination by the vendor? This contract interpretation issue is perhaps less interesting than the fact that neither the majority nor the dissenting judgment engage with the other on that or any other issue. This style of appellate decision-making has been called “uncooperative” in the empirical literature that examines why justices decide as they do. (See, e.g., Benjamin Alarie and Andrew Green, “Charter Decisions in the McLachlin Era: Consensus and Ideology at the Supreme Court of Canada.”) The label “uncooperative” is not necessarily intended to be pejorative, depending on the reason for the lack of cooperation. Some judges value independence as the best method for achieving internally consistent reasoned decisions. Some Chief Justices encourage certain styles of interaction in the preparation of judgments. Sometimes, however, the lack of cooperation is due to ideological or personal differences. It usually takes a very large number of judgments before the reason becomes clear, with ideological or personal constraints on cooperation tending to lead to more plurality and dissenting judgments.
Cases Considered: San Juan Resources Inc (Re) 2009 ABQB 55 (Registrar in Bankruptcy).
PDF Version: Co-ownership is a messy business (even with an operating agreement)
Co-ownership is a legal relationship for parties who are able to get along together. For those who cannot the court will order partition or sale under the Law of Property Act, R.S.A. 2000, c. L-7. But co-ownership is also the typical foundation for oil and gas operations in this province and elsewhere since oil and gas companies will typically be tenants in common (working interest owners) of their title documents (the freehold and Crown leases) on which their operations rely.
Cases Considered: Orbus Pharma Inc. v. Kung Man Lee Properties Inc., 2008 ABQB 754.
PDF Version: A Welcome Primer on Interpreting Covenants in Leases
This case is about the proper interpretation of a term in a commercial lease concerning the ability of the tenant to assign or sublet the premises. The provision appeared to say that when the tenant asked for the landlord’s consent to an assignment or sublease, the landlord could either consent or refuse consent or – and this was the controversial point – cancel the lease altogether. Although this clearly reasoned and well-written decision turns on the exact wording of the relevant provision in the lease, there is nevertheless a great deal of precedential value in this decision because of the principles of law used by Justice Scott Brooker in his approach to the interpretative task. Characterizing the provision as “astute bargaining” on the part of the landlord that allowed it to terminate a lease with a rent substantially below market rates (at para. 68), this judgment is also a marked contrast with the decision in 550 Capital Corp. v. David S. Cheetham Architect Ltd., 2008 ABQB 370. In that earlier case, the tenant’s contorted efforts to evade the consequences of a similar clause in its lease were rewarded: see the critique of this decision written by Nick Rafferty and myself in “What’s Wrong with Landlord’s Rights?”
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