Want to allow property to move around freely no friction – Market provides best mechanism for allocating resources to result in concentration of wealth (within families) May prevent improvements on property Trinity College School v Lyons Facts: 2 aspects of agmt in question right of first refusal granted by T & MB, and – option of first refusal not restraint on alienation seen as aspect of proprietary – – freedom (given by the Bennetts through land they owned) Post-mortem option is restraint (executrix of will acquired property less than f/s – not her will, but decision of TCS Blackburn v McCallum Facts: Can’t sell/encumber land for 25 years post-testator’s death Test: does the condition take away whole power of alienation substantially? Look at : Mode of alienation (ie. mortgage, no selling), of recipients, time period, price Here can’t mortgage or sell, nobody can buy, time is 25 yrs found void – – Thibodeau v Thibodeau From parents to son. Can’t transfer property to anyone except James’ son Luc. Luc can only sell to continue education. Class just one individual substantial restriction so void – – Re: Brown Facts: Family business given to 4 sons can sell or mortgage only to each other – Void because limited class * Note - different in Re. MacLay can only sell to family members found valid b/c – – on other restrictions (time, mode, price) and the class can increase Equitable Interests CL is wary of contingent remainders want estate to be vested – Way around LRR rules creation of trusts – Equitable interests not subject to rules against legal remainders trustee always – seised of the land Statute of Uses Executes the use Ie to A for the use of B (A has legal f/s, B has equitable f/s) – Now A dropped from grant B now has both legal and equitable f/s – Ways around the Statute of Uses: 1) Leasehold Estate Statute interpreted as applying only to freehold estate, not leasehold To A for 999 years to use of B for 999 years (Statute won’t execute) 2) Conveyance to a corporation
Want to allow property to move around freely – no friction Market provides best mechanism for allocating resources to result in concentration of wealth (within families) May prevent improvements on property Trinity College School v Lyons Facts: 2 aspects of agmt in question – right of first refusal granted by T & MB, and option of first refusal – not restraint on alienation – seen as aspect of proprietary freedom (given by the Bennetts through land they owned) Post-mortem option is restraint (executrix of will acquired property less than f/s – not her will, but decision of TCS Blackburn v McCallum Facts: Can’t sell/encumber land for 25 years post-testator’s death Test: does the condition take away whole power of alienation substantially? Look at : Mode of alienation (ie. mortgage, no selling), of recipients, time period, price Here – can’t mortgage or sell, nobody can buy, time is 25 yrs – found void Thibodeau v Thibodeau From parents to son. Can’t transfer property to anyone except James’ son Luc. Luc can only sell to continue education. Class – just one individual – substantial restriction so void Re: Brown Facts: Family business given to 4 sons – can sell or mortgage only to each other Void because limited class * Note - different in Re. MacLay – can only sell to family members – found valid b/c on other restrictions (time, mode, price) and the class can increase Equitable Interests CL is wary of contingent remainders – want estate to be vested Way around LRR rules – creation of trusts Equitable interests not subject to rules against legal remainders – trustee always seised of the land Statute of Uses Executes the use Ie – to A for the use of B (A has legal f/s, B has equitable f/s) Now A dropped from grant – B now has both legal and equitable f/s Ways around the Statute of Uses: 1) Leasehold Estate Statute interpreted as applying only to freehold estate, not leasehold To A for 999 years to use of B for 999 years (Statute won’t execute) 2) Conveyance to a corporation
Reynolds_60_Full_2013_Kellan_McKeen.docx