Instructions Specific to This Exam

1. This examination contains five questions of unequal value, worth a total of 100 marks.

2. Suggested time allocations are provided for guidance only. Candidates remain responsible for managing the three-hour examination period.

3. Unless otherwise stated, assume that:

   • all land and property referred to in this examination is situated in a Canadian common-law jurisdiction;

   • ordinary common-law and equitable property principles apply;

   • no family-property or matrimonial-property legislation applies;

   • no issue of adverse possession arises; and

   • no statutory rule alters the result unless the question expressly states otherwise.

4. You will be assessed primarily on your knowledge and application of the cases, doctrines and principles contained in the assigned Property materials, including your ability to:

   • characterize competing property interests accurately;

   • identify the source of each claimant's interest;

   • distinguish legal from equitable interests;

   • apply priority rules;

   • analyze competing claims to possession and ownership;

   • identify available proprietary and personal remedies; and

   • reach reasoned conclusions.

5. No marks are awarded for merely reproducing or summarizing the facts. Use the facts in your legal analysis.

6. Each question is independent. Do not import facts or conclusions from another question.

7. Property rights are frequently relative rather than absolute. Where several persons assert rights in the same thing, identify the relative strength of each claim rather than assuming that only one person can possess legally significant rights.

8. Keep distinct:

   • legal title;

   • beneficial or equitable ownership;

   • possession;

   • a right to possession;

   • contractual rights;

   • and proprietary rights enforceable against third parties.

9. In questions concerning gratuitous transfers, identify the transferor's actual intention at the time of transfer and the operation of any relevant equitable presumption.

10. In unjust-enrichment questions, distinguish:

    • the existence of unjust enrichment;

    • any juristic reason;

    • the appropriate monetary measure;

    • and the additional requirements for a proprietary constructive trust.

11. In questions involving found property, begin by identifying:

    • whether the chattel was abandoned or merely lost;

    • who first acquired possession or a possessory interest;

    • whether an occupier had manifested an intention to control chattels found on the premises; and

    • whether a person with superior title later appears.

12. In bailment questions, distinguish ownership from possession. A bailor need not prove absolute ownership before the law of bailment becomes relevant.

13. In relation to land boundaries, remember that land is three-dimensional. Rights may extend:

    • laterally;

    • into the subsurface; and

    • into such airspace as is necessary for ordinary use and enjoyment.

14. Do not treat the maxim cujus est solum ejus est usque ad coelum et ad inferos as literally conferring unlimited ownership upward and downward.

15. In constructive-taking questions, distinguish government regulation that merely reduces value from conduct satisfying the common-law requirements for a constructive taking.

16. In covenant questions, distinguish carefully between:

    • a contractual covenant enforceable against the original covenantor;

    • a restrictive covenant whose burden may run in equity;

    • and a positive covenant whose burden ordinarily does not run with freehold land.

17. Do not determine whether a covenant is positive or negative solely by its grammatical wording. Consider what the covenant requires the landowner actually to do.

18. For Question Five only, assume that no deeds-registration or title-registration statute alters the ordinary common-law and equitable priority rules. Apply the traditional priority principles identified in the syllabus.

19. Full citations are unnecessary. The name of the relevant case or doctrine is sufficient.

20. Answer the question actually asked. Avoid generic essays or memorized lists of property doctrines not reasonably raised by the facts.

21. Write clear, organized answers in complete sentences.

QUESTION ONE

25 marks — suggested time: 45 minutes

FACTS

Maris Fenwick owned a restored heritage property known as Ashgrove Hall.

The property contains:

• a large residence;

• a carriage house;

• landscaped grounds; and

• a small commercial event space.

Maris acquired Ashgrove Hall herself in 1998.

Her adult son, Orin Fenwick, has never contributed to its purchase price, mortgage, taxes or operating expenses.

The transfer to Orin

In 2020, when Maris was 76, she transferred Ashgrove Hall from her sole name into the names of:

Maris Fenwick and Orin Fenwick as joint tenants

No money changed hands.

Maris's solicitor recorded the following note after meeting with her:

“MF wants Orin on title so that he can deal with the property if she becomes ill and so that the property does not have to go through probate. She says she intends to continue treating Ashgrove as hers while alive.”

The solicitor did not prepare a declaration of trust.

After the transfer:

• Maris continued living at Ashgrove Hall;

• she paid the taxes and insurance;

• she received all rental income;

• Orin did not report any ownership income for tax purposes; and

• major decisions concerning the property remained Maris's.

Eighteen months later, Maris sent Orin a birthday card stating:

“You have always loved Ashgrove. One day it will truly be yours, and I am happy knowing it will stay in the family.”

Orin says this confirms that the 2020 transfer was intended as a gift of a joint beneficial interest carrying a right of survivorship.

Maris died in 2025.

Her will leaves the residue of her estate equally among Orin and his two sisters.

Orin claims that Ashgrove Hall passed entirely to him by survivorship and therefore never entered the estate.

His sisters disagree.

Avela's contributions

For five years before Maris's death, Avela Dorsey managed Ashgrove Hall's event operation.

Avela had previously operated her own small hospitality business.

Maris persuaded her to devote herself full-time to Ashgrove.

Avela received reimbursement for expenses but no salary.

Over five years she:

• negotiated event contracts;

• hired and supervised seasonal staff;

• developed a wedding business;

• managed renovations;

• created the property's marketing program; and

• personally worked many weekends.

Avela also contributed $135,000 of her own money toward converting the carriage house into an event venue.

No written agreement gave her an ownership interest.

Maris repeatedly said things such as:

“We're building something valuable here.”

and:

“When Ashgrove is established, I'll make sure you've been looked after properly.”

Avela never received a specific promise of a fixed percentage of the property.

During the same period:

• Avela was permitted to use a furnished apartment on the property without paying rent;

• Ashgrove paid for her vehicle while she worked there; and

• Maris paid for several vacations that Avela accompanied her on.

A real-estate appraiser concludes that the carriage-house conversion and successful event business increased the value of Ashgrove Hall by approximately $600,000.

After Maris's death, Orin takes the position that:

“Avela was basically a family friend who helped my mother with the business. She lived there for free and received plenty of benefits.”

Avela claims an equitable interest in Ashgrove Hall.

QUESTION

Advise Orin, Maris's estate and Avela concerning the beneficial ownership of Ashgrove Hall and the equitable remedies potentially available.

Do not address family-property legislation, succession legislation or tax law.

25 MARKS

THE BRICKAM EXPLANATION — QUESTION ONE

1. Legal Title Does Not Necessarily Resolve Beneficial Ownership

The registered title identifies Maris and Orin as joint tenants.

That is important.

But equity may recognize that a person holding legal title does so for someone else.

The first question is therefore not simply:

“Who is registered?”

It is:

“What beneficial interest did Maris intend Orin to receive when she transferred the property?”

The Gratuitous Transfer to Orin

2. The Transfer Was Gratuitous

Orin:

• paid no purchase price;

• assumed no mortgage;

• provided no consideration;

• and made no financial contribution in exchange for the transfer.

The transfer therefore engages the equitable principles governing gratuitous transfers.

3. Pecore Is the Central Authority

Pecore v. Pecore addresses gratuitous transfers from a parent to an adult child and the interaction between:

• legal joint ownership;

• survivorship; and

• the presumption of resulting trust.

A gratuitous transfer to an independent adult child ordinarily attracts the presumption that the child holds the transferred beneficial interest on resulting trust for the transferor.

The adult child may rebut that presumption by establishing that the transferor intended a gift.

4. The Presumption Is Only a Starting Point

The decisive question remains Maris's actual intention at the time of the 2020 transfer.

The presumption assists when evidence of intention is uncertain.

It does not prevent Orin from proving that Maris actually intended to confer a present beneficial joint interest.

Evidence Supporting the Estate

5. The Solicitor's Note Strongly Supports a Resulting Trust

The note was made in connection with the transfer itself.

It records two specific objectives:

• allowing Orin to deal with the property if Maris became incapacitated; and

• avoiding probate.

It also records Maris saying that she continued to regard Ashgrove as:

“hers”

during her lifetime.

That is powerful evidence that the legal transfer was made for convenience and estate administration rather than to give Orin an immediate one-half beneficial interest.

6. Maris Continued to Exercise the Economic Incidents of Ownership

After 2020 she continued to:

• occupy the property;

• collect all income;

• pay the expenses;

• control major decisions; and

• treat the asset economically as her own.

That conduct is consistent with the solicitor's note.

It weakens Orin's assertion that Maris intended immediately to give away half the beneficial ownership.

7. Orin's Lack of Economic Participation Also Matters

Orin did not:

• share rental profits;

• contribute expenses;

• pay tax on income;

• or participate in management as an owner.

Those facts are not independently decisive.

But they reinforce the estate's characterization of the transfer as administrative rather than donative.

Evidence Supporting Orin

8. The Birthday Card Gives Orin a Real Argument

Maris wrote:

“One day it will truly be yours.”

Orin may argue that the card confirms that the joint-tenancy form was chosen precisely because she wanted him to take by survivorship.

The reference to the property remaining in the family also supports donative intention.

9. But the Wording May Actually Assist the Estate

The phrase:

“One day it will truly be yours”

may imply that Maris did not regard Orin as a present beneficial co-owner.

It is consistent with an intention that he obtain ownership only upon her death.

A failed or informal attempt to arrange a future gift does not necessarily establish a completed present beneficial gift.

10. Timing Reduces the Card's Evidentiary Force

The relevant intention is Maris's intention when the transfer occurred in 2020.

Later statements may help illuminate that intention.

But they must be weighed against the direct contemporaneous solicitor's note.

The estate therefore has the stronger factual record.

Survivorship

11. Legal Survivorship Is Not Necessarily Beneficial Survivorship

At law, Orin may become the surviving registered joint tenant.

That does not answer whether he takes the property beneficially.

If the evidence establishes that Orin held his legal interest on resulting trust for Maris, the surviving legal title may itself be subject to the equitable obligation.

The estate can therefore assert that Orin holds the property, or the relevant beneficial interest, for the estate rather than for himself.

12. The Estate Has the Stronger Resulting-Trust Claim

The best conclusion is that the presumption of resulting trust has not been rebutted.

The strongest evidence shows that Maris intended:

• convenience during her lifetime; and

• avoidance of probate,

not a present beneficial gift.

Ashgrove Hall is therefore likely subject to the estate's beneficial claim notwithstanding the joint legal title.

Avela's Claim

13. Avela Has No Conventional Legal Title

Avela is not registered on title.

There is also no completed express trust giving her a defined interest.

Her principal route is therefore unjust enrichment, potentially accompanied by a remedial constructive trust.

14. Unjust Enrichment Has Three Basic Elements

The claimant must establish:

1. enrichment of the defendant;

2. corresponding deprivation of the claimant; and

3. absence of a juristic reason for the enrichment.

The assigned authorities include Pettkus v. Becker, Kerr v. Baranow, and Moore v. Sweet.

Enrichment

15. The Enrichment Is Substantial

Ashgrove received:

• five years of significant managerial labour;

• business development;

• renovation management;

• event administration; and

• $135,000 of Avela's own capital.

The estate also owns a property whose value has materially increased.

Avela has a strong argument that Maris obtained benefits for which she did not provide ordinary market compensation.

16. The Capital Contribution Is Especially Clear

Avela's $135,000 directly financed improvements to Ashgrove.

That is not merely an abstract opportunity cost.

It is identifiable value transferred into property now claimed by the estate.

Corresponding Deprivation

17. Avela Suffered Both Financial and Service-Based Deprivation

Her deprivation includes:

• the $135,000;

• years of unpaid labour; and

• the loss of the opportunity to devote that time to her own business or paid employment.

The court should not automatically convert every hour of work into a salary claim.

But the sustained uncompensated contribution is legally significant.

Juristic Reason

18. The Estate's Best Argument Is That Avela Was Compensated Through Benefits

Avela received:

• free accommodation;

• a vehicle;

• travel; and

• other support.

The estate will argue that these benefits formed the parties' understood exchange.

If so, the enrichment may not be unjust to the extent that Avela already received the agreed consideration.

19. The Benefits Do Not Obviously Explain the Full Enrichment

Nothing in the facts shows an agreement that:

“free accommodation and use of a vehicle constitute full payment for $135,000 plus five years of managerial labour.”

The benefits are therefore highly relevant to quantum, but they do not necessarily supply a complete juristic reason for all of Maris's enrichment.

20. Donative Intent Is Also Weak

The estate may characterize Avela's contributions as voluntary assistance to a close friend.

But:

• the contributions were sustained;

• commercially valuable;

• partly financed from Avela's own savings; and

• made in circumstances where Maris repeatedly represented that Avela would be “looked after.”

That makes a pure gift characterization difficult.

Remedy

21. A Finding of Unjust Enrichment Does Not Automatically Produce Ownership

The normal question after liability is what remedy properly reverses the enrichment.

A monetary award may be sufficient.

The constructive trust is not an automatic consequence whenever one person's efforts improve another person's property.

22. A Proprietary Constructive Trust Requires a Sufficient Connection to the Property

Avela has unusually strong facts on this point.

Her money and labour were directed specifically toward:

• Ashgrove Hall;

• the carriage-house conversion;

• and the event operation that enhanced the property.

The asserted enrichment is therefore tied directly to the particular asset.

23. Monetary Relief May Nevertheless Be Adequate

The estate will argue that the value of Avela's contributions can be compensated in money.

If a fair monetary award can adequately reverse the enrichment, altering beneficial title may be unnecessary.

The court should also account for the benefits Avela received.

24. Avela Has a Strong Unjust-Enrichment Claim but Not an Automatic Percentage Interest

The $600,000 increase in value does not mean Avela automatically owns:

• $600,000 worth of Ashgrove; or

• a fixed percentage of the property.

The remedy must reflect the actual enrichment and deprivation established.

A constructive trust becomes stronger if a monetary award is inadequate and Avela demonstrates the required direct connection to the property.

Overall Advice

25. The Two Equitable Claims Are Distinct

Orin: likely holds his joint legal title subject to a resulting trust because the evidence does not establish that Maris intended an immediate beneficial gift.

The estate: therefore has the stronger claim to beneficial ownership of Ashgrove Hall.

Avela: has no automatic ownership interest, but has a substantial unjust-enrichment claim arising from her direct financial and labour contributions. A monetary remedy is likely the starting point, with a proprietary constructive trust arguable because of the close connection between her contributions and Ashgrove Hall itself.

Brickam’s Suggested Marking Approach — Question One

Issue	Marks
Distinguishes legal joint title from beneficial ownership	2
Applies Pecore and the presumption of resulting trust to gratuitous adult-child transfer	4
Analyzes contemporaneous intention, solicitor note, subsequent conduct and birthday card	4
Explains effect of resulting trust on survivorship	2
Unjust enrichment: enrichment and corresponding deprivation	4
Juristic reason, reciprocal benefits and absence of clear donative intent	3
Monetary remedy versus remedial constructive trust and connection to specific property	4
Reasoned overall conclusions	2
TOTAL	25

QUESTION TWO

20 marks — suggested time: 36 minutes

FACTS

The Claremont House Hotel operates a historic hotel and conference centre.

Access to its main-floor lounge is limited to:

• registered hotel guests;

• conference attendees; and

• invited visitors.

A sign beside the entrance states:

“Claremont House Lost Property Policy: All property found on hotel premises must immediately be delivered to Guest Services.”

Hotel employees are instructed to inspect public areas several times each day and deliver found items to a locked lost-property room.

The brooch

During a professional conference, Calla Brenn notices a small velvet case lying underneath a movable chair in the lounge.

Inside is an antique diamond brooch.

The brooch is not attached to the chair or the building.

Calla picks it up.

No one nearby claims it.

She takes it to Guest Services and says:

“I found this under a chair. If nobody claims it, I want it returned to me.”

The hotel issues a receipt stating:

“Item received for safekeeping pending identification of its owner.”

Six months pass.

No owner comes forward.

Calla demands the brooch.

The hotel refuses.

It says:

“You found it on our private premises. Our policy gives Claremont the better possessory claim.”

Three weeks later, Daphne Orr, who had stayed at the hotel on the date of the conference, produces:

• a purchase receipt;

• photographs of herself wearing the brooch; and

• an insurance appraisal containing the same identifying marks.

All parties accept that Daphne owned the brooch before it was lost.

The camera

A separate dispute involves hotel guest Bennet Quill.

Bennet was travelling with a vintage medium-format camera worth approximately $38,000.

When leaving the hotel for a two-day hiking trip, he delivered the camera to Guest Services for safekeeping.

The receipt stated:

“Claremont House may store high-value property with a professional third-party vault provider on that provider's ordinary terms.”

Bennet signed the receipt without asking what those terms were.

The hotel transferred the camera to Sentry Vault Services Ltd.

The contract between Claremont and Sentry contained a clause stating:

“Sentry's total liability for any item, however loss occurs, shall not exceed $5,000.”

A Sentry employee negligently left the relevant safe unlocked overnight.

The camera disappeared.

There is no evidence that Claremont knew Sentry had poor security practices before the loss.

Bennet sues both Claremont and Sentry for the full value of the camera.

Sentry relies upon the $5,000 limitation.

Bennet responds:

“I agreed that the hotel could use a proper vault. I never agreed that some company I had never heard of could reduce my rights to $5,000.”

QUESTION

Advise the interested parties concerning:

1. the competing possessory claims to the brooch; and

2. the rights and liabilities arising from the loss of Bennet's camera.

20 MARKS

THE BRICKAM EXPLANATION — QUESTION TWO

The Brooch

1. Possessory Title Is Relative

Property law does not require Calla to prove that she was the absolute owner before she can possess enforceable rights.

A finder of a lost chattel may acquire possessory title good against persons with no better claim.

The Tubantia illustrates the broader principle that possession itself can ground a title enforceable against strangers.

The true owner, however, generally retains the superior title.

2. The Brooch Was Lost Rather Than Abandoned

Nothing suggests Daphne intentionally relinquished ownership.

An antique diamond brooch accidentally left under a chair is far more naturally characterized as lost property.

Abandonment therefore does not transfer ownership to either Calla or the hotel.

Calla Versus the Hotel

3. Parker Provides the Basic Finder-Occupier Framework

Parker v. British Airways Board addresses the competing rights of:

• the finder of an unattached chattel; and

• the occupier of the premises where it is found.

A lawful finder generally obtains rights against the world except:

• the true owner;

• a prior possessor; or

• an occupier with a superior possessory claim.

4. This Was an Unattached Chattel

The brooch was:

• beneath a movable chair;

• not embedded in the floor;

• not attached to the building; and

• not hidden within the land itself.

That supports application of the ordinary finder principles rather than a rule automatically giving the item to the landowner.

5. Claremont Has Strong Evidence of Prior Manifested Control

The hotel's position is materially stronger than an occupier who merely owns a space.

Before Calla found the brooch, Claremont had:

• restricted access to the lounge;

• adopted an express lost-property policy;

• posted that policy;

• instructed employees concerning found objects; and

• maintained a dedicated lost-property facility.

Those facts demonstrate an intention to exercise control over chattels found on the premises.

6. The Restricted Nature of the Lounge Also Assists the Hotel

This is not:

• a public sidewalk;

• an unrestricted airport concourse; or

• open public land.

The lounge is accessible only to defined categories of hotel users.

Greater control over entry can support a stronger occupier claim.

7. Calla Still Has a Respectable Finder Argument

Calla was lawfully present.

She:

• found the brooch honestly;

• did not trespass;

• promptly reported it;

• and expressly preserved her claim if the owner was not located.

She can argue that merely posting a policy cannot automatically transfer ownership of every lost object to the hotel.

The relevant question is whether Claremont had sufficiently manifested an intention to control the premises and things found there.

On these facts, it probably had.

8. As Between Calla and Claremont, the Hotel Likely Has the Better Possessory Claim

The combination of:

• access control;

• posted rules;

• employee procedures; and

• active lost-property administration

makes the hotel materially stronger than the occupier in a case where no prior intention to control lost chattels was shown.

Daphne

9. Daphne's Appearance Ends the Relative Finder Dispute

Once Daphne proves prior ownership, neither Calla nor Claremont can keep the brooch merely because:

• one found it; or

• the other controlled the premises.

Their claims were always subordinate to the true owner.

Daphne therefore has the superior claim.

The Camera

10. The Camera Arrangement Is a Bailment

Bennet voluntarily transferred possession of the camera to Claremont:

• for a specific purpose;

• on the understanding that it would be safeguarded; and

• with an obligation to return it.

That is a conventional bailment.

Legal ownership remained with Bennet.

11. Claremont Could Use a Sub-Bailee

The receipt expressly authorized Claremont to use:

“a professional third-party vault provider.”

Bennet therefore cannot plausibly argue that any transfer away from the hotel itself was unauthorized.

The difficult question concerns the terms upon which the sub-bailment occurred.

Sentry

12. The Pioneer Container Is Relevant to Sub-Bailment on Terms

Where a bailor authorizes a bailee to sub-bail property, the circumstances may determine whether the bailor also consented to the sub-bailment being made on the sub-bailee's contractual terms.

The issue is therefore more precise than:

“Did Bennet sign Sentry's contract?”

He did not.

The question is whether he nevertheless authorized Claremont to entrust the camera to a vault provider on its ordinary terms.

13. The Receipt Gives Sentry a Substantial Argument

Bennet expressly signed language authorizing:

“a professional third-party vault provider on that provider's ordinary terms.”

Limitation clauses are common in commercial storage arrangements.

Sentry can therefore argue that Bennet gave advance consent to the sub-bailment being made subject to its standard liability conditions.

14. The $5,000 Cap Creates a Serious Counterargument

Bennet authorized:

• ordinary terms of a professional vault provider.

He did not specifically agree to:

• Sentry;

• a $5,000 cap;

• or a limitation reducing protection for a $38,000 item by more than 85%.

Bennet can argue that an unusually restrictive limitation was outside the scope of what he reasonably authorized.

The broader the authorization, the stronger Sentry becomes.

The more exceptional the clause, the stronger Bennet becomes.

15. Sentry Cannot Avoid the Bailment Analysis Merely Because Bennet Was Not Its Contracting Party

Sentry knowingly took possession of Bennet's camera for safekeeping.

The law of sub-bailment can therefore impose duties concerning the item notwithstanding the absence of a conventional direct contract between Bennet and Sentry.

16. The Negligent Storage Strongly Supports Breach

The camera disappeared because a Sentry employee negligently left the safe unlocked.

That is not an unexplained loss despite apparently adequate care.

It is affirmative evidence of deficient safekeeping.

Sentry therefore faces substantial liability unless the limitation clause is effective.

Claremont's Liability

17. Claremont Does Not Automatically Escape Merely by Selecting a Sub-Bailee

Claremont accepted Bennet's camera as bailee.

It therefore owed the obligations associated with that relationship.

Whether Claremont remains liable for the loss depends on the scope of the bailment agreement and whether it discharged its own duty by selecting an apparently competent professional custodian.

18. The Facts Assist Claremont on Its Own Standard of Care

There is no evidence that Claremont:

• knew Sentry was careless;

• ignored warning signs;

• selected an obviously unsuitable provider; or

• mishandled the camera itself.

If the hotel was authorized to use a professional vault and reasonably selected one, its personal breach argument is weaker than Sentry's.

19. But Bennet Can Argue That Claremont Promised Safekeeping, Not Merely Reasonable Selection

The precise contractual and bailment terms matter.

Bennet handed the camera to Claremont because he expected it to be returned.

A bailee cannot necessarily defeat a bailor's claim simply by showing that the item disappeared after being handed to someone else.

The relationship should therefore be analyzed as a chain of bailments rather than as though Claremont became irrelevant after transfer.

Overall Advice

20. The Likely Results Differ Between the Two Disputes

Brooch:

• Calla acquired a finder interest.

• Claremont likely had a superior occupier claim because it had manifested prior control over found chattels.

• Both claims are subordinate to Daphne's proven ownership.

Camera:

• Bennet bailed the camera to Claremont.

• Claremont was authorized to sub-bail it.

• Sentry plainly failed to safeguard the camera.

• Sentry's ability to rely on the $5,000 clause turns on whether Bennet's authorization of storage on a provider's “ordinary terms” was sufficiently broad to include that limitation.

• Claremont's own liability depends upon the scope of its bailment obligation and whether reasonable selection of Sentry was sufficient to discharge its duty.

Brickam’s Suggested Marking Approach — Question Two

Issue	Marks
Lost versus abandoned property and relative nature of possessory title	2
Finder rights under Parker	3
Hotel's manifested intention to control chattels and relative claim against Calla	3
Daphne's superior true-owner claim	1
Creation and nature of Bennet/Claremont bailment	2
Authorized sub-bailment and application of The Pioneer Container	3
Whether Bennet consented to Sentry's limitation clause	3
Sentry's negligent safekeeping and liability	2
Claremont's continuing bailment obligations / reasoned overall result	1
TOTAL	20

QUESTION THREE

20 marks — suggested time: 36 minutes

FACTS

Harbourwick Developments Ltd. (“Harbourwick”) owns 42 acres of undeveloped riverfront land in a rapidly growing municipality known as Calder Reach.

Its deed describes the eastern boundary as:

“the ordinary high-water mark of the Alder River.”

The river boundary

When Harbourwick purchased the land in 2010, the river followed a clearly identifiable bank.

Between 2010 and 2025, sediment accumulated gradually along approximately 600 metres of Harbourwick's river frontage.

The process was:

• natural;

• gradual; and

• not perceptible from day to day.

By 2025, approximately 3.8 additional acres of dry land had formed between the original 2010 riverbank and the present ordinary high-water mark.

Calder Reach says:

“Harbourwick bought what was inside its 2010 survey. The new strip was never part of the registered parcel.”

Harbourwick claims the additional land.

The transmission line

In 2019, Northern Grid Corporation installed an electrical transmission line across one corner of Harbourwick's property.

Assume for this question that Northern Grid has no statutory expropriation, easement or right-of-entry power affecting the dispute.

The line:

• crosses approximately 80 metres of Harbourwick's land;

• is suspended roughly seven metres above the ground at its lowest point;

• does not physically touch the surface; and

• prevents cranes and other tall machinery from operating safely beneath it.

Harbourwick never granted Northern Grid an easement.

Northern Grid says:

“We are in the air. Land ownership does not extend infinitely upward.”

The municipal plan

Calder Reach has wanted to create a continuous public riverfront greenway for more than a decade.

Harbourwick's land occupies the only major gap in the proposed route.

Municipal staff recommended purchasing part of the property in 2018.

Council declined because the estimated acquisition cost exceeded $14 million.

In 2022, Calder Reach adopted a new planning regime applying specifically to Harbourwick's land.

It prohibits:

• residential construction;

• commercial construction;

• tree removal other than for safety;

• grading;

• road construction; and

• fencing that would obstruct pedestrian movement.

The only expressly permitted uses are:

• conservation;

• passive recreation;

• walking trails;

• and continuation of any agricultural use that existed when the bylaw was adopted.

No agriculture was then occurring.

A soil report states that much of the property is unsuitable for commercially viable agriculture.

Since 2022, the municipality has:

• rejected Harbourwick's applications for a small residential subdivision and an eco-lodge;

• identified the property on municipal maps as part of the “Alder River Greenway”;

• published tourism materials depicting a future continuous trail through the property; and

• publicly stated that preserving Harbourwick's land from development is necessary to complete the municipality's riverfront-open-space strategy.

Municipal employees have not entered the property to construct trails or facilities.

However, members of the public frequently walk on informal paths across the land.

The municipality has not attempted to stop them.

Harbourwick has not charged admission or actively removed walkers.

The municipality also reduced Harbourwick's property tax assessment substantially because development is now prohibited.

Harbourwick says:

“The Town refused to buy our land and has instead regulated it into its public park system for free.”

Calder Reach responds:

“Harbourwick still owns the property. It can sell it, walk on it, preserve it and enjoy the tax reduction. We have taken nothing.”

QUESTION

Advise Harbourwick concerning:

1. ownership of the newly formed riverfront land;

2. Northern Grid's use of the airspace; and

3. whether Calder Reach's actions amount to a constructive taking of Harbourwick's property.

20 MARKS

THE BRICKAM EXPLANATION — QUESTION THREE

The River Boundary

1. A Water Boundary Can Move

Where land is legally bounded by a river or other water boundary, the physical boundary may in appropriate circumstances move with gradual natural changes in the watercourse.

The law distinguishes gradual accretion from sudden changes that do not necessarily alter title in the same way.

2. These Facts Describe Classic Accretion

The additional land accumulated:

• naturally;

• gradually;

• imperceptibly from day to day; and

• along a boundary defined by the ordinary high-water mark.

Those facts strongly support application of the accretion doctrine.

3. The 2010 Survey Does Not Necessarily Freeze the Boundary

Calder Reach treats the historical survey as though the deed said:

“the boundary is permanently fixed at the surveyed 2010 line.”

It does not.

The deed uses a ambulatory natural boundary:

“the ordinary high-water mark of the Alder River.”

Where that boundary lawfully moves by accretion, the legal parcel can move with it.

4. Harbourwick Has the Stronger Claim to the 3.8 Acres

Nothing indicates:

• an artificial reclamation;

• a sudden avulsive event;

• or a fixed boundary description overriding the river boundary.

Harbourwick therefore has a strong claim that the newly accreted strip forms part of its land.

The Transmission Line

5. The Ancient Airspace Maxim Is Not Applied Literally

The maxim suggesting that ownership extends:

“to the heavens”

does not mean that a landowner owns unlimited airspace extending indefinitely upward.

Modern property law asks whether the intrusion occurs within airspace sufficiently connected with the owner's ordinary use and enjoyment of the land.

6. Didow Is Closely Relevant

Didow v. Alberta Power Ltd. addresses intrusion by power infrastructure into airspace above privately owned land.

The important distinction is between:

• remote upper airspace in which the landowner has no practical possessory interest; and

• lower airspace that the landowner could reasonably use in connection with the surface.

7. Seven Metres Is Not Merely Remote Airspace

The transmission line:

• passes only seven metres above the property;

• crosses a substantial distance;

• and prevents use of cranes and tall equipment.

That is directly connected with practical use of the land.

Harbourwick's complaint therefore concerns ordinary usable airspace rather than airspace hundreds of metres above the property.

8. Northern Grid's “We Do Not Touch the Ground” Argument Is Weak

Trespass to land is not necessarily limited to physical contact with the surface.

A fixed intrusion into protected lower airspace can interfere with the landowner's possessory rights.

Because the question tells us to assume Northern Grid has no statutory authority or easement, Harbourwick has a strong trespass position.

Constructive Taking

9. Regulation Alone Does Not Automatically Require Compensation

Governments routinely:

• zone land;

• restrict development;

• protect environmentally sensitive property;

• and reduce permissible uses.

A decline in market value alone is insufficient.

The common law of constructive taking requires more.

10. Annapolis Supplies the Modern Framework

Annapolis Group Inc. v. Halifax Regional Municipality confirms two central requirements:

1. the state must acquire a beneficial interest in the property or an advantage flowing from it; and

2. the government action must remove all reasonable uses of the private property.

The doctrine is not limited to cases where the government becomes registered owner.

Advantage to Calder Reach

11. Harbourwick Has a Serious Advantage Argument

Calder Reach has an identified public objective:

complete a continuous municipal greenway.

Its own documents depict Harbourwick's land as part of that greenway.

The municipality:

• considered buying the property;

• rejected purchase because of cost;

• then adopted restrictions preserving it as open space;

• promotes the land as part of its future trail network; and

• benefits from a development-free corridor.

Harbourwick can therefore argue that Calder Reach obtained a real public advantage without paying for the land.

12. Formal Possession Is Not the Only Relevant Advantage

Calder Reach emphasizes that no municipal employee built:

• a trail;

• a bench;

• or a facility.

That fact assists it.

But Annapolis does not reduce the first requirement to formal acquisition of title or physical occupation.

The practical advantage obtained through the regulatory scheme can matter.

13. Public Use Strengthens Harbourwick's Position

Members of the public already cross the land.

The municipality knows that this occurs and promotes the broader greenway concept.

Still, the municipality has not formally:

• invited the public onto this particular parcel;

• constructed facilities; or

• assumed physical control.

The public-use evidence therefore assists Harbourwick, but it is less decisive than an actual municipal occupation would have been.

Removal of All Reasonable Uses

14. This Is the Harder Requirement

Harbourwick cannot succeed merely by proving:

“The most profitable uses are gone.”

The question is whether all reasonable uses have been removed.

15. The Restrictions Are Severe

Harbourwick cannot:

• build residences;

• build commercial facilities;

• construct roads;

• grade the land;

• clear ordinary vegetation; or

• meaningfully fence it.

Its two proposed development projects were rejected.

Agriculture is commercially unrealistic.

Those facts strongly support Harbourwick.

16. Calder Reach Can Identify Residual Uses

The property can still be:

• held for conservation;

• walked upon;

• used for passive recreation;

• transferred to another owner; and

• perhaps used in other low-intensity ways.

The tax burden has also been reduced.

Calder Reach will argue that the land has not become literally useless.

17. The Existence of Any Theoretical Use Is Not Necessarily Enough

A court should examine whether the residual uses are reasonable uses of the private property, not whether a lawyer can invent some activity technically permitted by the bylaw.

If the only realistic uses are the public open-space uses that the municipality itself seeks to obtain, Harbourwick's argument becomes considerably stronger.

18. The Municipality's Purpose Is Relevant Evidence but Not a Stand-Alone Element

The sequence is important:

• municipality wants the greenway;

• municipality investigates buying the land;

• municipality declines because of cost;

• development is then prohibited;

• municipal materials identify the land as part of the greenway.

Those facts may illuminate the practical effect of the regulatory scheme.

But an improper governmental motive is not a substitute for satisfying the constructive-taking test itself.

Remedy

19. Constructive Taking Is About Compensation

If Harbourwick establishes a constructive taking, the ordinary consequence is a right to compensation associated with the taking.

The doctrine does not simply mean that every offending planning restriction automatically disappears.

Overall Advice

20. Harbourwick Has Three Substantial Property Claims

Accretion: Harbourwick likely owns the additional 3.8 acres because its river boundary moved gradually and naturally.

Airspace: Northern Grid's fixed line seven metres above the surface likely intrudes upon airspace necessary for ordinary use and enjoyment and is vulnerable as trespass absent lawful authority.

Constructive taking: Harbourwick has a serious claim under Annapolis. The municipality appears to receive an identifiable open-space advantage. The harder issue is whether the restrictions have removed all reasonable private uses rather than merely valuable development opportunities.

Brickam’s Suggested Marking Approach — Question Three

Issue	Marks
Accretion and effect of movable natural water boundary	4
Airspace rights, limits of the Latin maxim and application of Didow	4
Correct two-part constructive-taking framework under Annapolis	3
Governmental beneficial interest/advantage and public-greenway facts	3
Removal of all reasonable uses and competing residual-use arguments	4
Significance of municipal purpose/public use and remedy	1
Overall conclusions	1
TOTAL	20

QUESTION FOUR

20 marks — suggested time: 36 minutes

FACTS

In 2004, Greymark Holdings Ltd. owned two neighbouring commercial parcels known as Lot 18 and Lot 19.

Greymark developed Lot 19 as a small professional office complex.

It sold Lot 18 to a company that operated a wholesale furniture warehouse.

The transfer of Lot 18 contained the following provisions:

Clause 7

“The owner of Lot 18 shall not use or permit Lot 18 to be used as a restaurant, bar, commercial kitchen, nightclub or event venue.”

Clause 8

“The owner of Lot 18 shall at all times maintain a four-metre landscaped cedar buffer along the common boundary with Lot 19.”

Clause 9

“The owner of Lot 18 shall pay forty per cent of the annual cost of inspection, maintenance and replacement of the stormwater-retention facility situated on Lot 19.”

The transfer further stated:

“The foregoing covenants are intended to run with Lot 18 and are imposed for the benefit of Lot 19 and each successor owner thereof.”

All three clauses were registered on title.

At the time:

• Greymark operated the office complex on Lot 19;

• several office tenants complained about traffic and evening noise from nearby entertainment businesses; and

• Greymark also operated a small catering business out of Lot 19.

Greymark's internal memorandum stated:

“No restaurant or event business should ever operate next door. We need to preserve professional-office parking and atmosphere, and we do not want a competitor beside our catering operation.”

Later transfers

Greymark sold Lot 19 in 2018 to Linden Office Trust.

The transfer expressly assigned to Linden:

“all benefits of covenants affecting neighbouring lands insofar as assignable.”

Lot 18 was sold in 2024 to Vexa Health Properties Inc.

Before purchasing, Vexa:

• reviewed the registered title;

• obtained a copy of Clauses 7 to 9; and

• received legal advice that the covenants might restrict its proposed redevelopment.

Vexa proceeded with the purchase.

Current use

Vexa converts most of Lot 18 into medical offices.

It also leases the ground floor to Ember Table Inc., which operates:

• a café during weekdays;

• a full-service restaurant on evenings and weekends; and

• private wedding receptions approximately twice each month.

Vexa also removes most of the cedar buffer to create additional parking.

It refuses to pay any part of the stormwater-facility expenses.

Linden says the restaurant and receptions:

• create evening traffic;

• use parking spaces normally available to visitors to Lot 19;

• produce noise; and

• have materially changed the character of the immediate area.

Vexa responds:

“Those promises were made twenty years ago between different owners. Property obligations do not follow land forever just because someone writes ‘runs with the land’ in a deed.”

It further argues:

“If Linden wants cedar trees and a stormwater facility maintained, it can pay for them itself.”

QUESTION

Advise Linden, Vexa and Ember Table concerning the enforceability of Clauses 7, 8 and 9 against the current owners and occupiers of Lot 18.

Address the nature of each covenant, the running of the burden and benefit, and the appropriate proprietary consequences.

20 MARKS

THE BRICKAM EXPLANATION — QUESTION FOUR

1. The Original Contract Is Not the Hard Part

Greymark and the original purchaser could create contractual obligations between themselves.

The present dispute concerns successors.

The important question is therefore:

which obligations acquired a proprietary quality capable of binding later owners?

Restrictive Covenants

2. Tulk v. Moxhay Provides the Historical Foundation

Equity may permit the burden of a restrictive covenant to bind a successor in title where the traditional requirements are satisfied.

The syllabus identifies the principal requirements as:

1. the covenant must be negative in substance;

2. it must benefit land retained by the covenantee;

3. the covenant must be intended to run with the burdened land; and

4. general equitable requirements, including notice, must be satisfied.

The benefit must also have passed to the person seeking enforcement.

Clause 7

3. Clause 7 Is Negative in Substance

Clause 7 requires the Lot 18 owner:

not to use

the land for specified businesses.

Compliance requires abstention rather than expenditure or affirmative performance.

It is therefore classically restrictive.

4. The Covenant Was Expressly Intended to Run

The instrument states that the covenant:

“is intended to run with Lot 18.”

That strongly supports the intention requirement.

5. Vexa Had Actual Notice

Vexa:

• searched title;

• received the covenant;

• obtained legal advice about it; and

• purchased anyway.

It cannot present itself as an innocent purchaser unaware of the restriction.

6. The More Interesting Issue Is Whether Clause 7 Benefits Lot 19

A covenant must benefit identifiable dominant land rather than simply confer a personal advantage on the original covenantee.

Greymark had two motives:

• preserving parking, noise conditions and the professional-office environment; and

• protecting its own catering business from competition.

The first set of concerns clearly relates to use and enjoyment of Lot 19.

The competition concern is more personal and commercial.

7. The Mixed Purpose Does Not Necessarily Destroy the Covenant

The covenant can still accommodate Lot 19 if, objectively, it protects:

• the property's amenity;

• traffic environment;

• parking;

• noise conditions; or

• use as a professional complex.

The current facts demonstrate those effects.

Linden therefore has a strong argument that the covenant benefits the land itself rather than merely Greymark's former catering business.

8. The Benefit Was Capable of Passing to Linden

The covenant expressly identifies Lot 19 as the benefiting land.

The later transfer to Linden also expressly assigns the benefits of neighbouring covenants.

Those facts strongly support Linden's standing to enforce.

Application to Ember Table

9. The Current Use Falls Directly Within Clause 7

Ember operates:

• a restaurant; and

• an event venue.

Those are expressly prohibited uses.

The dispute therefore does not depend on stretching ambiguous wording.

10. Vexa Cannot Avoid the Covenant by Leasing to Someone Else

A burden on the use of Lot 18 would have little proprietary significance if the freehold owner could defeat it merely by granting a lease and permitting the tenant to perform the prohibited act.

Linden can therefore seek relief directed at the prohibited use of the land.

A tenant taking with notice of a restrictive equitable obligation may also face equitable enforcement appropriate to its interest.

Clause 8

11. Clause 8 Is Positive in Substance

The clause requires the owner to:

“maintain”

a four-metre cedar buffer.

Compliance requires:

• labour;

• expenditure;

• replacement;

• and continuing affirmative action.

It is therefore positive despite appearing alongside a valid restrictive covenant.

12. The Burden of a Positive Covenant Does Not Ordinarily Run With Freehold Land

Canadian property law has resisted extending Tulk v. Moxhay to affirmative obligations requiring successors to spend money or perform work.

Durham Condominium Corporation No. 123 v. Amberwood Investments Ltd. is a central assigned authority concerning the difficulty of making positive freehold obligations run against successors.

13. Saying “Runs With the Land” Cannot Create a New Property Interest

The parties' stated intention matters where the law recognizes the interest.

It cannot by itself eliminate the doctrinal restriction on positive covenants.

Otherwise private parties could simply create unlimited new proprietary burdens through drafting, contrary to the structural limits of property law.

14. Linden Therefore Has a Weak Proprietary Claim Under Clause 8

Linden may have wished to preserve the cedar buffer.

But Vexa did not itself make the original promise.

Absent some separate legal mechanism not supplied by the facts, the affirmative maintenance burden does not ordinarily follow the freehold.

Clause 9

15. Clause 9 Is Even More Clearly Positive

Vexa is required to pay:

forty per cent of annual costs.

That is an affirmative financial obligation.

It cannot be satisfied by simply refraining from conduct on Lot 18.

16. The Positive-Covenant Rule Therefore Applies

The fact that the stormwater facility may benefit Lot 18 does not, without more, transform the covenant into a restrictive obligation.

Linden's proprietary claim for annual contributions is therefore weak.

17. Benefit and Burden Should Not Be Invoked Casually

There are limited property-law techniques through which enjoyment of a benefit may sometimes be conditioned upon acceptance of a corresponding burden.

But the facts do not identify:

• an easement;

• a right Vexa is voluntarily choosing to exercise;

• or a separate proprietary benefit that can simply be withheld unless the maintenance contribution is paid.

The court should not use a vague “fairness” concept to circumvent the general rule against running positive burdens.

Remedies

18. Clause 7 Is the Covenant Most Suitable for Injunctive Enforcement

Because the restriction concerns use of land, Linden may seek an injunction restraining:

• the restaurant;

• the event-venue use; or

• both,

subject to ordinary equitable principles.

The availability and form of final relief would depend on the circumstances.

19. Clauses 8 and 9 Do Not Become Enforceable Against Vexa Merely Because Breach Harms Linden

Linden may genuinely suffer:

• loss of screening;

• increased costs;

• or practical unfairness.

But proprietary enforceability depends upon whether the burden runs.

The absence of a running positive burden cannot be replaced by a general appeal to fairness.

Overall Advice

20. The Covenants Divide Cleanly by Substance

Clause 7: strong case for enforcement as a restrictive covenant. It is negative, intended to run, appears to benefit Lot 19, and Vexa had actual notice. The restaurant and event uses fall squarely within it.

Clause 8: positive maintenance obligation. Its burden ordinarily does not run against Vexa.

Clause 9: positive payment obligation. Its burden likewise ordinarily does not run against Vexa.

Linden's strongest proprietary remedy is therefore enforcement of the use restriction rather than compelling Vexa to perform the two affirmative obligations.

Brickam’s Suggested Marking Approach — Question Four

Issue	Marks
Distinguishes contractual obligations from covenants capable of binding successors	2
Correct Tulk v. Moxhay restrictive-covenant framework	3
Clause 7: negative character, intention and Vexa's notice	3
Whether Clause 7 accommodates/benefits Lot 19 and effect of mixed commercial motive	3
Running of benefit to Linden and application to Ember/Vexa	2
Clause 8 as positive covenant and application of Durham Condominium	3
Clause 9 as positive financial covenant and limits of benefit-and-burden reasoning	2
Remedies and overall conclusions	2
TOTAL	20

QUESTION FIVE

15 marks — suggested time: 27 minutes

FACTS

For this question only, assume that no deeds-registration or title-registration statute alters the ordinary common-law and equitable priority rules.

Torin Rusk is the registered legal owner of an undeveloped parcel known as Cedaracre.

Sela's interest

On January 8, Torin signs a written declaration stating:

“I declare that I hold Cedaracre upon trust for my sister, Sela Vardon, absolutely.”

The document is valid and effective to create the trust.

Torin remains the registered legal owner.

Sela therefore does not receive legal title.

She does not move onto Cedaracre or place any signs on it.

Kestrel's purchase contract

On March 4, Torin agrees in writing to sell Cedaracre to Kestrel Habitat Inc. for $1.6 million.

The contract is specifically enforceable.

Kestrel pays a $250,000 deposit.

When the contract is signed:

• Kestrel has no actual knowledge of Sela's trust;

• there is nothing physically present on the land revealing Sela's interest; and

• Torin tells Kestrel that he owns Cedaracre for his own benefit.

Closing is scheduled for April 15.

Discovery before closing

On April 2, Kestrel's lender receives an email from Sela stating:

“Torin is only trustee of Cedaracre. He has no beneficial ownership and cannot sell my land.”

The email includes a copy of the January 8 declaration.

The lender forwards the material to Kestrel's president on April 3.

Kestrel's lawyer advises:

“We already signed before we knew about Sela. Complete the transaction quickly and legal title should defeat her.”

Kestrel closes on April 15 and receives the legal estate.

Kestrel pays the balance of the purchase price.

Torin disappears with the money.

Sela claims Cedaracre.

Kestrel responds:

“We were bona fide purchasers when we entered the purchase agreement. Learning about the trust later should not change our priority.”

QUESTION

Advise Sela and Kestrel concerning priority to Cedaracre.

In doing so, explain the significance of:

1. the interests each party held on March 4;

2. Kestrel's later acquisition of the legal estate; and

3. the timing of Kestrel's notice of Sela's prior interest.

15 MARKS

THE BRICKAM EXPLANATION — QUESTION FIVE

1. Priority Analysis Begins by Classifying the Interests

Property priority disputes cannot be resolved by asking only:

“Who acted first?”

The common-law and equitable priority rules depend upon the legal character of the competing interests.

The syllabus identifies four traditional contests:

• prior legal versus subsequent legal;

• prior equitable versus subsequent equitable;

• prior legal versus subsequent equitable; and

• prior equitable versus subsequent legal.

This problem moves through two of those relationships at different stages.

Sela's Interest

2. Sela Holds the Prior Equitable Interest

Torin validly declared himself trustee for Sela.

Torin therefore retained:

• legal title;

while Sela acquired:

• beneficial or equitable ownership.

Her interest arose on January 8.

Kestrel on March 4

3. Kestrel Did Not Immediately Receive the Legal Estate

On March 4, Kestrel entered a specifically enforceable contract for the purchase of Cedaracre.

The contract gives Kestrel an equitable interest associated with its right to obtain the conveyance.

Legal title remains with Torin until closing.

4. The March 4 Contest Is Therefore Equitable Versus Equitable

At that point:

• Sela has an equitable interest dating from January 8;

• Kestrel has a later equitable interest arising from the purchase contract.

The ordinary starting rule between competing equitable interests is:

first in time prevails where the equities are otherwise equal.

Sela is first.

5. Kestrel's Lack of Notice on March 4 Does Not Automatically Reverse That Result

The famous protection afforded to a bona fide purchaser for value without notice concerns a purchaser who obtains the legal estate.

Kestrel had not yet done so.

Its good faith at contract formation is relevant, but it does not automatically cause a later equitable interest to defeat Sela's earlier equitable ownership.

The April 15 Conveyance

6. Acquisition of the Legal Estate Potentially Changes the Priority Analysis

Had Kestrel acquired:

• legal title;

• for value;

• in good faith;

• without notice of Sela's equitable interest,

the doctrine protecting the bona fide purchaser of the legal estate could potentially defeat Sela's prior equitable claim.

This is the critical reason the timing of notice matters.

7. Kestrel Had Actual Notice Before It Acquired Legal Title

Before closing, Kestrel received:

• Sela's express assertion of beneficial ownership; and

• a copy of the trust declaration.

The information reached Kestrel's president on April 3.

Closing did not occur until April 15.

This is far more than constructive or inquiry notice.

It is actual knowledge.

8. Kestrel Cannot Freeze Its Notice Status on March 4

Kestrel argues:

“We were innocent when we signed.”

But the protection sought depends upon acquiring the legal estate without notice.

By the time Kestrel acquired that estate, it knew precisely that Sela claimed prior beneficial ownership.

It therefore cannot satisfy the equitable defence in the ordinary way.

9. Completing the Purchase After Learning of the Trust Makes Kestrel's Position Worse, Not Better

The lawyer's strategy assumes that converting Kestrel's later equitable interest into legal title will erase Sela's interest regardless of notice.

Equity does not operate that mechanically.

The bona fide purchaser doctrine exists to protect an innocent purchaser of the legal estate.

A person who knowingly takes legal title in the face of a prior equitable ownership claim is in a fundamentally different position.

10. Torin's Registered Legal Title Did Give Him the Power to Create the Problem

Sela may reasonably ask how Torin could convey anything if he held the land on trust.

The distinction is between:

• the power associated with holding legal title; and

• the equitable obligations governing how that power may lawfully be exercised.

Torin's breach of trust does not necessarily make every later conveyance void in all circumstances.

That is why priority doctrine asks whether the subsequent purchaser is legally protected.

The Role of Notice

11. Notice Protects Equitable Ownership Against a Non-Innocent Purchaser

Equity's protection of Sela becomes especially strong once Kestrel knows of the trust.

The purchaser can no longer say that it:

• relied innocently on apparent legal ownership;

• paid value without awareness of the prior equity; or

• would be unfairly surprised by enforcement of Sela's interest.

Kestrel deliberately completed with knowledge.

12. Registration Rules Could Produce Different Policy Choices

In an actual land-registration system, legislation could materially alter the result by:

• prioritizing registration;

• conferring indefeasibility;

• or reallocating loss through an assurance fund.

The question expressly removes those statutory rules.

The analysis therefore remains with traditional common-law and equitable priority doctrine.

Overall Advice

13. Sela Has the Stronger Priority Claim

On March 4:

• both claims were equitable;

• Sela's was prior; and

• there is no fact showing that her conduct caused her equity to be postponed.

On April 15:

• Kestrel obtained legal title;

• but it did so with actual knowledge of Sela's prior equitable ownership.

Kestrel therefore cannot rely upon the protection normally available to a bona fide purchaser of the legal estate for value without notice.

Sela's prior equitable interest should prevail.

Brickam’s Suggested Marking Approach — Question Five

Issue	Marks
Correctly classifies Sela's trust interest as prior equitable ownership	3
Correctly characterizes Kestrel's March 4 interest and applies equitable-versus-equitable priority	3
Explains protection of bona fide purchaser of legal estate for value without notice	3
Analyzes significance and timing of Kestrel's actual notice before closing	3
Distinguishes power to convey legal title from equitable priority consequences	2
Reasoned conclusion	1
TOTAL	15

Overall Mark Allocation

Question	Marks
Question One — Equitable Interests, Resulting Trusts and Unjust Enrichment	25
Question Two — Possession, Finders and Bailment	20
Question Three — Boundaries, Airspace and Constructive Taking	20
Question Four — Restrictive and Positive Covenants	20
Question Five — Common-Law and Equitable Priorities	15
TOTAL	100