Instructions Specific to This Exam

1. This examination contains one question worth a total of 100 marks.

2. You will be assessed primarily on your knowledge of the relevant property-law principles, assigned cases and other prescribed materials identified in the syllabus, together with your ability to recognize competing proprietary interests, characterize those interests correctly and determine their legal consequences.

3. No marks are awarded for merely reproducing or summarizing the facts. Your answer should identify the relevant issues, state the governing principles and apply those principles closely to the facts.

4. Do not provide a general essay on property law or mechanically discuss every topic contained in the syllabus. Address only those issues reasonably raised by the facts.

5. Full case citations are not required for authorities contained in the assigned materials. Where relevant, identify the applicable case or doctrine with sufficient precision to demonstrate knowledge of the governing law.

6. You are asked to prepare a memorandum of law. You do not need to spend examination time constructing formal headings such as “To,” “From,” “Date” or “Re.” Marks are awarded for substantive analysis.

7. In addressing ownership of Northreach, distinguish carefully between:

   • legal title;

   • joint tenancy and tenancy in common;

   • the right of survivorship;

   • severance of a joint tenancy;

   • life and future interests; and

   • the rights of persons entitled successively to the same property.

8. For purposes of the question concerning future interests, apply the common-law Rule Against Perpetuities. As directed by the syllabus, do not consider provincial statutory reforms to that rule.

9. In addressing conditions attached to property interests, distinguish among a condition subsequent, a determinable limitation and a condition precedent where relevant, and consider the consequences if a condition is invalid.

10. In addressing the road and land-use rights, distinguish between:

    • an easement;

    • the scope of an easement once validly created;

    • restrictive covenants;

    • positive covenants; and

    • the circumstances in which the benefit or burden of such rights may affect successors in title.

11. In addressing the commercial tenancy, distinguish:

    • a lease from a licence;

    • an assignment from a sublease;

    • privity of contract from privity of estate;

    • restrictions on alienation;

    • remedies following default and termination; and

    • proprietary questions concerning tenant-installed fixtures.

12. Unless expressly indicated otherwise, apply the common-law property principles contained in the assigned syllabus. Do not address residential-tenancy legislation, family-property legislation, taxation, secured-transactions legislation, bankruptcy or environmental regulation.

13. Write a clear and organized answer in complete sentences.

QUESTION

FACTS

Northreach is a 94-acre rural property containing a large stone farmhouse, a former dairy barn, a granary, several agricultural buildings and a private gravel road known as Northreach Lane.

For many years, Northreach was owned in fee simple by Adelaide Norcross.

Adelaide had two adult children, Linnea Norcross and Cormac Norcross.

In 2013, Adelaide transferred title to Northreach from herself alone to:

“Adelaide Norcross and Linnea Norcross as joint tenants.”

Linnea paid nothing for the transfer.

There was no trust agreement or side agreement.

Adelaide told several family members that she had added Linnea to title because:

“If anything happens to me, the farm should pass cleanly to Linnea without estate complications.”

Linnea moved into the farmhouse shortly afterward.

She and Adelaide shared the property and expenses.

Cormac lived elsewhere.

Over the following years, Linnea and Adelaide disagreed increasingly about the long-term future of Northreach.

Adelaide wanted the property preserved largely intact.

Linnea believed portions should eventually be commercially developed.

In April 2021, after obtaining separate legal advice, Adelaide and Linnea signed a document entitled Co-Ownership Agreement.

It stated:

“Adelaide Norcross and Linnea Norcross acknowledge that each holds an equal one-half interest in Northreach. From the date of this Agreement, each may sell, transfer, mortgage, devise or otherwise deal with her respective one-half interest independently. Neither party shall have any right of survivorship in the interest of the other.”

The agreement was signed by both women.

Their lawyer advised that a transfer should also be registered changing the description of their ownership from joint tenancy to tenancy in common.

Neither woman completed the registration.

The land register continued to describe them as joint tenants.

Adelaide executed a new will six months later.

The will provided:

“I give my interest in Northreach to my son, Cormac Norcross, for his life.”

It continued:

“Upon Cormac's death, I give that interest in equal shares to such of Cormac's grandchildren as attain the age of thirty years.”

Cormac was 47 at the date of the will.

He had two children, aged 20 and 18.

Neither had children.

The will then stated:

“If Cormac sells, mortgages, transfers or otherwise disposes of his interest in Northreach to any person who is not a descendant of Adelaide Norcross, the trustees of my estate may terminate Cormac's interest and my interest in Northreach shall thereupon fall into the residue of my estate.”

The residue was left to the North Valley Conservation Foundation.

Adelaide told her solicitor that she included this clause because:

“I want Cormac to enjoy the property, but I do not want strangers buying his interest and forcing Linnea into business with them.”

The solicitor warned Adelaide that restrictions on transferring property could create legal problems.

Adelaide replied:

“Then make it as strong as the law permits.”

Several years earlier, Adelaide and Linnea had sold an 18-acre parcel on the eastern boundary of Northreach to Bellwether Orchards Ltd.

The parcel became known as East Meadow.

Northreach Lane was the only practical existing vehicular route from the public highway to East Meadow.

The transfer to Bellwether contained the following express grant:

“Together with a right of way over Northreach Lane for access to and from East Meadow for the purposes of one residential dwelling and agricultural operations conducted upon East Meadow.”

At the time of the transfer, East Meadow contained:

• a farmhouse;

• an apple orchard;

• a small equipment shed; and

• approximately eight acres of open field.

Ordinary traffic over Northreach Lane consisted of the residents' vehicles, farm machinery and occasional delivery trucks.

The transfer also contained three covenants by Bellwether:

“The Transferee covenants for itself and its successors in title that:

(a) no structure exceeding ten metres in height shall be constructed on East Meadow;

(b) East Meadow shall not be used for any purpose other than agriculture and one private residential dwelling; and

(c) the owner of East Meadow shall maintain Northreach Lane in good repair and shall bear fifty per cent of all reasonable maintenance and resurfacing costs.”

The document stated that covenants (a) and (b):

“are made for the benefit of Northreach and every part thereof and are intended to run with East Meadow.”

No equivalent wording appeared immediately after covenant (c).

Bellwether later sold East Meadow to Morroway Retreats Inc.

Morroway's lawyer obtained and reviewed the earlier transfer before closing.

Morroway therefore knew about the right of way and all three covenants.

Morroway also purchased a separate ten-acre parcel immediately east of East Meadow known as Fox Hollow.

Fox Hollow does not touch Northreach and has no independent right to use Northreach Lane.

Morroway now proposes to redevelop East Meadow and Fox Hollow together as an upscale rural retreat.

Its plans include:

• 22 guest cabins;

• a wedding pavilion;

• a two-storey restaurant;

• a 12-metre observation tower on East Meadow; and

• hiking facilities extending across both East Meadow and Fox Hollow.

The only proposed vehicular entrance to the development is Northreach Lane.

Morroway anticipates approximately 45 to 70 vehicle trips per day during peak periods, including shuttle buses and catering trucks.

It proposes to use Northreach Lane for guests travelling to facilities situated on both East Meadow and Fox Hollow.

Morroway says the road is physically capable of handling the additional traffic after modest widening.

It also offers to pay for the widening.

Linnea objects.

She says the right of way permits access only for the agricultural and residential use contemplated by the original grant.

Morroway responds that East Meadow remains the parcel physically connected to Northreach Lane and that:

“A right of way is a right of access. Property use changes over time.”

Morroway also argues that the restrictions on use should not bind it because it never personally promised Adelaide or Linnea anything.

It accepts that it knew about the covenants when it purchased East Meadow.

Morroway further says that, if the restrictive covenants bind it, Linnea must also be entitled to enforce the road-maintenance covenant and should not be permitted to:

“take the benefit without the burden.”

Meanwhile, Northreach itself became partly commercial.

In June 2022, Adelaide and Linnea leased the former granary to Hearthstone Fermentation Ltd. (“Hearthstone”).

The lease was for ten years.

It granted Hearthstone:

“exclusive possession of the Granary Building and the enclosed service yard shown on Schedule A.”

Hearthstone was required to pay monthly rent and operate a brewery, tasting room and specialty-food business.

Clause 11 stated:

“The Tenant shall not assign this Lease or sublet the whole or any part of the Premises without the prior written consent of the Landlords.”

The lease contained no statement requiring the landlords to act reasonably when deciding whether to consent.

Clause 15 required the tenant:

“to maintain the Premises in good repair, reasonable wear and tear excepted.”

Clause 18 provided:

“If rent remains unpaid for fifteen days after written demand, or if any other material covenant remains unremedied for fifteen days following notice, the Landlords may re-enter and terminate this Lease.”

Hearthstone spent approximately $410,000 converting the granary.

It installed:

• six stainless-steel fermentation tanks bolted to concrete pads;

• a large copper brewing vessel connected to permanent water and gas lines;

• a custom ventilation hood whose ductwork passed through the exterior roof;

• refrigerated display units connected to the electrical system but capable of being unplugged and moved; and

• a large oak tasting bar attached to the floor with eight screws.

The fermentation equipment was installed solely for Hearthstone's brewery operation.

The concrete pads could remain after the tanks were removed.

Removing the copper hood would leave an opening in the roof requiring professional repair.

In August 2024, Hearthstone decided to concentrate on a different facility.

Without asking Adelaide or Linnea for consent, it signed an agreement with Driftwood Ferments Ltd. (“Driftwood”).

The agreement provided:

“Hearthstone transfers to Driftwood all of Hearthstone's right, title and interest in the Northreach lease for the entire unexpired balance of the term.”

It further stated:

“If Driftwood fails to pay Hearthstone the monthly transfer payment required by this agreement for more than thirty days, Hearthstone may terminate this agreement and retake possession of the premises.”

Driftwood immediately took exclusive possession.

Hearthstone retained no right to occupy any part of the granary while Driftwood complied with the agreement.

Driftwood paid the rent required under the Northreach lease directly to Adelaide and Linnea.

When Adelaide and Linnea discovered the transfer, they sent both companies a letter stating:

“We have never consented to the transfer. Any rent accepted from Driftwood will be accepted without prejudice and shall not constitute written consent to an assignment or sublease.”

They nevertheless continued accepting Driftwood's monthly rent.

Driftwood operated the brewery for approximately 18 months.

Adelaide died in February 2026.

Immediately after her death, Linnea claimed that Adelaide's half of Northreach passed automatically to her by survivorship because the registered title continued to describe them as joint tenants.

Cormac relied on the 2021 Co-Ownership Agreement and Adelaide's will.

He moved into a small cottage on Northreach and asserted that he held a life interest in Adelaide's one-half share.

Linnea told him:

“A private agreement never changed the title. Mom died while we were registered as joint tenants, so there is nothing for the will to give you.”

Cormac refused to leave.

He also began taking a much more active role in the property.

Several months later, without Linnea's agreement, Cormac contracted with a timber company to remove approximately 200 mature black-walnut trees growing along the northern edge of Northreach.

The trees had formed part of a shelterbelt for at least 70 years.

They were not part of an operating timber business.

Cormac received approximately $185,000 from the sale.

He says the trees were mature, some were beginning to decline, and thinning them improved the agricultural usability of the surrounding land.

Linnea says the timber company removed virtually the entire stand and materially altered the character of the northern portion of Northreach.

Cormac also renovated the cottage he occupied.

He removed several interior walls, converted the ground floor into an open-plan layout and replaced the original kitchen with a modern one.

The renovation increased the appraised value of the cottage by approximately $130,000.

Linnea says Cormac had no right to:

“tear apart a building somebody else ultimately owns.”

Cormac responds that a life tenant should be permitted to make improvements that increase value.

A separate dispute developed at the granary.

By May 2026, Driftwood was experiencing serious financial problems.

It stopped paying rent.

Linnea and Cormac each took the position that, regardless of their dispute over ownership, they were together entitled to enforce the lease as successors to Adelaide and Linnea's landlord interests.

They jointly served Driftwood and Hearthstone with a written demand for three months of unpaid rent.

No payment was made.

Twenty days later, Linnea and Cormac re-entered the granary and changed the locks.

They sent Hearthstone and Driftwood a letter stating:

“The Northreach lease is terminated because of continuing non-payment of rent.”

Five days later, their lawyer wrote again stating:

“The landlords reserve and intend to pursue all available claims for arrears and for the present value of the loss of the remaining lease bargain.”

Two months later, the granary was re-let to another commercial tenant.

The replacement rent is approximately $3,500 per month lower than the rent required by the Hearthstone lease.

The replacement lease runs for the balance of the original term.

Linnea and Cormac now seek:

• all rent outstanding before termination;

• the reasonable expenses of re-letting; and

• the present value of the difference between the Hearthstone rent and the replacement rent for the remainder of the original term.

Hearthstone says that it transferred the lease to Driftwood in 2024 and therefore ceased to be responsible for rent.

Driftwood says that once Linnea and Cormac terminated the lease and took back possession, they ended any claim to future rent.

Hearthstone also claims ownership of the brewing equipment.

It demands access to remove:

• the fermentation tanks;

• copper brewing vessel;

• ventilation hood;

• refrigerated display units; and

• oak tasting bar.

Linnea says everything except the refrigerators became part of Northreach when installed.

Cormac takes the more moderate position that Hearthstone should be permitted to remove:

“anything that is really equipment rather than part of the building”

provided it repairs any physical damage.

Linnea and Cormac have retained your firm to advise them.

Although they disagree about several matters between themselves, they jointly want advice concerning the legal interests affecting Northreach and East Meadow before either enters further agreements or commences litigation.

QUESTION

The senior partner asks you to prepare a brief but comprehensive memorandum advising Linnea and Cormac on the significant property-law issues arising from the full sequence of events.

Your memorandum should address the ownership consequences of Adelaide's death and the 2021 Co-Ownership Agreement, the interests created by Adelaide's will, Cormac's conduct as a life tenant if his interest is valid, the rights asserted by Morroway over East Meadow and Northreach Lane, the enforceability of the covenants affecting East Meadow, and the parties' rights and liabilities arising from the granary lease and tenant-installed property.

Assess the strongest arguments available to all materially affected parties.

Where the result depends upon the proper characterization of an interest or transaction, explain why that characterization matters.

100 MARKS

THE BRICKAM EXPLANATION

1. The Registered Description as Joint Tenants Does Not End the Ownership Inquiry

Linnea's argument begins with an important fact: the land register continued to identify Adelaide and Linnea as joint tenants when Adelaide died.

A joint tenancy carries the right of survivorship.

If the joint tenancy remained intact until Adelaide's death, her interest would ordinarily be absorbed by Linnea's interest rather than passing through Adelaide's estate.

Adelaide's will could not devise an interest that had already disappeared through survivorship.

The critical question is therefore whether the 2021 Co-Ownership Agreement severed the joint tenancy before Adelaide died.

2. A Joint Tenancy May Be Severed Without a Physical Division of the Land

Severance does not require Northreach itself to be cut into two parcels.

It converts the concurrent ownership relationship from joint tenancy into tenancy in common.

The consequence is crucial:

the right of survivorship disappears.

Each co-owner then owns a distinct undivided share capable of passing by will or intestacy.

The starting point traditionally associated with Williams v. Hensman, and reflected in the assigned Canadian authorities including Hansen Estate v. Hansen and Jansen v. Niels Estate, recognizes several means by which severance may occur, including:

• a unilateral act operating on a joint tenant's own share;

• mutual agreement; and

• a course of dealing showing that the interests were mutually treated as separate.

The 2021 agreement fits the second category particularly strongly.

3. The Co-Ownership Agreement Expressly Rejects Survivorship

The agreement does not merely use ambiguous language about financial contributions.

It says:

“each holds an equal one-half interest”

and, more importantly:

“Neither party shall have any right of survivorship in the interest of the other.”

That language is difficult to reconcile with the continued existence of a joint tenancy.

The defining feature of a joint tenancy is the right of survivorship.

An express agreement between both joint tenants eliminating that feature strongly demonstrates an intention to sever.

The additional provision allowing each woman independently to:

• sell;

• transfer;

• mortgage;

• devise; or

• otherwise deal with

her half reinforces the same conclusion.

4. Failure to Change the Registered Description Does Not Necessarily Preserve Survivorship Between Adelaide and Linnea

Linnea's strongest response is that their lawyer expressly advised them to register a transfer changing the form of title and they failed to do so.

She can argue that the parties therefore contemplated a further legal step before their ownership would change.

That argument has some force.

But the written agreement itself states that the new arrangement operates:

“From the date of this Agreement.”

It does not say:

“when a transfer is registered.”

The better interpretation is that the parties intended the agreement itself to alter their beneficial relationship immediately, even though the register was never updated.

At minimum, equity would treat the joint tenancy as severed between them if the agreement satisfies the governing requirements.

Linnea should therefore not assume that the register alone resurrects a right of survivorship the parties had expressly agreed to eliminate.

5. Adelaide's One-Half Interest Likely Passed Under Her Will

The better conclusion is that the joint tenancy was severed in 2021.

Adelaide and Linnea therefore held Northreach as tenants in common in equal undivided shares.

Adelaide's one-half share survived her death and formed part of her estate.

Her will can therefore operate on that share.

Linnea continues to own her one-half interest in fee simple.

Cormac's rights depend upon the construction and validity of Adelaide's testamentary dispositions.

Cormac's Life Estate and the Future Interest

6. The Gift to Cormac Creates a Life Estate

Adelaide's will gives:

“my interest in Northreach to my son, Cormac Norcross, for his life.”

That is classic language creating a life estate.

Cormac does not receive Adelaide's fee simple.

His interest lasts for the duration of his life.

Someone else must ultimately hold the future interest that becomes possessory when the life estate ends.

The will attempts to give that future interest to certain grandchildren.

7. Cormac's Life Estate Is in Adelaide's Undivided One-Half Share

The will does not give Cormac exclusive ownership of a physical half of Northreach.

Adelaide owned an undivided one-half interest as tenant in common with Linnea.

That is the interest she could devise.

Cormac therefore becomes the life tenant of that undivided half.

Linnea continues to hold the other undivided half in fee simple.

The practical result is that Linnea and Cormac possess concurrent interests in the land, although Cormac's interest is temporally limited.

Neither can treat the other as though the other's interest exists merely “on paper.”

8. The Gift to Cormac's Grandchildren Is Contingent

The remainder is given:

“to such of Cormac's grandchildren as attain the age of thirty years.”

No grandchild existed when Adelaide died.

Even once a grandchild is born, that person will not satisfy the gift unless the grandchild reaches 30.

The interest is therefore contingent rather than vested immediately.

That brings the Rule Against Perpetuities directly into play.

9. The Common-Law Rule Asks Whether Vesting Might Occur Too Remotely

For this examination, the syllabus requires the common-law rule rather than any statutory reform.

The traditional formulation asks whether there is any possibility that the contingent interest might vest outside:

a life or lives in being plus 21 years.

If such a possibility exists at the time the interest is created, the future interest is void.

The rule does not ask whether remote vesting is probable.

A theoretical possibility is enough.

10. The Age-30 Gift Is Vulnerable Under the Rule Against Perpetuities

Cormac is alive when Adelaide dies.

His existing children are also alive.

But Cormac could potentially have another child after Adelaide's death.

That child could later have a child of their own.

Alternatively, a grandchild could be born shortly before or after relevant measuring lives end and not attain age 30 until more than 21 years later.

The requirement that the beneficiary reach 30 is particularly problematic because the contingency can remain unresolved beyond the permissible period.

The class of beneficiaries is therefore not guaranteed to vest, if at all, within the common-law perpetuity period.

The gift to Cormac's grandchildren is consequently vulnerable to being void for remoteness.

11. The Court Cannot Simply Reduce “Thirty” to “Twenty-One”

Under the common-law rule required for the examination, the court does not ordinarily cure the problem merely because a lower age would have produced a valid gift.

The syllabus expressly directs candidates to disregard modern statutory reforms.

Accordingly, doctrines such as statutory wait-and-see or age reduction should not be imported into the answer.

The issue must be resolved under the common-law rule.

12. If the Remainder Is Void, Adelaide Retains a Reversionary Interest

Cormac's life estate itself is not necessarily invalid merely because the subsequent remainder fails.

If the attempted remainder to the grandchildren is void, the fee simple not effectively disposed of after Cormac's life estate remains with Adelaide's estate as a reversionary interest.

Because Adelaide left her residue to the North Valley Conservation Foundation, the reversion would ordinarily fall into that residue.

The likely structure is therefore:

• Linnea: fee-simple interest in her undivided half;

• Cormac: life estate in Adelaide's former undivided half; and

• North Valley Conservation Foundation: future interest in that half following Cormac's death, assuming the gift to the grandchildren fails.

The Restriction on Cormac's Ability to Transfer

13. The Alienation Clause Is a Condition Subsequent

The will does not say that Cormac's life estate lasts:

“only while he never transfers it.”

Instead, it gives him the life estate and then provides that the trustees:

“may terminate”

the interest if he transfers it outside the family.

The trustees must take action after the triggering event.

That language is more naturally characterized as a condition subsequent than as a determinable limitation operating automatically.

Characterization matters because the consequences of invalidity differ depending upon the type of limitation.

14. The Clause Restrains Alienation

The clause attempts to prevent Cormac from:

• selling;

• mortgaging;

• transferring; or

• otherwise disposing of

his property interest to persons outside Adelaide's descendants.

It therefore restricts one of the ordinary incidents of property ownership: alienability.

The syllabus expressly identifies restraints on alienation, including Blackburn v. McCallum, as a basis upon which a condition may be invalid.

15. Adelaide's Purpose Does Not Automatically Save the Restraint

Adelaide's concern is understandable.

She wanted to protect Linnea from being forced into co-ownership with outsiders.

A court may regard that purpose as commercially or personally rational.

But property law is reluctant to permit an owner to confer an estate while simultaneously imposing an excessive continuing restriction on the recipient's ability to deal with it.

The policy favouring free alienability is independent of whether the testator had benevolent motives.

16. The Partial Nature of the Restriction Gives the Foundation an Argument

This is not a literal prohibition on every transfer.

Cormac may transfer his interest to a descendant of Adelaide.

The Foundation can therefore argue that the condition merely limits the permissible class of transferees rather than making the interest wholly inalienable.

That makes the issue more difficult than an absolute prohibition.

The strength of Cormac's challenge will depend upon whether the restriction is nevertheless sufficiently broad and enduring to constitute an invalid restraint.

Given that it prohibits sale and mortgage to almost everyone in the market for Cormac's entire lifetime, there is a strong argument that it is excessive.

17. If the Condition Subsequent Is Invalid, the Better Result Is to Sever the Condition Rather Than the Life Estate

Because Cormac was first given an identifiable life estate and the transfer restriction operates as a subsequent defeasance provision, invalidity of the restraint should ordinarily attack the offending condition rather than destroy the underlying estate.

Accordingly, Cormac's life estate would continue free from the invalid condition.

That is one reason why distinguishing a condition subsequent from a determinable limitation matters.

Cormac's Obligations as Life Tenant

18. A Life Tenant Cannot Treat the Property as Though He Owned the Fee Simple

Cormac has present possession, but his interest is temporary.

Property law therefore balances:

• his legitimate right to use and enjoy the land during his life; and

• the interest of the person entitled after him in preserving the substance of the property.

The doctrine of waste performs much of that work.

19. The Walnut Harvest Creates a Strong Waste Claim

The 200 black-walnut trees had existed for approximately 70 years.

They were not part of an established commercial timber operation.

Cormac arranged for virtually the whole stand to be cut and personally received $185,000.

Those facts substantially favour Linnea and the future-interest holder.

Ordinary agricultural maintenance or selective thinning is one thing.

Converting a long-standing part of the inheritance into cash for the life tenant is another.

The removal materially altered the character of the land and depleted a potentially valuable capital asset.

That is a strong example of conduct capable of constituting voluntary waste.

20. Cormac's “Agricultural Improvement” Argument Is Not Frivolous

Cormac says some trees were declining and that the clearing improved neighbouring agricultural land.

If the evidence established genuine forestry management or necessary clearing associated with ordinary use of the land, the analysis could be different.

A life tenant is not required to preserve every tree and structure exactly as it existed on the first day of the life estate.

The problem is scale.

Removing almost the entire 70-year-old shelterbelt and converting it into $185,000 personally received by Cormac looks much more like exploitation of capital than routine husbandry.

Linnea and the Foundation would therefore have a substantial claim for an accounting or other appropriate relief.

21. The Cottage Renovation Is More Difficult

Cormac removed interior walls and substantially modernized the cottage.

But the work increased its value by approximately $130,000.

This resembles ameliorating waste rather than destructive waste.

The traditional law can still object to a life tenant radically changing the character of property even where market value rises.

Property interests protect more than immediate resale value.

At the same time, courts are generally less concerned about improvements that:

• do not reduce value;

• do not damage the inheritance; and

• make the property more useful.

Linnea's claim regarding the cottage is therefore materially weaker than her claim concerning the walnut trees.

22. Cormac's Rights Must Also Be Understood in the Context of Co-Ownership

Cormac is not the sole present owner of Northreach.

Linnea owns the other undivided half in fee simple.

His life estate does not authorize him to deal unilaterally with the entire property in a manner prejudicing Linnea's possessory rights.

Likewise, Linnea cannot simply exclude Cormac from Northreach because her estate lasts longer.

Each has possessory rights associated with the concurrent ownership structure.

The law generally does not undertake to micromanage ordinary relations between co-owners, but significant interference can lead to:

• accounting;

• injunctive relief;

• or ultimately proceedings concerning partition or sale where available.

Morroway's Right of Way

23. The Express Right of Way Is a Valid Easement

The original grant identifies:

• a dominant tenement: East Meadow;

• a servient tenement: Northreach;

• separate ownership of those parcels; and

• a conventional right of vehicular passage capable of forming the subject matter of a grant.

The right of way plainly accommodates East Meadow by giving it practical road access.

There is therefore little difficulty establishing that the original right is an easement rather than merely a personal licence.

It can pass with East Meadow to a successor in title.

24. Morroway Acquires the Easement, but Only Within Its Proper Scope

Acquiring an easement does not give Morroway an unrestricted entitlement to use Northreach Lane for any purpose whatsoever.

The scope of an express easement begins with the language of the grant.

Here the grant is unusually specific.

It authorizes access:

“for the purposes of one residential dwelling and agricultural operations conducted upon East Meadow.”

That wording significantly strengthens Linnea and Cormac.

25. The Proposed Retreat Use Is Qualitatively Different

Bellwether's use involved:

• one farmhouse;

• orchard operations;

• farm equipment; and

• occasional deliveries.

Morroway proposes:

• 22 guest cabins;

• a wedding pavilion;

• a restaurant;

• shuttle buses;

• catering vehicles; and

• up to 70 vehicle trips per day.

This is not merely the same agricultural or residential use occurring more frequently.

It is a fundamentally different commercial hospitality operation.

Authorities dealing with the scope of easements, including Laurie v. Winch and Malden Farms Ltd. v. Nicholson, require attention to the proper construction of the grant and the permissible use of the servient land.

The express wording gives Morroway a weak case for using the lane to service the retreat in its proposed form.

26. Physical Capacity of the Road Does Not Determine Legal Scope

Morroway emphasizes that the lane can be widened and can physically support the traffic.

That does not answer the property question.

An easement's scope is determined by the legal right created, not merely by engineering capacity.

Likewise, Morroway's willingness to pay for improvements cannot convert a limited easement into a broader one without agreement from the servient owners.

27. Use of the Easement for Fox Hollow Creates an Independent Problem

Fox Hollow is not part of the dominant tenement.

It was acquired separately.

It has no easement over Northreach.

The principle traditionally associated with Harris v. Flower prevents an easement appurtenant to one parcel from simply being used to confer access upon additional land that does not benefit from the grant.

Morroway's proposed development operates across both East Meadow and Fox Hollow.

Guests entering Northreach Lane would therefore be using the easement partly to access and enjoy land outside the dominant tenement.

That gives Linnea and Cormac an additional and powerful objection even if some expanded use of East Meadow itself would otherwise be permissible.

28. The Most Likely Result Is an Injunction Against the Proposed Excess Use

Morroway remains entitled to exercise the easement for the purposes granted.

Linnea and Cormac cannot extinguish legitimate agricultural or residential access simply because relations have deteriorated.

But they have a strong basis to prevent use of the lane:

• for the commercial retreat;

• at the proposed intensity where inconsistent with the grant; and

• for access benefiting Fox Hollow.

The remedy should target the excessive use rather than extinguish the easement altogether.

The Restrictive Covenants

29. Covenants (a) and (b) Are Negative in Substance

A restrictive covenant capable of binding successors in equity must, among other requirements, be negative in substance.

Covenant (a) prevents construction above ten metres.

Covenant (b) prevents non-agricultural uses other than one residence.

Both tell the owner essentially:

“do not do something on your land.”

They do not require the expenditure of money or affirmative performance.

They therefore satisfy the negative-character requirement associated with Tulk v. Moxhay.

30. The Covenants Were Made for the Benefit of Identifiable Land

The transfer expressly states that the restrictions are:

“for the benefit of Northreach and every part thereof.”

That is important.

A restrictive covenant cannot simply exist in gross as a personal regulatory power held by Adelaide.

The benefit must attach to land.

Northreach is identifiable retained land capable of benefiting from restrictions controlling the intensity and physical character of neighbouring development.

That requirement is therefore strongly satisfied.

31. The Parties Expressly Intended the Restrictive Burden to Run

The deed says the covenants are:

“intended to run with East Meadow.”

Although contractual drafting cannot by itself overcome every doctrinal requirement, the clause provides strong evidence of the necessary intention.

Morroway also had actual notice.

Its lawyer reviewed the transfer before closing.

There is therefore no credible argument that Morroway innocently acquired the property without knowledge of the equitable restrictions.

32. Covenants (a) and (b) Likely Bind Morroway

The major traditional requirements are present:

• a negative covenant;

• land retained by the covenantee capable of benefiting;

• intention that the burden continue; and

• notice to the successor.

Linnea, as an owner of Northreach, has a strong basis to enforce the benefit if it was properly annexed to Northreach.

Cormac's ability to enforce follows from his current proprietary interest in the benefited land, subject to the exact manner in which the benefit passed.

The express statement that the restrictions benefit Northreach and every part thereof materially strengthens the annexation argument.

33. The 12-Metre Tower Plainly Breaches Covenant (a)

The covenant prohibits structures exceeding ten metres.

Morroway proposes a 12-metre tower.

There is no interpretive ambiguity on the supplied facts.

If the covenant runs, the tower is prohibited.

34. The Rural Retreat Also Conflicts With Covenant (b)

The covenant permits:

• agriculture; and

• one private residential dwelling.

A 22-cabin commercial retreat with a wedding pavilion and restaurant falls outside that language.

Morroway's proposed use therefore conflicts directly with the restriction.

The Road-Maintenance Covenant

35. Covenant (c) Is Positive, Not Restrictive

The maintenance promise requires East Meadow's owner to:

• maintain the lane; and

• pay 50% of repair and resurfacing costs.

Compliance requires expenditure and affirmative action.

It is therefore a positive covenant.

That distinction is decisive.

36. The Burden of a Positive Freehold Covenant Does Not Ordinarily Run With the Land in Canada

The syllabus specifically emphasizes that Canadian courts have resisted enforcing positive freehold covenants against successors in title.

Durham Condominium Corporation No. 123 v. Amberwood Investments Ltd. is central to this principle.

Morroway did not itself covenant with Adelaide or Linnea.

Its knowledge of the old promise does not, by itself, make the affirmative burden run.

Accordingly, Linnea cannot simply demand payment from Morroway on the ground that:

“Morroway knew about the covenant when it bought.”

Notice is sufficient for some equitable restrictive covenants.

It does not transform a positive covenant into one whose burden runs.

37. “Benefit and Burden” Does Not Automatically Rescue the Payment Obligation

Morroway argues the reverse:

if Linnea enforces the restrictions, she should also obtain maintenance contributions.

That mixes distinct doctrines.

The fact that different promises appear in the same instrument does not mean that all burdens have the same proprietary effect.

Canadian law's reluctance to let positive obligations run cannot be bypassed merely by describing the arrangement as fair.

There may be transactional techniques capable of connecting payment obligations to the enjoyment of a proprietary benefit.

But the facts describe covenant (c) as a separate affirmative promise rather than an express condition governing continued exercise of the easement.

The better conclusion is that the positive maintenance burden does not bind Morroway merely by succession to East Meadow.

The Granary Arrangement

38. The Original Granary Agreement Is Clearly a Lease

Hearthstone received:

“exclusive possession”

of defined premises for a ten-year term in exchange for rent.

Those are classic features of a leasehold estate.

The transaction is not merely a contractual licence permitting Hearthstone to enter Northreach for a limited activity.

The distinction matters because a lease creates a proprietary estate capable of:

• assignment;

• sublease;

• privity of estate; and

• proprietary consequences upon transfer.

39. The Transfer to Driftwood Is an Assignment, Not a Sublease

The basic distinction depends upon what portion of Hearthstone's estate was transferred.

Hearthstone transferred:

“all of Hearthstone's right, title and interest”

for the:

“entire unexpired balance of the term.”

It retained no slice of the leasehold term for itself.

That strongly indicates an assignment.

A sublease ordinarily requires the tenant to retain some reversionary interest in the original term.

40. Hearthstone's Right to Retake Possession Does Not Necessarily Create a Reversion

Hearthstone reserved a contractual right to terminate its agreement with Driftwood if Driftwood failed to make the separate transfer payment.

That is not the same thing as retaining a portion of the original leasehold term.

A right of re-entry or contractual termination does not necessarily create the reversionary estate required to characterize the transaction as a sublease.

Substance prevails over the label.

The better characterization is therefore an assignment.

41. The Assignment Breached Clause 11

The lease says Hearthstone:

“shall not assign this Lease or sublet”

without prior written consent.

No consent was sought.

No written consent was given.

The transfer therefore breached the alienation covenant regardless of whether it is characterized as an assignment or sublease.

42. The Landlords Were Not Required at Common Law to Act Reasonably

The syllabus expressly directs attention to the default common-law position concerning restrictions on leasehold alienation.

A tenant normally possesses a right to assign unless the lease restricts it.

But once the tenant accepts a clause requiring landlord consent, the consequences depend upon its wording.

Clause 11 does not state that consent:

“shall not be unreasonably withheld.”

Accordingly, absent an applicable statutory modification excluded from this examination, the landlords could withhold consent arbitrarily.

The principles illustrated by Sundance Investment Corporation Ltd. v. Richfield Properties Ltd. are directly relevant.

43. Acceptance of Rent Does Not Necessarily Amount to Consent on These Facts

Adelaide and Linnea accepted rent directly from Driftwood after learning of the assignment.

That could ordinarily create arguments concerning waiver or acceptance of the new tenant.

But they contemporaneously stated in writing that:

• they did not consent; and

• acceptance of rent was without prejudice.

That fact materially weakens any argument that their conduct should be treated as written consent to the prohibited transfer.

Privity Following the Assignment

44. Driftwood Became the Tenant in Privity of Estate

Because Driftwood received the entire remaining leasehold estate, it entered into privity of estate with the landlords.

Covenants sufficiently connected with the land may therefore run between the owner of the reversion and the assignee.

The obligation to pay rent and ordinary repair obligations are paradigmatic lease covenants capable of operating in this proprietary relationship.

The rule traditionally associated with Spencer's Case, and addressed in the assigned Canadian lease materials, is relevant.

45. Hearthstone Was Not Automatically Released

Hearthstone's argument that assignment ended all of its obligations is incorrect.

Assignment transfers the leasehold estate.

It does not automatically extinguish the original contractual relationship between Hearthstone and the landlords.

Hearthstone remains in privity of contract under the lease unless the landlords entered into a novation or otherwise released it.

Nothing in the facts suggests such a release.

The landlords may therefore possess contractual claims against Hearthstone even after Driftwood became responsible through privity of estate.

46. Driftwood's Liability Through Privity of Estate Lasted While It Held the Leasehold Estate

While Driftwood held the lease, it was directly subject to rent and other covenants running with the land.

Its three-month failure to pay rent therefore gave the landlords a direct basis for enforcement.

Its financial difficulties do not alter the proprietary relationship.

Termination and Highway Properties

47. Non-Payment Triggered the Contractual Right of Re-Entry

Clause 18 permits re-entry where rent remains unpaid for fifteen days after written demand.

Linnea and Cormac served the demand.

No payment was made.

They waited 20 days.

The contractual condition for exercising the right of re-entry was therefore satisfied on the supplied facts.

48. Commercial Landlords Have More Than One Possible Response to Abandonment or Fundamental Default

The leading Canadian authority is Highway Properties Ltd. v. Kelly, Douglas and Co.

The traditional common-law responses to tenant default were expanded to recognize that a commercial landlord may, in appropriate circumstances, terminate the lease while still claiming damages representing the loss of the bargain.

That is important because Driftwood's argument assumes:

“Termination necessarily eliminates every claim concerning the unexpired term.”

That is no longer an adequate statement of Canadian commercial lease law.

49. The Landlords Clearly Terminated the Lease

Linnea and Cormac:

• re-entered;

• changed the locks; and

• expressly told the tenants that the lease was terminated.

They therefore elected not merely to leave the lease alive and sue periodically for rent.

Future sums are consequently not recoverable simply as rent becoming due under a continuing lease.

Any claim concerning the remaining term must instead be characterized as damages for loss of the lease bargain.

50. The Five-Day Notice Strongly Supports the Prospective-Damages Claim

After re-entry, the landlords' lawyer gave notice five days later that they intended to claim:

“the present value of the loss of the remaining lease bargain.”

That is significant under Highway Properties.

The tenant must receive timely notice that the landlord intends to claim damages for the loss of the remaining contractual benefit rather than treating termination as a complete end to the parties' financial relationship.

Five days is likely within a reasonable period.

The landlords therefore have a substantial basis for pursuing prospective damages.

51. Re-Letting Is Relevant to Mitigation and Quantum

The landlords found a replacement commercial tenant two months later.

The replacement rent is $3,500 per month lower.

The re-letting significantly reduces the loss.

The landlords cannot recover as though the granary remained empty for the entire original term.

Their prospective claim would instead focus on matters such as:

• the rent differential;

• the reasonable vacancy period;

• reasonable re-letting costs; and

• proper present-value treatment.

The fact that they successfully mitigated does not eliminate the claim.

It defines it.

52. Hearthstone May Remain Liable for the Loss-of-Bargain Claim

Hearthstone remains an original contracting party.

Its assignment did not release it from the lease covenants.

The landlords therefore have a substantial argument that Hearthstone remains contractually liable for damages flowing from the breach and termination.

Hearthstone may have contractual claims against Driftwood under their separate assignment agreement, but those do not necessarily defeat the landlords' rights under the original lease.

53. Driftwood's Liability Requires More Care

Driftwood was in privity of estate while it held the assigned lease.

It was therefore liable for rent and running covenants during that period.

Once the lease was terminated, privity of estate ended.

Whether and to what extent prospective contractual damages can be claimed directly against Driftwood depends upon the contractual obligations it personally assumed rather than merely its status as assignee.

The facts provide a stronger continuing claim against Hearthstone under privity of contract than against Driftwood for the entire lost future bargain.

A careful answer should distinguish those bases rather than assuming every tenant-related defendant has identical liability.

Tenant-Installed Property

54. The Correct Starting Point Is the Law of Fixtures

The fact that Hearthstone paid for an item does not determine whether the item remains personal property.

A chattel may become part of the realty through annexation.

The traditional fixture analysis considers:

• the degree of annexation; and

• the object or purpose of annexation.

The purpose for which the item was attached is particularly significant.

The assigned fixture authorities, including La Salle Recreations Ltd. v. Canadian Camdex Investments Ltd., inform the analysis.

55. The Refrigerated Display Units Are Likely Chattels

The refrigerators are connected to the electrical system but can be:

• unplugged; and

• moved.

There is little physical annexation.

Their attachment appears functional rather than intended to make them a permanent part of the building.

They likely remain personal property and can be removed.

56. The Oak Bar Is Also Likely Removable

The tasting bar is held to the floor by eight screws.

That degree of attachment is modest.

The apparent purpose is to stabilize a piece of brewery furniture rather than permanently improve the freehold.

It therefore has a strong claim to remain a chattel.

Alternatively, if technically characterized as a fixture, it is a strong example of a tenant's trade fixture removable in connection with the tenant's business.

57. The Fermentation Tanks Are More Strongly Annexed but Were Installed for Trade

The fermentation tanks are bolted to concrete pads.

That creates meaningful physical annexation.

But they were installed exclusively to operate Hearthstone's brewery.

Their purpose was not primarily to improve Northreach generally.

They are specialized commercial machinery.

Even if they became fixtures through annexation, the doctrine protecting tenant's trade fixtures strongly favours a right of removal, subject to:

• timing;

• restoration of damage; and

• the terms of the lease.

The fact that the concrete pads can remain after removal strengthens Hearthstone's case.

58. The Copper Brewing Vessel Is Similar, Although Utility Connections Increase Annexation

The copper vessel is connected permanently to water and gas.

That creates a closer case.

Again, however, the object of installation was plainly the tenant's brewing trade.

A new occupant not operating a brewery might have little use for it.

That commercial purpose strongly supports treatment as a tenant's trade fixture capable of removal if the premises can be restored.

59. The Ventilation Hood Is the Hardest Fixture

The custom hood is integrated with ductwork passing through the building's roof.

Removing it will leave a physical opening requiring professional repair.

Both:

• degree of annexation; and

• effect of removal

therefore favour the landlord more strongly.

Hearthstone can still argue that the hood was installed solely to enable its brewery and is therefore a trade fixture.

Linnea can answer that the physical integration is sufficiently substantial that it has become part of the structure.

This item presents a genuine characterization issue.

60. Trade-Fixture Status Does Not Give the Tenant a Permanent Right to Return Whenever It Wishes

Even where commercial fixtures are removable, the right must be exercised within the legally permitted period.

Termination of the lease matters.

A tenant ordinarily should remove trade fixtures before the lease expires or within any legally permitted reasonable period associated with termination, depending upon the governing circumstances.

A former tenant cannot leave equipment indefinitely and later demand access after the landlord has substantially altered or re-let the premises.

61. Hearthstone Acted Promptly Enough to Have a Strong Removal Argument

The facts indicate that Hearthstone is demanding access in the immediate aftermath of the termination dispute.

There is no suggestion that:

• years have passed;

• the new tenant has irreversibly incorporated the equipment; or

• Hearthstone expressly abandoned the goods.

That improves its position.

Any removal should be conditioned upon making good physical damage, particularly:

• gas and water connections;

• floor anchoring; and

• roof penetrations.

The Interaction of the Various Interests

62. Linnea Cannot Rely on Survivorship While Simultaneously Relying on the 2021 Agreement's Other Benefits

The 2021 agreement was designed to convert the parties' relationship into separate half interests capable of independent disposition.

It expressly eliminated survivorship.

Linnea's present attempt to rely exclusively on the unamended register is therefore inconsistent with the substance of the arrangement she signed.

Her strongest legal position is not to deny Cormac's life estate altogether.

It is to insist that Cormac respect the limits attaching to that life estate and to their concurrent ownership.

63. Cormac Should Not Overstate His Position Either

Cormac's life estate gives him significant present rights.

It does not give him:

• Linnea's fee-simple half;

• an unrestricted right to exploit the capital of Northreach;

• a right to rewrite easements;

• or sole control over the commercial lease.

His rights are bounded both temporally and by Linnea's concurrent ownership.

64. The Conservation Foundation Has a Genuine Present Legal Interest in the Disputes

If the age-30 remainder is void under the Rule Against Perpetuities, the Foundation is not merely a charitable observer.

As residuary beneficiary, it likely holds the future interest following Cormac's life estate.

That gives it a strong concern with:

• waste;

• depletion of timber;

• permanent alteration; and

• preservation of the inheritance.

Linnea may therefore not be the only person entitled to challenge Cormac's conduct.

65. Morroway's Notice Matters for the Restrictive Covenants but Not in the Way It Suggests

Morroway argues:

“We never personally signed the covenant.”

That misunderstands the equitable operation of restrictive covenants.

The very point of the doctrine is that certain negative obligations can affect successors even without a new personal covenant.

Conversely, Morroway's knowledge of the positive maintenance covenant does not make its burden run.

The same fact—notice—has different consequences depending upon the proprietary interest involved.

That distinction is central to the servitude analysis.

66. Morroway's Easement and Covenant Rights Must Also Be Kept Separate

The express right of way gives Morroway a proprietary right of access within its proper scope.

The restrictive covenants impose separate limitations on what may be done with East Meadow.

A conclusion that Morroway possesses an easement does not mean it can build the retreat.

Likewise, enforcement of the restrictive covenants does not extinguish its valid agricultural and residential access rights.

Each property interest must be analyzed on its own terms.

67. Hearthstone's Breach of the Alienation Covenant Does Not Make Every Later Transaction Legally Nonexistent

The transfer to Driftwood was prohibited.

But an assignment made in breach of a lease covenant is not necessarily conceptually the same thing as no transfer having occurred.

Driftwood in fact received possession of the entire leasehold estate and entered into privity of estate with the landlords.

The unauthorized nature of the transaction gives the landlords remedies for breach.

It does not require pretending that the assignment never happened for every other legal purpose.

68. The Same Discipline Applies to the Fixtures

Calling the items:

“Hearthstone's equipment”

does not answer whether they are personal property.

Calling them:

“attached to the building”

does not automatically make them irretrievable parts of the realty.

The correct analysis moves through:

1. chattel or fixture;

2. if fixture, whether it is a tenant's fixture;

3. whether the removal right survives in the circumstances; and

4. what restoration obligations accompany removal.

Overall Advice

69. The Joint Tenancy Was Likely Severed Before Adelaide's Death

The 2021 agreement is unusually clear.

Adelaide and Linnea expressly agreed:

• that each had a separate half;

• that each could independently dispose of that half; and

• that survivorship would no longer apply.

That is powerful evidence of severance by agreement.

The continued registered description does not, between the parties, outweigh the direct agreement they signed.

Adelaide therefore likely possessed a devisable one-half interest when she died.

70. Cormac Likely Has a Life Estate, but the Grandchildren's Future Gift Is Vulnerable

Cormac receives a straightforward life estate.

The gift following it is contingent upon grandchildren attaining 30.

Under the common-law Rule Against Perpetuities required by the syllabus, that future gift is vulnerable because vesting is not certain to occur within the permissible period.

If it fails, Adelaide's reversionary interest falls into the residue, likely benefiting the North Valley Conservation Foundation.

71. The Restriction on Cormac's Alienation Is Also Vulnerable

The clause operates as a condition subsequent giving the trustees authority to terminate Cormac's estate if he transfers outside Adelaide's descendants.

Although it is not an absolute restraint, it severely restricts the market for Cormac's interest throughout his life.

Cormac has a substantial argument that the condition is an invalid restraint on alienation.

If so, the preferable consequence is likely to strike the condition while leaving his life estate intact.

72. The Timber Cutting Is Cormac's Most Serious Conduct Problem

The cottage renovation improved value and presents a more contestable waste issue.

The wholesale removal of the mature walnut stand is different.

It converted a long-standing component of the inheritance into personal cash and substantially altered the land.

Linnea and the future-interest holder have a strong waste and accounting argument.

73. Morroway Cannot Transform the Existing Easement Into General Commercial Access

The easement remains valid.

Its wording, however, limits it to:

• one residence; and

• agricultural operations on East Meadow.

The rural-retreat use differs both in character and intensity.

Use for Fox Hollow is independently problematic because Fox Hollow is not dominant land.

Linnea and Cormac have a strong basis to prevent the proposed use while continuing to respect legitimate access within the original grant.

74. The Restrictive Covenants Likely Bind Morroway; the Positive Covenant Likely Does Not

The height and use restrictions are:

• negative;

• intended to benefit Northreach;

• intended to run; and

• known to Morroway.

They therefore have strong prospects of equitable enforcement.

The road-maintenance obligation is positive.

Canadian property law does not ordinarily permit that burden to run merely because the successor had notice.

The promises should not be treated as though they all have identical proprietary consequences.

75. Driftwood Took an Assignment in Breach of the Lease

Hearthstone transferred the entire remaining term.

The separate contractual right to retake the premises on Driftwood's default does not create the reversion needed for a sublease.

The transaction is therefore properly characterized as an assignment.

It breached the consent clause.

Driftwood nevertheless entered into privity of estate, while Hearthstone remained liable under the original contractual relationship.

76. Termination Does Not Necessarily Destroy the Landlords' Claim for the Remaining Lease Bargain

Linnea and Cormac properly exercised the contractual re-entry mechanism after continued rent default.

Their re-entry terminated the lease.

But their prompt notice that they intended to claim the present value of the lost bargain engages the Highway Properties approach.

The successful re-letting reduces the loss but does not necessarily eliminate it.

Hearthstone remains the stronger defendant for the prospective contractual claim because its original contractual obligations survived the assignment.

77. Hearthstone Likely Retains Removal Rights Over Much of the Brewery Equipment

The refrigerators and tasting bar are strong chattel or removable-fixture cases.

The tanks and brewing vessel are more securely annexed but have strong status as trade fixtures.

The ventilation hood is the most difficult because of its integration into the roof.

Hearthstone should be permitted to remove items that remain chattels or removable trade fixtures, provided it acts promptly and repairs resulting damage.

78. The Central Property-Law Theme Is Characterization

Almost every major dispute changes depending upon correct characterization:

• joint tenancy or tenancy in common;

• vested or contingent future interest;

• valid or invalid condition;

• life-tenant use or waste;

• permitted easement use or excessive use;

• restrictive or positive covenant;

• assignment or sublease;

• privity of contract or privity of estate;

• chattel, fixture or tenant's fixture.

The facts cannot be resolved simply by asking who appears on title or who paid for an item.

Property law determines what kind of interest each person has, and the consequences follow from that characterization.

Brickam’s Suggested Marking Approach

Issue	What a strong answer should address	Marks
Joint tenancy, severance and survivorship	Nature of joint tenancy; significance of survivorship; methods of severance; 2021 Co-Ownership Agreement; express rejection of survivorship; effect of independent disposition language; significance but non-conclusiveness of failure to update registration; Hansen Estate, Jansen / Williams v. Hensman principles; likely severance before Adelaide's death	12
Cormac's life estate and concurrent ownership	Adelaide's devisable one-half interest; creation of life estate; distinction between physical half and undivided share; relationship between Cormac's temporal interest and Linnea's fee-simple half; present possessory consequences	5
Contingent remainder and Rule Against Perpetuities	Grandchildren gift as contingent; age-30 condition; common-law perpetuity period; possibility of remote vesting; why statutory reforms are ignored; effect of invalid remainder; reversion/residue and Conservation Foundation	12
Condition restricting alienation	Proper characterization as condition subsequent; restriction on sale/mortgage/transfer; policy favouring alienability; partial versus total restraint; Blackburn v. McCallum principles; effect of invalidity on Cormac's underlying life estate	7
Life tenant and waste	Duties of life tenant; preservation of capital; walnut removal as potential voluntary waste; Cormac's agricultural argument; personal receipt of timber proceeds; cottage renovation and ameliorating waste; difference in strength between the two claims	8
Express easement — existence and scope	Valid dominant and servient tenements; accommodation of East Meadow; express grant; construction of purpose limitation; commercial retreat versus agricultural/residential access; increase in traffic; physical capacity not determinative; likely excessive use	9
Use of easement for Fox Hollow	Easement appurtenant to East Meadow; inability ordinarily to use servient land to benefit after-acquired/non-dominant land; Harris v. Flower principle; practical consequence for integrated development	4
Restrictive covenants	Negative character of height/use restrictions; benefit to retained Northreach; intention to run; annexation of benefit; Morroway's notice; Tulk v. Moxhay framework; application to tower and retreat use	9
Positive maintenance covenant	Affirmative nature of payment/maintenance obligation; burden of positive covenant does not ordinarily run; Durham CC 123 v. Amberwood; why actual notice is insufficient; limits of benefit-and-burden argument	5
Lease characterization and alienation	Exclusive possession/term/rent as lease; transfer of entire residue of term; assignment versus sublease; reserved contractual re-entry right; breach of written-consent covenant; common-law ability to withhold consent where no reasonableness qualification; effect of non-waiver letter	10
Privity after assignment	Driftwood's privity of estate; running lease covenants; rent liability; original Hearthstone privity of contract; absence of novation/release; distinction between assignee and original tenant liabilities	6
Termination and Highway Properties remedies	Contractual re-entry requirements; election to terminate; difference between future rent and loss-of-bargain damages; prompt notice of prospective claim; re-letting/mitigation; rent differential and reasonable expenses; relative liability of Hearthstone and Driftwood	8
Fixtures and tenant's fixtures	Degree and object of annexation; La Salle Recreations approach; refrigerators; bar; tanks; brewing vessel; ventilation hood; trade-fixture doctrine; timing of removal; obligation to repair damage	9
Overall synthesis and practical advice	Keeps separate title, temporal estates, servitudes and leasehold rights; identifies who may enforce which interest; avoids treating registration, notice or physical attachment as automatically determinative; coherent practical conclusions	4
TOTAL		100