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38 Cards in this Set
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what is an easement? Positive vs negative easement? |
Easement= the right of one landowner to go onto the land of another- it is not a natural right, it does not come with the fee simple, and therefore must be created as part of the relationship between two land owners Positive easements involve A’s right to do something on B’s land Negative easements give A the right to prevent B from doing something on his or her land. These rights include: right to light, right to air by a defined channel, right to lateral support for buildings, right to continue to receive the flow of water from an artificial stream |
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What is a reservation? |
when the grantor wants to reserve an easement for himself the onus for a reservation on the grantor is much higher than for the grantee in a grant easement The grantor is expected to state it explicitly or else show strong evidence that it was in reasonable contemplation at the time of signing |
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Clarity in grants |
if wording of these express grants are clear, all is well, but if not, the deed will be construed in favour of the grantee.- Thus it ill be easier to argue for the existence of an express grant than for an express reservation. |
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implied grants and reservations |
- all the easements necessary for enjoyment/ use of the property for which it was granted will be implied. - generally no implication can be made to the grantor, but there may be one to the grantee There are exceptions to this! - ways of necessity - mutual easements - two houses built touching each other - when it is necessary to imply the reservation of an easement to permit a grantor to fulfil his obligation to a grantee in the simultaneous sale of two pieces of land - Barton cases |
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What are quasi-easements? |
Say A owns both properties, and property 1 is landlocked by property 2. A uses 2 to cross into 1. Then he sells 1 to B, and he builds him a really long, round about way to get to his property that avoids going through 2. B doesnt like this, but cant argue necessity. But now since A has sold to B, the quasi- easement becomes a full easement, so B can argue he should be able to go through property 2 to get to 1. “ all those continuous and apparent easements (quasi-easements), or all those which are necessary for the reasonable for the enjoyment of the property will pass to the grantee” The grantee is allowed to expect this, and if there any ambiguity, the benefit of doubt is given to the grantee |
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Express grant / reservation |
when you give an estate and an easement at the same time |
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What is a Presumed/ Prescribed Easement Grant? Describe its time requirements |
- prescription applies to non-possessory rights and requires lesser acts than Adverse Possession - it also does not give possessory rights (like AP does), it is just the right to use something - you have to bring a claim immediately after the necessary period of time is up - the period must be without interruption ( interruption= claimant obstructed from enjoying use for a year or more) After 20 years of adverse use: —> an easement still be defeated by any defence other than “showing the user began after 1189,” such as the claim that they had oral permission (bc then its a licence) After 40 years of adverse use: —> the easement becomes "absolute and indefeasible" —> but you cant prescribe against anything other than fee simple, so cant be against your landlord —> the prescription can be defeated by showing the user was secret about use, or had written permission. ** But NOT oral permission like 20 years |
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What qualitative rules apply to prescribed easements ? |
- just establishing the right has been exercised for the right period of time isnt enough for prescription, there are rules as to quality of use... 1) use must be continuous (continuity doesnt mean “quotidien” but is judged based on the right being asserted (Axler v Chisholm) 2) claimant has exercised “user as of right.” This means the claimant has to have used the right in such a way that it was like he was saying : "of course I have the right to do this" This has 3 sub-rules: a) No violence- has used the easement without ignoring significant protest on part of owner. For ex., if the owner puts up a blockade and you remove it, you may be seen as asserting user as of right. If he does nothing, he can be seen as accepting the right. If he puts up another blockade and you remove it, then you can be seen as violating the no violence rule b) No secrecy- use must be open and notorious so that the servient owner knows and acquiesces- acquiescence is at the root of prescription c) No permission- there is an important distinction between acquiescence and permission from servient owner |
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what is the scope of an easement? |
Scope: an easement ranted for one purpose cannot be used for another! Cant use it to get to one lot then use it to et to another; cant use it for personal use then suddenly have your business/commercial vehicles/people crossing it |
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How can you extinguish an easement? (3) |
a) statutes allow you to apply to the court for termination (only allowed in BC in Canada) b) operation of law- if the purpose for which it was granted ends, or the right is abused, or time limit on grant expires, or the owner of both lands becomes same person. (although if the same person gets both lands under different estates, the easement doesn extinguish it is just suspended). c) terminated by release- high burden of proof on servient tenement owner to show implied or express release. Cant just show that use stopped, it must amount to clear abandonment of easement right. |
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If the original owners who made the agreement arent there, a right must be... |
it must be as an easement bc it cant be enforced as a contract if the original contracting parties arent benefiting |
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For a right to be an easement, it must be capable of beinghe subject matter of a grant (because easements cant pass through possession, only grants). How do we ensure this? (3) |
-> the right isnt too wide and vague- must be well-defined -> cannot be inconsistent with the proprietorship of the servient tenant- you are granting the right to use the land, not exclude the owner -> cannot be a mere right of recreation (accommodation requirement) (horse race example) (this isnt about the nature of the dominant tenement land (so if the dominant tenement was an amusement park it would be ok), it is about the nature of the right) |
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What does "accommodate the dominant tenement" mean in the qualities of an easement |
it itsnt giving a benefit to the servient tenement, it is about a practical benefit of use of the land to dominant tenement. “accommodation” is about a connection between one tenement and the other (cant be wholly extraneous/independent from the use of the house as a house. For ex. free cricket games in the park isnt a reasonable use necessary for enjoyment of the house.) - the test is not is it "necessary" in that the lack therefore would mean no enjoyment could be had, accommodation means sufficiently connected. “reasonably necessary" |
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Easements and proximity |
*** the properties must be sufficiently proximate to be an easement. If the house was like a km from the gardens (here, some of the houses were 200 yards away), you prob wouldnt pass the accommodation requirement. sufficient proximity is necessary for accommodation (Dicta in Edenbourough Park) |
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Look at this fun chart showing the creation and characteristic qualities of easements |
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What if in Wong (chinese restaurant) the original grant had said the space was for “any” use? would an easement be able to be implied?
What if he just rented the basement for no express purpose and then later decided to put a restaurant in? |
no, because the common intention must be definite and particular (Woodman); He wouldnt be able to imply an easement because there was no common intention at the time of the grant of land. |
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Does the anyone have to know about an existing easement? |
* the easement runs with the land even in the absence of knowledge- buyer must find out |
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When there has been a long time lapsed for reservations... |
the court may relax the onus on the grantor, as hard evidence may be hard to find. But in all other cases, and sometimes these ones, Sandom remains |
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Differentiate AP and an easement |
- with easements, the 20 years in easements are counted backwards from the time of the action. Unlike AP which the clock runs forward - easements use has to be consistent with owner, AP inconsistent - the threshold for AP is much higher - time differences - |
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f you’ve used a driveway for 19 years and one day and then they put up a fence, do you have an easement? |
Yes! interruption is for a full year. if you’ve used it 19 years and one day than you have got your 20 years, you just have to wait for the rest to pass |
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Use of right |
this is the kind of use that gives you prescription (continuous, open, permission, acquiescence, no violence) |
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Seasonal use |
Boat storing ex. the fact that the storage use is seasonal doesn’t preclude it from being continuous. the purpose the land was used for was seasonal storage, so if you take it out in summer and put it back it winter thats fine (Garfinkel dicta) |
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In order to have a copyright claim in Canada you must show... |
originality! (Walter v lane considers "authorship" but this changed in 2004) What is originality? What underlies copyright? a) sweat of the brow doctrine UK b) minimal creativity US c) skill and judgment CANADA
- Under Canadian law now: sweat is not sufficient! you need an intellectual creation, you have contributed skill and judgment, more than merely mechanical. Phonebook wouldnt necessarily be covered. (closer to lord Roberson and the US creativity rule than to Halsbury and James and the UK sweat rule) Originality in Canada: producing a product of the mind that is not a copy of another product, and shows skill and judgement |
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Ideas vs Expression test (Copyright) |
- ideation (ideas) is not copyright. If you come up with the idea for a show tell someone, you will likely have no copyright claim when they actually go write it down. Law protects EXPRESSION of ideas not the ideas themselves* You have to “fix” the ideas, write them, film them, record them etc. It must be expressed in MATERIAL FORM = FIXATION. |
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What are the steps to determining copyright infringement? |
1) Has the person reproduced the work?was there copying? Was there a causal connection between you two? was there access? --> if yes, did the copying fall within the bounds of "fair dealings" :private study, criticism, review, or news reporting, education, parody, and satire --> if yes, it must also be " fair" for it not to be an infringement --> if no... 2) are the works in question substantially similar? |
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How do you determine that use was "fair" under the fair dealings test? |
a) it was used for the allowed purposes; and b) Overall fairness No test--> You can take into account certain factors such as (1) the purpose of the dealing (what’s the REAL purpose) (2) the character of the dealing (how many copies did you make, consider custom and practice in the area) (3) the amount of the dealing (this is dependent on the type of work) (4) the alternatives to the dealing (what the use reasonably necessary) (5) the nature of the work (6) the effect of the dealing on the work (competition may be unfair). |
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How do you determine appropriation of personality |
1) For appropriation of personality tort, you must first show bear use. (ie no bear use in Krouse bc it wasnt a picture of him only) -Based on this you make determination the personality is being used, then you determine whether use was commercial. 2) Commercial Use can be either endorsement or for attraction/bear commercial use other than endorsement. 3) was the commercial use using them as a subject/ writing about them/ providing info? (Gould) -For liability: Must have use of personality, use must be commercial, commercial use must be used for purpose of sales not speaking about the personality (even if you happen to make money off it) |
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What does the holder of copyright have the right to? (4) |
reproduction, first publication, public performance, right to authorize a third party to copy it lawfully. (its not just illegal for YOU to copy something that is copyrighted, but also for you to authorize someone else to go do it. Ie you tell your student to go make copies) |
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What is a trademark? For what will it be issues? |
- a mark used by a person for the purpose of distinguishing herself from others in the marketplace. If it doesnt distinguish, it isnt a trademark - trademarks in granting monopolies in exchange for public benefits, hold the balance between free competition and fair competition - an inventor is entitles to his patent even if no commercial use is made - A playwright retains copyright even if the play remains unperformed. But in trade-marks the watchword is “use it or lose it”. In the absence of use, a registered mark can be expunged (s. 45(3)). - generally, trade mark law will allow protection for products that transcend the original product lines, unless the applicant of the new trade mark can show that registration will not create confusion in the marketplace * |
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Can you name a beer “Golden”? |
-All beer is golden colours. But if you can argue it has a distinguishing function then its chill. -If it was names “golden coloured alcoholic beverage made from wheat” then there would be more of an issue. - however, it is a descriptive term, which isnt as easy to get a trademark for as a distinctive mark - Generic (beer)— descriptive (Golden)— secondary acquired distinctiveness (like Q-tip) — arbitrary (Cracked Canoe, Blue) *While you can acquire distinctiveness from descriptive terms, it is NOT allowed for generic terms. |
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What underlies trademark infringement? |
Underlying infringement is the undoing of distinction created by the mark by creating confusion* mens rea is of little relevance, so is the fact that you may be profiting off others marks. It is if you are profiting off others marks due to confusion |
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acquired genericness |
Where you lose distinctiveness so that people automatically associate your mark with the product, you end up losing your rights over the mark. (Q-tip, thermos, Kleenex). So a mark that becomes so popular that it loses distinctiveness, ends up becoming generic again. |
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Test of Confusion in trademark law. Who is the onus on for confusion test? |
Confusion arrises if it is likely in all surrounding circumstances that the prospective purchaser will be led to the mistaken inference that the wares or services associated with those trade-marks are manufactured, sold, leased, hired or performed by the same person, whether or not the wares or services are of the same general class. - look at: distinctiveness of trademarks, length of time they have been in use, nature of the services/wares (people will pay more attention to detail when buying a car than a mid-priced meal), nature of the trade, and degree of resemblance between trademarks in appearance/sound - must consider whether the average person, who may be in a rush, but has average intelligence, and ordinary caution would make the confusion. —> Onus is on applicant to show that there is no likelihood of confusion!! ** the difference in the class of wares is an important consideration but is not controlling |
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What are the (2) requirements for a patent? How do you deny an application/invalidate a patent? |
(1) You must show the examiner that you have invented something NOVEL and USEFUL, and it can’t be OBVIOUS (2) You must specify how the invention works and why it’s new. Disclosing. * remember, you can take an old product and give it a completely dif use and get a patent ie Wellbutrin o Anticipation/Novelty: You look for single instances where the invention is already exists. Your invention, while clever, was already known. (prior use, prior publication, prior knowledge, prior sale) o Obviousness: Any fool could have done this. There is no inventiveness. o Usefulness: The invention must work… it do what the inventor says it does. (Ex. Death ray… doesn’t do anything at all. Ex. If you invent a mouse trap and you say you’ve invented a car.) ***Presumption of validity. The onus is on the party attacking the patent to prove invalidity on a balance of probabilities. |
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Differentiate between parent, copyright, and trademark |
Copyright -->granted for originality, limited by fair dealings Patent --> granted for non-obviousness, novelty, limited to a particular period Trademark -->granted for use non-genericness, limited by perspective of “ordinary casual consumer somewhat in a hurry.” All of these are connected to limiting unfair competition… |
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What is the doctrine of colour of title |
Color of title is where the claimed owner has some piece of paper claiming to transfer title to him or her, and that paper has defects for some reason. Color of title refers to a claim based on a land right, land warrant, land scrip or an irregular chain of title, often raised in AP claims |
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Claiming too widely in patents |
The actual invention as a matter of law is not the thing, but “the invention as claimed” it is the words used to describe it. If the invention itself is novel but your description of it is so wide that it captures something that already exists, your patent will fail |
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For a gift you always need.... |
For a gift you always need delivery. Except with a deed, a contract stating that its chill without delivery (Saying that you gave it to me doesnt mean that you gave it to me, it is the same as dreaming about catching a fox) delivery without intention also wont transfer title (that is bailment) You need delivery AND intention! |
