Leasehold Interest

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-23
CLNP Page ID:	1969
Page Categories:	[Legal Principles], [Contract Law], [Contract Law, Leases, & Sub-Letting (Commercial Tenancy)], [Contract Law, Leases, & Sub-Letting (LTB)]
Citation:	Leasehold Interest, CLNP 1969, <>, retrieved on 2024-11-23
Editor:	Sharvey
Last Updated:	2022/08/18

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Naegele v. Oke, 1916 CanLII 577 (ON CA)

Page 504:

Neither can the arrangement be construed to be a lease, though the parties so characterise it, for it is of the essence of a lease that the lessee acquire the exclusive possession of the leased premises: Watkins v. Milton-next-Gravesend Overseers (1868), L.R. 3 Q.B. 350; Glenwood Lumber Co. v. Phillips, [1904] A.C. 405. No exclusive possession of any part of Halliday's lands was acquired by Naegele.

...

The written agreement of September, 1911, is, I think, to be construed as relating to the existing ram and pipes and to their then use for supplying water to lot 13. The evidence shews clearly that it was drawn to confirm and continue that which had been in existence and in actual use under an oral agreement for seven or eight Years, and was not a general right to take water. That which the plaintiff Naegele acquired under his agreement with the Hallidays was, therefore, I think, a license personal to himself, good for 49 years, subject to earlier determination by his death, or because he was no longer in occupation of the Naegele farm, so as to enable him to enjoy the benefits of the license.

No estate in the lands of Halliday (or Oke) was acquired by Naegele. The license does not include " assigns," and so "was not transferable.

At the time this action was instituted, Francis Naegele had sold the lands to which the hydraulic ram conveyed the water, and Pitblado, the purchaser, was in possession, so that, on the date when the writ was issued, he (Francis) had no rights capable of enforcement by the Court.

As Naegele's interest amounts only to a personal license by his grantors and not to any estate or interest in the lands of his grantors, I do not think that Oke was in any way bound (even with notice) by the license granted by his predecessor in title. The right was a personal right given by the Hallidays to Naegele. Not being an interest in the lands, Oke on his purchase took the land clear of any right or license.

...

Attorney General of Canada v. Lees (No. 2), 1977 CanLII 1546 (SKDC)

[23] In brief, with possible special-case exceptions, a lease, by its very nature and substance, is essentially an exclusive possessory interest in land, for general or specific purposes.

[24] In cl. 2 the parties expressly agreed that the permit did not create an exclusive right to possession, by implication or otherwise. At least a cursory examination of the terms is necessary to make sure that the parties meant what they said.

[25] Because of the exclusive possessory right of a tenant under a lease, it is usual to provide that the demised lands shall revert to the landlord upon the termination of the lease. Clause 8 contains the only provision which might be construed as a reversionary right in the “landlord”. But this is limited to fences. Fence posts may be fixtures and therefore an interest in land. But fencing is ancillary to grazing. This provision is equally consistent with a licence to graze. A requirement to maintain fences did not prevent the sale of grazing rights to be held a licence in Mogg v. Yatton Overseers (1880), 6 Q.B.D. 10.

[26] The next clause, being cl. 9, contains the strongest and really the only implication that the possession granted was exclusive. Leases reserve to the landlord specific rights to enter. This is because of the exclusive nature of the tenant’s possession. Conversely, in a licence, it is unnecessary to mention the grantor’s right of entry because the licencee’s possession is not exclusive. If the permit is a licence, perhaps the clause would tend to forestall argument in the event of a petty encroachment on the “licencee’s” right to graze. But in my view, it could not have the effect of abrogating or materially limiting his grazing rights. He has paid the substantial sum of $15,000 for this “licence” and would be entitled at least to the kind and degree of possession which would assure him of the substance of the contract, the right to graze cattle. In the absence of the term, the issue would be unchanged in the event the “licence” were disputed in this respect. With or without the term, the issue would be, Did the grantor’s assertion of a right to possession materially interfere with those rights he contracted to the “licencee”? Perhaps it was meant to give written assurance to the native people who clearly had some interest in the land. Whatever practical considerations there may have been, if the permit is a licence only, there is no meaning an law to cl. 9. The clause by its very existence, therefore, implies to the permittee the exclusive possessory right found in a lease.

[27] The only other clause bearing on this point is cl. 15, a clause for the obvious purpose of protecting the permittee’s cattle. This clause, conversely to cl. 9, implies the absence of exclusive possession in the permittee. Only during grazing season is the right to possession of the grantor limited, and even then, only as to hunting.

[28] I conclude that there is nothing in the counterbalancing implications which, on the whole of the document, would justify a finding against the express provisions of cl. 2. The permittee did not have exclusive possession.

Black v. Owen, 2012 ONSC 400 (CanLII)

[19] The Supreme Court of Canada in United Trust v. Dominion Stores Ltd., 1976 CanLII 33 (SCC), [1977] 2 S.C.R. 915 had to determine whether the Land Titles Act (“LTA”) abolished the common law doctrine that allows a registered titleholder’s estate to be encumbered if the titleholder has actual notice of the encumbrance. The Court concluded that in Ontario, the common law doctrine of actual notice was not altered by the LTA, unless the alteration was made “by clear or appropriate words” in the legislation. In the situation before the Court in that case, the titleholder had actual notice of an unregistered leasehold interest at the time of purchase of the land, and, therefore, its interest was subject to that leasehold interest.

[20] I note that a similar result was reached in Bell Canada Inc. v. White Admiral Ltd., 2011 ONSC 5857 (S.C.J.), where the Court held that an easement was valid, although not registered on land in the Land Titles system, because the owner of the land had actual notice of the easement (at paras. 10, 13).