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Full-Text Articles in Law
The Philosopher And The Developer: Pluralist Moral Theory And The Law Of Condominium, Jason Leslie
The Philosopher And The Developer: Pluralist Moral Theory And The Law Of Condominium, Jason Leslie
Osgoode Hall Law Journal
This paper analyzes the evolving law of condominium from the perspective of the moral philosophy of property, focusing in particular on neo-Aristotelian value or pluralist ethics. By combining aspects of traditional property law, corporate law, and municipal politics, condominium provides a flexible tool for ownership and private land use planning. Condominium, however, also poses novel and unique challenges to both legal doctrine and the very meaning of private property. After describing and comparing the pluralist approach to moral philosophy of property and the approach of its main rivals—deontology and utilitarianism—the paper describes how condominium is understood by each approach and …
Anti-Social Behaviour, Expulsion From Condominium, And The Reconstruction Of Ownership, Douglas C. Harris
Anti-Social Behaviour, Expulsion From Condominium, And The Reconstruction Of Ownership, Douglas C. Harris
Osgoode Hall Law Journal
Statutory condominium regimes facilitate massive increases in the density of owners. The courts are responding to this spatial reorganization of ownership by reconstructing what it means to be the owner of an interest in land. This article analyzes the ten cases over eight years (from 2008 to 2015) in which Canadian courts grant eviction and sale orders against owners within condominium for anti-social behaviour. The expulsion orders are new. Until these cases, ownership within condominium in Canadian common law jurisdictions was thought to be as robust as ownership outside condominium such that owners could not be expelled from condominium for …
The Peculiar Circumstances Of Eminent Domain In India, Priya S. Gupta
The Peculiar Circumstances Of Eminent Domain In India, Priya S. Gupta
Osgoode Hall Law Journal
The question of a constitutional property regime governing eminent domain gave rise to nuanced and principled debates in the Constituent Assembly of India, which drafted the Indian Constitution between 1947 and 1950, and in subsequent Parliamentary meetings regarding constitutional amendments. However, these extensive deliberations resulted in a clause that only addressed the most superficial aspects of property rights in India. Similarly, the statutory frameworks that govern state acquisition of land, in particular The Land Acquisition Act, 1894, provide only another part of the puzzle. This paper starts earlier in history-at the inception of eminent domain in India-in order to put …
Adding Epicycles: The Inconsistent Use Test In Adverse Possession Law, Michael H. Lubetsky
Adding Epicycles: The Inconsistent Use Test In Adverse Possession Law, Michael H. Lubetsky
Osgoode Hall Law Journal
The common law courts in Ontario developed the Inconsistent Use Test (IUT) to assess claims of adverse possession. The IUT, however, often produces counter-intuitive results, which has led other jurisdictions to reject it and caused the Ontario courts to craft numerous exceptions and qualifications to the test that have left the state of the law on adverse possession very unclear. This article argues that the IUT actually represents an unconscious attempt by the Ontario judiciary to develop a functional equivalent to the civil law principle of "interversion," currently found in article 923 of the Civil Code of Quebec (CCO). It …
The Metaphysics Of Tracing: Substituted Title And Property Rhetoric, Craig Rotherham
The Metaphysics Of Tracing: Substituted Title And Property Rhetoric, Craig Rotherham
Osgoode Hall Law Journal
Tracing is conceptualized as the "following" of an object through an exchange transaction and into the product of that exchange. Why is this so and what are the consequences? This article argues that the presentation of tracing in the metaphysical language of transmutation allows the doctrine to be depicted as consistent with axiomatic notions of property that understand it as pre-political and that preclude judicial readjustment of proprietary rights. However, the metaphysical conceptualization of tracing gives the remedy a conceptual structure that has resulted in the doctrine developing dysfunctionally when compared with the normative justifications that motivated its initial development. …