Chapter 14: Real and Personal Property and Protection of the Environment Flashcards
LO 14.1 Distinguish real and personal property
LO 14.1 Distinguish real and personal property
The two types of property
1) Real property
2) Personal Property
“Property” definition
more correctly refers to the relationship existing between the item and the individual who owns it
Real property definition
land, buildings attached to the land, and items called fixtures, that is, items that are attached to the land or to a building or to another fixture attached to the land
Permanently attached to the land
Personal property definition
tangible, movable goods (chattels) and intangible claims (choses in action)
Movable property
Can be divided into two categories
1) Chattels (goods)
2) Chose in action (intangible goods)
Chattels
tangible, movable personal property that can be measured and weighed; also known as goods
Table, car, laptop, etc
Chose in action
choses in action
the thing or benefit that is transferred in an assignment; intangible personal property, such as a claim or the right to sue
Bonds, share certificates, and negotiable
instruments are examples of choses in action
The right to sue somebody
Whether shelter is obtained through ownership, rental, or even squatting,
the relationships created are governed by
real property law.
Interest in Land
LO 14.2 Describe the various types of interest in land
Interest in Land
LO 14.2 Describe the various types of interest in land
Estate in land
the right to uninterrupted possession of land for a period of time. The amount of time is determined by the nature of the estate
Today in Canada these estates in land have been reduced to a few significant types known as:
1) estates in fee simple,
2) life estates
3) leasehold estates
Fee Simple
the highest interest in land, equivalent to ownership; an estate granting possession for an infinite time
The greatest interest a person can have in land today (and what we think of as ownership)
Subject only to restriction imposed by agreement or legislation
Life Estate
an interest in land ending at death of the estate holder
Cannot be willed to others
Reversionary interest
Reversionary interest
the right of the original owner to retake possession of property upon the death of the life tenant
Remainderman
a third party with the right to the remainder of the fee simple after the death of a life tenant
Dower rights
protection of the rights of a spouse in certain matrimonial property; have been modified or abolished in most jurisdictions
Homestead rights
rights giving a spouse a claim to a substantial portion of family property
Leasehold Estates
an interest in land that grants the tenant exclusive possession until a specific date
Lesser Interests in Land
Lesser Interests in Land
Easement
the right of a person other than the owner to use a portion of private property
Right of way
a type of easement that allows the crossing of another’s land
but does not give that person the right to stop, park her car, or build some permanent structure on that property.
Dominant tenement
property that has the advantage of an easement
The property that has the advantage of the right of way is called the dominant tenement
Servient tenement
the property subject to an easement
AKA the persons land who needs to be crossed
Statutory easement
give utilities or other bodies similar rights to run fibre optic cable, phone lines, power lines, or sewer lines across private property
easements giving utilities or other bodies rights to run power or sewer lines across private property and to enter the property to inspect and maintain them
License
A licence gives a person permission to use another’s land
Examples include allowing the public to shop in a mall or a patron to rent a hotel room. Such a licence is not a true interest in the property and does not run with the land.
Easement acquired by prescription
a right to the use of land that is acquired through free use of that land without interference over a number of years
To prevent such an easement from arising, the landowner must periodically exercise some control over the portion of land in question, such as blocking off public access from time to time.
Adverse possession
a right to actual possession, which can be acquired by non-contested use of the land
Acquiring possession through adverse possession occurs when someone has had possession of the land for a significant number of years with the knowledge and toleration of the owner
Restrictive covenant
in property law, a condition imposed by the seller as to what the purchaser can use the land for; in employment law, a commitment not to work in a certain geographical area for a designated period of time
Restrictive covenants may impose restrictions as to
what type of building can be put on the land or how the property may be used, such as for residential, commercial, or light industrial use
Building scheme
a set of restrictions placed on all the properties in a large development
For restrictive covenants to bind subsequent owners of the property they must be expressed as ________ rather than positive obligations
negative
Tenancy in Common
ownership of land by two or more people with equal, undivided interests in it
Joint Tenancy
shared property ownership with a right of survivorship
In effect, the joint tenants own the entire property outright, and when one dies the survivors continue to own the entire property
“Undivided,”
means that neither owner can point to any one portion of the property as theirs.
Severance
an owner’s removal of chattel that he has affixed; separation or division of joint ownership; action by one of the co-owners that is inconsistent with joint tenancy
Other Interests in Land
Other Interests in Land
Option agreement
a subsidiary contract creating an obligation to hold an offer open for acceptance until the expiration of a specified time
Agreement for sale
an agreement where title will be transferred at some time in the future, typically once the property is fully paid for; an agreement that grants possession of property to the purchaser pending full payment of the price
The sale takes place in two stages:
Possession occurs first, and the title transfers when the last payment is made
Agreement of purchase and sale
the first stage in the purchase of real property; also referred to as an interim agreement between the vendor and purchaser
Interim agreement
a binding contract that will subsequently be put into a more formal document; usually referred to as an agreement of purchase and sale in a real
estate transaction
Condition precedent
a condition under which the obligations of a contract will begin; also called “subject-to” clause
Deed of conveyance
a document transferring an interest in property
Registration system
a means of registering and tracking property deeds
Land titles system
a registration system that guarantees title to real property
Certificate of title
conclusive evidence as to the ownership of a property
Cooperative
an independent legal entity composed of members holding shares in it; a
method of acquiring residential accommodation
Mortgages
LO 14.3 Outline the unique properties of mortgages and the rights of the parties
Mortgages
LO 14.3 Outline the unique properties of mortgages and the rights of the parties
Mortgage
a means of securing loans; title of property is held by the moneylender as security in some jurisdictions; in other jurisdictions, a mortgage is simply
a charge against title
AKA pledge till death
Equity of Redemption
an interest in land retained by the mortgagor even after default
Foreclosure
a court process ending the mortgagor’s right to redeem
How Foreclosure works
This process takes place in two stages. After the default and pursuant to an application by the mortgagee, the court issues a preliminary order
of foreclosure , setting a time limit (e.g., six months) within which time the mortgage must be redeemed by paying what is owed.
After that redemption period expires without payment, the mortgagor returns to court and obtains a final order of foreclosure giving her an uncontestable
right to both title and possession of the property.
Order for judicial sale
a court order that property be sold during the redemption period
The Landlord–Tenant Relationship
LO 14.4 Compare the rights and obligations of landlords and tenants
The Landlord–Tenant Relationship
LO 14.4 Compare the rights and obligations of landlords and tenants
Periodic tenancy
automatically renewing tenancy with no specific termination date
Even though it is wise to put a lease in
writing, one need not do so with a lease for ________________________________________________
three years or less
In most jurisdictions, however, leases over _____________ must be evidenced in writing to satisfy the Statute of Frauds or its equivalent.
three years
Leases definition
a secured arrangement whereby possession of the goods goes to the lessee, while the title to the goods remains with the lessor
Some provinces, such as British Columbia apply their ___________________ to commercial tenancies.
Frustrated Contracts Act
Types of Tenancies
1) When a lease has a set duration, it is a called a “term lease
2) Sublet
3) A periodic tenancy has no specific termination date; rather, it involves a specific lease period that is automatically renewed in the absence of notice to the contrary
Sublet
a lease executed by the lessee of land or premises to a third party for a shorter term than that which the lessee holds
Vacant Possession
an obligation to deliver possession of vacant premises to a tenant at the
beginning of a lease period
Quiet Enjoyment
A landlord is obligated to give a tenant quiet enjoyment of the premises.
This does not mean that the tenant has to be happy or like the premises, only that the landlord must ensure that nothing happens to interfere with the tenant’s use of the property
Tenancy at sufferance
a situation in which a tenant fails to leave after a lease has expired and owes compensation to the landlord
The tenant’s primary obligation is to
pay the rent when it is due
Abatement
a court order to reduce the rent to be paid to compensate for a breach of
the lease by the landlord
Remedies
When the rent is not paid, the landlord can sue for the overdue rent
Forfeiture
the principle that a criminal should not be permitted to profit from a crime
Relief against forfeiture
an equitable principle that when a landlord retakes a property because of a failure to pay rent prior to the end of the lease term, the tenant can pay
the arrears and apply in the court to have the lease reinstated
Distress (aka distraint)
seizure by a landlord of any property left by a tenant and holding it until the rent is paid or selling it to pay rent owing
Personal Property
LO 14.5 and LO 14.6
Personal Property
LO 14.5 and LO 14.6
Chattels
Chattels are movables, such as electronic devices, clothes, animals, and motor vehicles. Even construction cranes, boats, and locomotives are chattels.
Bailment
temporary possession by one person of chattels owned by another
Examples of bailment include leasing and rentals of vehicles and equipment; goods left for repair,
storage, or transport; and simple borrowing of goods
Bailor
the owner giving up possession of property in a bailment
Bailee
the person acquiring possession of personal property in a bailment
Fungible
goods being of such a nature that one part or quantity may be replaced by another equal part or quantity of similar quality
Examples: such as timber, oil, and wheat
Example, storing oil in a massive bin with others, whatever you put in you get out, but it may not be the original oil you put in if it all mixed together
Bailment for Value
a bailment involving a mutual benefit or consideration flowing between the parties
Common Carriers
Examples: trucking and bus companies, railroads, airlines, and even pipelines
Common carriers must be distinguished from private
companies or individuals that transport for a particular bailor
Innkeepers’ Liability
In common law, innkeepers are also treated like insurers and are responsible for lost or stolen goods of a guest, unless it can be shown that they were lost because of some “act of nature” or negligence on the part of the guest
Gratuitous Bailment
A gratuitous bailment occurs when only one side receives a benefit.
Protection of the Environment
LO 14.7, 14.8, 14.9
Protection of the Environment
LO 14.7, 14.8, 14.9
Riparian rights (common law)
the common law right given to people living near rivers and streams to have the water come to them in undiminished quantity and quality
Forests, minerals, air, and water are all local matters and under the jurisdiction of _____________________, unless it is on federal land, costal waters, instra-provincial jurisdictions
provincial governments
The Canadian Environmental Protection Act, 1999 (CEPA)
is the principal federal statute dealing with the environment
-governs release of pollutants, pollution prevention plans, disposal of substances at sea, the production, importation, and selling of fuels, vehicle emissions, engines and equipment, international air and water pollution, the movement of hazardous waste and recyclable materials
If an environmental assessment is required there are two different types of review that can take place:
1) a standard environmental review
2) simple assessment before a review panel
If a chattel is affixed to the land is may become a ______
Fixture (which means it becomes part of the real property)
Chattel / fixture test
Was the purpose of the attachment to:
1) enhance the land
2) for the better use of the chattel as a chattel
Tort law for the environment
Private and public nuisance, negligence, trespass
British Columbia Indigenous
Treated not signed, giving First nations rights over tradition territory covering much of the province
Tsilhqot’in Nation v. BC
The SCC held that consultation required obtaining the CONSENT of the aboriginal title holder
Bill C-262
An act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous peoples
