Chapter 2: Estates and Interests in Land

Question 1

Heinrich is developing a 20 lot subdivision in the Fraser Valley in British Columbia. The area is heavily wooded and Heinrich wants to ensure that it will stay that way. He has included in the building scheme which is registered in the land title office, a provision limiting the circumstances in which the existing trees on any of the lots can be cut down. Which of the following statements is TRUE?

1. This type of provision will not be enforceable unless the original owner reserves the right to waive it as against individual lots.
2. This type of provision must apply to at least half of the lots in the development unless certain lots are specified as exempt at the time of registration of the plan.
3. For a provision like this one to be valid, all the original purchasers must purchase their lots from the same vendor.
4. All of the above statements are true.

Answer 1

3. For a provision like this one to be valid, all the original purchasers must purchase their lots from the same vendor.

Question 2

Paolo purchased a lakefront property in a tiny village in Ontario from Victor. Victor owned several adjacent lots in the area and included a restriction on these lots, including Paolo’s property, against any commercial use of these properties and this restriction was registered in the Land Title Office. Over the next 20 years, the village grew and grew and several major fishing resorts were built on the same part of the lake, including on some of Victor’s lots that he had owned originally. Paolo now wants to open an Italian restaurant on his property to serve the large numbers of tourists and residents, but Victor tells Paolo that he is prohibited from making any commercial use of the property. Which of the following statements is TRUE?

1. As long as one of his neighbours insists that Paolo comply with the restriction, Paolo will be unable to properly act contrary to its terms.
2. If Paolo were to transfer the property to his wife, it would be free from the restriction and they could make use of the property for a restaurant.
3. In these circumstances, where the nature of the area has changed from rural to developed, the restriction my be released as no longer consistent with its purpose.
4. All of the above statements are true.

Answer 2

3. In these circumstances, where the nature of the area has changed from rural to developed, the restriction my be released as no longer consistent with its purpose.

Question 3

Alvin Boris, Claus and Daria are the joint tenants of a property. Daria sells her interest to Xander. Which of the following statements is TRUE?

1. The sale destroys the joint tenancy and Alvin, Boris, Claus and Xander now hold the property as tenants in common with each other.
2. Daria cannot legally dispose of her interest without the permission of the other joint tenants, as it would affect the interests of the others.
3. Alvin, Boris and Claus remain joint tenants with each other, but become tenants in common with Xander.
4. None of the above

Answer 3

3. Alvin, Boris and Claus remain joint tenants with each other, but become tenants in common with Xander.

Question 4

Janis owns a large block of land adjacent to a lake. She decides to subdivide the block into four lots for the purpose of selling three and keeping one for herself. She wants to ensure that her lot will retain a clear view of the lake so she wants to include a restrictive covenant in the contracts of purchase and sale. Which of the following must be done to ensure that a restrictive covenant will run with the land?

A. The existence and situation of the property which will benefit from the restrictive covenant must be indicated with reasonable certainty.
B. At the time the restrictive covenant is agreed to, the parties to it must intend that it run with the land.
C. Janis must have an interest in the land being protected at the time the restrictive covenant is created.
D. The restriction must require positive action on the part of the covenantor.

1. A and B Only
2. A, B, and C Only
3. C and D Only
4. All of the above must be done

Answer 4

2. A, B, and C Only

Question 5

Diana is interested in purchasing Whiteacre, which is ideally situated for her business of a garden centre. however, Whiteacre has a restrictive covenant registered against it in favour of the adjacent property, Greenacres, which prohibits the operation of a nursery, garden centre or flower shop on the property. This restriction was created by Smith, the original owner of both Greenacre and Whiteacre, twenty years ago when he operated a nursery on both properties. Smith subdivided the lots creating Whiteacre and Greenacre and sold Whiteacre to Jones with the restriction. Greenacre has not been used a s nursery for five years. Which of the following statements is TRUE?

1. Because the restrictive covenant is registered against the title, Diana will be bound by it regardless of its validity.
2. Diana will not be bound by the restrictive covenant because it has surely been released impliedly by Greenacre not being used as a nursery.
3. Diana may be bound by the restrictive covenant but she could have the current owner of Greenacre expressly release the restrictive covenant.
4. The restrictive covenant will be released either by an express agreement or when smith finally sells his remaining interest in Greenacre.

Answer 5

3. Diana may be bound by the restrictive covenant but she could have the current owner of Greenacre expressly release the restrictive covenant.

Question 6

Hiroj dies leaving a will which states: “I leave my property to my brother Hafiz for life without impeachment for waste, with remainder to my son Rafi.” Which of the following statements is TRUE?

1. If Hafiz tears down the garage to make way for a basketball court, he will be liable to Rafi for voluntary waste.
2. If Hafiz plans an apple orchard in the back yard, he will be liable to Rafi for permissive waste.
3. Hafiz can destroy the buildings on the property so Rafi has nothing of value to inherit because he is not liable for any category of waste.
4. If Hafiz decided to destroy the buildings in order to spite Rafi, Hafiz would be liable to Rafi for equitable waste.

Answer 6

4. If Hafiz decided to destroy the buildings in order to spite Rafi, Hafiz would be liable to Rafi for equitable waste.

Question 7

Lear is the owner of 300 acres of land rich with natural resources. Lear wants to ensure that each of his three daughters has an equal share in the property, but he also wants to provide for his faithful servant, Fool. To this end, he write his will as such: “I leave my 300 acre property to my servant, Fool, for life, and upon the death of Fool, to my three daughters, Goneril, Regan, and Cordelia, as joint tenants”. After Lear’s death, Cordelia, who dislikes her two sisters, sells her interest in the property to Gloucester. A year later, Regan dies in a freak accident while travelling with Goneril. Regan’s will provides that all her estate goes to her husband, Cornwall. Who are the current owners of the property and what type of interest do they have?

1. Goneril, Gloucester, and Cornwall are tenants in common; Fool retains his life estate.
2. Fool has a life estate in the property; Goneril and Gloucester are tenants in common as to the remainder.
3. Goneril, Gloucester, and Fool are joint tenants, but Fool’s joint tenancy is for his life only.
4. Goneril, Gloucester, Cornwall, and Fool are tenants in common, but Fool’s interest is for his life only.

Answer 7

2. Fool has a life estate in the property; Goneril and Gloucester are tenants in common as to the remainder.

Question 8

In which of the following examples could a joint tenancy exist among the parties?

A. Laura transferred her summer cottage to her three children. The eldest received a 1/2 undivided interest and the two younger children each received a 1/4 undivided interest.
B. Leopold and Nan purchased property as equal owners of an undivided interest. Later, Leopold gave his share in the property to Wolfgang who then shared the occupation of the property equally with Nan.
C. Robert owned a house and when he married Lina he transferred the property to himself and Lina as equal owners of an undivided interest.
D. Jen and Dawn owned a house together as equal owners entitled to an undivided interest. Dawn became increasingly jealous of Jen and secretly sold her interest to her mother who forgot to register the transfer.

1. C only
2. B, C, and D only
3. All of the above
4. None of the above

Answer 8

1. C only

Question 9

Which of the following individuals holds an interest in land that is less than an estate?

1. Meredith has the right to live in Greenacre until the death of her mother.
2. Avram has a lease on a house for one year less a day.
3. Under his uncle’s will, Ian inherited a remainder interest in a farm after the death of his aunt, who was left a life interest in the farm.
4. Hiram has a registered easement over the property of his neighbour granting him access to a fishing lake.

Answer 9

4. Hiram has a registered easement over the property of his neighbour granting him access to a fishing lake.

Question 10

In his will, Jerry has provided: “I leave my condominium equally to my friends, George and Kramer”. After Jerry’s death, George and Kramer agree to rent the condominium and split the rent between them. Some years layer, George is killed in a freak accident. In his will, George provides that he leaves his share of the condominium to Elaine. Assuming the law of Alberta applies, which of the following statements is true?

1. Elaine and Kramer will be tenants in common.
2. Elaine and Kramer will be joint tenants.
3. Kramer will be sole owner of the condominium through the right of survivorship.
4. None of the above.

Answer 10

1. Elaine and Kramer will be tenants in common.

Question 11

Ted wants to give his land equally to his three children. He executes a transfer of the property to John, Wendy and Graham, as joint tenants. John and Wendy both live in the house on the property but Graham lives in a trailer park in Kamloops. Which of the four unities is missing which prevents Ted’s transfer from conferring joint tenancy?

1. Unity of possession
2. Unity of title
3. Unit of interest
   4 None of the four unities is missing; a joint tenancy has been created.

Answer 11

4 None of the four unities is missing; a joint tenancy has been created.

Question 12

Jack and Diane’s marriage has ended. They own Greenacre as joint tenants. Jack wants to move to Australia but Diane wants to stay in Halifax and remain in the house. Against Diane’s wishes, Jack unilaterally commences a partition action and provides in his will that his new girlfriend, Tammy, will be his sole beneficiary. Before judgement in the partition action, Jack goes to Australia and is killed while hiking in the outback. Which of the following statements is TRUE?

1. Because of the operation of right of survivorship, Tammy and Diane will be joint tenants of Greenacre.
2. Diane and Tammy now own Greenacre as tenants in common.
3. Diane is the sole owner of Greenacre.
4. The court will direct the sale of Greenacre and a partition of the proceeds between Diane and Tammy.

Answer 12

3. Diane is the sole owner of Greenacre.

Question 13

Peter is a photographer who has decided to open his own photography studio and framing gallery. He rents a store in a shopping centre owned by Mark. The lease specifies that all fixtures become the property of the landlord. At the front of the store, Peter has a large development machine so that must be anchored by steel rods to the floor and ceiling of the store. The walls of the store are lined with Peter’s own photography mounted in various frames to show the options available to the customers. In the back of the store, Peter has installed a small darkroom in which he develops his own photographs. The equipment in this darkroom sits on a counter and sink combination which Peter had custom built to be part of the wall. The sink and electrical units are connected to the shopping centre systems.

Which of the following items are fixtures and belong to the landlord?

1. the film developing machine at the front of the store.
2. the counter and sink combination.
3. the pictures lining the walls of the store.
4. the darkroom equipment.

Answer 13

2. the counter and sink combination.

Question 14

Property owners have the right to support for their land. Which of the following statements regarding support is TRUE?

1. A property with buildings on it does not have a right to support because it is not in its natural state.
2. The defendant’s property must be adjacent to the plaintiff’s property in order to bring action for loss of support.
3. The right to lateral support arises through prescription.
4. None of the above is true.

Answer 14

4. None of the above is true.

Question 15

Sandy and Ann are neighbours. Sandy is a real sun-worshipper and has decided to install a swimming pool on her property. She has consulted several contractors who have all warned her that her yard is not quite large enough for the pool that she wants. She decides to proceed anyway and so hires Sam Shady, an unscrupulous contractor, who has told her that although the pool may not comply with zoning by-laws, he can fit into her backyard by building it against the property line between Sandy and Ann’s yards. Sam commences digging for the pool. When the hole has reached a depth of seven feet, Ann’s toolshed, which is about 3 feet from the property line, collapses. Which of the following statements is FALSE?

1. An owner has the right to have land left in its natural plight and condition.
2. Ann will only recover damages for the collapse of her toolshed if she can show negligence on the part of Sam.
3. The fact that Ann’s toolshed is very old will have no bearing on whether she can recover damages or not.
4. A property owner has the general right to have vertical or lateral support for his or her land.

Answer 15

2. Ann will only recover damages for the collapse of her toolshed if she can show negligence on the part of Sam.

Question 16

Which of the following describes an interest in land?

A. Jake’s ownership interest in Blackacre includes the right to cross the neighbouring property within a specific 5 metre-wide strip, to access the beach.
B. When Jo brought her Calgary condominium, she was relieved to know that the neighbouring properties had instruments filed against their titles stating that they could not build higher than three storeys.
C. Amanda is a farmer whose main crop is corn. She wants to be able to sell the corn at her roadside stand along the highway, but her property does not border the highway. Her neighbour, Jane, agrees to allow Amanda to set up a stand on Jane’s property for operation every weekend of the summer.
D. Allison has the right each year to enter onto Billy’s apple orchard and to take any apples for her own purposes.

1. A and B only
2. C only
3. A, B, and D only
4. All of the above

Answer 16

3. A, B, and D only

Question 17

Amanda is a farmer whose main crop is corn. She wants to be able to sell the corn at a roadside stand along the highway, but her property does not border the highway. Her neighbour, Jane, agrees to allow Amanda to set up a stand on Jane’s property for operation every weekend. When Amanda asks Jane what she would like in exchange for this favour, Jane responds that she wants nothing - she is doing the favour because it is the “neighbourly thing to do”. A month into the corn harvesting season, Amanda is making huge profits from her road side stand. Jane is on vacation in Europe, but Michael, her husband who is joint tenant of the property, decides that he should open his own stand selling tomatoes. He order Amanda off the property. Which of the following statements is TRUE?

1. Amanda’s agreement with Jane is a bare license which can be revoked at any time without any obligation to compensate Amanda for damages incurred.
2. Because Amanda is selling corn, this is a license coupled with an interest in land which runs with the land and is binding on Jane’s heirs and assigns.
3. Since Jane has granted Amanda permission to sell corn, Michael’s tomato stand cannot operate because a strict interpretation of corn sales does not allow for tomatoes.
4. None of the above statements are true.

Answer 17

1. Amanda’s agreement with Jane is a bare license which can be revoked at any time without any obligation to compensate Amanda for damages incurred.

Question 18

Which of the following statements is FALSE?

1. Because of the indefinite duration of a life lease, a life estate is not a widely marketable commodity.
2. If no contrary provision is made in the grant creating the lift estate, expenses for repairs to the property, fire insurance, and payments of principal due under any mortgage on the property are the responsibility of the remainderman during the life estate.
3. At common law, a life tenant is allowed to commit voluntary waster without having to compensate the remainderman.
4. The life tenant is not responsible for expenses related to reasonable wear and tear on the property.

Answer 18

3. At common law, a life tenant is allowed to commit voluntary waster without having to compensate the remainderman.

Question 19

On applicant by an interested party, the court may modify or cancel an easement under appropriate circumstances. Which of the following, by itself, is NOT an appropriate circumstance?

1. The agreement creating the easement is invalid.
2. The easement has not been used for 10 years.
3. The character of the neighbourhood has changed making the easement unnecessary.
4. The parties have agreed to cancel the easement.

Answer 19

2. The easement has not been used for 10 years.

Question 20

Peter occasionally takes photographs of houses from the air and then tries to sell them to the owner of the home photographed. Peter has done so with Fred’s home. When Peter approaches Fred about purchasing the photographs, Fred is outrages and takes legal action against Peter for trespass. Which ONE of the following statements correctly summarizes the current state of the law regarding airspace?

1. The common law maxim “to whomever the soil belongs, he also owns the skies, and to the depth of the earth” applies in this circumstance. Peter is liable to Fred in trespass.
2. No action lies for trespass in respect of passage through airspace above land where the owner’s reasonable use of it is not interfered with.
3. The court’s decision rests upon whether or not the plaintiff can introduce evidence demonstrating that at the time the photographs were taken, he was at home.
4. Fred will only be able to succeed in an action for trespass if he can prove that damage resulted to his land from Peter’s actions.

Answer 20

2. No action lies for trespass in respect of passage through airspace above land where the owner’s reasonable use of it is not interfered with.