Chapter 3 - Estates And Interest In Land Flashcards
A BUILDING SCHEME refers to a group of restrictive covenants attaching to two or more lots within a particular development plan, and which usually aims at ensuring that a certain level of uniformity is maintained within the development.
Which of the following is false regarding easements?
1) the land receiving the benefit is the dominant tenement
2) the land granting the benefit is the servient tenement
3) the dominant tenement has full use of the servient tenement’s land
4) the dominant tenement has limited use of the servient tenements land
Answer
3) the dominant tenement has full use of the servient tenement’s land
This statement is false as the dominant tenement has limited use of the servient tenements land.
All other statements are true.
The right to have ones ground supported so that it will not cave in when adjoining owner makes an excavation is know as:
1) support
2) ground rule
3) non-excavation
4) non of the above
Answer
support
A Life Estate is an interest in land to be enjoyed during the persons life, and may be carried on after that persons death.
True or false
False
The life estate may be enjoyed during the holder’s life; however, the life estate ends with that persons death.
A joint tenancy is where two or more people acquire an.Equal undivided interest in a a property. When one person dies, that persons share automatically goes to the surviving joint tenants.
Which of the following is true regarding encumbrances?
1) An encumbrance is a judgment, mortgage or lien or any other claim which is registered against the title to land. CORRECT
2) an encumbrance does not have to be registered against the title to land
3) a lien would not constitute an encumbrance. Even if it is registered against the title to land
4) even if a mortgage is not registered against the title to land, it can still be considered an encumbrance
With respect to real property, a LICENSE is a privilege to enter premises for a certain purpose. The privilege confers upon the licensee a degree of title, interest or estate in such property (e.g. exclusive right to possession of the property).
True or false
False
Does not confer any title, interest, or estate in such property.
For example it can be a monthly rate at a hotel suite maybe available. But innkeeper has right to enter at his pleasure
Define fee simple or Freehold (same thing)
Fee simple is the legal term for the maximum (greatest) interest in land available to a person, or maximum of legal ownership. In many ways, a fee simple is equivalent to absolute ownership
Greatest bundle of rights.
A tenancy in common is where two or more persons acquire INTERESTS in single PROPERTY and each May sell or bequeath their interest. Additionally, in the event of death, their interest becomes part of their ESTATE
Describe airspace, in historical and current context
Historically, one owned the airspace above the parcel of land “to the heavens”. Today, airspace refers to the legal concept that a person who owns land also owns as much of the airspace above land as he can effectively use.
A life estate PUR AUTRE VIE. Type of estate that length of estate is measured against life of another person.
Someone who gives their property to someone as a LIFE ESTATE.
- lasts for the life time of the estate holder
- called a LIFE TENANT / LIFE TENANCY
- Can be sold
Rights/
can use and occupy; receive revenue
Obligations/
Yearly operating expenses
Pay interest in mortgage ( the REMAINDERMAN or REVERSIONER will pay the principal portion of loan.
Waste
The dominant tenement is the land to which the benefit of a right is attached.
True
What is a PROFIT A PRENDRE?
1) a right to take the produce or part of the soil from the lands of another
2) a right of government to take for public use if it results in an overall betterment for society
3) the profit received by a mortgagee after foreclosure
4) the profit received in a taking.
Answer
1) a right to take the produce or part of the soil from the lands of another
Example should be registered at LTO
Hunter, having cattle graze your land, taking fruits from the orchids
What is a restrictive covenant?
A restrictive covenant is a covenant restricting the use of land of the covenantor (the servient tenement) for the benefit of land belonging to the covenantee (the dominant tenement).
An example would be a restriction on the height of a building on one piece of land so that adjacent or adjoining lands are not deprived of a view.
Define servient tenement?
A servient tenement is land bearing the burden of an easement or other right (i.e. restrictive covenant)
Crown Land - land ownership is not absolute
- expropriation- government take back property from you. Will compensate
- Doctrine of Escheat. - a fee simple owner of an estate dies without a will or heirs, the property will revert (escheat) back to the crown.
Leasehold Interest
Crown gives you 99 years lease on crown land
Remainderman is what?
The WILL states who will inherit the estate.
- ideal, positive, clear
Reversioner is what
Negative and not Ideal
If you do not state in the will and cannot locate heirs, the property will “revert” back to the Crown (Escheat)
If heirs can be found then it will take time through Probate to give the property to.
If LIFE ESTATE holder sells their interest:
The person will be buying the interest of the LIFE ESTATE HOLDER and this is called Estate pur Autre Vie (means based on the life of)
If LIFE ESTATE holder dies this sale will cancel and will be given to REMAINDERMAN or REVERSIONER
The extent to ownership of:
Airspace - only to the extent and limited to what you can use
Subsurface - Below 10 feet the government owns rights. No including any minerals like gold or silver or oil.
Water Rights - No
Fixtures what are they?
- Goes with the land. (A TREE IS A FIXTURE)
- will belong to the purchaser
- affixed to enhance the land
Two part test:
1/ Degree of affixation
2/ Purpose of Affixation
When the item is attached or even slightly attached it is presume to be a Fixture, UNLESS, once investigated, the circumstances show that they were intended to be enjoyed or remain as chattels.
A fixture is a chattel attached to real property; it is anything which has become so attached to the land as to form, in law, part of the land.
Chattels. What are they?
Remain the personal property of the vendor. Couches, TV. Mount could be a fixture
Affixed for enjoyment of the item.
Articles of personal property (i.e. car, stereo, TV), as opposed to real property, are known as CHATTELS
Interests In Land - less than Estates
1/ Easement
2/ Restrictive Covenants
3/ Profits a Prendre
Easement what is it.
It is the LAND (Tenement) that benefits from an easement, NOT the owner (Tenant).
- Dominant and Servient LOT
- forms a subject matter of a grant (creates boundaries). It is well defined boundary in the Servient lot.
- must accommodate the Dominant Tenement (land)
Land = Lot = Parcel = Property
Tenant = Person = Owner
NOT REQUIRED TO BE FILED IN THE LTO.
Easement gives right of way
The property that gives the right of way is servient and is burdened
Prop A Servient
Prop B Dominant requires easement (to cross A In order to go to the beach)
Prop C Dominant requires easement from A and B - same thing - go to breach through A
Does not have to adjoined
Don’t have to file at Land Title office.
Restrictive Covenants, what is it?
It is NEGATIVE in nature ( but doesn’t have to use negative words)
Runs with the land ( sticks to title even if properties sold)
Binding the parties ( covenantee & covenantor)
Covenantee - the Dominant (Benefactor)
Coventor - the Servient ( Burdened)
Property subdivided to two lots
Parcel A has beautiful view
Parcel B is lower. A restrictive covenant Could be placed lot B that they cannot build big to block view.
Building Scheme (BS)is like a Restrictive Covenant
Requirements:
1/ the parties must receive their title from same vendor, and purchasers May sell to others without affecting the building scheme. Properties sold subsequently have to abide by BS
2/ Restrictions apply equally to ALL lots and be consistent with some general scheme of development
3/ the benefit of restrictions should bind each individual lot. All lots have to be by same BS.
Co - ownership of Land
Joint Tenancy
Tenants in Common.
If not specified in Title document then it is considered to be a Tenancy in Common
Joint Tenancy (TTIP)
Joint Tenancy - Equal Ownership (always)
All four Unities required:
Unity of Time - must receive interest at the same time
Unity of Title - must obtain their interest from the same document
Unity of Interest - have the same interest ( eg fee simple) in land
Unity of Possession - undivided interest of the (whole) property
Joint Tenancy - Right if Survivorship
Right if Survivorship
— last man standing
Cannot Will it but can SELL It.
No need to have equal dollars in purchase.
Tenants in Commons
- Only has one Unity required - Unity of Possession (DIVIDED interest of the property)
- Owners do not have to have equal $$$ or time in property
- Can WILL it, can sell it (but only your interest- %). Like you can own 10%
- if it’s not specified on the transfer paperwork- it is assumed to be Tenants in Common
Joint Tenancy if one person sells
While the joint tenants with right of survivorship can’t will their share in the property to their heirs, one can sell his interest in the property before his death. Once a joint tenant sells his share, this ends the joint tenancy ownership involving the share. The new owner is not a joint tenant, yet the rights of the other owners remain.
For example, if John, Bill and Susan own property as joint tenancy with right of survivorship, and Susan sells her share to Ann, Ann is not included in the joint tenancy and can will her share to her heir. Yet, if John dies, his share goes to Bill.
REMAINDERMAN— are your wife/kids in your will. ex. Bobby your son. (These Family members are in the WILL
REVERSIONER— the estate owner dies without a WILL or has not placed anyone in the WILL. The property will Revert back to the person who is the closest (heir) relative. The government will look for them.
The property does not automatically ESCHEAT back to the Government. They will look for closest relative who is considered as the REVERSIONER
Life Tenant (is a CHARGE AGAINST THE TITLE) — while the Estate Owner was alive he gave a part of his property to his girlfriend. She is NOT in the WILL. ASSUME SUSAN IS THE GIRLFRIEND. Susan has rights to the property as long as she is alive. It will BE her property for Her lifetime. SUSAN DIES THE the property will either go to the REMAINDERMAN first OR if no Remainderman TO REVERSIONER
Susan is also responsible for the operating costs of the property and receives any revenue associated with the property
Susan is responsible for paying the interest on the property while the Remainderman or Reversioner pay the Principal on the mortgage.
Susan is allowed to sell her LIFE TENANT interest in the property. This is known as Estate pur Autre vie. This person (Ex. Mary) can only live on this property as long as Susan is alive, IF SUSAN DIES THIS WOULD END THE “Estate pur Autre vie”. This phrase Means “based on the life of”
Susan The Life Tenant is Responsible for WASTE under
Common Law - VOLUNTARY, PERMISSIVE, AMELIORATING. VPA
Statute Law: EQUITABLE
Freehold land is subject to Crown’s land use regulations. expropriation. Government has absolute right to the land.
Leasehold — only have limited interest in land for the number of years left on the lease. Like land on Native First Nations. You get 50 year lease.
Crown is absolute owners of all land.
Escheat—- is the reversion of property to the government (crown) on the owners dying without legal heirs.
Escheat - if no legal heirs, the Crown gets it back.
Types of Waste ( Very Picky Aunt - VPA) plus Equitable
COMMON LAW
Voluntary Waste - cut down tree, pull down garage) Small stuff destruction
Permissive Waste - allow property to deteriorate (you are allowed to DO NOTHING courts have ruled)
Ameliorating Waste - improve property
STATUTE LAW
Equitable Waste - MAJOR destruction of the property. STRUCTURAL DAMAGE TO PROPERTY
If LIFE ESTATE has a clause which says either:
1/ without impeachment for waste then you are not responsible for Common Law Waste (VPA)but responsible for Equitable waste
2/ without impeachment for waste, including Equitable waste. (VPAE) Not Responsible for Common Law and Statute Equitable
1/ WITH impeachment for waste— then you are responsible
If your LIFE TENANT does not indicate anything then you are responsible for all WASTE except PERMISSIVE(dId not do anything and let property deteriorate)
Under Fee Simple you own the land as long as you have heirs. You can transfer without consent of the Crown.
Estate means a “period in time”.
So you own the fee simple land as long as you live and it continues on as long you have heirs. WILLS, became a convenient way to transfer your interest in land to your heirs.
No Heirs, crown take land back.
First Nation land. The First Nation own their land as a collective.
Life Estate - holder owns land as long as they live.
Ex. A owner of land as a life estate to B (LIFE TENANT)
B dies, the land Reversioner (reverts) back to A. A is Reversioner.
Alternatively, A can also say if B dies the life estate can go to C (Remainderman). The Remainderman can be kids.
B can sell the life estate, which is known as pur Autre vie. The Remainderman would not like this.
The LIFE TENANT
Voluntary- damage property LT responsible
Permissive- let property deteriorate
Ameliorating— change basic nature of property ( LT IS RESPONSIBLE )
If it says without waste - then not responsible but courts said not fair and they brought in Equitable Waste.
Statute
Equitable Waste
Interests in Land Less than Estates —Easement and Restrictive Covenant — are registered at the LTO — these interests “run with the land” — you sell property the next buyer will still have these interest on the property title.
Easement
A and B own property. The only way B can go to the beach, is through Property A.
Easement is created by contract, as B will pay consideration to get access through property A.
A = servient Tenement (burdened)
B = dominant Tenement (Benefits)
For an Easement 3 criteria
— 2 pieces of property needed
— The easement must accommodate the Dominant Tenement
You don’t have to grant an easement
Can charge for it
Can remove by mutual agreement
If over time things change, a road is created no longer requires easement
— Easement must be capable of forming the subject matter of a grant. — just means the area must be defined.
Contract Law - had to be diff people. Property law - you can give yourself an easement by subdividing
Building Scheme
— a special type of restrictive covenants
— developer places these special restrictive covenant for benefit of all owners.
— enforcement issues. If no one enforcing it then court will say you waived your rights.
Airspace Rights
— You own as much as you can use and enjoy
— subdivision of air space. This allows you to create a condo plan.
Sub service Rights
— Reserved for Crown
— crown can take those minerals
Water Rights
— all water that flow through your property is owned by crown (rivers, creeks, lakes)
— to use the water, you need a licence
Fixtures and Chattels
— when you buy property you get all Fixtures not chattels
Why thing bolted down or fixed
If affixed: deemed to be a fixture
— degree of affixation. If remove, causes damage then Fixture.
— object of affixation Why affixed.
Co-Ownership of Land
Joint Tenancy
— unity of PITT. Possession, Interest, Time, Title. This has to be done on the same conveyance document at the same time.
— each owns the whole, together with the other tenants (undivided)
— right of survivorship
(Interest = Fee Simple)
Joint Tenants
- if one party sells there interest, this SEVERS the Joint Tenant and becomes a Tenancy in Common.
Tenancy in Common — unity of possession only — each has a separate ownership share — no right of survivorship but can be willed. — can own different % of interest
If Title does not say what type it is presumed to be Tenancy in common
Chattel is enjoyment , personal property
Fixture is enhancement of the land
2 part test.
1 Degree of affixation
2. Purpose of affixation
