Chapters 3&4

Question 1

What is PERMISSIVE WASTE?

Answer 1

Allows property to deteriorate.

Example: Failing to keep the house’s roof in good repair and maintenance.

(Life tenant has no obligation to repair/compensate for permissive waste.)

Question 2

What is VOLUNTARY WASTE?

Answer 2

Direct positive acts that leads to destruction of property.

Example: demolishing a separate garage

(Life tenant fully liable)

Question 3

What is AMELIORATING WASTE?

Answer 3

Direct positive acts that improve the property.

Example: constructing a deck in the backyard

(Life tenant is liable, but damages usually are not awarded since the property has been improved.)

Question 4

What is EQUITABLE WASTE?

Answer 4

The waste caused by life tenant who flagrantly or maliciously damages/destroys the property.

Example: burning the house down so remainderman receives a property with significantly less value.

Question 5

What is an ESTATE?

Answer 5

A right to to possess and use land for a period of time. The length of time could be indefinite (fee simple), or predetermined (life estate, leasehold estate).

Question 6

Describe FEE SIMPLE.

Answer 6

Legal term for the greatest estate in land known to Canadian law. The estate is held from the Crown, but the Crown is still the absolute owner of the underlying title.

Question 7

Describe LIFE ESTATE.

Answer 7

An interest in land to be enjoyed during a person’s life, and which ends on that person’s death.

Question 8

INTEREST IN LAND

Answer 8

Less than an estate (you do not poessess the land).

“Runs with the land” - As the land is sold to a new owner, any existing interests in the land is carried over.

Three main classifications of interests in land:
- Easements
- Restrictive covenants
- Profits a prendre

Question 9

EASEMENTS

Answer 9

The right to use a neighbouring property in a specific way (without possessing it).

The land that benefits from an easement is called the dominant tenement and the land over which the easement is exercised is called the servient tenement.

Question 10

RESTRICTIVE COVENANT

Answer 10

A restriction on the use of a property for the benefit of another property.

It must be negative in nature, intent must be to bind the land.

Example: Restriction on the height of a building on one piece of land so that adjacent land is not in its shadow.

Same owner must own both properties at the time when the RC is put into place.

Question 11

PROFIT A PRENDRE

Answer 11

The right to enter land owned by another entity tin order to take a profit of the soil (minerals, oil, trees, gravel, etc.)

Question 12

LICENSE (in land)

Answer 12

Not an interest in land. It is a contractual right or privilege.

Does not “run with the land” (unless joined with an interest in land.

Question 13

Scope and extent of “ownership” of land relating to AIRSPACE

Answer 13

Owns as much of the airspace above the land as he or she can effectively use.

Question 14

Scope and extent of “ownership” of land relating to SUBSURFACE

Answer 14

Greatly limited by the provincial government. Any minerals/resources of value is reserved for the Province.

Question 15

Scope and extent of “ownership” of land relating to WATER

Answer 15

Governed by Water Sustainability Act which requires the landowner/tenant wishing to use water on their property must first obtain a water license and pay annual fees.

Ground water belongs to land owner (i.e. well water).

Surface water belongs to Crown.

Question 16

FIXTURE

Answer 16

If item is affixed to improve the land, the item is more likely to be deemed a fixture.

Are included in property purchase.

Question 17

CHATTEL

Answer 17

If an item is affixed for the better use of the item itself, the item is more likely to be deemed a chattel.

Will go with seller after property sale.

Question 18

JOINT TENANCY

Answer 18

Where two or more persons hold an undivided estate or interest in a property. Legally they are viewed as one single owner.

All joint tenants must have received their interests at the same time (Unity of Time) and from the same document (Unity of Title).

Unity of Interest - All tenants must have the same estate/interest. I.E. one joint tenant cannot have fee simple estate whereas another life estate.

Unity of Possession - Each owner is entitled to possession of the whole of the estate.

When one person dies the survivor, or survivors continue to own the whole - the right of survivorship being known as jus accrescendi

Question 19

TENANCY IN COMMON

Answer 19

Where two or more persons hold estates or interests in a property and each has a seperate share. Each may sell or bequeath their interest.

In the event that the interest has not been sold at the time of death, their interest passes as a part of their estate (i.e. to their heirs).

Question 20

Describe how the common law dealing with the transfer of estates and interests in land has been changed by the Torrens system of title registration.

Answer 20

In Torrens System, the owner who had their house sold illegally (forged documents, fraud) they would claim against the Assurance Fund for reimbursement. The purchaser would keep the property.

In Common Law, the owner would receive their house back and the purchaser would be out the house and money (they would need to take the fraudster to court).

Question 21

List and explain the four main components of our Torrens system

Answer 21

The PRINCIPLE OF INDEFEASIBILITY
- If a person is named on a certificate of title as the owner of the fee simple estate in land, then that is conclusive proof, as far as the world is concerned, that they are entitled to that fee simple estate.

The REGISTRATION PRINCIPLE
- Deeds do not transfer an interest or estate in land until they are registered.

The ABOLITION OF THE DOCTRINE OF NOTICE
- The purchaser dealing with the registered owner only needs to be concerned with those estates and interests contained on title.

The ASSURANCE FUND
-The claimant has lost an estate as a result of the registration of a person other than the claimant as the owner
- If the Land Title Act had not been passed, the claimant would have recovered the estate
- The claimant cannot recover that estate by court action
- If above three conditions are met, claimant is entitled to recover compensation from the assurance fund.

Question 22

CAVEAT

Answer 22

A NOTICE registered against the title to the land warning those looking at that title that a claim has been made.

Can only be used for TWO MONTHS.

A caveat is frequently registered BEFORE the certificate of pending litigation, to protect a disputed interest prior to bringing a lawsuit, because a certificate of pending litigation cannot be registered until a lawsuit is commenced and registered in the court registry