Class 2: Estates

Question 1

How long is a freehold estate in duration?

What about a leasehold estate in duration?

Answer 1

Free hold is uncertain as it can be a fee simple which is indefinite.

A leasehold is created for a defined period of time as it is a lease

Question 2

What does the word “estate” mean? Is it real or personal property?

Answer 2

Can mean a lot of things, can be both personal or real property

Question 3

Is a life estate a freehold estate or a leasehold estate?

Answer 3

A freehold estate means you can do whatever you want with it. So, if you have a life estate, it is technically a freehold estate and not a lease as you get far more rights with it

Question 4

What are the three main types of free hold estates?

Answer 4

Fee Simples
Life Estates
Fee tails

Question 5

What significance did the Statute of Quia Emptores have?

Answer 5

It got rid of subinfieudiation.

Question 6

What does “nemo dat” mean?

Answer 6

You cant give more then what you have

Question 7

What is the right to reversion?

Answer 7

After the estate ends (typically life estate which ends with death) the right of reversion is for you to get the home back.

Also applies with leases.

Question 8

Consider this hypothetical:

If you gave a life estate to X and you said “have the property till you die. Once you die, give the property to P”

What does P have?

Answer 8

If you gave a life estate to X and you said “have the property till you die. Once you die, give the property to P”

P has a fee simple in remainder

X has a life estate

Question 9

Are estates applicable to personal property? Is there an exception?

Answer 9

NO. One exception is a trust

Question 10

What are the three types of freehold estates?

Answer 10

Fee Simple
Fee Tail
Life Estate

Question 11

Can a grantor create consecutive estates?

If so provide an example

Answer 11

Yes you can

Example: O gives to A for life, remainder to B and his heirs

Question 12

Define what a fee simple estate is.

How long do they last?

Can you pass it on?

Answer 12

Fee simple is often referred to as freehold ownership AND is absolute ownership.

Fee simple holders assume that upon sale they can pass on the totality of rights connected to the land in question, including the right to direct how title will pass in the future and this is what Quia Emptores guaranteed.

Thus, the question of how long it can last can be infinity, by continuously passing it down to another purchaser.

The basic point remains that the fee simple ends whenever the holder dies intestate without any known heirs

Question 13

What does it mean when they say an interest in property is alienable?

Answer 13

An interest in property is alienable if it may be conveyed by one party to another.

Question 14

In a life estate, do you get the usus, fructus or Abus?

First define which each is and then decide.

Answer 14

Fructus is the right to profit from the land. You get this.

Usus is the right to use the land. You get this.

Abus is is the right to alter the land. You DO NOT get this.

Question 15

What type of rights do you get with a fee simple? In roman times they used the words “usus, fructus and abusus” What did these mean generally?

Answer 15

Typically absolute rights. you can damage the land and do whatever you want with it.

Usus is the right to use and possesses the land,

Fructus is the right to profit from the land and

abusus is the right to alter the land

Question 16

What is the Law of Succession?

What have been some modern changes for intestate succession contained in the Succession Law Reform Act? (For spouse, or adopted children, or unmarried parents)

Answer 16

The law of succession dictates under statute what rights go to the person who takes your land after you die.

Main changes is that a spouse has more rights than the children and other relatives,

Adopted children and the children of unmarried parents are recognized as having the same rights as natural-born children of married parents.

Question 17

How can a fee simple estate end? If it does end, who gets the property?

Answer 17

If someone dies intestate (without will and heirs)

Property goes to Government.

Question 18

What type of estate is this “ When I die I leave my home to my heirs”

Answer 18

THIS IS A FEE SIMPLE.

Question 19

Define what a life estate is. How long do they last? Can you pass it on?

Answer 19

A “life estate” is an estate that will last for the holder’s lifetime; and since the date of death is uncertain, the life estate is a freehold estate.

Cannot pass it on.

Question 20

Can a life tenant lease the property?

Can a life tenant mortgage the interest they have in a home?

Answer 20

Yes to both.

A life tenant can lease the property, although the lease will expire by operation of law on the death of the life tenant.

A life tenant can even mortgage the interest although the lender would be wise to insure the life of the life tenant to guard against premature death.

Question 21

Consider “O grants to A for life”.

What rights does A have? What right does O have when A dies?

Answer 21

This means A has a life estate, and O retains a reversion in fee simple

Question 22

Consider “O grants to A for life, remainder to B in fee simple”

What rights does A have? What rights does O have? What right does B have?

Answer 22

A has a life estate. B has a remainder in fee simple. O retains nothing.

Question 23

How long does a life estate last? What interest do you have in a life estate?

Answer 23

Life estate lasts only the length of one human life.

A life estate has limited interest, as either the grantor has retained a reversion in fee simple, or the grantor has transferred the reversion to a third party.

In this case, the third party’s interest is a remainder.

Question 24

Define a fee tail.

Historically, why was it created?

Is it abolished in Ontario?

Answer 24

This is a shortened version of the fee simple and is typically a grant “to A and the heirs of his body” . Only a lineal descendant of A could ever inherit the property.

This would ensure that daughters would never inherit in England

Abolished in Ontario but some remain as it was not retroactive.

Question 25

What is the old doctrine of land transfer called “primogeniture”?

Could daughters inherit land?

What if there were more than one daughter?

Is primogeniture alive in Canada?

Answer 25

primogeniture: where this says you give the land according to which the eldest son inherited all the parental land, and only if there was no male issue could daughters inherit.

If there was more than one daughter, they inherited the land in co-tenancy as co-parceners.

No primogeniture is not in Canada anymore

Question 26

True or False: When you are given a life estate, you can sell the home.

Answer 26

FALSE.

Question 27

What type of estate is this “ O grants to A for life. “

Answer 27

THIS IS A LIFE ESTATE

A’s estate will cease upon their death. At that point, possession will revert to O if they are still alive or will pass to O’s executor if O is dead. At the time of grant, A has a life estate and O has a reversion.

Question 28

Can a fee simple last indefinitely?

Answer 28

Yes.

A fee simple might last indefinitely if B the holder of the estate had heirs to whom it could pass on B’s death. T

Question 29

What type of estate is this “O grants the property to C and the heirs of his body”.

Answer 29

THIS IS A FEE TAIL.

Anyone who takes the fee tail must be a lineal decedent of C. THIS IS A FEE TAIL. FEE TAILS can no longer be created in Ontario.

Question 30

What if in the will it says “ O grants to A for life, remainder to B and his heirs”

Answer 30

This creates a will with two distinct promises.

It first promises a life estate to A. When A dies, the remainder is a fee simple estate passed onto B.

Question 31

What is the standard of care required for lawyers when being an executor for a will? What if they make a mistake? What should a lawyer do if there is ambiguity?

Answer 31

The standard of care expected of a trustee or executor when distributing property under a deed or will is one perfection.

A trustee or executor who misinterprets the interests created by the document and gives to A what a court determines was meant for B, may be personally liable to B for the error.

In times of ambiguity, a lawyer will advise the trustee or executor to apply to court for advice and direction.

Question 32

If in a will they dictate “To A and his heirs”

Can A sell the home or does he have to retain it so he can give it to his heirs?

Answer 32

Tricky question. First realize that what type of estate this is, it is a fee simple. Fee simple estates contain absolute ownership.

A can completely destroy the house, light it on fire, sell etc as he sees fit.

The heirs take no interest in this disposition, and A can freely alienate the property without the consent or knowledge of the heirs

Question 33

True or false: In the past with common law, there was only way to create a fee simple you had to say “To A and his heirs”. Anything else was considered a life estate even if you say to “A in fee simple”

Answer 33

True.

At common law, the effect of any phrase other than “To A and his heirs” in a conveyance even one such as ‘to A in fee simple” was to create a life estate only.

Thus, the presumption in any grant creating a freehold interest was for a life estate only.

Question 34

With remembrance to the fact that in the past you had to say “To A and his heirs” to convey a fee simple estate, how has this changed in modern times?

Answer 34

In North America, with its active land market, such presumptions were much less apt.

As a result, legislation reversed the presumption for both grants and wills.

Almost all provinces have legislation that does not require “heirs” to give a fee simple.

Question 35

What is the law of waste? How does it apply to life estates?

What type of claim is waste typically?

What can you sue for if the person in life estate threatens waste?

Answer 35

The law of waste says the life tenant cannot undertake acts that will damage the capital value of the land, such as pulling down buildings, or engaging in acts that alter the land physically in significant ways

Waste is a tort

Allows the reversioner or remainder person the remedy of injunction if such acts are threatened

Question 36

What is voluntary waste? Give me an example.

In a life estate, is this okay?

Answer 36

Voluntary waste is the prohibited kind, acts that damage the capital value of the property in a non-trivial way

Not okay in a life estate if you damage it, as it is not an absolute ownership.

Question 37

What is permissive waste? Give me an example.

In life estate, is the tenant responsible for permissive waste?

Is there an exception? If there is an exception, give me an example.

Answer 37

Permissive waste occurs where the life tenant fails to maintain the property in a passive way (by not repairing the leaking roof for example) Replacing the roof is seen as protecting the remainder person’s capital interest in the property, and thus properly their responsibility. (Thus the remainder persons responsibility not the life tenant)

A life tenant is NOT liable for permissive waste unless the instrument creating the estate imposes such an obligation.

Yes there is an exception. Although the life tenant is not liable for permissive waste, she is responsible for expenses of a current and ongoing nature relating to her own occupation.

For example, municipal taxes, the payment of mortgage interest, utilities, and snow removal.

Expenses of a capital nature such as the installation of a new furnace or a new roof are the responsibility of the remainder person

Question 38

What is Ameliorating waste?

Answer 38

Ameliorating waste is that which alters the property for the better; although it is technically waste, it is unlikely that a remainder person would be able to show sufficient harm to justify the issuance of an injunction or an award of damages.

Question 39

What is a trust?

Why has a trust generally gotten rid of the issues of waste?

Answer 39

A trust is a fiduciary relationship in which a trustor gives another party, known as the trustee, the right to hold title to property or assets for the benefit of a third party.

The trust instrument ordinarily provides the trustee with the necessary powers to ensure that the property is maintained for the benefit of all parties with interests in it and the authority to allocate responsibility for the expenses as between the life tenant and the remainder person in whatever way the trust’s creator intended

Question 40

Waste, a common law tort, is seldom required today because successive interests in land are normally held in what?

Answer 40

Trust.

Question 41

Estate of Pepter Ryan v Elizabeth Boulous-Ryan.

Facts: Deceased had entered a marriage contract that said his wife would have the right to use and occupy the home during her life without charge.

He also said that his trustees were to pay for any major expense of the house required while the wife lived there.

Wife argued that “without charge” meant that the trustees should cover ALL expenses relating to the house.

Issue: What does “without charge” mean?

Answer 41

Trial judge said without charge did not mean the widow could live in the house without paying anything at all. It meant she was not to be charged rent.

The “default rules” for sharing expenses between life tenant and remainder person would thus apply; she would be responsible for all periodic and current expenses in connection with the property, while Mr Ryan’s estate would be responsible for any expenses of a capital nature.

Question 42

What if in Ontario I had a life estate and leased the house to X for 20 years. During those 20 years, I died.

Does X’s lease automatically end?

Answer 42

In Ontario we have the Ontario Settled Estates act, which gives few unilateral powers to the life tenant except for a power to lease for 21 years.

Such a lease will thus bind the remainder person even if the life tenant dies before the 21 years have expired

Question 43

According to the Ontario Settled Estates act, it gives a life tenant the power to lease for 21 years to another.

Can they get a longer lease if they wish?

Answer 43

Yes.

Powers to grant longer leases, to sell or to mortgage are subject to court approval and all interested parties must consent unless court says otherwise

Question 44

What is a life estate “PUR AUTRE VIE” mean?

Answer 44

The literal translation means for another life.

Thus, if A the holder of a life estate grants it to B, B takes an estate that is limited by the length of A’s life.

Question 45

Hypothetical:

A the owner of a life estate grants the interest to B.

B has an estate that is limited by the length of A’s life.

What if B dies before A? Does A get the house back?

Answer 45

A cannot resume the property because she has already alienated all her rights.

Modern law assumes that the right to the life estate during this period can be passed on by will or is included in the assets of a person dying intestate.

Question 46

What type of estate are you giving if in the will you say “To A for his life” or “to B for her natural life

Answer 46

A life estate.

Question 47

Case of “Re: Walker”

Facts: Guy died and gave a complicated will. He said:

I give and devise unto my said wife all my real and personal property saving and excepting thereout as follows namely my gold watch and chain I give to my nephew John Noble Walker son of my brother William Walker and all other jewellery I may have at the time of my decease I give to my nephews William Craig Walker and Percy Dugard Walker brothers of the said John Noble Walker share and share alike and also should any portion of my estate still remain in the hands of my said wife at the time of her decease undisposed of by her such remainder shall be divided as follows ….

The issue was what rights when to whom? Big Picture Phil, what is the idea behind this case?

Answer 47

Court held the wording of this clause meant that the tester had granted all the real and personal property to his widow, subject only to the exceptions stated and thus, the final part of the clause was not valid. That is, there was nothing remainder for the gift over.

Big picture: A will can have very complicated language. It would go to a court if so and the court would determine who gets what.

Question 48

Case of “Re: Taylor”

Facts: Guy died and gave a complicated will. He said

I Gille, Devise and Bequeath all my real and personal estate of which I may die possessed to my wife Kathleen Augusta Edith Taylor, to· have and use during her lifetime. Any Estate, of which she may be possessed at the time of her death is to be divided equally. between my daughters namely… xxxxx

After he died, his widow used the estate until her death. In the wife’s will, she had half the estate go to charity and the other half to five people.

Issue: Whos will wins? Is it the fathers original will or the wife’s new will?

Answer 48

The husbands original will.

The court held: The form of words used by the husband is to give the wife a life estate and “during her lifetime” operates as words of limitations.

He also used clear words to indicate an intention to give only a limited interest.

Thus, the wife was to take only a life interest, and the daughters were to take that part of the estate remaining in the hands of the wife at her death.

Thus, the husbands will is still superior. The original will that gave the life estate which had rules trumps the will of the person who has the life estate.

Question 49

Case of “Re Walters”

Facts: Guy died and in his will said the following provision:

I give the use of 48 Walker Avenue. in the City of Toronto. to Mrs. Ellen Jones for a.s long as she lives, or until she re-marries, or gives to my executors and trustees a written notice that she no longer needs and desires the use of the property.

Taxes, insurance, repairs and other upkeep expenses shall be paid by Mrs. Ellen Jones.

Upon the death, remarriage, or notice being given by Mrs. Jones that she no longer needs or desires the property, it shall become part of the residue of my estate.

The executor of Mr Waters’s will applied to court for advice and direction as to the nature of the interest of Mrs Jones.

The residuary beneficiaries under the will argued that the devise created only a licence or personal permission to occupy the premises, such that Mrs Jones would not be able to rent out the property if she chose not to occupy it personally.

Issue: was this a license or life estate?

Answer 49

Holding/Analysis:
Justice Pennell said “it was a life estate as the will said “ I give the use of the home for as long as she lives.

Ratio: Found to be a life estate. It can be difficult whether the will is trying to give a license or a life estate.

Big picture idea: it can be hard to determine whether you are giving a license or life estate for the courts.

Question 50

Case of “ Re Powell”

Facts: Guy died and had complicated will. It said :

Verna shall have the right to the occupation, possession and use of my house … for as long as she remains in possession of the said premises … and that in the event my said daughter ceases to remain in possession of the said premises or married or upon her death … the said premises … shall be held … in trust for my four (4) children. Marie Mitchell, William Albert Powell, Verna Powell and James Andrew Powell.

When her father died, Verna Powell was aged 42, was unmarried, and suffered from schizo- phrenia.

She lived in the fathers house until August 1986, when she was taken to hospital with a severe stroke. She was expected to require constant care for the rest of her life.

The trustees under the will applied for direction from the court on the question of whether Verna’s interest had ended.

Issue: Had it ended? Was this a life estate or license?

Answer 50

Holding/Analysis

Court held the words “shall have the right to occupation and possession for my home as long as she lives in it, indicate that he meant to give a license and not a life estate.

The language does not demonstrate an intent to create a vested estate in land but rather an interest to simply give a license to use and possess the premises for a limited period of time.

Ratio; Found to be a license based on language.

Big picture: language very important.

Question 51

Case of MacDonald Estate

Facts: Testator had left his widow GM a life estate in the family home with remainder to his step son. She left the property and let it fall into despair. Stepson argued she terminated her life interest.

Issue: Did she terminate her life interest?

Answer 51

Holding:

No. She had no duty to repair the property or live in it (she does not have responsibility for permissive waste)

Permissive waste does not get rid of her interest

Question 52

What is an absolute estate?

Out of life estates, fee simples or fee tails, which is typically an absolute estate?

Answer 52

An absolute estate is one that has no conditions of any kind attached to it.

A fee simple.

Question 53

What significance did the Statute of Quia Emptores have?

Answer 53

It got rid of subinfieudiation.