Estates and Interests in Land Flashcards
Explain the 2 Types of Property
Real Property: Consists of land and anything that is erected, growing upon, or affixed to the land.
Personal Property: Everything else. Includes any rights or interests in moveable objects
Explain Land
- Not subject to ownership except by crown
- Only thing you can own is an estate in land
NOTE: Estate is a bundle of rights held by the owner
Name The 3 Types of Estates
- Fee Simple Estates
- Life Estates
- Estates Pur Autre Vie
Characteristics of Fee Simple Estate
The Owner Can…
1. Sell, Mortgage, or Lease Property
2. Will Estate to Heirs
NOTE: If owner leaves no will, and no heirs can be traced, property will escheat back to Crown.
Fee = Inheritable
Characteristics of Life Estates
- lasts for the lifetime of holder (Life Tenant)
- Terminates upon his/her death
- May use land and any revenue generated from it
- Registered as a charge on Fee Simple Title
Characteristics of Life Estates Pur Autre Vie
- If life tenant disposes property to another person, 3rd party receives an estate known as pur autre vie. (An estate based on the life of another person)
- Estate ends upon death if life tenant
- Upon death, estate passes on to remainderman
Rights and Obligations of Life Tenant
Responsible for operational expenses Including…
- Utilities
- Property Tax
- Mortgage Interest (not principal)
Explain the 3 Common Law Categories of Waste
- Voluntary Waste: Direct positive acts that result in damage to property beyond use of life tenant
- Life Tenant liable to remainderman (EG: Tearing down a separate garage on property) - Permissive waste: Allowing property to deteriorate
- life tenant not liable to remainderman (EG: Failing to keep houses roof in good repair) - Ameliorating Waste: Direct positive acts which improve the property
- Life tenant is liable, but damages usually not rewarded as property has been improved. (EG: Building a deck in the backyard of house)
Describe the Only Equitable Law Waste
Equitable Waste: Life tenant flagrantly, maliciously damages or destroys property
- Life tenant not responsible for 3 common law waste (EG: Burns house down so remainderman or reversioner receives property with less value than when life tenant took it)
Explain the term phrase “ Without impeachment for waste”
- excuses life tenant from 3 common law wastes, but not equitable waste.
- to excuse life tenant from equitable waste the phrase “ without impeachment for waste, including equitable waste” must be used
Rights and Obligations of Remainderman and Reversioner
- Must pay principal amount of any outstanding mortgage
- Pay insurance premiums
Describe Easements
An interest in land less than an Estate
- privilege acquired by landowner for the benefit of his/her land over the land of another
Dominant Tenement: Land receiving the benefit
Servient Tenement: Land over which the easement is granted
Examples: Rights of way, rights to lights, and rights of support
Describe the 3 Requirements to constitute a valid easement
- Must be a Dominant and Servient Tenement: - Atleast 2 parcels of land affected by easement
- Does not have to be right next to servient, but must be close enough to benefit from it - Easement must accommodate Dominant Tenement:
- Land must benefit from easement, not just the owner - Easement must be capable of forming subject matter of a grant:
- must be able to identify boundaries of easement, person granting easement (Grantor), and person receiving benefit from easement (Grantee)
Creation of an Easement
Can be granted for any length of time. 3 possible ways to grant an easement:
- Statute
- Express Document
- Implication of Law
Release of an Easement
An easement can be released….
- When dominant owner shows intention of abandonment
- Express agreement between both parties
Describe Restrictive Covenants
Interest in Land Less than an Estate
- Restrictions on the use of one persons land for the benefit of another persons land
Covenantee: Person who imposes the restriction
Covenantor: Person who agrees to be bound by restriction
NOTE: Restriction must require that something not be done
Explain 3 Essential Requirements that must be met before the courts to grant a Restrictive Covenant
- Must be negative in nature (Even if wording is positive)
- Covenantee must retain property protected
- If restriction benefits the land, then the covenant will run with the land
NOTE: Subsequent owners can enforce the restriction
- If restriction benefits the land, then the covenant will run with the land
- Restriction must be intended by parties to bind the land
- Cannot be a personal promise, usually stated in express contract
Release of Restrictive Covenant
- by express agreement by both parties
- no longer enforceable as the neighbourhood has changed, meaning enforcement is useless
- Court order
Building Schemes
- Group of restrictive covenants attaching 2 or more lots within a specific development plan
- Often used to maintain uniformity in the lots to protect value
EXAMPLE OF BUILDING SCHEME RESTRICTION:
- Size, colour, type, style, number of building located on scheme
3 Requirements to Register a Building Scheme
- Must be negative in nature (even if worded positively)
- Must be land that benefits from building scheme, and land that is burdened by it
- Must be defined in instrument creating covenant - Title to the land affected by building scheme must be registered under Land Title Act
Release of a Building Scheme
- Express agreement between owners to change or dismiss restrictions imposed on a building scheme
- If land is subject to a charge, mortgage, it may not be possible to modify or discharge without consent of charge holder, or registrar approval
NOTE: Sometimes building schemes are poorly enforced. Subsequent owners may not be able to enforce them if previously ignored.
Profits a Prendre
- Right to enter land of another person to take profit from land for the use of the owner holding the right
- Does not need to be granted for a definite period of time
- Never implied by law
EG: Minerals, Oil, Trees
Explain Airspace Rights
- Land owner has rights to airspace above his/her property only to the extent they can make effective use of it
- Can be altered by statute
- F.A.A allows airplanes to fly through without liability for law suits if no damage caused
NOTE: Airspace can be subdivided. Most common use is in condominium developments
Explain Subsurface Rights
- Provincial govt retained most subsurface rights
EG: precious minerals, metals, petroleum products
Explain Fixtures and Chattels
- Contract of Purchase and Sale must identify items included in purchase price, and items that vendor can move with him
Fixture: Items that go with land, and belong to purchaser
Chattel: Items that remain personal property of vendor
Degree of affixation and Purpose of Affixation
Degree of Affixation: Articles that are affixed, even slightly are considered fixtures. unless circumstances show they were meant to be chattels
Purpose of Affixation: Considered a chattel if affixed for better use/ enjoyment of object.
- Considered a fixture if item is affixed for the better use of the land
Joint Tenancy
- Each co-owner has undivided interest in the whole of the property
- When joint-tenant dies, entire tenancy passes on to co-owners
-Cannot leave interests to anyone else in will
Explain the 4 Common Law Unities need to create a Joint-Tenancy
- Unity of Time: Joint tenants must receive interest at the same time
- Unity of Title: Must receive interest from same document (will or deed)
- Unity of Interest: Must have same estate or interest in land ( Fee simple, Life estate, leasehold estate)
- Unity of Possession: Each co-owner entitled to the whole estate. Cannot hold any part separately and exclude others
Termination of Joint Tenancy:
- Operation of Law: Sale, mortgage, will destroy joint tenancy, and create tenancy in common
- Partition by Mutual Agreement: Does not create tenancy in common. Each co owner takes his share free of any rights of other co-owner
- Partition by Court Order: Can be initiated by one person. Mutual agreement not needed
Tenancy in Common
- Only has unity of possession
- Have different shares (EG: 2 owners have 1/4th of a share, one owner has half a share
Termination of Tenancy in Common
- Agreement between parties to sell ones interest to other
- Agreement between parties to sell interest to a 3rd party
- Court order under Partition of Property Act
