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Mortgage Flash cards > Estates and Interests in Land > Flashcards

Estates and Interests in Land Flashcards

1
Q

Explain the 2 Types of Property

A

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

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2
Q

Explain Land

A
  • 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

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3
Q

Name The 3 Types of Estates

A
  1. Fee Simple Estates
  2. Life Estates
  3. Estates Pur Autre Vie
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4
Q

Characteristics of Fee Simple Estate

A

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

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5
Q

Characteristics of Life Estates

A
  • 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
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6
Q

Characteristics of Life Estates Pur Autre Vie

A
  • 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
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7
Q

Rights and Obligations of Life Tenant

A

Responsible for operational expenses Including…
- Utilities
- Property Tax
- Mortgage Interest (not principal)

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8
Q

Explain the 3 Common Law Categories of Waste

A
  1. 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)
  2. Permissive waste: Allowing property to deteriorate
    - life tenant not liable to remainderman (EG: Failing to keep houses roof in good repair)
  3. 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)
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9
Q

Describe the Only Equitable Law Waste

A

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)

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10
Q

Explain the term phrase “ Without impeachment for waste”

A
  • 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
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11
Q

Rights and Obligations of Remainderman and Reversioner

A
  • Must pay principal amount of any outstanding mortgage
  • Pay insurance premiums
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12
Q

Describe Easements

A

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

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13
Q

Describe the 3 Requirements to constitute a valid easement

A
  1. 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
  2. Easement must accommodate Dominant Tenement:
    - Land must benefit from easement, not just the owner
  3. 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)
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14
Q

Creation of an Easement

A

Can be granted for any length of time. 3 possible ways to grant an easement:
- Statute
- Express Document
- Implication of Law

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15
Q

Release of an Easement

A

An easement can be released….
- When dominant owner shows intention of abandonment
- Express agreement between both parties

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16
Q

Describe Restrictive Covenants

A

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

17
Q

Explain 3 Essential Requirements that must be met before the courts to grant a Restrictive Covenant

A
  1. Must be negative in nature (Even if wording is positive)
  2. 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
  3. Restriction must be intended by parties to bind the land
    - Cannot be a personal promise, usually stated in express contract
18
Q

Release of Restrictive Covenant

A
  1. by express agreement by both parties
  2. no longer enforceable as the neighbourhood has changed, meaning enforcement is useless
  3. Court order
19
Q

Building Schemes

A
  • 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

20
Q

3 Requirements to Register a Building Scheme

A
  1. Must be negative in nature (even if worded positively)
  2. Must be land that benefits from building scheme, and land that is burdened by it
    - Must be defined in instrument creating covenant
  3. Title to the land affected by building scheme must be registered under Land Title Act
21
Q

Release of a Building Scheme

A
  • 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.

22
Q

Profits a Prendre

A
  • 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

23
Q

Explain Airspace Rights

A
  • 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

24
Q

Explain Subsurface Rights

A
  • Provincial govt retained most subsurface rights

EG: precious minerals, metals, petroleum products

25
Q

Explain Fixtures and Chattels

A
  • 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
26
Q

Degree of affixation and Purpose of Affixation

A

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

27
Q

Joint Tenancy

A
  • 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
28
Q

Explain the 4 Common Law Unities need to create a Joint-Tenancy

A
  1. Unity of Time: Joint tenants must receive interest at the same time
  2. Unity of Title: Must receive interest from same document (will or deed)
  3. Unity of Interest: Must have same estate or interest in land ( Fee simple, Life estate, leasehold estate)
  4. Unity of Possession: Each co-owner entitled to the whole estate. Cannot hold any part separately and exclude others
29
Q

Termination of Joint Tenancy:

A
  1. Operation of Law: Sale, mortgage, will destroy joint tenancy, and create tenancy in common
  2. Partition by Mutual Agreement: Does not create tenancy in common. Each co owner takes his share free of any rights of other co-owner
  3. Partition by Court Order: Can be initiated by one person. Mutual agreement not needed
30
Q

Tenancy in Common

A
  • Only has unity of possession
  • Have different shares (EG: 2 owners have 1/4th of a share, one owner has half a share
31
Q

Termination of Tenancy in Common

A
  1. Agreement between parties to sell ones interest to other
  2. Agreement between parties to sell interest to a 3rd party
  3. Court order under Partition of Property Act

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