PROP 1023 / CHAPTER 4

Question 1

____________ is court-based, judge-made law.

Answer 1

Answer: common law

Question 2

What are the four principals of the Torrens System?

Answer 2

**ANSWER:

Indefeasibility,
The effect of registration,
Abolition of notice,
Assurance principal**

Question 3

A void contract is _ _ _ _ _

Answer 3

A void contract is one which has never existed at all.

Question 4

What is the Assurance Fund? When can a claim be made against the Assurance Fund?

Hint: 4 points to be made for full marks

Answer 4

The change in law means some people will lose land under the Torrens system.

The assurance fund was established to be used as a last resort.

An interest in land has been lost.

Cannot recover or be compensated by court action.

Question 5

In common law legal systems, a ________ is a legal case establishing a principle or rule.

Answer 5

Answer: precedent

Question 6

Stare decisis means _________ .

Answer 6

Answer: let the former decision stand.

Question 7

In order for a contract to be enforceable, it must contain the following seven elements:

Answer 7

In order for a contract to be enforceable, it must contain the following seven elements:

(i) offer,

(ii) acceptance,

(iii) consideration,

(iv) legal intention,

(v) capacity,

(vi) legal object, and

(vii) genuine consent.

Question 8

Under the doctrine of ___________ decisions made by the Supreme Court of Canada have the most weight in our law.

Answer 8

Under the doctrine of stare decisis, decisions made by the Supreme Court of Canada have the most weight in our law.

Question 9

TRUE OR FALSE? If there is a conflict between common law and equitable principles - the law of equity takes precedent.

Answer 9

ANSWER: TRUE

Question 10

What is the Assurance Fund? When can a claim be made against the Assurance Fund?

Hint: 4 points to be made for full marks

Answer 10

The change in law means some people will lose land under the Torrens system.

The assurance fund was established to be used as a last resort.

An interest in land has been lost.

Cannot recover or be compensated by court action.

Question 11

In law, to _________ means a court decides the holding or legal reasoning of a precedent case will not apply due to materially different facts between the two cases.

Answer 11

In law, to DISTINGUISH a case means a court decides the holding or legal reasoning of a precedent case will not apply due to materially different facts between the two cases.

Question 12

QUICK NOTE / Today, in Canada, the two court systems (common law and courts of equity) are combined; consequently, judges can apply both common law and equitable principles in deciding a matter. If there is a conflict between the two, EQUITABLE PRINCIPLES TAKE PRIORITY.

Answer 12

QUICK NOTE / Today, in Canada, the two court systems (common law and courts of equity) are combined; consequently, judges can apply both common law and equitable principles in deciding a matter. If there is a conflict between the two, EQUITABLE PRINCIPLES TAKE PRIORITY.

Question 13

_________ is the body of law made by our government representatives in the federal parliament, provincial legislature, or municipal council.

Answer 13

Statute law is the body of law made by our gov’t representatives in the federal parliament, provincial legislature, or municipal council.

Question 14

The federal government has exclusive authority to pass legislation dealing with (list 6)

Answer 14

Fed. gov’t has exclusive authority to pass legislation dealing with matters which involve banking, bankruptcy, currency, postal services, marriage and divorce, criminal matters, patents, copyrights, shipping, fisheries, and national defence.

Question 15

True or False?
The provincial government is responsible for property and civil rights.

Answer 15

Answer: True​

Question 16

Residual power to legislate is granted to ______.

Answer 16

The residual power to legislate over areas not specifically covered is left with the federal government.

Question 17

True or False: Municipal governments are not given authority to legislate under the constitution.

Answer 17

ANSWER: True. . . power to legisl. granted to provinces. Prov. give certain powers to munic. govts

Question 18

True or False? The role most often played by legislation is to change the common law.

Answer 18

Answer: True!

Question 19

In answering a legal question, a judge will first look to see if a _____ has been passed which provides an answer.

Answer 19

Answer: Statute

Question 20

The two major categories of law are:

Answer 20

Answer: private law and public law

Question 21

Civil law is also known as ______ law.

Answer 21

Answer: Civil law is also known as private law.

Question 22

Civil law deals with relationships between __________.

Answer 22

Answer: Individuals

Question 23

Divorce and breach of contract are examples of ________ law.

Answer 23

Answer: Civil or Private

Question 24

Tax law, constitutional law, and criminal law are examples of _____

Answer 24

Answer: Public Law

Question 25

At common law, four “unities” or principles had to exist and be maintained in order to create a joint tenancy and to have it continue. List & explain the four unities.

Answer 25

At common law, four “unities” or principles had to exist and be maintained in order to create a joint tenancy and to have it continue.

Unity of Time

This means that all joint tenants must receive their interests at the same time.

Unity of Title

This means that all joint tenants must obtain their interest from the same document, for example, a will or a deed.

Unity of Interest

This means that all joint tenants must have the same interest in land. The extent, nature and duration must be identical. For example, one cannot have a fee simple and another a life estate.

Unity of Possession

This means that each interest is an undivided interest in the whole of the property. No one holds any part separately to the exclusion of the others.

Question 26

The doctrine of ________ helps in giving our law uniformity.

Answer 26

Answer: Stare decisis

Question 27

_____ governments receive their power to legislate from the provincial government

Answer 27

Municipal governments receive their power to legislate from the provincial government

Question 28

TRUE OR FALSE? Statute law takes precedent over common law.

Answer 28

TRUE OR FALSE? Statute law takes precedent over common law.

Question 29

In a joint tenancy, each co-owner owns an ______ interest in the whole of the property. The essential feature of this type of ownership is _______________.

Answer 29

In a joint tenancy, each co-owner owns an undivided interest in the whole of the property. The essential feature of this type of ownership is the right of survivorship.

Question 30

At common law, four “unities” or principles had to exist and be maintained in order to create a joint tenancy and to have it continue. List & explain the four unities.

Answer 30

At common law, four “unities” or principles had to exist and be maintained in order to create a joint tenancy and to have it continue.

Unity of Time

This means that all joint tenants must receive their interests at the same time.

Unity of Title

This means that all joint tenants must obtain their interest from the same document, for example, a will or a deed.

Unity of Interest

This means that all joint tenants must have the same interest in land. The extent, nature and duration must be identical. For example, one cannot have a fee simple and another a life estate.

Unity of Possession

This means that each interest is an undivided interest in the whole of the property. No one holds any part separately to the exclusion of the others.

Question 31

TRUE OR FALSE?

A fee simple owner has more rights over his or her land than any other owner.

Answer 31

ANSWER: TRUE

Question 32

NOTE ONLY /

A fee simple is also known as a freehold estate. Originally, this meant that the land was held by a free tenant and could be held for an unlimited period of time. Even today, if the “owner” of a fee simple estate pays the taxes and other assessments, he or she may deal with the property in any way he or she wants (subject to certain legislative restrictions).

Answer 32

NOTE ONLY /

A fee simple is also known as a freehold estate. Originally, this meant that the land was held by a free tenant and could be held for an unlimited period of time. Even today, if the “owner” of a fee simple estate pays the taxes and other assessments, he or she may deal with the property in any way he or she wants (subject to certain legislative restrictions).

Question 33

What is a life estate?

Answer 33

A life estate is simply an estate in land which lasts for the lifetime of the holder, who is called the life tenant.

Question 34

Voluntary waste consists of _ _ _ _ _ _

Answer 34

Voluntary waste consists of direct, positive acts which result in damage to the property beyond the use a life tenant is entitled to make, as explained above.

Question 35

Explain permissive waste.

Answer 35

Permissive waste consists of allowing a property to deteriorate without any positive acts of the life tenant.

At common law, a life tenant is generally under no obligation to repair or compensate for permissive waste.

An example of permissive waste would be where a life tenant simply allows the building on the property to decay and does nothing to prevent this.

Question 36

An _________ is a privilege acquired by a landowner for the benefit of his or her land over the land of another. The land receiving the benefit is called the ___________ and the land over which the right is exercisable is called the ____________.

Answer 36

An easement is a privilege acquired by a landowner for the benefit of his or her land over the land of another. The land receiving the benefit is called the dominant tenement and the land over which the right is exercisable is called the servient tenement.

Question 37

A _____________ imposes a restriction on the use of one person’s land for the benefit of another piece of land.

Answer 37

A restrictive covenant imposes a restriction on the use of one person’s land for the benefit of another piece of land.

Question 38

______ is a specialized remedy used by courts when no other remedy (such as money) will adequately compensate the other party.

Answer 38

Specific performance is a specialized remedy used by courts when no other remedy (such as money) will adequately compensate the other party.

Question 39

NOTE ONLY /

A restrictive covenant imposes a restriction on the use of one person’s land for the benefit of another piece of land.

The restriction must be a negative obligation. It does not matter whether the wording of the covenant is positive, if it is negative in effect. The person who imposes the restriction is called the covenantee and the person who agrees to be bound by the restriction is called the covenantor.

Answer 39

NOTE ONLY /

A restrictive covenant imposes a restriction on the use of one person’s land for the benefit of another piece of land.

The restriction must be a negative obligation. It does not matter whether the wording of the covenant is positive, if it is negative in effect. The person who imposes the restriction is called the covenantee and the person who agrees to be bound by the restriction is called the covenantor.

Question 40

A __________ is a special example of a group of restrictive covenants attaching to two or more lots within a particular development plan.

Often, this type of scheme is used by a developer who is selling lots in a residential subdivision and wants to maintain uniformity in the use of the lots to protect their value.

Answer 40

A building scheme is a special example of a group of restrictive covenants attaching to two or more lots within a particular development plan.

Often, this type of scheme is used by a developer who is selling lots in a residential subdivision and wants to maintain uniformity in the use of the lots to protect their value.

Question 41

To decide whether an item is a fixture or a chattel, the courts have adopted a general two-part test. The first aspect of the test has to do with the _ _ _ _ _ _ _ _. The second aspect of the test concerns the _ _ _ _ _ _ _.

Answer 41

To decide whether an item is a fixture or a chattel, the courts have adopted a general two-part test. The first aspect of the test has to do with the degree of afixation. The second aspect of the test concerns the purpose of afixation.

Question 42

A tenancy in common has only one unity, that of _ _ _ _ _ _ _ .

Answer 42

A tenancy in common has only one unity, that of possession.

Question 43

At common law, absent any registration system, title to land or “ownership” of land was proven by _ _ _ _

Answer 43

ANSWER:
At common law, absent any registration system, title to land or “ownership” of land was proven by PRODUCING ALL OF THE RELEVANT DEEDS

Question 44

The third principle of the Torrens System is Abolition of _____

Answer 44

**ANSWER:

abolition of notice.**

Question 45

What is the most common reason that a court grants specific performance?

Answer 45

The most common reason courts grant specific performance is that the subject of the contract is unique, when it’s not merely a matter of money or where the true amount of damages is unclear. When a contract is for the sale of a unique property, for instance, mere money damages may not remedy the purchaser’s situation.

Question 46

Explain the defense of Non Est Factum

Answer 46

**ANSWER:

Allows a signing party to escape performance of an agreement “which is fundamentally different from what he or she intended to execute or sign.”**

A claim of non est factum means that the signature on the contract was signed by mistake, without knowledge of its meaning. A successful plea would make the contract void

Question 47

With the Torrens system property is transferred by _ _ _ _ _ instead of by deeds

Answer 47

ANSWER: registration of title

Question 48

What are the four principals of the Torrens System?

Answer 48

**ANSWER:

Indefeasibility,
The effect of registration,
Abolition of notice,
Assurance principal**

Question 49

Explain indefeasibility

Answer 49

ANSWER:

Cannot be defeated, cannot be made void
Anyone acquiring an interest in land in good faith for consideration is protected

Question 50

List 3 exceptions to indefeasibility

Answer 50

Federal/provincial taxes
Municipal charges/assessments
Leases less than 3 years
Public easements
Expropriation
Fraud

Question 51

**TRUE OR FALSE?

Registered Charges are not indefeasible**

Answer 51

ANSWER: True

Question 52

Only _______ ____________ can transfer an interest in land.

Answer 52

**ANSWER:

Only REGISTERED DOCUMENTS can transfer an interest in land**

Question 53

Torrens system is founded on the concept of _________

Answer 53

ANSWER: Torrens system is founded on the concept of indefeasibility

Question 54

Specific performance is an _______ remedy

Answer 54

Specific performance is an EQUITABLE remedy

Question 55

In order for a contract to be enforceable, it must contain the following seven elements:

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Answer 55

In order for a contract to be enforceable, it must contain the following seven elements:

(i) offer,

(ii) acceptance,

(iii) consideration,

(iv) legal intention,

(v) capacity,

(vi) legal object, and

(vii) genuine consent.

Question 56

What is the Assurance Fund? When can a claim be made against the Assurance Fund?

Hint: 4 points to be made for full marks

Answer 56

The change in law means some people will lose land under the Torrens system.

The assurance fund was established to be used as a last resort.

An interest in land has been lost.

Cannot recover or be compensated by court action.

Question 57

A void contract is _ _ _ _ _

Answer 57

A void contract is one which has never existed at all.

Question 58

A voidable contract is _ _ _ _ _ _ _

Answer 58

A voidable contract is one which one of the parties has the option to rescind (cancel). Until the contract is rescinded, it is valid and binding on the parties. An example of a voidable contract would be a contract for the purchase of a car by an infant. Such a contract is voidable by the infant, but it is binding upon the other party. If it is rescinded by the infant, neither party will have any further obligations under the contract.

Question 59

NOTE ONLY / COUNTER-OFFER

Counter-offer. A counter-offer is simply an offer from the offeree back to the offeror. When a change is made to the offer by the offeree, it forms a counter-offer.

For example, where a purchaser offered $80,000 and the vendor insists on $85,000, this insistence is a counter-offer from the vendor to the purchaser.

Legally, the counter-offer terminates the original offer. In effect, the counter-offer becomes the offer. If the counter-offer is not accepted, the offeree cannot accept the first offer because it has already terminated.

Answer 59

NOTE ONLY / COUNTER-OFFER

Counter-offer. A counter-offer is simply an offer from the offeree back to the offeror. When a change is made to the offer by the offeree, it forms a counter-offer.

For example, where a purchaser offered $80,000 and the vendor insists on $85,000, this insistence is a counter-offer from the vendor to the purchaser.

Legally, the counter-offer terminates the original offer. In effect, the counter-offer becomes the offer. If the counter-offer is not accepted, the offeree cannot accept the first offer because it has already terminated.

Question 60

_____________ means “some right, benefit or profit accruing to the promissor or some forbear-ance, detriment, loss or responsibility suffered by the promissee”.

Answer 60

“Consideration” means “some right, benefit or profit accruing to the promissor or some forbear-ance, detriment, loss or responsibility suffered by the promissee”.

Question 61

NOTE ONLY / QUANTUM MERUIT

Quantum Meruit. Quantum meruit is a Latin phrase which means “as much as is deserved”. At law, where one person requests the contractual services of another, even though there is no mention of a specific amount, the law will imply a promise to pay a reasonable amount. The principle of quantum meruit will be applied by the courts in each of the following circumstances:

Where there was no amount specified in the contract for performance of contractual services;

A breach of the contract has occurred and the “innocent” party has performed part, but not all of its obligations under the contract and wants to be paid for the partial performance;

Where the contract is void and there has been work performed or services rendered on the assumption that the contract was valid;

Answer 61

NOTE ONLY / QUANTUM MERUIT

Quantum Meruit. Quantum meruit is a Latin phrase which means “as much as is deserved”. At law, where one person requests the contractual services of another, even though there is no mention of a specific amount, the law will imply a promise to pay a reasonable amount. The principle of quantum meruit will be applied by the courts in each of the following circumstances:

Where there was no amount specified in the contract for performance of contractual services;

A breach of the contract has occurred and the “innocent” party has performed part, but not all of its obligations under the contract and wants to be paid for the partial performance;

Where the contract is void and there has been work performed or services rendered on the assumption that the contract was valid;

Question 62

What are the four principals of the Torrens System?

Answer 62

**ANSWER:

Indefeasibility,
The effect of registration,
Abolition of notice,
Assurance principal**

Question 63

What is a void deed?

Answer 63

It has no legal effect

It is not capable of transferring title