Property Law Flashcards
the two classifications of property are
real property and personal property
Real property includes
land and all things attached with some permanence, has a fixed location and is permanent in nature
Personal property consists of
goods and chattels, items that are tangible and can be moved from one place to another, such as furniture, cars, boats, supplies and inventory
in Canada, ______ has provided for certain interests/estates in land:
Crown has provided for:
- fee simple estate
- life estate
- leasehold estate
Fee simple estate is
the interest in land that grants the most rights.
a person may own the fee simple estate alone or
with others as “joint tenants” or “tenants in common”
Joint tenants own
an equal, undivided interest in the whole property. When one tenant does, that person’s interest is automaticall transferred to the remaining owners by right of survivorship
Tenants in common each own
an undivided interest in the land, but the percentage need not be equal, and there is no right of survivorship. If one owner dies, that owner’s interest will pass on to their estate and heirs
What is the one exception to the right of survivorship betwee tenants?
the deemed severance of a joint tenancy under the Family Law Act. Per section 26(1), where a spouse owns a matrimonial home as joint tenants with another person who is not the spouse and the owning spouse dies, then the joint tenancy is deemed to have been severed immediately before death, and the joint tenancy becomes a tenancy in common
The owner of a fee simple estate can sell or gift a
life estate, which lasts for the lifetime of the person receiving it/the life tenant
What happens when a life tenant dies?
the property reverts back to the owner of the fee simple or to a third party (the remainerman) per the will or other document
A leasehold estate is created by
a contract (lease) whereby the owner (the landlord) grants to the tenant exclusive possession of real property for a specific period of time
An easement is a
right to use another’s land for a specific purpose. Easements remain with the land even if the owners of the properties change.
What is the name of the property that receives the benefit of an easement?
the dominant tenement
What is the name of the land over which an easement is granted?
The servient tenant
What are the four ways an easement can be created?
- by express grant from the servient tenement to the dominant tenement
- by statute
- by implication
- by prescription
Whats an example of a statute easememt?
Utility easements
how can easements be terminated?
by express agreement between the owners, and in some cases by abandonment of the easement by the dominant tenement
What is a right of way?
a type of easement over one or more properties for the purpose of access to another property, a right to pass over land in order to reach a specific destination
A restrictive covenant arises when
the owner of real property agrees to restrict the use of their land for the benefit of the owner of another property. Can be positive or negative
Restrictive covenants may be terminated by
express agreement between owners, or may expire on a date stipulated in the instrument that created them, or released by implication where the dominant tenement agrees to the subservient tenement’s change of use of the property
A person may acquire possessory rights in a property via adverse possession if they
continuously and without interruption by the rightful owner use the property for a period of 10 consecutive years.
To make a claim for adverse possession one must prove:
- actual possession for 10 years
- the intention to exclude the true owner either from possession or from the use to which the true owner intended to put the land during that period
- effective exclusion of the true owner throughout the 10 year period
an owner wanting to recover possession of land must bring an action within the 10-year period
Adverse possession is only available in the
registry system, not through the land titles system
The purpose of the land registration system is to
provide notice to the public about the interests that individuals and corporations have in land and the order of their priority
By searching title to a property one can determine:
- who the owner is
- what type of interest the owner has
- whether there is a mortgage or lien against the property
- whether there are any easements, rights of way, subdivision agreements or other agreements affecting the land
What are the two land registration systems in Ontario
- the registry system
- the land titles system
The registry system is
older than the land titles system, and documents registered under this system are NOT GUARANTEED to be valid or legally binding
the land titles system confirms that
the owner of the property holds the valid title, and one does not have to examine documents further
The registry system, governed by the Registry Act, provides for the registration of
instruments relating to and affecting title to land
the Registry Act defines instruments as
including every instrument whereby title to land may be transferred, disposed of, charged, encumbered, or affected in any other way
All instruments are registered and recorded without
review for legal sufficiency by the government, and therefore the registry is not conclusive evidence of the interest described in a particular instrument
to determine if an owner has good title to a property under the registry system,
one must examine each registered instrument in the last 40 years (the title search period) to ensure that it is valid and creates a good chain of title to the present owner
Pursuant to the Registry Act, registration of an instrument constitutes
notice of that document. A later instrument registered before an earlier instrument will have priority.
Section 77 of the Registry Act deems documents to be registered when
the registrar has accepted the documents for registration, even if the documents have not actually been registered.
Most land in Ontario has been converted from the registry system to the land titles system to allow for
automation and electronic registration of land titles documents
The land titles system provides
a statement of title, and guarantees that the current owner is a valid owner of the property
In the land titles system, each separate piece of land is called
a parcel, identified by a number and registered in the register/parcel register
Each parcel register shows
- name of owners
- manner in which title is being held
- legal description of the property
- all documents registered against the property (subdivision agts, easements and mortgages)
Since the parcel register is a statement of title, presentation of an instrument for registration is deemed to be
an application to the land registrar to amend the registered title.
When a new transfer is registered, the registrar will
“rule off” the previous transfer and register the new one in its place.
The registrar has the right to
refuse registration of an instrument in some cases.
Pursuant to section 78(3) of the Land Titles Act, an instrument is confirmed to be valid when it is
certified by the land registrar or deputy or assistant deputy land registrar
When is an instrument deemed to be registered?
The time of receipt, NOT the time of certification.
Each property in the land titles system has a
property identification number (PIN) that must be referred to
As security for the promise to repay the loan, the borrower grants
a “mortgage” against the real property in favour of the lender.
In the land registration system, a mortgage is known as a
charge. The borrower is the chargor/mortgagor and the lender is the chargee/mortgagee
The charge contains
- name of the chargor
- name of chargee
- amount of indebtedness
- interest rate
- term
- spousal status of the chargor
- legal description of the property being encumbered
- spousal consent
- additional provisions such as pre-payment privileges
Section 7 of the Land Registration Reform Act deems
certain implied covenants to be included in every charge
A charge is
an encumbrance on the legal estate of the borrower’s property. Under section 6(3) of the LRRA, the rights and remedies remain unchanged from the former concept of an actual conveyance
The remedy of power of sale permits
the lender to sue the borrower and any guarantors to recover any shortfall if the mortgage debt has not been repaid in full by the sale of the property
if a mortgage does not contain a power of sale provision (very rare), the lender may use
the statutory power of sale provisions in the Mortgage Act,
The advantages of using a power of sale contained in the mortgage include
- the borrower must pay the outstanding amount of the mortgage within 35 days of the issuance of the notice of exercising the power of sale
- it is a standard procedure that can be done in a lawyers office rather than in court
- it is less costly than other remedies such as judicial sale and foreclosure
- a notice of exercising the power of sale may be served by registered mail
- a lender may usually abandon a power of sale at any time
If the borrower in a power of sale is in default for at least 15 days, then according to section 32 of the Mortgages Act,
the lender can serve the borrower with a notice of exercising the power of sale
Judicial sale is
exercised by way of a court order in a judicial sale action.
- Court attendance is required, thereby increasing the cost
- the lender does not have to account to the borrower for any surplus after the sale of property
- the court supervises the procedure and is available to dispose of complex issues
- if the borrwer is in default, the borrower will have 60 days to pay the outstanding mortgage after the taking of the account of the account dues
In a foreclosure, the lender
obtains title to the property. Similar to judicial sale, but differs in that the lender becomes the OWNER of the property.
By exercising foreclosure, the lender is able to
hold onto the property and sell it when the market improves, and the lender will not have to account to the borrower for any surplus
in a foreclosure, the lender is not permitted to
sue the borrower or anyone else for any shortfall. A final order of foreclosure means the lender accepts the property in full satisfaction of the debt
suing on a covenant means
suing on a promise
When suing on a covenant, the lender would obtain a
judgement for the amount outstanding. This remedy may be used to recover the shortfall from a power of sale or judicial sale, or used by a second mortgagee when a first mortgagee has already foreclosed on the property
A negotiable instrument is a document where
one party unconditionally promises to pay another party a specific sum of money.
The holder in due course of the instrument is the person who
will ultimately get paid.
The advantages of using negotiable instruments include:
- avoiding the need to carry large sums of cash
- creating credit by deferring the payment of funds.
Three types of negotiable instruments are:
- bills of exchange
- cheques
- promissory note
The three parties involved in the creation of a bill of exchange are
- the drawer who writes out the order to
- the drawee to pay a certain amount of funds to
- the payee
Bills of exchage are used mostly i
commercial transactions to allow the purchase and sale of goods or services on credit
A valid bill of exchange must be
- in writing
- be addressed by the drawer to the drawee
- contain an unconditional order to pay a specific sum to a specified payee
- if no date for payment is expressed, the bill is payable on demand when presented.
A cheque is a bill of exchange that is
payable on demand where the drawee is a bank. The bank is required to ensure that the drawer of the cheque (payer) has sufficient funds in their account for the cheque to be cashed. The bank is not responsible for insufficient funds
Cheques need to be cashed within
six months of the date on the cheque
A promissory note is
an unconditional written promise by the maker to pay a specific amount to a certain party (payee) either on a specific date (term note) or on demand (a demand note)
promissory notes are often used in
the making of unsecured loans
the purchase and sale of goods on credit
in other commercial transactions
A promissory note must be
- signed by the maker and becomes enforceable at that time
- the payee may sign over the promissory note to another person (the holder)
The federal Copyright Act protects every
original literary, dramatic, musical and artistic work from production, reproduction, performance or publication of the work without permission
in order to have copyright protection, the work must be
- an original, meaning new in some way
- coming from the person creating it
Copyright in a work means
the sole right to produce, reproduce, perform in public, or publish the work or any substantial part of it or any translation of the work.
Copyright does not have to be registered to be protected. A work is automatically protected when
it is created even if it remains unpublished.
Copyright in a work generally first belongs to the creator, except when
the author of a work is employd and the work is made in the course of that employment, therefore the employer would own the copyright subject to an agreement to the contrary
What are some of the exceptions/defences to infringement?
- fair dealing: meaning that actions which would otherwise infringe copyright may be permitted if the purpose is research, private study, education, parody or sature
- the copying of certain works for private purposes
Copyright lasts for
the life of the creator, the remainder of the calendar year in which the creator dies, and 70 years following the end of the calendary year in which thre creator dies, unless where otherwise specifically provided in the Copyright Act
Moral rights are separate from copyright, and belong only to the creator, and cannot be assigned to anyone, including publishers or employers:
- the right to be identified as the authory or creator and the right to be anonymous or use a pseudonym
- the right to prevent the work from being used in association with a service, cause, product, or institution where the creator’s name can be dishonoured
- the right to prevent changes to the work that might dishonour the creator’s reputation
The owner of a copyright may ask for
damages, accounts, an injunction, and delivery of the offending material
instead of claiming damages and the infringers profits, the owner may elect to
recover statutory damages of up to $20,000 where the infringement was for commercial purposes.
A court can award a copyright remedy only if
the proceeding is brought within three years after the infringement occured or after the time when the plaintiff first knew or could reasonably have been expected to know of the infringement.
The court will only apply the limitation period in respect of
a party who pleads it.
Patents are
right to exclude others from making, using or selling a new inventions, and are granted to the inventor
If the invention is made during the course of employment,
the inventor will still be the owner, unless they have agreed to allow the employer to be the patent owner
Patents are granted via
application by the inventor to the Patent Office. Applications contain an abstract and a specification, detailing the product or process as well as the utility of the invention
If an intention meets the following requirements, the patent will be granted
- novelty
- utility
- ingenuity
For patents filed after October 1 1989, the patent expires
20 years from the day on which the patent is filed
Patent infringement occurs when
anyone produces, uses or sells a patented invention without the permission of the patent holder. DO not have have to prove intention to infringe
A patent holder can sue for damages, including
loss of sales
A trademark is the
words, pictures, logos, symbols, sounds and scents that are associated with a business or its name, brand or prudcts
registering a trademark under the Act gives the owner
the exclusive right to use the trademark, thus protecting the owner’s property and reputation
Registration of a trademark lasts for
10 years and may be renewed for further periods of 10 years
Remedies for trademark infringement include
- bringing an action pursuant to the Trademarks Act or the common law tort of passing off
To successfully prove the common law tort of passing off, you must prove
- the existence of goodwill, which includes the use of the trademark for a sufficient period of time to demonstrate a market association
- the deception of the public due to a misrepresentation that leads to confusion between the trademark and the defandant’s use
- actual or potential damage to the plaintiff, either reputation or sales
in order for a secured creditor to secure its interest in personal property, it must “perfect” the security interest by
- attachment, which occurs when the secured creditor obtains a written security agreement that is signed by the debtor and has a description of the collateral, value is given and the debtor has rights in the collateral
- registration of a financing statement: a form detailing the names of the debtor and the secured creditor, the type of collateral given as security, details of the collateral, the length of time of the registration etc
