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Paralegal Licenscing Exam > Property Law > Flashcards

Property Law Flashcards

1
Q

the two classifications of property are

A

real property and personal property

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2
Q

Real property includes

A

land and all things attached with some permanence, has a fixed location and is permanent in nature

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3
Q

Personal property consists of

A

goods and chattels, items that are tangible and can be moved from one place to another, such as furniture, cars, boats, supplies and inventory

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4
Q

in Canada, ______ has provided for certain interests/estates in land:

A

Crown has provided for:
- fee simple estate
- life estate
- leasehold estate

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5
Q

Fee simple estate is

A

the interest in land that grants the most rights.

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6
Q

a person may own the fee simple estate alone or

A

with others as “joint tenants” or “tenants in common”

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7
Q

Joint tenants own

A

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

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8
Q

Tenants in common each own

A

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

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9
Q

What is the one exception to the right of survivorship betwee tenants?

A

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

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10
Q

The owner of a fee simple estate can sell or gift a

A

life estate, which lasts for the lifetime of the person receiving it/the life tenant

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11
Q

What happens when a life tenant dies?

A

the property reverts back to the owner of the fee simple or to a third party (the remainerman) per the will or other document

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12
Q

A leasehold estate is created by

A

a contract (lease) whereby the owner (the landlord) grants to the tenant exclusive possession of real property for a specific period of time

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13
Q

An easement is a

A

right to use another’s land for a specific purpose. Easements remain with the land even if the owners of the properties change.

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14
Q

What is the name of the property that receives the benefit of an easement?

A

the dominant tenement

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15
Q

What is the name of the land over which an easement is granted?

A

The servient tenant

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16
Q

What are the four ways an easement can be created?

A
  • by express grant from the servient tenement to the dominant tenement
  • by statute
  • by implication
  • by prescription
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17
Q

Whats an example of a statute easememt?

A

Utility easements

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18
Q

how can easements be terminated?

A

by express agreement between the owners, and in some cases by abandonment of the easement by the dominant tenement

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19
Q

What is a right of way?

A

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

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20
Q

A restrictive covenant arises when

A

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

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21
Q

Restrictive covenants may be terminated by

A

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

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22
Q

A person may acquire possessory rights in a property via adverse possession if they

A

continuously and without interruption by the rightful owner use the property for a period of 10 consecutive years.

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23
Q

To make a claim for adverse possession one must prove:

A
  • 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

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24
Q

Adverse possession is only available in the

A

registry system, not through the land titles system

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25
Q

The purpose of the land registration system is to

A

provide notice to the public about the interests that individuals and corporations have in land and the order of their priority

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26
Q

By searching title to a property one can determine:

A
  • 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
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27
Q

What are the two land registration systems in Ontario

A
  • the registry system
  • the land titles system
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28
Q

The registry system is

A

older than the land titles system, and documents registered under this system are NOT GUARANTEED to be valid or legally binding

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29
Q

the land titles system confirms that

A

the owner of the property holds the valid title, and one does not have to examine documents further

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30
Q

The registry system, governed by the Registry Act, provides for the registration of

A

instruments relating to and affecting title to land

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31
Q

the Registry Act defines instruments as

A

including every instrument whereby title to land may be transferred, disposed of, charged, encumbered, or affected in any other way

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32
Q

All instruments are registered and recorded without

A

review for legal sufficiency by the government, and therefore the registry is not conclusive evidence of the interest described in a particular instrument

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33
Q

to determine if an owner has good title to a property under the registry system,

A

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

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34
Q

Pursuant to the Registry Act, registration of an instrument constitutes

A

notice of that document. A later instrument registered before an earlier instrument will have priority.

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35
Q

Section 77 of the Registry Act deems documents to be registered when

A

the registrar has accepted the documents for registration, even if the documents have not actually been registered.

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36
Q

Most land in Ontario has been converted from the registry system to the land titles system to allow for

A

automation and electronic registration of land titles documents

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37
Q

The land titles system provides

A

a statement of title, and guarantees that the current owner is a valid owner of the property

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38
Q

In the land titles system, each separate piece of land is called

A

a parcel, identified by a number and registered in the register/parcel register

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39
Q

Each parcel register shows

A
  • 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)
40
Q

Since the parcel register is a statement of title, presentation of an instrument for registration is deemed to be

A

an application to the land registrar to amend the registered title.

41
Q

When a new transfer is registered, the registrar will

A

“rule off” the previous transfer and register the new one in its place.

42
Q

The registrar has the right to

A

refuse registration of an instrument in some cases.

43
Q

Pursuant to section 78(3) of the Land Titles Act, an instrument is confirmed to be valid when it is

A

certified by the land registrar or deputy or assistant deputy land registrar

44
Q

When is an instrument deemed to be registered?

A

The time of receipt, NOT the time of certification.

45
Q

Each property in the land titles system has a

A

property identification number (PIN) that must be referred to

46
Q

As security for the promise to repay the loan, the borrower grants

A

a “mortgage” against the real property in favour of the lender.

47
Q

In the land registration system, a mortgage is known as a

A

charge. The borrower is the chargor/mortgagor and the lender is the chargee/mortgagee

48
Q

The charge contains

A
  • 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
49
Q

Section 7 of the Land Registration Reform Act deems

A

certain implied covenants to be included in every charge

50
Q

A charge is

A

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

51
Q

The remedy of power of sale permits

A

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

52
Q

if a mortgage does not contain a power of sale provision (very rare), the lender may use

A

the statutory power of sale provisions in the Mortgage Act,

53
Q

The advantages of using a power of sale contained in the mortgage include

A
  • 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
54
Q

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,

A

the lender can serve the borrower with a notice of exercising the power of sale

55
Q

Judicial sale is

A

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

56
Q

In a foreclosure, the lender

A

obtains title to the property. Similar to judicial sale, but differs in that the lender becomes the OWNER of the property.

57
Q

By exercising foreclosure, the lender is able to

A

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

58
Q

in a foreclosure, the lender is not permitted to

A

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

59
Q

suing on a covenant means

A

suing on a promise

60
Q

When suing on a covenant, the lender would obtain a

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

61
Q

A negotiable instrument is a document where

A

one party unconditionally promises to pay another party a specific sum of money.

62
Q

The holder in due course of the instrument is the person who

A

will ultimately get paid.

63
Q

The advantages of using negotiable instruments include:

A
  • avoiding the need to carry large sums of cash
  • creating credit by deferring the payment of funds.
64
Q

Three types of negotiable instruments are:

A
  • bills of exchange
  • cheques
  • promissory note
65
Q

The three parties involved in the creation of a bill of exchange are

A
  • the drawer who writes out the order to
  • the drawee to pay a certain amount of funds to
  • the payee
66
Q

Bills of exchage are used mostly i

A

commercial transactions to allow the purchase and sale of goods or services on credit

67
Q

A valid bill of exchange must be

A
  • 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.
68
Q

A cheque is a bill of exchange that is

A

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

69
Q

Cheques need to be cashed within

A

six months of the date on the cheque

70
Q

A promissory note is

A

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)

71
Q

promissory notes are often used in

A

the making of unsecured loans
the purchase and sale of goods on credit
in other commercial transactions

72
Q

A promissory note must be

A
  • signed by the maker and becomes enforceable at that time
  • the payee may sign over the promissory note to another person (the holder)
73
Q

The federal Copyright Act protects every

A

original literary, dramatic, musical and artistic work from production, reproduction, performance or publication of the work without permission

74
Q

in order to have copyright protection, the work must be

A
  • an original, meaning new in some way
  • coming from the person creating it
75
Q

Copyright in a work means

A

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.

76
Q

Copyright does not have to be registered to be protected. A work is automatically protected when

A

it is created even if it remains unpublished.

77
Q

Copyright in a work generally first belongs to the creator, except when

A

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

78
Q

What are some of the exceptions/defences to infringement?

A
  • 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
79
Q

Copyright lasts for

A

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

80
Q

Moral rights are separate from copyright, and belong only to the creator, and cannot be assigned to anyone, including publishers or employers:

A
  • 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
81
Q

The owner of a copyright may ask for

A

damages, accounts, an injunction, and delivery of the offending material

82
Q

instead of claiming damages and the infringers profits, the owner may elect to

A

recover statutory damages of up to $20,000 where the infringement was for commercial purposes.

83
Q

A court can award a copyright remedy only if

A

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.

84
Q

The court will only apply the limitation period in respect of

A

a party who pleads it.

85
Q

Patents are

A

right to exclude others from making, using or selling a new inventions, and are granted to the inventor

86
Q

If the invention is made during the course of employment,

A

the inventor will still be the owner, unless they have agreed to allow the employer to be the patent owner

87
Q

Patents are granted via

A

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

88
Q

If an intention meets the following requirements, the patent will be granted

A
  • novelty
  • utility
  • ingenuity
89
Q

For patents filed after October 1 1989, the patent expires

A

20 years from the day on which the patent is filed

90
Q

Patent infringement occurs when

A

anyone produces, uses or sells a patented invention without the permission of the patent holder. DO not have have to prove intention to infringe

91
Q

A patent holder can sue for damages, including

A

loss of sales

92
Q

A trademark is the

A

words, pictures, logos, symbols, sounds and scents that are associated with a business or its name, brand or prudcts

93
Q

registering a trademark under the Act gives the owner

A

the exclusive right to use the trademark, thus protecting the owner’s property and reputation

94
Q

Registration of a trademark lasts for

A

10 years and may be renewed for further periods of 10 years

95
Q

Remedies for trademark infringement include

A
  • bringing an action pursuant to the Trademarks Act or the common law tort of passing off
96
Q

To successfully prove the common law tort of passing off, you must prove

A
  • 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
97
Q

in order for a secured creditor to secure its interest in personal property, it must “perfect” the security interest by

A
  • 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

Paralegal Licenscing Exam (51 decks)

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