Property Law Flashcards
What is the nature of AB title and discuss what key principles are used to determine whether AB title in land exists.
The nature of AB title: a) communal ownership b) cannot be surrendered except to the Crown c) Does not devolve from the crown d) can only be leased to non-band members
Key principles that AB title exists: a) pre-sovereignty occupation b) Exclusive occupation c) Maintenance of substantial connection between the people and the land.
What is the difference between AB rights and AB title?
AB title: Ownership of land
AB right: Right of the first nation to carry on some activity on the land that doesn’t give a right to land. It is a lesser right than AB title. AB right would be like fishing, or hunting.
What is the difference between title to land on reserve and AB title? Explain your answer.
Land on reserve: Land held in trust for a particular AB group. They are provided a certificate of possession on the reserve. You can least it to a non band member: you need the certificate of possession and the minister of AB affairs and the band council.
AB title:The nature of AB title: a) communal ownership b) cannot be surrendered except to the Crown c) Does not devolve from the crown d) can only be leased to non-band members
Key principles that AB title exists: a) pre-sovereignty occupation b) Exclusive occupation c) Maintenance of substantial connection between the people and the land.
What are the essential characteristics of a mortgage?
A promise to pay
A conveyance of the borrowers interest to the lender
A Loan Agreement
Security over land
Right to redeem - retain a discharge
Equity of Redemption - the equity in the property
What is the difference between joint tenancy and tenancy in common? Discuss the 4 unities and give examples.
Joint Tenancy- each co-owner owns an undivided interest in the whole of the property. They have the right of survivorship and
with joint tenancy, all four unities must be present.
1. Unity of Possession - Each owner must have the right to access the whole property (ie. cannot reside on 2% of the property)
2. Unity in Interest - Both tenants must have the same interest in the property. This means that the joint tenants must have the same type of interest, and the interest must run for the same duration
3. Unity in time - all owners must acquire the interest at the same time
4. Unity in title - interest held by owners must arise out of the same instrument
Tenants in common- each co-owner must have an undivided interest but not necessarily equal interests in the whole.The only unity that tenants in common need is to have possession as the other unities can vary as they may acquire their interest at different times through different documents.
What are the ways you sever joint tenancy?
COUP
C - Court Order: Court order decides for you, Bankruptcy, Forfeiture (R v Ford), Execution sale
O- Operation of law: following a course of conduct that the court could decide. An implied agreement, Possibly mutual wills, or through negotiation
U- Unilateral action: By one who ends JT through registering a mortgage under just their name. Conveyancing to themselves.
P- Partition by agreement: mutual agreement, separation agreement.
Define fixtures, chattels, tenants fixture, and tenants improvements. Provide examples.
What is the principle that is used to distinguish them.
Fixtures: An item that is affixed to the land, forms part of the land and must not be removed and would cause damage if removed.
eg. Rose Bushes
Chattel: Something that is easily removed and does not go with the land.
eg. a Picture on a wall
Tenants fixtures: Are those that are put in for the pure purpose of improving the business and are easily removable and will typically be removed.
eg. Cooler for your vegetables or ducting for a kitchen
Tenants improvements: An update to the property, or an addition to the space that cannot be removed when the lease is terminated. Generally negotiated with the landlord.
eg. Updating bathroom toilet/sink.
The test to determine whether something is a fixture or a chattel:
- Degree of affixation: If the article is there by it’s own weight, if it is easily removable, and if it will damage either the property or the article by removing it.
Articles attached to the land by their own weight only will be considered a chattel unless circumstances show that they were intended to be a part of the land. - Purpose of affixation: was the object affixed to the property in order to better use the object or the property or was it put there for nominal purposes.
The affixation to the property is to better enjoy the chattel or property not to make it a part of the property (which would be a fixture).
Discuss and provide examples to illustrate the distinction and difference between lease and license.
A lease IS an interest in land and runs with the land where a landowner permits another the exclusive use and possession of land or portion of it for a certain period of time.
- There are 5 essential elements:
The parties, the property, the price, the term and the commencement date.
- There are two types of leases, residential and commercial. The Commercial Tenancy Act governs commercial leases and the Residential Tenancy Act governs the residential leases.
eg. Leasing a condo
A license IS NOT an interest in land: its a contractual right or privilege and does not run with the land under S. 29 LTA.
- There is also NO EXCLUSIVE POSSESSION.
- A license merely is a permission to do something that would otherwise be a trespass and entities a person to enter on and use the grantors land in a certain manner or for a certain purpose.
eg. Renting a hotel room
Discuss and provide examples to illustrate the distinction and difference between a Mortgage and an Agreement for Sale.
A mortgage is a contract for a debt where the borrower transfers legal title to the lender as a security for payment of that debt.
- It is registered as a charge against the title.
- The borrower maintains the right to redeem providing for the re-conveyance or cancellation of the registration upon full payment of that debt.
- The equity of redemption is the interest or right of a mortgagor in his land after granting the mortgage. It is the value roughly equal to the land less the amount required to redeem the mortgage.
An Agreement for Sale is a security instrument arising out of a contractual obligation between vendor and purchaser.
- Upon agreement for the purchase and sale the vendor still maintains legal interest and the purchaser maintains an equitable interest.
- The title is not transferred until the full purchase price is paid.
- On title the vendor still remains the registered owner and the purchasers interest shows up as a charge RP (right to purchase). The purchaser can assign their right to another person but they cannot sell it.
What is the difference between a right of way and a restrictive covenant?
A right of way is a type of easement and is a right of one property the dominant tenement to enjoy a benefit on another property a servient tenement.
- A right of way cannot create exclusive possession
There are 4 essential elements/characteristics:
i) a dominant tenement and a servient tenement
ii) the easement must accommodate the dominant tenement in that it provides a benefit to the dominant tenement.
iii) the dominant and servient tenement must have different owners but in BC, PLA section 18(5) where it allows the ST and DT to be the same owner.
iv) the right must be capable of forming the subject matter of a grant.
A statutory right of way is a right created by LTA 218 and here a dominant and servient tenement does not apply. This right is only given to the crown, municipalities, or utilities (BC Hydro).
A restrictive covenant is a restriction on the use of one person’s land for the benefit of another. The restriction is always negative bidding someone not to do something. The benefit of a restrictive covenant will run with the land if the following conditions are met:
i) the covenant must be negative in nature
ii) the covenantee must retain some land or the land itself must benefit from the covenant.
iii) the covenant must be annexed to the land (have a DT and ST)
iv) the parties must intend that the burden shall run with the land of the covenantor.
A covenant cannot be positive, as it cannot require someone to do something and it cannot be against public policy.
What is the difference between nuisance and trespass?
Nuisance: unlawful interference with a person’s enjoyment of the land or some right in connection to that land.
Eg. noisy parties every night
Trespass: wrongful interference with a persons possessory rights over real property.
Eg. you cannot enter onto someone’s property without their permission/consent.
What is the difference types of tenancies?
Fixed Term Tenancy: most leases will have a fixed term where it is a specified period of time such as a 1 year. The term however must be specified or ascertainable before the lease takes effect if not the lease is still valid but it is not a fixed term. A lease for a fixed term ends once the term is over and it is not necessary for either party to give notice.
Periodic Tenancy: Month to month, have to give notice of termination before the first of the month Feb 28th for April 1st.
Tenancy at Will: Terminated by anytime- agreed upon by both parties
Tenancy at Sufferance: It arises when a tenant enters property with a valid lease and stays in possession without the consent of the landlord.
It is different from tenancy at will where both parties agree and then becomes a periodic tenancy. ie. Month to month
Life Tenancy: An interest provided through an instrument for ones life.
Explain fully the rights and obligations of a life tenant. Discuss application of the doctrine of waste to a life tenancy and give examples.
A life tenant is responsible to pay for all operating expenses, including electricity, water heating and property taxes.
- The life tenant if there is a mortgage would pay the interest on the mortgage but not on the principle. A life tenant can dispose of his or her interest and entitled to annual profits naturally produced by the land or which the life tenant cultivates.
The Doctrine of Waste is developed to ensure that the property is protected for the beneficiaries.
a. Voluntary waste: Direct positive act which results in damage to the property beyond the use of what the life tenant can make such as pulling down a garage and the life tenant is liable to the remainder-man for this type of waste.
b. Permissive waste: Consists of allowing the property to deteriorate without any positive acts of the life tenant. Such as letting the roof deteriorate or allowing ivy to take over the walls.
c. Ameliorating waste: It is where you improve the property rather than destroy or allow the property to deteriorate.
d. Equitable waste: Malicious or unconscientious act or flagrant breach of voluntary waste.
What is indefeasible title?
Indefeasibility is something that cannot be defeated or made void.
Provides security over his/her land and is entitled to the interest.
- Immediate indefeasibility grants indefeasible title to purchaser immediately upon registration.
S. 25.1 makes the title immediately indefeasible
-Titles that are unregistered remain unprotected against bona fide 3rd parties.
-Bonafide third parties who purchases the property and registers will retain title, unregistered owner or those frauded will have to seek recourse through the assurance fund.
What is the difference between Strata lot and an airspace parcel?
Strata Characteristics
1) Implied easement of access because of bylaws
2) Governed by the Strata Property Act
3) Can be above, below, or on ground level
Airspace Characteristics
1) No implied easement of access
2) Governed by LTA 139
3) Situated above land
