Property Law Midterm

Question 1

What is a right in rem?

Answer 1

A right in rem is a property right that relates to a specific thing such as goods, land, animal, intellectual property etc and is enforceable generally against others (Milirrpum case)

Question 2

what is a right in personam?

Answer 2

A right in personam is a personal right that is enforceable only against a specific person or persons, such as debt, bank account, licence to use land (King v David Allen case)

Question 3

What are assignable rights?

Answer 3

All rights (in rem and in personam) that can be transferred to someone else.

Question 4

What are non-assignable rights?

Answer 4

All other rights that aren’t assignable rights and can only be enforced by specific persons whom they were granted (such as university degree, right to vote etc.)

Question 5

What was the ruling from Milirrpum v Nabalco pty ltd?

Answer 5

A property right is the right to use or enjoy, exclude others, and alienate (transfer rights to someone else).

Question 6

What was the rule that came from King v David Allen?

Answer 6

Licenses and contractual rights are rights in personam. Only rights in rem are enforceable against third parties

Question 7

What is quasi-property?

Answer 7

Quasi-property is assets or interests that are not technically considered property but are still subject to legal protect and regulation.

Question 8

What is the normal remedy for breach of property rights?

Answer 8

Damages is the normal remedy for breach of property rights.

Question 9

Explain confidential information in terms of property law.

Answer 9

Confidential information is a type of intellectual property. Every right to confidential information has a duty not to misuse the information. The right is created by contracts such as employment or confidentiality but contracts aren’t required. Secrets between lovers is an example of non-contractual undertaking of duty of confidence. it can be expressed or implied and imposed on those who undertook so it is a right in personam.

Question 10

Can a right to confidential information be enforced against those who do nothing but receive the info?

Answer 10

Yes, it was held in AG v Guardian (No 2) that a right to confidential info can be enforced against those who do nothing more than receive the information -> right in rem

Question 11

When can you be released from duty of confidence?

Answer 11

When the information ceases to be confidential, all are released from duty of confidence.

Question 12

What is the best-known right to possess something indefinitely?

Answer 12

Ownership.

Question 13

What was the rule that came from Perry v Clissold?

Answer 13

When resolving disputes over property, the common law does not care who owns the things but merely which claimant has a better right to possess them.

Question 14

How does Honoré describe ownership?

Answer 14

ownership can be described as greatest possible interest in a thing which a mature system of law recognizes.

Question 15

What does Honoré list as the standard incidents of ownership?

Answer 15

1) Right to Possess - right to control a specific thing and exclude others from it;
2) right to use - right to use and enjoyment;
3) right to manage - right to manage how it is used;
4) right to income - right to hire out for value and keep income from it;
5) right to security - right to be free from interference
6) right to capital - right to dispose of by selling, giving away, consuming, or destroying.
7) transmissibility - the ability to transfer rights to someone else;
8) prohibition of harmful use - condition on rights that uses harmful to other members of society are forbidden - owners also owe duty of care not to harm animals, sometimes land, and historic resources (Backhouse case);
9) Liability to execution - the ability to be seized and sold to pay the owner’s debts;
10) absence of term - ownership has potential to go on indefinitely;
11) incident of residuarity - right to possession will always be returned to owner.

Question 16

In Honoré’s list of standard incidents, all apply to both possession as well as ownership except three. Which are those three?

Answer 16

1) right to capital
2) absence of term
3) incident of residuarity

Question 17

Explain Crown ownership.

Answer 17

Crown land is held on behalf of people of Canada, some of it off-limits to public, some of it members of public routinely have access like parks.
While government can restrict access and regulate use of public spaces, it does not have same degree of control as a private person would have over their spaces.
Crown also owns wildlife and natural resources, but ownership is a device for regulation of the resources and is not absolute ownership

Question 18

What are the two elements necessary for legal possession?

Answer 18

1) control - factual possession
- limiting or regulating access to land or goods by other people;
- fences can be used to control land, but it is neither necessary nor sufficient to establish control.
- wild animals are controlled by keeping them from escaping

2) intention to possess
- intention to control thing and prevent (or at least regulate) others using it for one’s own behalf or one’s own benefit.
- it is possible for a person to intend to possess something that they do not know it exists, if the thing is found inside something they control and intend to possess such as private home, car, backpack etc.

Question 19

What was the rule from JA Pye (Oxford Ltd v. Graham (2002) UK?

Answer 19

The rule was that two elements are required for legal possession: 1) factual possession/control and 2) intention to possess

Question 20

What is conversion?

Answer 20

occurs when a person without authority or permission intentionally takes the personal property of another or deprives another of possession of personal property

Question 21

What was the rule in Flack v National Crime?

Answer 21

an intention to possess something (such as a house) includes an intention to possess anything inside it, known or not

Question 22

What is a possessory title?

Answer 22

right to possession is enforceable generally against others, except someone with a better title

Question 23

What is relativity of title?

Answer 23

when two parties have competing claim to the same thing, the question is not who has the best possible title, but who has the better title.

Question 24

What is Nemo dat quod non habet?

Answer 24

No one can give what they do not have. This is the starting point for resolving dispute between competing legal property rights.

For example, original owner of stolen property still has a right to possession even if it has been sold.

Question 25

What was the rule arising from Armory v Delamirie?

Answer 25

First finder of something will have best possible title except for original owner; older rights prevail.

Question 26

How does possession work in public spaces?

Answer 26

1) Owner of a space where public is routinely invited does not have possession of everything brought into that space by customers. (Bridges v Hawkesworth) 2) Members of public invited to public space, such as a park, they do not have a right to possession of things found in areas in which the public was not invited (such as beneath the soil). (Waverly Borough Council v Fletcher)

Question 27

What happens if possession is acquired wrongly?

Answer 27

common law doesn't usually care if possession was acquired rightly or wrongly, just who has the best right (often who had it first) Bird v Fort Frances : boy trespasses and finds money and cops took it, owner didn't come forward. Held boy had better right than police. Baird v British Columbia: Baird used stolen money and traveller's cheques and cops caught him and took the stolen goods. Baird sued for recovery but was held that sometimes claim can be so tainted with criminality or culpable immorality that as a matter of public policy that court will not assist in recovery.

Question 28

What is an estate?

Answer 28

Estate is a right in rem to possess land for some period of time.

Question 29

When does a change in an estate occur?

Answer 29

when there is a change to any of its four dimensions: 2 horizontal (area), 1 vertical (volume) and one temporal (time).

Question 30

How is time/duration of an estate measured?

Answer 30

Either by lives (freehold estate) or defined periods (leasehold estate).

Question 31

What was the rule from Didow v Alberta Power LTD?

Answer 31

owner is entitled to freedom from permanent structures which impinge on actual or potential use and enjoyment of land.

Question 32

What was the rule from Edwards v Sims (1929)?

Answer 32

whatever is in a direct line between the land's surface and the center of the earth belongs to the owner of the surface.

Question 33

What are the types of freehold estates?

Answer 33

1) fee simple 2) fee tail/entailed fee 3) Life estate

Question 34

What is a fee simple estate?

Answer 34

largest estate possible - equivalent to ownership of land. Granted by crown to a tenant and their heirs -> if a tenant died it passes to an heir and continues unless tenant dies without heirs. If the tenant dies without heirs, the estate is escheat, meaning the end of an estate due to the lack of an heir and land returned to the Crown.

Question 35

What is an entailed estate/fee tail estate?

Answer 35

created by grand of land to a tenant and their lineal descendants.

Question 36

What is a life estate

Answer 36

an estate existing for duration of tenant's life. Once life tenant dies, right to possession belongs agin to fee simple holder. If life tenant transfers life estate to someone else, new tenant holds a life estate which comes to an end when the original life tenant dies.

Question 37

What is a leasehold estate?

Answer 37

right to possess land for a defined term (lease or tenancy). it is a combination of an estate and a contract.

Question 38

What are the types of leases?

Answer 38

1) Fixed term 2) Periodic tenancy 3) tenancy at will 4) lease for life.

Question 39

What type of lease is this: like a fixed-term lease that automatically renews when each period comes to an end unless landlord or tenant gives notice to end tenancy.

Answer 39

Periodic Tenancy

Question 40

What type of lease is this: duration of term is uncertain; each party can choose to end by giving reasonable notice to the other.

Answer 40

Tenancy at will

Question 41

What is a lease for life?

Answer 41

Similar to life estate, term is uncertain as tenant has right to possess land for their life - lease (as opposed to life estate) often comes with obligation to pay rent.

Question 42

Explain what a fixed-term lease is.

Answer 42

The start and end of a fixed-term lease must be specified at the outset. If there is any uncertainty over its term, it's not a valid fixed-term lease and instead will take effect as a tenancy at will or periodic tenancy. They often contain options for renewal in which the tenant can choose to have one or more additional terms.

Question 43

What are the differences between a lease and a license?

Answer 43

1) A lease is a right in rem enforceable generally against others, including the landlord, while a license is a right in personam usually, and if enforceable, it is enforceable against the person who granted the licence. 2) lease creates a right to exclusive possession of land while licence creates a right to occupy or use premises in a certain manner or for specific purpose and does not create an interest in land. 3) Lease has a definite duration while License doesn't require a definite duration.

Question 44

Give examples of licenses to use land.

Answer 44

1) bare or mere licence: allows mere permission to use land (inviting someone in to your house would be giving that person a license to be there but the person has to leave) 2) Contractual license: a personal right to use land and also license created by estoppel. (landowner cn say get out, even if they are in breach of contract, because you don't have possession.) 3) Property right to use the land: a license coupled with an interest. Not just a personal right to use the land but there is a property interest in the land as well.

Question 45

What is the difference between a tenant and a lodger?

Answer 45

A tenant has an estate. They have possession of land and a property right to control premises and is enforceable generally against others. A lodger has a license, they are not a tenant because they are sharing space with others and only have a personal right to occupy or use the premises and is enforceable only against estate holder.

Question 46

Which case is referred to when examining if it is a lease or a license?

Answer 46

Street v Mountford 1985 uk: the language of an agreement and intentions of parties can be used to determine whether there is a lease or license (by looking for exclusive possession) Landlord gave tenant a room lease but could only use it as a space for laundromat. Landlord sold to new landlord, new landlord not honoring lease claimed it was a license, court held no, it is a lease because that's the language used and the intent.

Question 47

What are lease covenants?

Answer 47

They are rights and obligations of tenants and landlords in a lease which are granted by deed.

Question 48

What are implied conevnants?

Answer 48

They exist at common law and apply to all leases, while shorter residential tenancies are regulated by Residential tenancy Act

Question 49

What are the main covenants?

Answer 49

1) Tenant will have quiet enjoyment 2) Landlord will not derogate from the grant 3) the tenant will use the premises in a tenant-like matter 4) the tenant will not commit waste

Question 50

Is there a covenant in common law for repair on either landlord or tenant?

Answer 50

No unless it is stated in the lease.

Question 51

What is reversion?

Answer 51

when the right to possession returns to the original person who granted the estate, this occurs when the estate comes to an end. The reversion is vested in interests.

Question 52

what is privity of estate?

Answer 52

The relationship between landlord and tenant, in which one's obligations correspond with other's rights.

Question 53

Can a person's estate be vested in interest and in possession?

Answer 53

Yes. If it is then they both hold the estate and are in possession of the land. If the estate is only vested in interest, they are not yet entitled to possession, but they hold the estate and have a right to possession in the future.

Question 54

What is a remainder?

Answer 54

It is the balance of an estate that is granted to another person after a smaller estate has ended rather than reverting to the grantor. For example, A grants estate to B for life, and then the remainder in fee simple to C.

Question 55

A remainder can be vested or contingent. Explain.

Answer 55

a remainder is vested if the identity of the person with the right to possession in the future is known and there are no conditions precedent that might prevent them from acquiring that right, otherwise, it is contingent.

Question 56

What is the term for a condition that must be fulfilled before an estate can vest in interest?

Answer 56

condition precedent

Question 57

What is the term for a condition that might cause a vested interest to come to an end?

Answer 57

condition subsequent

Question 58

Explain defeasible estate.

Answer 58

It is a fee simple estate subject to a condition subsequent. if condition occurs, estate doesn't automatically come to an end and revert to grantor, but instead gives a grantor a rights of re-entry -> new interest that arises when estate is transferred. If condition is invalid, estate is no longer defeasible but regular fee simple.

Question 59

Explain determinable estate.

Answer 59

It is an estate less than a fee simple in which a restriction on its use defines the estate. If condition occurs, the determinable estate ends, as that condition is what defines its duration - reverts to grantor if condition is invalid, estate does not exist because its duration is not defined

Question 60

Can conditions be rendered invalid?

Answer 60

Yes, if the condition is too vague to be enforceable or contrary to public policy

Question 61

What is equity?

Answer 61

It is the body of law that used to be administered by the Court of Chancery but is now administered by courts that administer both common law and equity.

Question 62

Which rights are more durable? Equitable or legal property?

Answer 62

legal proptery rights are more durable than equitable rights. If there is a competition between inconsistent rights to same thing, the legal rights are more likely to prevail.

Question 63

What is one way to differentiate between legal or equitable right?

Answer 63

More formality is needed to create or transfer a legal interest in property than an equitable interest

Question 64

List the equitable remedies and what they are.

Answer 64

1) Injunction: An order to refrain from doing something (prohibitive, like stopping trespassing on land) or to do something (mandatory). They are usually prohibitive in nature. 2) specific performance: in case of breach of contract, court may order defendant to perform contractual obligation rather than just awarding damages. 3) Recision: process of undoing a transaction and restoring parities to previous positions. 4) Rectification: process of correcting errors in a written document. Requires mistake by both parties where document doesn't reflect intentions of parties. 5) Relief from forfeiture: the power of the court to excuse a party from the application of penalties or forfeitures which would otherwise operate against that party as a result of their failure to perform a covenant or a condition in a contract, or when a mistake has been made.

Question 65

What is a trust?

Answer 65

A trust is a relationship between trustees and beneficiaries in which the trustees are the legal owners of trust assets that they are required to use according to the terms of the trust for the benefit of the beneficiaries. Most are created by intention (express trusts) but they can also arise as an operation of law (constructive trusts, resulting trusts, statutory trusts)

Question 66

What are the subjects of the trust and what are the objects of the trust?

Answer 66

the assets held in trust are the subject of the trust and the beneficiaries are the objects of the trust.

Question 67

Who creates the trust?

Answer 67

The settlor is the person who creates the trust. They can also be trustee or beneficiary of the trust but don't have to be.

Question 68

A settlor is the person who creates a trust that arises by operation of law.

Answer 68

Not always. trusts that arise by operation of law may not have settlors such as when trust is imposed on owner of assets to compel their use to benefit someone else.

Question 69

What is any assignable right that is held in trust?

Answer 69

The subject of the trust. Subject is not the thing itself but the trustee's right to it.

Question 70

What is the role of a trustee?

Answer 70

The trustee has a bare legal title of the trust's assets (unless they are also beneficiary) and is required to use their rights and powers of ownership for the benefit of the beneficiaries according the to trust's terms. Trustees have all the standard incidencts of ownership but can't use them for own benefit (except for reimbursement of expenses and payment for services)

Question 71

What are the 4 main categories that a trustee's duties exist in?

Answer 71

1) duty to obey trust - trustee is liable for losses if they breached this duty even if they acted in good faith. 2) the duty to account to the beneficiaries - must keep accurate records, have accounts ready for inspection, and making documents available to those who need to see them. 3) the duty to take reasonable care: duty of care to preserve trust assets from loss. 4) the fiduciary duty to exercise their powers only for proper purposes: failure of this duty would include taking in irrelevant factors or missing relevant factors when making a decision, failing to exercise a discretion, having conflicting duties or personal interests, or making unauthorized profits.

Question 72

What is a beneficiary?

Answer 72

The object of a trust and has beneficial ownership of the trust's assets. As beneficial owners, they have both the hope of gain and risk of loss from the trust's assets.

Question 73

Do trustee receive ownership of trust assets?

Answer 73

Yes, they receive ownership of trust assets. They have rights and powers to sell assets or give them away, lease or lend assets our, receive the income or proceeds of the sale, and sure others for wrongful interference with those assets. THEY CAN'T USE ANY OF THIS FOR THEIR OWN BENEFIT.

Question 74

A trust would not be subject to an equitable obligation unless there was someone to enforce a corresponding equitable right. What is this?

Answer 74

the beneficiary principle. There is an exception which is a trust created for charitable purposes.

Question 75

Who hold rights corresponding to trustee's duties?

Answer 75

Since trustee's duties are owed to beneficiaries, beneficiaries hold rights corresponding to those duties.

Question 76

Who can become trust beneficiaries?

Answer 76

Beneficiaries must be legal persons but aren't required to have legal capacity because an infant can be a beneficiary

Question 77

What type of right does a beneficiary have?

Answer 77

normally a right in personam and is enforceable against the trustee

Question 78

Do beneficiaries have a right in rem?

Answer 78

Only one, which is the right that trust assets are held by persons who have been properly appointed as trustees.

Question 79

What are the characteristics of a trust?

Answer 79

(a) The assets constitute a separate fund and are not a part of the trustee's own estate; (b) Title to the trust assets stands in the name of the trustee or in the name of another person on behalf of the trustee; (c) The trustee has the power and the duty, in respect of which he is accountable, to manage, employ, or dispose of the assets in accordance with the terms of the trust and the special duties imposed upon him by law

Question 80

What is the difference between debt and trust?

Answer 80

1) In a debt, the creditor has a right in personam against the debtor while in a trust the beneficiaries have a right in rem enforceable against trustee and others. 2) There are no rights in rem unless a debt is secured while a trust is of specific assets.

Question 81

Who enforces trusts for charitable purposes?

Answer 81

The attorney general enforced trusts for charitable purposes on behalf of the Crown and in practice enforced by CRA

Question 82

What was the rule in Pallot v Douglas?

Answer 82

The interest of the beneficiary under a trust is the right to claim that the trust be performed in accordance with its terms. It is not an immediate right to possession of the trust property.

Question 83

Does a future potential beneficiary have a any rights under a trust?

Answer 83

No, a future potential beneficiary isn't a beneficiary yet, so they have no rights under trust but the trustee has to consider potential rights of future beneficiaries when making decisions regarding management and disposition of trust assets

Question 84

What are the two main ways rights can be shared concurrently?

Answer 84

Joint tenancy or tenancy in common.

Question 85

How do JTs and TiCs differ?

Answer 85

1) Interests in JT have to be identical, while interests of TiC can differ from each other. 2) JT hold right collectively as if one person while TiC each have undivided shares (either equal shares or unequal) in the right they hold together 3) JT have right of survivorship while TiC don't 4) JT must have 4 unities, TiC must only have unity of possession but all could apply

Question 86

What is the right of survivorship for JTs?

Answer 86

If JT dies, their interest in the property comes to an end, and the surviving JT keeps the assets for themselves.

Question 87

What happens if a TiC dies?

Answer 87

their interest continues after death and will be transferred by will or intestacy to someone who will join the survivors as tenant in common.

Question 88

JT tenancies have to be identical in four different respects while TiC only require 1. What are the 4 unities and which one is required in TiC?

Answer 88

1) Unity of possession: all tenants share possession at the same time. 2) Unity of interest: each tenant has same interest in right they hold together. There are no shares and right is held collectively for JT. For TiC, unity of interest just means equal shares. 3) Unity of title: each tenant derives their title from the same instrument for example transfer of land. 4) Unity of time: tenants acquired their interests at the same time. TiC only require unity of possession but other unities may apply

Question 89

How to check if it is a JT or a TiC?

Answer 89

If a unity is missing, it would be a TiC. If all four unities present it could be either. Look for words of severance that indicate tenancy in common: divided; equally; severally; share and share alike; respectively; between; or among.

Question 90

Can JT also be Tic?

Answer 90

Parties can be JT at Law while holding the property in trust for themselves as TiC. This can occur when JT contribute unequally to the purchase of property, where they acquire property as business partners, or are joint mortagees.

Question 91

Explain JT at law but TiC in trust for business partners.

Answer 91

This arrangement prevents the beneficiaries of a deceased partner's estate from acquiring a legal interest in the property while still ensuring that the partner's beneficiary ownership is not lost after they die.

Question 92

What is severance?

Answer 92

The process of converting a joint tenancy into a tenancy in common. Main reason to do so is to end the right of survivorship.

Question 93

What are the ways in which a JT can be severed?

Answer 93

1) Unilateral act 2) Mutual Agreement 3) Operation of law 4) Course of Dealing

Question 94

Explain Unilateral Act for severance.

Answer 94

Unilateral act of a JT that causes their joint interest to be converted into a share - any act that causes the non-existent share to come into existence. A common method is transferring interest to third party to hold in trust.

Question 95

Explain Mutual agreement and course of dealing for severance.

Answer 95

Mutual agreement requires an express agreement among the tenants while course of dealing is an implied or expressed but informal agreement inferred from the actions of the parties.

Question 96

Explain operation of law in terms of severance.

Answer 96

Operation of law is a severance without regard to the tenant's wishes and can occur in bankruptcy as the result of a court-ordered forfeiture or if one JT murders the other

Question 97

What is the effect of severance?

Answer 97

if there are 2 JT, severence will always produce an equal tenancy in common. If there are more than 2 JTs: - if all tenants agree to sever, they will all be equal tenants in common. - if only one out of the group decides to sever, that tenant will acquire a one quarter share (if there are say 4 people in total) as a TiC while the other three will hold the remaining 3 quarters share jointly as if one person. - if TiC dies, their interest continues through their will, but if one of the JT dies, their interest ceases to exist. - if one of the JT buys the TiC's share, buyer now owns the one quarter share as a tenant in common, while still having a joint interest in the remaining three quarter share.

Question 98

What is partition?

Answer 98

The process of ending a co-ownership by ending the unity of possession. It divides assets and ends co-current ownership creating a separate ownership.

Question 99

What was the case demonstrating partition?

Answer 99

Cook v Johnston - vacation island co-owned by 2 families who had a falling out so they wanted to go their own way. One wanted to divide it up the other wanted to sell, court allowed them to divide up because they found partition to be most advantageous to both parties.

Question 100

Courts will presume tenancy in common unless intention for joint tenancy is clear. What case did this rule come from?

Answer 100

McEwen v Ewers and Fergusons (1946)

Question 101

An agreement to sever a joint tenancy does not alter legal title but takes effect in equity. What case did this rule come from?

Answer 101

Flannigan v Wotherspoon 1953

Question 102

What was the Schobelt v Barber case?

Answer 102

Husband murdered his wife and he was the sole legal survivorship. Held that he didn't lose his interest, he keeps 50% and his wife's 50% goes to her estate. The estate could try to sue him for his interest through common law.

Question 103

What is a security interest in property?

Answer 103

it is the right in rem of a creditor to a debtor's assets. it exists to secure the performance of an obligation, normally the payment of the debt.

Question 104

What are the advantages of a secured creditor?

Answer 104

1) if debtor fails to pay, secured creditor can directly enforce the security and use assets subject to their security interest to satisfy debt. 2) if debtor goes bankrupt, secured assets cannot be used by trustee in bankruptcy to pay other creditors until secured creditor is paid first. 3) security also gives debtor additional incentive to pay that debt first.

Question 105

What are the 2 options the common law provides for security.

Answer 105

1) Taking possession of land/goods 2) taking legal tile to them.

Question 106

What is the option provided for security by equity?

Answer 106

Encumbrance which is possible by statue.

Question 107

What is pledge (pawn)

Answer 107

It is a type of possession for security where a debtor transfers possession of goods or documents to creditor to hold (creating a bailment) until debt is paid. Requires intention on behalf of debtor. There are 2 limitations: debtor can't make use of goods until debt is repaid and only tangible assets can be pledged.

Question 108

Explain common law lien.

Answer 108

It's a type of possession for security where a creditor obtains possession for some other purpose and is allowed to retain possession until related debt is paid - lien is a right to possession of goods until it is repaid. Liens can arise by operation of law or created by contract, but can arise absent intention.

Question 109

What are the two types of lein?

Answer 109

1) General lien which applies by custom in some professions and businesses. allows creditor to retain possession of debtor's goods and documents as security for all their debts, whether related directly to those things or not. 2) Particular lien which arises to secure the payment of a debt that relates directly to those goods. It would arise only if the creditor improved the goods for example a repairer's lien, garage keeper's lien etc.

Question 110

Explain ownership/title in terms of security.

Answer 110

This is when creditor takes legal title to debtor's assets to hold as security. both parties benefit. The debtor has possession of assets and can continue to use them during debt being repaid. if those assets generate income, it's easier to pay debt. there is also common law mortgage, hire purchase, and sale and lease back.

Question 111

Explain encumbrance.

Answer 111

Rather than taking possession or title, a creditor can also have an encumbrance of a debtor's assets, where the debtor retains possession and title, but the creditor has a right of recourse to the assets if the debtor fails to pay

Question 112

What is a common law mortgage?

Answer 112

Creditor holds fee simple estate (legal title) while debtor remain in possession. The debtor is the mortgagor because they grant mortgage to creditor who is the mortgagee.

Question 113

What is an equity of redemption?

Answer 113

a type of equitable relief in a common law mortgage which allowed a mortgagor in default to redeem their right to recover the land if they could pay everything they owed to the mortgagee.

Question 114

How does a mortgage differ from a trust?

Answer 114

In a mortgage, the mortgagee has the legal title while the mortgagor has the beneficial ownership. In a trust, the trustee has the legal title while the beneficiaries have beneficial ownership.