Real Estate Law Part 1 > Real estate law part 1 Module 1,2,3,4 > Flashcards
Real estate law part 1 Module 1,2,3,4 Flashcards
The various sources of law
Name the Acts and statutes:(4)
Constitution - federal and provincial statues
Doctrine
Jurisprudence
Customs
Constitution
Is the foundation of the law - Canadian charter of rights and freedom
Federal statues: criminal code, statutory act (particular application)
Provincial statues: Quebec charter, civil code,statutory acts (particular application), by laws
Doctrine
Various opinions from well know lawyers /notaries (jurists) that are published in books, specialized periodicals or newspapers
Jurisprudence
The decision rendered by various tribunals as a whole ex:rental board
Customs
Use,habit and tradition that are widely spread
The civil juridical system in Quebec instances
1st instance; small claims court < $15,000, court of Quebec $85,000
2 instance; Quebec court of appeal
3rd instance; Supreme Court of Canada
The plaintiff
Bringing someone to court
The plaintiff;
-can be a natural person
-Can be a legal person of 5 or less employees in 5e previous 12 months
The defendant
Be a natural person or a legal person
Professionals intervening with the realm of real estate transactions
The notary The lawyer The chartered appraiser The land surveyor The inspector The sheriff
The notary
Public neutral officer who is entitled to draft contracts, wills transactions and other documents that conform to the law, constitute authentic acts
To be authentic they must be drafted “en minute” meaning signed by all parties but original stays at notary office
An authentic copy of the authentic act constitués prof of its content
Remain neutral and impartial - represents all parties of a transaction
The notary may represent his clients in court only in matters where there is no litigation
The lawyer
He is not a public officer so he can’t draft authentic acts. All documents prepared by a lawyer are private writings
He is the only professional that can represent a client in a court of law( whether civil, penal or criminal)
He is not neutral he has to represent the interest of his own client
The chartered appraiser
He will, among other things, appraise an immovable according to certain methods
The land surveyor
He is legally authorized to determine the boundary lines of the land and to issue the certificate of location
The inspector
He is the individual who will verify the material state of the immovable
The sheriff
He is a public officer who will be involved in the execution of the seizure of immovable in execution and the sale of said immovable
Natural person characteristics (4) and legal capacity to contract (6)
Characteristics: a name, domicile,excise of civil rights, a patrimony
Legal capacity to contract: minors, protected person of full age,married couples,concubinary (common law), mandatary, successions
Minor with no emancipation
Less than 18
Represented by his tutor (parents) for the exercise of his civil rights
He can’t sign any documents selling an immovable
Minor with simple emancipation
16 or older
Assisted by his tutor for acts beyond simple administration
Can’t sign any documents selling an immovable
Minor with full emancipation
Marriage
By the court -application by minor, serious reason,with the opinion of the person that has parental authority
Exercise civil rights as if he wee full age so he has full administration
Documents signed to sell an immovable would be accepted
Légal tutorship
Mother and father
Dative tutorship
Appointment by mother or father by will or by declaration of public curator
Court might appoint a tutor if mother and father fail to do so
Administration of tutor
Only simple administration
Sell Less than 25000 they must get authorization from tutorship council (3pps)
Over 24000 authorization of court that will speak with tutorship council
Never be accepted unless it’s for the benefit of the minor (school,debts)
Tutor is needed for a person of full age when:
The incapacity is partial or temporary
Tutor is empowered with:
Simple administration
Sell immovable under 25000 with tutorship council approval
Sell over 25000 with Fort and advice from tutorship council
Only if the person of full age requires it
Curator of person full age is meddled when
The incapacity is total and permanent
Curator is empowered with:
Full administration
No need authorization to sell
Person of full age needs an advisor when:
Only to assist in the administration
He is empowered with:
No powers towards administration
He may have to intervene in respect of the acts for which he is supposed to assist the person of full age
Family patrimony
It is a consequence emanating from mariage
Effects if there is a sale without the writte. Consent of the owners spouse
Sale can be canceled
Claim damages
Lease
Therefore both spouses must sign the brokerage contract, the promise to purchase and act of sale when a declaration of family residence has been published
Court can grant authorization if owners spouse refuses without reasonable motive
Matrimonial regimes
1st regime
2nd regime
3rd regime
Foreign matrimonial regimes
1st regime - community as to property -prior to July 1970
Common property is acquired by a spouse during the mariage - need consent of spouse to sell- 2 signatures
Reserved property - immovable acquired by the wife with her own salary during the marriage - need consent of spouse to sell- 2 signatures
Private property of the husband - bought before the mariage or inherited before or during the mariage - no consent needed- 1 signature
Private property of the wife - bought before the mariage or inherited prior or during - no consent -1 signature
2nd regime -separation as to property- conventional and established by mariage - prenup -each spouse is the sole owner of properties - no consent -1signature
Mandatary
Mandate or power of attorney:
- Useful when owner can’t be there
- Mandator will authorize another person, the mandatory to sign relèvent documents while he is away
- Make sure he has power to sign and it has not been revoked
- Private act and it can be done by notarial deed or one that has been attested by a jurist or yourself
Mandate given in anticipation of mandators incapacity
This allows a person full of age to choose who will take care of him or will administer his property if he becomes incapable to do so later on;
By notarial act ´en minuté or in présence by a witness
You need a copy of the mandate and judgement
Only the mandatory will sign the documents
Intestate succession (1st type of succession)
No will
Nothing to that effect in the mariage contract
Succession goes to the legal heirs according to the civil code Quebec
The notary will identify the legal heirs in a declaration of transition made by the notarial act ´en minute ´ that is published at the relevant registers office
All legal heirs have to sign a brokerage act promise to purchase and act of sale
Declaration of transmission (it’s content):
Name, occupation,domicile of the deceased
Matrimonial régime of the deceased
Stipulation that the deceased died without a will
Name of the legal heirs
List of the immovables
Liquidator
Legal heirs may designate a liquidator (should be done in writing by notarial act or by doc attested by jurists
Liquidators tasks; taking inventory Collect debts owned to deceased Paying depots of the deceased Liquidators acts in respect of the property of the succession as an administrator -simple administration
So once a liquidator is picked, he becomes the seisin of the heirs ; the person that will administer the property in between
The liquidators right to sell an immovable which is part of the succession: he may sell only with the unanimous consent of the heirs: without it they need the courts authorization
End of the liquidation: Discharged of his administration duties and delivers property to the heirs ( this is called delivery of legacies) Ones delivered (debts payed) and published in registers office , the heirs are now the owners- must sign the brokerage act , promise to purchase and deed of sale
Partition;
The heirs have mie become owners and may decided to divide among themselves what they have inherited
Wills- second type of succession
Forms of wills:
- holograph written entirely by the testator and signed by him
- this will needs to be probated by a court of law
Will made in the presence of witnesses:
- Written by the testator or by third person or by mechanical process
- signed by testator (or third party) in front of the latter) in the presence of two witnesses
- such wills need to be probated by a court of law
Notarial wills:
Are signed before a notary “en minute” in the presence of a witness
This form of will does not need to be probated
Legatees; someone who receives a legacy
Universal legatee ;ex spouse who gets everything
Legatee by general title: group or collection of items
Legatee by particular :particular item
Liquidators: chosen and appointed by the testator in his will- you have to read the will in order to see if he is vested with simple or full administration
Liquidator may sell an immovable left to as legacies by particular title only if the other property of succession is insufficient to pay of debts
Declaration of transition;
Name, occupation and domicile of deceased
Matrimonial regime of deceased
Stipulation to the effect that the deceased died with a wills
Names of the legatees
Name of the liquidators if any
List of the immovables which are included in the succession
End of liquidation:
Liquidator is discharged of his administration and gives the property to the legatees. Called delivery of legacies
Once the delivery of legacies is published at the registry office it means that the legacies are the owners of the immovables
Legatees must sign the brokerage contract and act of sale
Partition; after succession legatees can divide it amounts themselves
Legal person
Have a name Have a domicile Have full enjoyment of civil rights Have patrimony We are are referring to a company which is incorporated, meaning that the liability of the shareholders is limited to there investment
In order to properly identify the name of the company you will need to :
Copy of the certificate of constitution or any subsequent certificate issued to modify the name of the company
A certificste from government that the company is still active and has been kept up to date
A resolution from the company identifying the representatives duly authorize to sign on its behalf
Immovables
Land and any construction of permanent nature located there on and forming an integral part thereof; house, in ground pool,vacant lot,trees etc
Movables can become immovables; windows doors, staircase, elevator they ensure the functionality of the immovable
Immovables by attachment or joinder:
-Movables that are permanently physically attached or joined to an exciting immovable
-Said Movables are not incorporated into the immovables
-They are attached or joined for unknown time
- they do not lose there individuality
Ex: electrical fixtures tv atteins screwed on roof,cabanon attached to concrete base
Movables
Things that can be moved
Furniture
Dog
All is usually excluded buyer might want fridge etc, u have to add it in inclusion clause in relevant promise to purchase
Personal rights vs real rights
Personal ; only enforceable between individual not property - individuals demand to do something or restrain from doing something
Brokerage contract , leases
Real rights - exercise his rights against the property of another - when buying the buyer becomes the owner as well as all the real rights its charged with
Ex right of ownership,servitudes, hypothec
Need publication at registry office - registered
Consequence:
usual verification
- certificate of location( up to date one)
-Deed of acquisition by vendor (when he purchased)
-tittle of ownership ( notary will check)
-Landry register of registry office
Nature of the right of ownership
1) Usus; the right to live in in, rent it, administer it
2) fructus; right to take and enjoy fruits snd revenues produced by the property
3)ABUSUS - right to sell, destroy charge with hypothec (refinance)
USUS
Usus; the right to live in in, rent it, administer it
FRUCTUS
fructus; right to take and enjoy fruits snd revenues produced by the property
ABUSUS
ABUSUS - right to sell, destroy charge with hypothec (refinance
Extents of the right of Ownership
1) Ownership of the soil carries with it what is below it and above it (obvies not to infinite), can plant , use space above ground etc. He must respect the law ( state of mines, sheets of water, underground streams and areal space)
2)accession a right to what the property produced naturally(involuntary) or artificially (voluntary) from the time of union
Construction on immovable(land) are presumed to have been made by him and paid by him and belong to him
Therefore the designation of the lot is sufficient in the deed of sale in order to transfer the right of ownership and the land and all the construction erected without making a full description
Special rules on the ownership of immovables
A)abuse of rights and nuisances
As neighbours we must respect the usual inconvenience as long as they do not exceed what is normally tolerable
Abuses of rights ; a Owner at fault is he intentionally harms neighbour - malicious intent
Nuisances;owner at fault if he without malicious intent harms his neighbour
Lack of maintenance
Excavation construction or plantation
Use of work that can dry up or pollute water
B) Limits and boundary of land Limits; -Tittle of ownership Cadastral plan Boundary lines of the land Any other useful document -Boundary’s; Law allows you to compel neighbour to have boundary between the lands determined in order to ; Fix the boundary markers Set displaces boundary markers in place Verify old boundary markers Rectify the dividing line Can be done amicably or with court Consequences: injunctions( court order that compels a party from doing a specific act) or and damages
C) waters
Drainage- lower land cant do work to prevent the natural flow and higher land owner can worse the condition
Law-roof snow,water ice etc, needs to land on your land
D) trees:
If branches or roots come onto you land and seriously obstruct its use u may ask to cut it if no bring it to court
Tree dangerous - ask , if no the you can ask court
-Agriculture land rules: if land is used for agriculture purposes, if it suffers from serious damage to its operation, may compel neighbour to pull down his trees along and not over 5meters from diving line
Exceptions -neighbour is exploiting an orchard
Neighbour is exploiting a sugar bush (maple syrup)
Neighbour wishes to keep trees in order to embellish the property
-fruit rule ; if the fruits from a neighbour’s fall onto you land it still belongs to him
E) access to and protection of the land of another
-access to the land of another : shall allow if necessary to:
Do/maintain construction or plantation
Consequently the owner is entitled to:
Compensation for any damages
Restoration of his land
-Minor encroachment ( going over the dividing line)
Build beyond your land
Owner acted in good faith
Neighbour resources is to force to owner to acquire said parcel by paying its value or owner pays him co pensait on for the temporary lode by paying its value , it’s up to neighbour to decide
- major encroachment
If it’s it’s considerable, serious damage and made in bad faith the owner can compel to acquire the entire immovable by paying its value or remove the construction and restore the place to it
F)views Rule since Jan 1 1994 Rule - no one can have upon their neighbouring land direct views less than 1.5 meters from the dividing line Exceptions: Views on the public thoroughfare (street) Views on a public park Panelled doors Doors with translucent glass Fixed translucide lights
Prior
Distance for direct view is 2.05 meters
Indirect views 0.68 meters
G) right of way
enclosed land :surveyor determines this
Rule; the owner of an enclosed land may compel his neighbour to give him right of way to use exploit land
He can then build a road, maintain it, pay compensation
H)common fences and work
Any owner can fence his land with a wall fence or ditch , if it’s on the dividing line he can ask neighbour to spilt cost then it is common. U can see whether a fence is common in the certificate of location but it’s not always obvious
Common walls:
A wall supporting both sides is common
Each owner may build against it
Can split cost for building common wall on diving line
An owner can renounce his right to use it and thereby be relieved of his obligations to pay expenses
Encroachment
Going over the dividing line (neighbour)
dismemberment of the right of ownership
Identify 4 dismemberment
dismemberment (dividing property, cutting it into parcels) of the right of ownership
The owner allows TEMPORARILY a third party to enjoy one or more advantages normally found in the advantages of ownership;
Usufruct
Use
Servitude
Emphyteusis
Usufruct
A)Nature of usufruct;
It’s the right of use and enjoyment for a certain time of property owned by another as one,s own, subset to the obligation of preserving its substances
Usufructuary - usus and fructus people using the home until they pass or the contract is up and then goes to example the children but without being taxed
parents transfer the bare ownership to their children while retaining the usufruct for their lifetime. This provides them with the right to the income and the enjoyment of the property until their death. As the transfer of the bare ownership is less than the transfer of the full ownership, the gift tax base is reduced, thereby resulting in a lower tax at the time the plan is initiated.
Bare owner: abusus; right to sell, destroy give once the term is up or the abusus dies …
B) establishment
By contract, by will bylaw or by judgement
C) duration
Temporary
With a term = no longer than 100 years
Without a term= natural person is for life, legal person is for 30 years
D) the right of the usufructuary
- has the use and enjoyment of the property
- is entitled to the fruit and revenues
- keeps his right in the event of a sale of the abusus by bare owner
- can sell his usufruct without the bare owners consent
E)obligation of the usufructuary
- takes inventory of the property
- takes out insurances for property
- pays the expenses regarding the maintenance of the property
- pays the ordinary charges like municipal taxes
F) right of the bare owner
Can sell his right of the property (abusus) without the usufructuary’s consent
Will get back the usus and fructus of the property at the end of the usufruct
G)the obligation of the bare owner
Is responsible for major repairs
H) extinction
By the expiry of the term
Upon the death of the usufructuary or dissolution of the legal person notwithstanding the term
By the reunion of the qualities of the usufructuary and bare owner in the same person
By forfeiture or renunciation of the right or its conversion into annuity
By none use for 10y
By total loss unless insured by usufructuary
Use
A)
A right of use is the right to enjoy the property of another for a time and take the fruits and revenues thereof to the extent of the needs if the user and the person living with him or his dependants
E.I the right of use is a usufruct t but only for personal needs of the user and his family
A user who takes all the fruits and revenues of the property or who uses the property in its entirety is liable, for the whole, for the costs he incurred to produce them, for the maintenance repairs and for the payment of the charges, in the same manner as a usufructuary.
Where the user takes only part of the fruits and revenues or uses only part of the property, he contributes in proportion to his use.
B)
establishment;
By contract will or judgement
C)
Nature ;
the right of use may not be assigned nor seized unless provided for otherwise by agreement of court of law
In all other respects, the rules governing usufruct are applicable to the right of use
Servitudes
À )servitude is a charged imposed on an immovable (the servient land) in favour of another immovable ( dominant land) belonging to different owners
It is a real right (In Land registry )
It extends to all that is necessary for its exercise
B)Natures
The owner of the servient land is required to tolerate certain acts of use by the dominant land
Ex right of way
Servitude view
Or the owner of the servient land is required to refrain certain rights inherited to ownership
Ex servitude of non construction
C) establishment
- By contract , by will, by destination of proprietor or by the effect of the law;
- must be published at the land register of the relevant registry office to be opposable to third parties
D)extinction
- by the réunion of the qualities of owner of the servient land and owner dominant land in the same person
- by the express renunciation (abandonment) of the dominant lands owner
- by the expiry of the term for which it was established
- none use for 10 years
Emphyteusis
The right which, for a certain time grants a person the full benefit and enjoyment of an immovable owned by another , provided he does not endanger its existence and undertakes to make construction, work or plantations there on that’s durably increases it’s value
B) min 10 years max 100
C) co- emphyteusis
Emphyteusis affecting both land and an existing building may be the subject of a declaration of co- emphyteusis so it’s governed by same rules as con ownership - u are not buying three unit itself just a right to liv there for the remainder of theco- ownership
D) bycontact , will
E)the right of the emphyteusis lessee
Has the right in the immovable that are attached to the quality of owner but for the following restrictions
F) obligations of the emphyteutic lessee
- must make the construction work or plantation as specified in the constituting act
- liable for partial loss of the immovable
- Is bound to make repairs - even major ones
- Must insure the immovables
- Is liable for all real property charges affecting the immovable
- Is liable for all real property charges affecting the I movable like taxes
The right of the owner
- the constituting act may grant rights or guarantees to the owner in order to protect the value of the immovable ,ensure it conservation, yield or use
- owner may ask that the emphyteutic lessee be fortuites of his rights is he commits waste or fails to prevent t the deterioration of the Immovable orné d’âge the rights of the owner
- owner may collect the price set in them constituting act
- as a general rule upon termination that owner resumes the immovable free of all the rights and charges granted by the emphyteutic lessee
H) the obligation of the owner
Same obligation as the vendor:
Delivery ,warranty of ownership, warranty of quality
I) termination of quality
- expiration of term
- Total loss or expropriation of immovable
- by resiliation of the constituting act (failure of payment )
- by réunion of the quality of owner and emphyteutic lessee in the same person
- by non-use for 10 years
- by abandonment (no money/market crash )
Undivided co ownership
Same property ,owned jointly at the sam Time by several people. It is not accompanied with physical division of property.
When; 2or more
How; contract,will,law,judgment
Administered between co owners or they can hire manager of there choice
If no contract betweeen owners they use the Quebec civil code to govern the co-owners
Rights and obligations; shares are presumed equal
It’s up to co owners to determine if it’s unequal
Pré emptive right - first offer his ownership shares to the others before selling the indivision agreement that stipulate pre emptive right must be published
The right to hypothecate - remortgage for Reno’s
Right to use and enjoy - rent bassement ans share the rent money
Repairs and improvemts- vote- majority vote wins
Fruits - belongs to all
Right of redemption (repurchase)
Don’t need consent to sell shares but any individual co owner has 60 days of learning that a person has bought the share exclude him by buying shares at sales price plus expenses
( right of 1st refusal =pre emotive right)
Each co owner can hypothecate his share (mortgage)
The right to use and enjoy as long as it does not effect the destination of the immovable or the right of the other co owners
Rules;
Any improvement benefits all
All disbursements made by an undivided co owner in order to preserve the immovable shall be reimbursed to the latter
For all other disbursement (made by and for the undivided co owner’s enjoyment) the undivided co owner at the partition will be entitled to compensation equal to the value increased in the immovable
Each undivided co owner is liable for any value loss of the immovable he caused
All fruits and revenues belong to all undivided co-owners according to there shares
Administered jointly
Vote; majority in numbers and shares of the undivided co owners
Unanimity
No one is bound to remain in indivision (joint ownership). Partition may be demanded at any time unless it has been postponed by an agreement, a testamentary provision or a judgment, or by operation of law, or unless it has become impossible because the property has been appropriated to a lasting purpose.
Postponement of partition
No min term
Max 30 but can be renewable
Subsidiary rule
3/4 (90%) can put an end to undivided co ownership
If some part of property is lost you can vote to end co ownership
Partition or aliénation put an end to co ownership
Conventional indivision = by agrément
Through contract providing rules which will govern the co owners relationships . Can be notorial or just private writing ,no need to publish unless u want too
You can add more than just the ones in the Quebec civil code
Divided co ownership
Person has the exclusive right of ownership in a physical divided private portion of an immovable and a share of common portions
A) establishments of owner ownership
Upon publication of the declaration of co-ownerships
The declaration must be notarized en minute
The declaration of co ownership must be signed by all co owners or the sole owner and by all hypothec are creditors
The company owner as a body constitute a legal person
The legal person is called a syndicate
Fractions of co- ownership
Private portions
Those portions of the building and the land that are the property of a specific co owner and that are his exclusive use
Rule : when dealing with divided co ownership, be aware that there is no right of redemption and no pre emptive right in favour of the owners private portion
Common portion :those portions are the land that are owned by all the co owners and serve for their common use
Common portion for restricted use : those common portions that serve for the use of only one or several of the owners ext- storage space front door couloir
Declaration of co ownership (on final) Is constituting of three elements -Acts constituting the co ownership -By-laws -Descriptions of the fractions
Acts of constituting the co owners ( constituting act) :
- Defines the destination (purpose) of the immovable, of the exclusive parts and of the common parts
- specifies the relative value of each exclusive part, the share of expenses es Abe number of votes attached to it
- specifies the power and duties of the board of directors of the syndicate and the general meeting of the co owners
How can the constitutional act be modified = with a vote and notary ; 51% plus 3/4 of all relative value
By laws:
Establish the rules on the enjoyment, use and upkeep of both private and common portions
Establish the rules on the operation and administration of the co ownership
Establishes how the contribution to the common expenses are assessed and collected
How can the by laws be modified : quorum (min amount of pps that must be present at meeting )
Description of the fractions:
Contains the cadastral description of both the private and common portions
Contains description of the real rights affecting or benefitting the immovable, other than hypothec
The required form of the declaration of co ownership is; authentic act en minute - notary
The declaration of co ownership must be signed by; all owners and lenders
The rights and obligations of co ownership
Usus fructus and abusus
