Canadian Real Property

Question	Answer
What is real property	Includes land and any structures built upon it
Possession:	A person may generally be said to have possession of land or personal property if he has dominion and control over it.
Title:	He who has title has ownership.
Ownership consists of which rights	1. The right to possess; 2. The right to use; 3. The right to exclude others from possessing or using it; 4. The right to transfer it (which includes the right to make a gift and the right to sell).
Trespass - definition	A physical intrusion upon the property of another without the proper permission from the person legally entitled to the possession of the property. = The unauthorized physical entry into the land of another.
What interest is protected by the law of trespass?	The right of exclusive possession = The right to exclude
What is enforced by via an action in trespass?	The right to exclude. The action in trespass is interested in who has a superior right to occupy the land. It is not about who owns the land.
In an action in trespass, where do I file my action?	Court of law to obtain damages for past trespass; Equity for future trespass to obtain an injunction (in personam order).
Defenses against a writ of trespass	(1) Licence: personal privilege with respect to the land. (2) Mistake: Even when there is no intent to commit a wrong, an unauthorized entry on land will constitute a trespass. The defendant must show that he did not intend to enter upon the land and did so accidentally, without negligence or recklessness on his part.
What is required to maintain an action in trespass?	The owner must show that the defendant entered upon his land. He must not show that the defendant knowingly intended to commit a trespass.
What is ejectment and what may plaintiff recover?	It is a civil action based upon a wrongful dispossession to recover the possession of or title to land. Plaintiff may recover the land and damages for the loss suffered during the period of his dispossession. Ex. originally used against defaulting tenants or trespassers.
What is "acquisition by creation"	The right of the creator to keep the things he creates.
What is the main issue with creation?	Whether the thing under litigation is something the law would recognize as property.
Can a spectable be property?	No - Victoria Park Racing
What are the conditions for an action for unreasonable intereference of the use of your land?	(1) Unreasonable use of my land (2) The unreasonable use of my land unreasonably interferes with your use of your land. Victoria Park Racing
Is there property in the news (i.e. news reports)?	No, there is no copyright in the news itself, the exchange of ideas is important. There is no property to possess. - International News Service v. Associated Press.
Is an idea considered property? Why or why not?	No, ideas are not property @ CL and are not protected. Common law favours encouraging innovation. Cheney Bros. v. Doris Silk
What are the aspects of subsequent possession:	(1) The law of finds (2) Adverse possession (3) The law of gifts
What is a subsequent possessor?	When the identity of the true owner of a thing/property is unknown, but the thing is in possession of somebody. That person in possession of thing, who is not the true owner is the subsequent possessor.
What are the litigious subjects of the Law of Finds?	(1) The rights of Finders and First possessors (2) Distinguishing between something being "lost" or "mislaid" (3) The rights of the True owner
What is the rule of first possession?	The first possessor has a superior right against the world except against the true owner.
What are the rights of finders?	The finder of an object is entitled to possess it against anyone but the the true owner. He has a superior right against everyone but the true owner. Armory v. Delamirie
What is required for a finder to have any rights on a thing?	The finder must take possession of the article, that is to say that he must have: (1) physical control; and (2) an intent to assume dominion over the thing. This is referred to as the obligation to control. Anderson v. Gouldberg
What is the general rule of possession?	The finder must have: (1) Physical control on the property; and (2) an intent to assume dominion over the thing.
Define lost property	Property which is no longer in possession of the original owner and the original owner has ceased to look for it. It does not meet the criteria for abandoned property.
Is the saying "Finders keepers, losers weepers" accurate?	No, because the finder of lost property simply holds it, for a certain time, in trust for the benefit of the true owner. He acts as a bailee for the true owner. However, his right is superior to those of everyone except the true owner.
What is mislaid property?	Property that was intentionally put in a particular place by the true owner but forgotten there. Most cases deal with figuring out who is the first possessor but can depend on where the item was found.
Ratio from Bridges	Things in the public area of a shop belong to the finder.
Ratio from Staffordshire	Everything attached to or on the land belongs to the owner of the land.
Ratio from Hannah	A man does not necessarily possess a thing lying unattached on the surface of his land even though the thing is not possessed by someone else.
What are the characteristics of abandoned property?	Must satisfy 2 criteria: (1) An intention to relinquish the title (2) Display an indifference to the property's fate or disposition
Ratio from McAvoy	Property placed by the owner and neglected to be removed is not lost, but simply mislaid (as he intentionally placed it where he did as opposed to lost property).
Ratio in Moffatt	Ownership is not abandoned simply by forgetting where one put the object, it involves an active, positive act of divestment.
Situations that favour the owner of the land	When the chattel is underground; if the chattel is attached to the realty; if he has manifested an intention to appropriate all object on his property.
Rights and obligations of the finder of an item	(1) Finder of chattel has no rights unless it has been abandoned or lost AND he takes it into his care and control; (2) The finder of chattel has limited rights if he is trespassing or has dishonest intent; (3) while a legitimate finder does not have absolute right of property, he has the right to keep chattel against all but the true owner; (4) a finder working as servant or agent is acting on behalf of employer for sake of chattel (5) person finding chattel has obligation to take all reasonable measure to acquaint true owner with whereabouts.
Rights and liabilities of an occupier	(1) Rights superior to those of a finder over chattels in or attached to that land (2) An occupier of building has rights superior to those of finder over chattels upon or in but not attached to building only if, before the chattel is found, he has manifested an intention to exercise control over the building and things which are upon or in it.
Under what circumstances can a true owner be divested of his or her right in a thing?	(a) the true owner made no effort to find it (this is akin to abandonment) (b) lapse of time --> the doctrine of laches is applied (until an unreasonable delay has lapsed)
Principle: possession derived from trespass	Even if the possessor has obtained his possession wrongfully, he will be entitled to recover from a 3rd person who interferes with that possession, except the true owner.
Measure of damage for lost articles	Typically the full value (previously known as the common-law action of trover)
What is the rule of adverse possession?	A method of gaining legal title to real property by the actual, open, hostile and continuous possession of it to the exclusion of its true owner for the period prescribed by law, after which I gain possessory title valid against all the world.
What is the legal theory underlying the vesting of title by adverse possession?	So that the title to land will be certain.
What are the exceptions to the rule of adverse possession?	Applies to everyone except the crown or municipalities.
What are the components of adverse possession?	(1) open, notorious, and visible (2) actual (3) continuous (4) hostile (without the owner's consent) (5) must be for at least the length of the statutory period
What is a hostile possession mean and how is it measured?	Possession without the owner's consent. Measured: by looking at the possessor's actions and his statement to the owner and to others.
What is the ratio in Keefer?	The adverse possessor must be using the land in a way inconsistent with the intention of the true owner. This decision has to do with a garage built on neighbour's land and use of neighbours' land.
What is the discovery rule (rule that applies to stolen chattel)?	The statute of limitations on an action to recover stolen property does not begin to run against the record owner until the owner knows or should know, the identify of the possessor. But the rule assumes the owner has made prompt reasonable efforts to find the possessor or to put the world on notice of the stolen property. 1. Did she use due diligence to recover the chattel? 2. Was there an effective method to alert the world of the stolen chattel. 3. Did she act like a reasonable person? If so, the statute of limitations will not begin to run.
Why is a promise to make a gift not enforceable?	Because there is no promise in exchange and therefore, no consideration.
What are the requirements of a valid gift?	(1) Intention to donate (2) Acceptance; (3) Sufficient act of delivery. An inter vivos gift requires that the donor intend to make an irrevocable present transfer of ownership; if the intention is to make a testamentary disposition effective only after death, the gift is invalid unless made by will
What does the action in trespass vindicate?	Possessory, rather than ownership interest in the land. (not title)
Can an adverse possessor bring forward an action in trespass against a 3rd party?	Yes, because possessory, rather than ownership interest in the land. (not title)
What happens to the adverse possessor after the expiration of the statutory period?	(1) the possessor gains good title - which is almost as good as one obtained by deed (2) Easements may not be extinguished - as the holder of an easement does not have a right of action against a mere possessor, and statute of limitations is not in play here. (3) Not valid against interest of government: adverse possession will not grant title to land owned by gov't or municipality (4) Not recordable (no need to) (5) Transferred like any other title, in writing.
What is the scope of the property obtained through adverse possession?	(1) Property actually occupied (2) Constructive adverse possession (where one enters under "color of title" - a defective title), in which case they would gain title to the entire area described in the instrument.
What action can person take when they have the right to possess land, and have been ousted from that possession by another?	An action in ejectment to regain possession.
Adverse possession test:	(1) Take today's date minus the statutory period (10 years) to determine the relevant starting date by which adverse possession would have had to begin. This is the "starting year". (2) Was A (or predecessor) in physical possession of land beginning in starting year? (3) Has A's possession been open, notorious, and visible since starting year? (4) Has A's possession been hostile without O's consent? (5) Has A's possession been continuous since starting year? (6) Has O (or predecessor) been the owner since Starting year? If yes to all, A has taken title by adverse possession.
Definition: seisin	One who has possession and title of land. It means ownership in Fee simple.
What is an abeyance of seisin?	Any period in which someone was not "seised" of the land.
What does land in tenure mean	Land is divided economically in order to more efficiently use its resources.
What does land in estate mean?	Land divided on the basis of time. Quantity of the holding in terms of length of time.
What is a possessory estate?	Right to possess the land now.
What is a future estate?	Right to possess the land in the future.
What are the types of estates?	(1) Freeholder estate - we do not know when it will end (closest thing to ownership) (2) Non-freehold estate: most common form of Estate
What is the definition of an estate?	An estate is an interest in land which has 2 characteristics: (a) it is or may become "possessory"; and (b) it is measured in terms of duration.
What are the 2 characteristics of an estate?	It is or may become possessory and it is measured in terms of duration.
What are the 3 freehold estates?	(a) Fee simple (b) Fee tail (c) Life estate
What are the 4 non-freehold estates (those to which seisin does not attach)	(a) Estate for years (b) Periodic estate (c) Estate at will (d) Estate at sufferance
Effect of Native titles	Native Americans had "possession" of the land on which they lived, but did not have "title" to it, and could not convey title. Therefore a title derived from one of the provinces or colonies has priority over an earlier grant from a Native tribe.
Grant	The thing which is given
Grantor	Person giving a thing
Grantee	Person to whom it is given
Deed	Grant of land inter vivos
Will	Grant of land between a dead person and a person who is alive
Fee Simple Absolute	The most unrestricted estate. It allows possession of perpetual duration and confers upon the holder the largest bundle of property rights. Characteristics: (1) infinite duration (2) it is inheritable (3) Can be conveyed "inter vivos" by use of the words "and his heirs". Limits: The words "to A" or "to A forever" or "to A in fee simple" or "to A and his assigns" gives A a life estate.
To A and his heirs. A dies but has no heirs. What happens to the land?	Land is escheated back to the grantor (goes back to the grantor).
What is the exception to the rule regarding fee simple absolutes?	If a testator wrote his own will and used language that was ambiguous. The Court will attempt to uncover the testator's true intention. If not possible, they can refuse to grant the Fee Simple, in which case it will be a life estate.
Fee simple defeasible - 4 kinds	The fee simple defeasible has "strings attached". There are 4 kinds: 1. Fee simple determinable 2. Fee simple subject to condition subsequent 3. Fee simple subject to condition precedent 4. Fee simple subject to an executory limitation.
Fee tail male	Restricts the possession of land to members of a particular family, particularly the male heirs. Created by the words: "To X and their heirs of his body". This works as long as there are lineal descendants (excludes brothers and cousins).
What happens in a fee tail male when the grantor dies?	The estate passes to the grantee, and upon the grantee's death to grantee's children or grandchildren. In the absence of children or gr. ch. It would revert to the grantor.
Are fee tail males possible in Ontario? In what Canadian jurisdictions are they possible?	No, only in Manitoba
What is a life estate?	When the grantor gives property to a person to hold for the term of his natural life. Created by the words: "To X for life". Upon the grantee's death, there are 2 possibilities: 1. Reversion to the grantor; 2. Grantee grants the remainder over to a 3rd party.
What is a remainder?	When the property does not revert back to the grantor but goes to a 3rd party. It can be a remainder in fee simple absolute or a remainder in life estate, for example.
What happens when a property reverts?	It goes back to the grantor.
Life estate per autre vie	Estate for another's life. An estate in lands which a man holds for the life of another person. "to A for the life of B, then to C in fee simple"
What are the duties of life tenants?	1. Make repairs 2. Pay taxes 3. Current mortgage interests
What are the different types of waste?	1. Voluntary (affirmative act that does damage to the propery) 2. Involutary (permissive) - refuses to take an act that results in damage continuing or occuring. 3. Ameliorative: taking an act that improves the property but changes its character of value to the detriment of the remainder.
What are the remedies for waste?	1. Damages - diminution in value 2. Injunction - to stop an act or perform an act 3. Forfeiture 4. Partition - Order the property sold and the proceeds divided btwn the life tenant and the remainderman in proportion to their interest (Baker)
What is a fee tail?	Can only be inherited by heirs of blood (both boys or girls). Created by the use of words "To A and the heirs of his body".
Name the 3 kinds of fee simple absolutes and state what happens if there is no heir?	1. Fee simple absolute 2. Fee tail. 3. Fee tail male If there is no heir the property escheats back to the grantor.
Who are the heirs at CL?	Sister, brother, nephew, niece, cousins.
What are the types of defeasible estates?	1. Fee simple determinable 2. Fee simple subject to condition subsequent 3. Fee simple subject to condition precedent 4. Fee simple to an executor limitation.
What is the distinction between a fee simple absolute and a defeasible fee?	No future event can terminate the fee simple absolute. As long as the event described in the fee never occurs, the defeasible may remain forever.
What is a fee simple determinable?	It is a fee simple which automatically comes to an end what a stated event occurs or fails to occur. The grantor has a possibility of reverter (and is left with an interest - the right to regain title if the event occurs. When the event occurs, the fee is terminated immediately and the property vests in the grantor and its heirs.
How is a fee simple determinable created (what words are used)?	Usually created by words with a durational aspect: (1) "so long as" (2) "during" (3) "until" (4) "while" (5) "reverting". A statement of the motive or purpose is not enough, in such a case the grant will result in a fee simple absolute.
What happens when the condition in a fee simple determinable occurs?	the property immediately changes hands. Grantor does nothing, the title changes immediately.
What is a fee simple subject to condition subsequent?	It resembles a fee simple determinable, but the grant is a fee simple with a condition. When the condition occurs (if it occurs), the Grantor has the right to retake the land. HOWEVER, the Grantor must exercise his right of re-entry.He must affirmatively exercise his right.
What words are used to create a fee simple subject to condition subsequent?	1. "Provided that she does X" 2. "Provided he does not marry a Catholic" 3. "But if" 4. "On condition that" But the key is NOT in the language. The key is to determine whether the grantor intends to transfer title completely saving only a right to take it back.
I am happy you have the land forever provided you do not marry a Catholic. What type of grant is this and what happens if he marries a Catholic?	If you marry a Catholic, the condition is broken and the Grantor has the right to re-enter. But he has to exercise the right. The reversion is not automatic. If the grantor fails to take action to retake the property, the grantee may have a defense of laches. ATTN: There is no possibility of reverter.
What will courts do when the character of a grant is in doubt?	The grant will take effect and the condition will be voided. The Fee simple subject to condition subsequent will simply be construed as a fee simple absolute.
What is a fee simple subject to condition precedent?	The grantee must perform some condition in order to get the land. Ex. To A provided he marries B. The condition must occur BEFORE to get the land.
What is a fee simple subject to an executory limitation?	A grant of a fee simple which divesys or shifts the grant from one transferee to another tranferee. When the condition happens it shifts the property to another. It never goes back to the grantor by reverter (determinable) or right of re-entry (condition subsequent).
What is a shifting executory interest?	It goes to a person but then shifts to a 3rd person upon the happening of an event. "To A provided the land is used for farming purposes; but if it is not farmed then the land shall go to "B".
What is a springing executory interest?	The interest springs up from the grantor at a future date to a 3rd party upon the happening of an event. "A to the first of my students to become a judge".
Is the rule against perpetuities applicable to a fee simple determinable?	No, it is not applicable to the possibility of reverter to avoid undue restraints on alienation of land.
What is the statute of limitations on a fee simple subject to condition subsequent once the event occurs?	Not set by statute, but usually a reasonable time upon which the grantor can exercise his right of re-entry from the occurrence of the stated event.
Are fee tails still enforced?	Most of them in the U.S. are converted by statute to a fee simple absolute.
How is a life estate measured?	Usually lasts for the lifetime of the holder of the life estate, but can be of someone other than the holder in the case of estate per autre vie.
Words that create a life estate	"to A for life" "to A during his life" "to A until he dies" "to A and then at his death to A's children in fee simple"
Give an example of a life estate defeasible	"to B, for so long as she shall remain my widow, then to my son C"
What is "To B for so long as she remains my widow"	It is ambiguous, but is usually treated as a fee simple determinable rather than a life estate determinable. If it were a life estate determinable and B dies without remarrying, upon B's death, it would revert to A's heirs. As a fee simple determinable, it will be taken by will.
What happens when a fee simple subject to condition precedent is ambiguous?	The entire grant fails.
What happens when a fee simple subject to condition subsequent is ambiguous?	It becomes a fee simple absolute.
To A and his heirs provided A stays on the farm	Fee simple subject to condition subsequent, but is ambiguous.
To A and his heirs so long as he remains the King.	The entire grant fails, it is ambiguous. King of what? There is a condition, but the condition can never happen. So it must fail.
To A and his heirs, provided that if and when A marries, he marries an approved Jewish wife. A is 12 years old.	It is a fee simple subject to condition subsequent. Because the condition is ambiguous, it becomes a fee simple absolute because we don't know when A will lose the land.
To A and his heirs provided A is 21. A is 16 at the time of the grant.	This is a future interest. It is a fee simple subject to condition precedent.
To A for life, and then to B and his heirs.	This is a life estate of A (it is vested in present interest and possession). When the grantor dies, A has a present life estate. B has a future vested interest (remainder) in the simple fee absolute.
To A for life, then to B provided he is 21. A is 86 and B is 4 at the time of grant. Is there an issue with this grant?	A is vested in right and possession. B is not vested because of the condition. Issue - if A dies when B is not yet 21, there is an abeyance of seisin until he reaches 21, during that time the property is in limbo. The entire grant must fail.
What is conveyance of interest?	The life tenant may "convey" any interest in the property, up to and including the entirety of this own interest. Limit: the life tenant cannot convey a greater interest than his own (no fee simple)
What is a future interest?	It is an interest in property in which the right to possession and enjoyment of the property is postponed until some time in the future. The interest is vested: (1) either in right or interest (2) or possesison.
To B in FSA. What rights does B have?	B has a present right in interest and a future interest of possession. B can convey the remainder right now and has right to restrain A from committing waste.
To A and her heirs	Fee simple absolute
To A for 2 years	Estate for years
To A and the heirs of his body	Fee tail estate
To A for life	life estate
To A forever	Life estate or fee simple absolute if there's a statute
To A for the life of B	Life estate per autre vie.
What are the 5 kinds of future estates?	1. Possibility of reverter - follows the FSD 2. Right of entry - follows an interest SCS 3. Reversion - is left in a grantor after he makes a conveyance 4. Remainder - future interest in one other than the grantor, takes effect after the termination of an earlier estate 5. Executory interest - takes effect by cutting short a prior interest.
What are the 3 kinds of reversionary interests:	1. possibility of reverter (which is contingent) 2. Right of re-entry 3. Reversion (not contingent)
Can I alienate a possibility of reverter?	Yes, it is inheritable and devisable by will, and can be conveyed inter vivos.
How does one get a right of entry?	When the holder of a interest in land conveys all or part of his interest and attaches a condition subsequent to the transferee's interest, the transferor is said to have a right of entry.
What is a reversion?	A reversion is created when the holder of a vested estate transfers to another a smaller estate; the reversion is the interest which remains in the grantor. As long as what he is conveying is smaller than thant his original estate, he retains a reversion.
What happens if a possessory reversion becomes impossible?	It is divested.
Is reversion alienable?	Yes, it can be alienable inter vivos. They are also devisible.
What are the future interests in the grantee?	1. Vested remainder 2. Contingent remainder 3. Executory interest.
What is a remainder?	The following requirements must be met: 1. Grantor must convey a present possessory estate 2. He must create a non-possessory estate in another transferee by the same instrument; and 3. The second, non-possessory estate must be capable of becoming possessory only on the natural expiration of the prior estate.
What is a contingent remainder?	It is one that is not certain to become possessory. Contingent upon: 1. an unascertained person or 2. some event occurring other than the natural termination of the preceeding estate (condition precedent).
To A for life, remainder to B and his heirs, but if B dies before A, to C and his heirs. What does B have?	Fee simple absolute which gives him a vested remainder subject to divestment. If he dies, the fee simple absolute is divested.
What is a remainderman?	The person to whom the property will go after the condition is fulfilled.
To A for life, but if A becomes bankrupt then to B. What kind of interest does B have?	shifting executory interest
To T to hold for A and his heirs	Equitable estate - law does not enforce anything that follows "to T". Equity will enforce this.
To A for life, then in the event of her death, to B and her heirs.	Life estate (A). Remainder in FSA (B)
To A for life, then to B and the heirs of his body.	Fee tail (B).
To A for life, then to B for life.	Life estate (A and B), reversion to the grantor.
To A and his heirs, but if B returns from the war, then to B and his heirs.	A = fee simple subject to a shifting executory limitation. B = shifting executory interest subject to a condition precedent.
To A for life, then to B for life, then to C and his heirs, provided C survives both A and B.	A = life estate B = life estate C = remainder, contingent. Contingent remainder in FSA.
To A for life, then to B and her heirs, but if B does not survive A, then to C and her heirs.	A = life estate B = Remainder subject to condition precedent. C = Contingent remainder, springing executory interest.
To B and his heirs when he returns from war.	Fee simple subject to condition precedent.
To A for life, then to B and his heirs provided B turns 21 before A's death.	Contingent remainder in fee simple
To A and B for their joint lives, then the survivor and her heirs.	Life estate in A and B, followed by a contingent remainder in fee simple absolute in the survivor. If they die together, reversion to the grantor.
To A for 20 years	Estate for years. Non-freehold estate.
To A and his heirs, but if B returns from the war, then to B and his heirs, provided B has not married C.	A = Fee simple subject to executory limitation. The executory limitation is subject to condition precedent. Fee simple subject to a shifting executory interest, subject to a condition precedent.
To A upon his marriage	Springing interest.
What are the four common law remainder rules	They apply to contingent remainders. 1. No remainder after a fee simple 2. No springing freehold 3. Vesting must be timely (timely vesting rule) 4. No shifting freeholds. LIMIT: Do not apply to interests in the grantor.
O conveys to A and his heirs so long as alcohol is not sold on the premises	FSCS
Why can we not have springing freeholds?	Because there is a possibility of an abeyance of seisin.
To A for life, then to B provided B is 21.	This is life estate with a springing freehold. CL doesn't allow springing freeholds because there is a possibility of abeyance of seisin if B is not 21 when A dies, where does the property go? It will therefore revert to the Grantor.

To A for life, but if A goes bankrupt, then to C and his heirs.	Life estate subject to a condition subsequent, but this is a shifting freehold, which is not allowed as we are shifting the right of re-entry away from the grantor.
What is the timely vesting rule?	We cannot have delays between the first estate and the second. An interest must vest before the end of the preceding estate.
What is the rule against perpetuities (RAP)?	An interest must vest, if at all, within a life in being plus 21 years. If there is even 1 possibility the interest will not vest during the perpetuity period, the grant fails. EXCEPTION: the interests applied by the grantor: 1. reversion 2. possibility of reverter
The 4 types of common ownership	1. Joint tenancy 2. Tenancy in common 3. Tenancy by Estate 4. Coparceny
What is the joint tenancy rule:	A joint tenant may terminate a jointe tenancy by conveying his or her interest in the property, with or without the knowledge of the other tenants, to another pary.
What are the 4 unities of Joint Tenancy?	1. Unity in interest 2. Unity in title 3. Unity in possession 4. Unity in time.
What are characteristics of joint tenancy?	Must have the 4 unities (unity in interest, title, possession and time). Right of survivorship Cannot be held in unequal shares Upon death, my interest is extinguished. Cannot pass your share by will No fiscal implications upon my death for the joint tenant.
What are the characteristics of tenancy in commons?	No right of survivorship Only requires unity in possession, but can have the other unities as well It is possible to have a division of interest Can pass your share by will Tenant has right to use and occupy the full premises.
How does one sever a joint tenancy?	By conveying his interest to another in tenancy in common. This additional conveyance destroys the 4 unities. You can convey it to yourself and then reconvey it.
What is a right of survivorship?	Where ownership of an asset passes automatically by operation of law upon the death of an owner to a surviving co-owner.
What are 3 main ways to sever a tenancy?	1. Unilaterally (by conveying to a 3rd party and severing the unities) 2. By mutual agreement 3. The parties act as tenants in common and not joint tenants (very hard to do)
What is a tenancy by the entireties	It is an estate in joint ownership that is only opened to husband and wife based on the assumption that when 2 people marry they become 1 person in the eyes of the law.
What are the characteristics of a tenancy by the entireties?	It cannot be divided and it may not be extinguished without the consent of both. It has the 4 unities. Consequently, only creditors of both can attack the property. Neither party can convey without the consent of the other. To destroy it, you have to dissolve the marriage and become joint tenants.
3 kinds of bailments & duty of bailor for each	1. For the benefit of the bailor and bailee - duty of bailor _ Ordinary care under the circumstance. Liable if he failed to act in the manner of an ordinarily prudent person. 2. For the sole benefit of the bailor - Duty of the bailor _ Low duty of care, only liable for gross negligence 3. For the benefit of the bailee - Duty of the bailor _ High duty of care, will be liable for slight negligence
What is a license?	permission to enter upon land for some agreed purpose at a particular time. It is a defence against Trespass. Can be 1. permissive or 2. contractual
What is a lease?	Is a conferring of a non-free hold estate. The tenant takes possession of the land. He has the immediate right to possess and the landlord has a reversion.
3 kinds of leases	1. Term for years 2. Periodic tenancy 3. Tenancy at will
How does a lease work?	I give you the property expecting something in return.
What is a leasehold estate	This is a freehold estate with an indeterminate date of termination.
What is a periodic tenancy or periodic lease.	A tenancy which continues from one specified period of time to the next automatically unless either landlord or tenant give notice to terminate at the end of a period.
What is tenancy at will?	It is a tenancy which has no fixed term, endures as long as either party chooses, and can be terminated at any time either by giving notice or by death. By giving notice, the tenant is conveying the reversion by the landlord. Distinguish from a term of years determinable
What is a tenancy at sufferance?	This is a holdover tenant. This tenancy will end as soon as the landlord exercises his option to: (1) evict plus damages (2) consents (express or implied) to the creation of a new tenancy to another term.
What are the characteristics of conveyance?	Independant covenants - the tenant's lease obligations are independant from the landlords. If he doesn't fulfill his, I cannot withhold rent because in property it is the land we convey, not the building.
What are the landlord's obligations towards the tenant?	1. Legal right of possession 2. Right of quiet enjoyment
What is a sublease and what are its consequences?	Sublease arises when the lessee transfers something less than the entire estate. Consequences: 1. No privity of contract between subtenant and landlord 2. Subtenant not liable for defaults to landlord on part of sublessor 3. Original tenant remains liable to landlord
What is a lease assignment and what are its consequences?	Arises when the lessee transfers his entire interest in the lease to a third party (tenant walks away). Consequences: 1. Privity of contract between subtenant and landlord with right of landlord to proceed against subtenant. 2. Original tenant has no further obligations.
What are non-assignment clauses?	A restraint on alienation and strictly construed because of CL's rule that land interests should be freely alienable.
What are the tenant's obligations?	1. Pay rent 2. Duty of ordinary repairs 3. Avoid waste 4. Refrain from illegal use 5. Duty to not commit nuisance
What are the landlord's remedies?	I. Lease remedies: 1. Right to accelerate rent; 2. Keep the security deposit 3. Liquidated damages 4. Confession of judgment II.Eviction 1. By summary procedure 2. Self-help rule (no self-help; forceful self-help; peaceful self-help) III. Distraint
At CL, is there a warranty of quality?	No, warranty of quality, no obligation to give habitable premises. These rules can be changed by statutes.
What is the effect of a religious restriction in a grant?	Whether the religious restriction is valid is questionable. Indeed, restraints on religion have been questioned in the area of trusts, although that debate is generally confined to charitable trusts. While Ontario courts have held that religious restrictions in private, family trusts are invalid, other jurisdictions have disagreed.
What remedies does the landlord have against the renter?	1. Accept the surrender 2. Relet the premises for the tenant's account 3. Do nothing.
Process to analyze a grant at exam (based on prior exam answer structure)	1. What is the nature of the grant. 2. What is the effect of any restrictions? 3. What arguments will X make in favour of upholding restrictions? 4. What arguments will Y make? 5. What are the courts likely to do?
What is a tenancy for years	Any estate which is for a fixed period of time. It terminates automatically at the end of the period.
What distinguishes a tenancy for years from a periodic tenancy?	The tenancy for years ends automatically, whereas the periodic tenancy renews automatically until a notice of termination is given by either party.
How are leases created?	The Statute of Frauds requires that leases with a term exceeding one year must be made in writing. This period usually includes any renewal periods set out in the lease.
How is periodic tenancy created?	It can be by express agreement, or by inference. Ex. if the parties make a lease without a fixed duration, and provide a monthly rent of $400. We can infer the tenancy month-to-month is periodic. It can also be created by a holdover tenant at the end of the lease.
Describe the tenant's right of possession	The landlord is obligated to provide legal possession (American rule), but is not required to provide actual possession, except for actual possession on the first day of the term (English rule).
What is the right of quiet enjoyment	Right to be free from claims of possession by landlord and those claiming under him (3rd parties who have a lease).
When would a 3rd party have a paramount title to a tenant?	If: 1. The LL doesn't have title to the premises at all 2. The LL has title, but has already leased them for a period that overlaps 3. The LL has only a life estate, which might expire before the end of the lease term 4. The LL's title is subject to termination
How can the LL or 3rd person interfere with the tenant's use of the premises?	By actual eviction: taking possession of all or part of the leased premises (dumping trash, storing furniture). By constructive eviction: interference with the tenant's use of enjoyment of the property. (ex. neighbour who holds loud parties).
What is actual eviction?	When the tenant's possession of all of part of the premises is taken away from him.
What is constructive eviction?	When his use or enjoyment has been substantially impaired (excessive noise, terrible odors, premises nearby used for immoral purposes, etc).
What is the principle of caveat emptor	The buyer cannot recover from the seller for defects on the property that render the property unfit for ordinary purposes

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	Created by Nathalie Buissé over 7 years ago