Chpt 22 & 23 Flashcards
(22 cards)
What is real property?
land and anything permanently attached to it
➢Common law: includes buildings, minerals or anything else below the surface, and air space above
Indigenous rights and title to lands limited to what?
lands previously occupied prior to European sovereignty
➢Two large limitations:
○Indigenous rights are communal rights of a band, not of individuals
○Cannot be transferred to anyone but Crown
What is expropriation?
The forceful taking of land by a government or government agency for public purposes.
What is fee simple?
All land still owned by Crown:
➢Estates of land in fee simple are granted by Crown patent to individuals - the fee simple
➢Crown often reserves right to minerals or precious metals
➢Can dispose of land
- person grant land using deed or transfer
What is escheat?
reversion of land to Crown when a person possessed of the fee dies intestate and without heirs
What is a life estate?
An estate in land in which the right to possession is based upon a person’s lifetime. (Don’t get to determine what happens with the lands after they pass)
What is a condominium?
a form of ownership of real property, usually including a building, in which certain units are owned in fee simple and the common elements are owned by the various unit owners as tenants-in-common.
What are the two types of registration for land in Canada?
Registry System: provincial system for registration of interests in land
-Good “chain of title” – trace back present owner’s title to ensure good title
➢Need to establish a good chain of title for 40-year period before present owner is “clear”
➢Onus on prospective purchaser
➢Purchaser may sue seller for damages
Land Titles System: provincial system for the registration of interests in land where the government confirms and warrants the particular interests in land
Title of present owner confirmed and warranted by province
➢To avoid confusion, particular language for different instruments:
○Deed = transfer
○Mortgage = charge
Consists of two databases:
1)Title Index database
2)Property Mapping database
(Compensation comes from the provincial government if they are negligent in the records)
What is a dominant tenement vs servient tenement?
Dominant: parcel of land to which a right-of-way or easement attaches for its better use
Servient: parcel of land to a right-of-way or easement (which an easement or right of way passes through)
What are fixtures with real property?
Fixtures attached to the house, hard to move. Chattels can be removed
Title to Land - what is joint tenancy? What is tenancy-in-common?
Joint: joint holding of equal interests in land. non-divisible, right of survivorship. Interests in land are equal.
In-common: no right of survivorship (shares of property can be divisible). Interest in land need not be equal.
What is an easement?
Access to property through someone else’s property
What is a charge?
secured claim (similar to mortgage) registered against real property
What is a mortgage?
agreement between debtor and creditor in which title to property of debtor is held by creditor as security for the debt.
➢Five distinct characteristics:
1.Transfers title of property to mortgagee (bank)
2.Mortgagor (individual) retains possession until debt is paid
3.Proviso that entitles mortgagor to reconveyance (sale) upon default.
4.Mortgagor obliged to protect and maintain property while debt unpaid
5.Terms that permit mortgagee to terminate mortgagor’s rights if they default payment
What are the two types of mortgage?
Legal: first mortgage of real property whereby owner of land in fee simple transfers title of the property pledged as security to creditor
➢On condition that the title will be re-conveyed when the debt is paid
Equitable: An equitable mortgage is a loan secured by property where the borrower uses their property as collateral (equity) without transferring ownership, and it’s created informally or when the formalities for a legal mortgage aren’t met.
Four important terms of contractual in nature mortgage for the owner (mortgagor)?
•Pay mortgage in accordance with terms
•Pay taxes or other municipal assessments
•Insure the premises (for building or structures)
•Not to commit waste and to repair property if any damage should occur
What are the rights of the mortgagor (the owner)?
➢Entitled to remain in possession of mortgaged property during term of mortgage
➢Comply with terms and conditions
➢If mortgagor defaults, mortgagee entitled to take action for possession or payment
➢Demand a re-conveyance of title or discharge of mortgage when mortgage paid in full
What is the acceleration clause?
clause in a debt instrument (e.g. mortgage) that requires payment of the balance of the debt on the happening of a specific event, such as default on an installment plan
What are the options if mortgage cannot correct payment default?
•Power of sale - Clause that allows mortgagee to sell or lease if mortgagor in default
•Foreclosure - Court issues an order, extinguishes all rights of the mortgagor in the property, mortgagor has right to redeem, during a period of time given by the court
•Judicial sale - Mortgagee may apply to court for possession, payment, and sale of the property, Property sold and proceeds distributed:
oFirst: payment of mortgage
oSecond: Payment of claims of subsequent encumbrances
oThird: surplus to mortgagor
➢Usually sold by tender or public auction
•Possession of the property - When default occurs: Mortgagee has right to possession of the mortgaged premises
➢If leased, mortgagee may displace the lessor and collect rents payable by tenants (Rents must be applied to payment of mortgage)
What are the options for the mortgagee if the mortgagor defaults in payment?
• Power of sale
•Foreclosure
•Judicial sale
•Possession of the property
What is a” charge “?
a secured claim (similar to a mortgage) registered against real property under the Land Titles System.
What is fee simple?
fee simple” means complete and absolute ownership of a property. It grants the owner exclusive rights to use, sell, or transfer the property, subject only to limitations like taxes, zoning laws, and building restrictions.
