Law

Question 1

RE Law draws from four places. Name them

Answer 1

Statutes: Provincial and Federal
Jurisprudence: Court decisions
Doctrines: Legal texts written by legal community
Customs: Unwritten Rules

Question 2

6 possible ways to acquire an immovable

Answer 2

Purchase
Exchange
Gift
Succession
Giving in Payment
Acquisitive prescription

Question 3

Case law (define and name the hierarchy to follow)

Answer 3

Refers to all past decisions made by courts

Highest court in country (supreme court of Canada)
Second-level courts
Trial courts

Question 4

6 ways to acquire a property

Answer 4

Purchase
Exchange
Gift
Giving in Payment
Succession
Acquisitive Prescription

Question 5

Types of succession

Answer 5

Legal (deceased did not leave a will and legal heirs determined by Civil Code)

Testamentary (Will designates the person(s) to whom they bequeath their property

Question 6

Forms of wills

Answer 6

Holograph will (written entirely by testator and signed by lien, must be probated by court of law) Probated = validation of the signature and legal capacity of the person

Notarial law (signed before a notary “en minute” in the presence of a witness, does not need to be probated)

Will made in the presence of witnesses (written by testator (or 3rd party for them in front of the latter) in the presence of 2 witnesses, must be probated by court of law)

Question 7

Heirs vs legatees

Answer 7

Heirs inherit without a will, Legatees inherit with a will

Question 8

4 conditions of acquisitive prescription

Answer 8

Peaceful (no threat of violence toward real owner)
Continued (at least 10 years)
Unequivocal (no doubt, ambiguity or uncertainty exists regarding the possessor’s situation)
Public (must exist in the eyes of third parties, public can see possessor carry out acts of ownership and property tax account is registered in the possessor’s name)

Question 9

Name the types of rent

Answer 9

Gross rent least (monthly amount is fixed)

Net lease (Lessee responsible for a portion of opex, base rent (fixed amount) + additional rent (for opex, maintenance, insurance, etc)

Percentage rent lease (specific to multi-tenant retail locations (malls), base rent + % of income)

Question 10

3 Matrimonial Regimes

Answer 10

Community of property (Before July 1, 1970)
Partnership of Acquests (After July 1, 1970)
Separation as to property

Question 11

3 types of protective supervision

Answer 11

Tutorship (partial and temporary incapacitation)
Curatorship (Total and permanent)
Adviser

Question 12

Types of immovable property

Answer 12

By nature (by definition immobile in its natural state (soil, plants, permanent structures and constructions) or movables incorporated with an immovable that lose their individuality and ensure the utility of the immovable (doors, windows, staircases))

By attachment or joinder (Permanently physically attached movables that do not lose their individuality (TV antennas, Light fixtures, above-ground pools))

By the object to which they are attached (real rights in the immovable as well as actions to assert such rights or to obtain possession of immovables)

By determination of the law (hypothecs on present and future rents and hypothecs on indemnities paid under insurance contract covering rents)

Question 13

3 ways to put mobile home on market

Answer 13

Mobile home + land sold by same owner (BCS/PP)
Mobile home + land leased by same owner (Residential rental form)
Mobile home sold or leased but land belongs to someone else (mobile home forms)

Question 14

3 components of the right of ownership

Answer 14

Usus: right to use and enjoy a property

Fructus: right to collect fruits and revenue produced by property

Abusus: right to dispose of, hypothecate, sell, lease or give away property

Question 15

Dismemberments of rights of ownership

Answer 15

Usufruct

Use

Servitudes

Emphyteusis

Question 16

Superficies

Answer 16

Each owner has full, distinct ownership; of the buildings (superficiary) and of the soil (held by subsoil owner)

Question 17

Declaration of co-ownership consists of

Answer 17

Act constituting co-ownership
Description of the fractions
By-laws of the immovable

Question 18

How do you convert a building into a divided co-ownership?

Answer 18

Consult an architect to establish costs of individualization of services

Have cadastral redivision done by a land surveyor to establish private and common portions

Prepare declaration of co-ownership with a notary

If the building has had a rental unit in the last 10 years, there is a 4th step that is obtaining authorization from the Administrative Housing Tribunal

Question 19

When must you use pre-contract?

Answer 19

If the following 3 criteria are met

Immovable, whether it is already constructed or still to be constructed, is for residential use

Seller is either the builder or developer of the immovable

Buyer is a natural person who intends to occupy it personally

Question 20

Buyer vs seller choose notary

Answer 20

Buyer:

Buyer pays sale price in cash
If a hypothec is required to pay seller in cash, creditor may impose the choice of the notary on the borrower

Seller:

Buyer pays part of sale price in cash and takes over the existing hypothec
Buyer pays part cash and seller finances balance of sale price

Question 21

Law classifies contracts according to 6 features

Answer 21

Adhesion (e.g. service contract with Hydro-Quebec) vs Negotiated contract (brokerage contract)

Unilateral (PP before seller’s acceptance) vs Bilateral (accepted PP)

Onerous (deed of sale) vs Gratuitous (donation)

Commutative (brokerage contract) vs Aleatory (insurance policy)

Instantaneous performance (property sale) vs Successive performance

Consumer (purchase of a washing machine)

Question 22

Conditions of formation of contract

Answer 22

Consent

Qualities of consent (must be free and enlightened)

Defects of consent (errors, fraud, fear or lesion)

Legal capacity to contract

Prestation to be performed

Question 23

What is tacit renewal?

Answer 23

Lessee continues to occupy for more than 10 days after expiry of lease without opposition from lessor. Renewal is then for 1 year or for term of initial lease, if it was less than a year, on the same conditions

Question 24

Changes or work to the dwelling

Answer 24

1. Notice: nature of work, start date, estimated duration, compensation, temporary evacuation of lessee (3 months before work), no evacuation (10 days before work)
2. Compensation: for temporary evacuation, equal to the reasonable expenses of evacuated lessee, payable on date of evacuation
3. Dispute: Housing Tribunal, lessee’s refusal to evacuate premises temporarily, suspension of work if application made by lessee

Question 25

Access and visit of dwelling

Answer 25

Lessor may require access to unit. May not access unit in lessee’s absence unless major emergency (fire, major water leak, etc) - Visit by a new lessee - Upon receiving notice of non-renewal - Permission to display signs that the unit is for rent - Visits between 9am and 9pm in the presence of the lessor and the lessee - Visit by a potential buyer - 24h prior notice required - Visits in the presence of lessor and lessee - Verification of state of dwelling - 24h prior notice required - Visits in the presence of lessor and lessee - Minor work to be done in the dwelling - 24h prior notice - Work between 7am and 7pm

Question 26

Reasons to repossess immovable

Answer 26

Lessor must be a natural person and the sole owner of the immovable, or the undivided co-owner of the immovable with their spouse to whom they are married or in a civil union For personal use For use by a parent or a child For use by a parent or a relative, for whom the lessor is the main support For use by the spouse, for whom the lessor is the main support, following a separation, divorce or dissolution of a civil union

Question 27

Reasons for eviction

Answer 27

Dividing the dwelling Substantially enlarging the dwelling Changing the destination of the dwelling

Question 28

70yo no repossession rule

Answer 28

May not repossess or evict if: Lessee or lessee’s spouse is 70yo or older, has occupied the dwelling for at least 1 year, and has income equal to or less than that qualifying lessee or spouse for a dwelling in low-rental housing - This exception is subject to one exception - If lessor is 70 or older and wishes to repossess the dwelling as a domicile for themselves, if the beneficiary of the repossession is 70 or older, or if the lessor is an owner-occupant 70 or older and wishes to have a beneficiary less than 70 yo reside in same immovable as themselves

Question 29

Reasons for resiliating a lease

Answer 29

Lessor’s request - Payment of rent delayed by more than three weeks - Frequent delay in payment of rent causing serious injury to the lessor - Dwelling becomes unfit for habitation Lessee’s request - Dwelling becomes unfit for habitation - Allocation of low-rent housing - Inability to occupy a dwelling due to a disability - Senior admitted to a long-term care facility - Safety of the lessee or a child is at risk due to violence of a spouse, former spouse or third person Only two cases allow resiliation of lease without Tribunal’s intervention - Lessee abandons dwelling without any reason and takes their movable effects with them - Lessee, without notifying lessor, abandons dwelling because it is unfit for habitation

Question 30

Suretyship (or personal guarantee)

Answer 30

Guarantee that may be required by a creditor to further guarantee the performance of an obligation Benefit of discussion makes it possible for the surety to compel the creditor to consider the debtor’s property before demanding payment from them Benefit of division allows surety to ask the creditor to divide their remedy between the sureties, when several persons have provided sureties for the same debtor in respect of the same debt Both these benefits can be waived

Question 31

Order of priorities for prior claims

Answer 31

Legal fees Outstanding seller’s claim Retainer’s claim State claims Property taxes - Since they have a prior claims ranking attached to immovable, they remain with the immovable, regardless of owner

Question 32

Cultural Heritage Act

Answer 32

Serves to protect all forms of cultural heritage Government agencies: Conseil du Patrimoine Culturel du Quebec (consultative agency, provide recommendations to the Ministre de la Culture et des Communications) and Ministre de la Culture et des Communications is the official designated to apply the law Legal status of heritage assets: Classification (When an immovable is classified, Minister’s authorization must be sought to make certain modifications, such as restoring, demolishing and transporting) and Heritage immovable (Once building recognized, owner has to submit a request for authorization to carry out certain modifications) System of orders put in place to allow minister and municipalities to prevent a greater threat tot he property

Question 33

Environment quality act

Answer 33

Seller responsible for decontamination if a contaminant has escaped or has been buried there (ESA Study PP condition if unsure) Protection policy for lakeshores, riverbanks, littoral zones and floodplains

Question 34

Aeronautics Act

Answer 34

Federal airport zoning regulations impose restrictions on height of structures, height of trees, breeding of certain birds and use of equipment employing radio frequencies

Question 35

Act respecting the preservation of agricultural land and agricultural activities

Answer 35

Law states that part of QC’s territory is an agricultural zone (green zone). Rest of territory is referred to as white zone Owner of an immovable in green zone may only use it for agricultural purposes - Must obtain prior authorization from Commission for the protection of the Agricultural Territory of Quebec if wish to use for other purposes

Question 36

Different laws regarding non-residents

Answer 36

Taxation Act concerning the sale of an immovable by a non-canadian resident. Capital gains tax must be paid by the buyer in the event of a default by the seller To protect buyer, seller not resident of Canada must obtain from provincial and federal governments a certificate of compliance authorizing sale of immovable. Amount to be withheld will be indicated on the certificates Act respecting the acquisition of farm land by non-resident - authorization from commission de protection […] agricole - Purchase cannot be made without authorization - Include clause to this effect in PP

Question 37

Transfer of immovables subject to welcome tax and exemptions

Answer 37

- Sale of immovable - Deed of gift of an immovable - Exchange of immovable - Declaration of transmission in connection with the transfer of an immovable - Sale under judicial authority - Immovable rental whose term exceeds 40 years - Emphyteusis and assignment of the rights of the empyteutic lessee Exempt: - Transfer to ascendant/descendant in the direct line, including spouse, parents, child, grandchild, etc. - Does not apply to siblings - Even if a situation is exempt, municipalities may still apply a supplementary right

Question 38

Elements required to constitute a housing complex

Answer 38

(2 or more) immovables situated near one another Immovables comprising together more than 12 dwellings Immovables administered jointly by the same person or by related persons pursuant to the Taxation Act Immovables that have an accessory, a dependency, or part of the structure, except a common wall, in common (pool, playground, exercise room, etc) Sale of immovable part of a housing complex requires prior authorization of the Administrative Housing Tribunal

Question 39

Cases where GST/QST apply

Answer 39

Sale of a new immovable Sale of commercial or industrial immovable, new or existing Sale of vacant plot of land if it constitutes income for its owner conducting business Immovable that has undergone major renovations

Question 40

Elements engaging a person's liability

Answer 40

Fault - Someone must be responsible for misfortune and must be able to prove Damage - Fault must have caused damage or harm to others (physical, moral or material) Causal link - What caused the damage? was damage caused as a redult of the fault?